Domestic, Eswatini Gisela Sin Gomiz Domestic, Eswatini Gisela Sin Gomiz

Swaziland National Ex-Miners Workers Association v The Ministry of Education and Others (2168/09) [2010] SZHC 258 (19 January 2010) - Eswatini

Background

In March 2009, the High Court of Swaziland ruled that every Swazi child attending primary school had a constitutional right to free education (Section 29(6) of the Constitution as read together with section 60 (8)) and that the Government of the Swaziland had the obligation to provide education free of charge to every child so entitled (Swaziland National Ex-Miners Workers Association and Another v The Minister of Education and Others (335 of 2009) [2009] SZHC 104). They did so in the context of a case involving an urgent application to make free education in public schools available, brought by the Swaziland National Ex-Miners Workers Association (SNEMA), an association of former mine workers and parents of school-aged children. However, the Court declined to require the Government to produce its education policy. On the basis that these declaratory orders had no legal consequences, in June 2009, the SNEMA brought a second case seeking mandatory orders to compel the Government to comply with said right straight away given that the three-year period had expired and that failure to do so amounted to a violation of the Constitution.

Reasoning

The applicants’ case was dismissed. While the Court stated that the right to free education is “positive” in nature in that it requires government action to in order to realise the right, it found that, in response to the declaratory orders of the earlier Court judgment, the respondents had already put in place a Free Primary Education Implementation Plan with a detailed Programme of how they intended to comply with their constitutional obligations with an associated budget allocation. Instead of immediate implementation for all primary aged children, that plan foresaw the progressive implementation of free primary education by means of a staggered approach beginning with grades 1 and 2. 

The Court found that there was no evidence that the Government had resources available at that time to fulfil its constitutional obligation and that the steps taken by the Government to comply with its obligation in an incremental manner were reasonable and satisfactory in view of the limited resources at its disposal.

This decision was appealed to the Supreme Court of Swaziland, which dismissed the appeal in Swaziland National Ex-Miners Workers Association v. The Minister of Education and Others (2 of 2010) [2010] SZSC 35 (28 May 2010), stating that that the decision of the High Court from 19 January 2010 was “pragmatic and appropriate”.

Role of children

There was no direct participation of children in the litigation.

Enforcement and other outcomes

Although the decision was not favourable, by bringing the current case and an earlier case, the applicants put pressure on the Government to make progress on its Constitutional obligation to provide free education to children of primary school age in Eswatini and to provide details on its implementation programme for giving effect to its obligations.

Significance of the case from a CRSL perspective

Although the overall impact of the SNEMA’s cases on children’s access to free primary education in Eswatini is somewhat difficult to gauge, SNEMA’s use of the legal process may prompt others to follow suit.

Country

Eswatini

Forum and date of decision

High Court of Swaziland at Mbabane

January 19, 2010

CRC provisions and other international law provisions/sources

None

Domestic law provisions

Related information

The applicants:

The respondents:

Case documents

Secondary documents

“Ex-Miners Fight for Justice in Swaziland” (Kenworthy News Media February 9, 2011), accessed November 15, 2022

Dlamin M, “Free Education in Doubt as Ex-Miners Run to Court” (Times of Swaziland January 9, 2010), accessed November 15, 2022

Dlamini M, “Ex-Miners Call for Urgent Special Sitting for Appeal” (Times of Swaziland March 9, 2010), accessed November 15, 2022

Kamga SD, “The Legal Battle for the Universal Access to Primary Education in Swaziland” (2019) 52 De Jure Law Journal

van der Berg S and others, “A Report on Out-of-School Children in Eswatini” (UNICEFJuly 2018), accessed November 15, 2022

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