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262 Chapter 15
clause enquiry, the shortcomings and challenges of the state school
education system which necessitated the regulation being introduced
becomes a relevant and important consideration in determining
whether the infringement of the applicant’s rights are reasonable and
justifiable.
One of the challenges that faced the Department was that
learners in public school were entering the schooling system underprepared
at the age of 6 and remaining in the system much longer as
a consequence. The state sought to utilise its resources more
effectively by raising its admission age to 7. Given the broader
objectives of narrowing inequality in educational opportunities, the
Department of Education could not reasonably adopt a rule which
would allow children from private institutions to leave school a year
earlier than state schools. 22 If there were important justifications for
the adoption of the rule in public education, then FC section 36 offers
another opportunity for the successful defence of the rule with regard
to independent schools. The State could have also relied on the need,
identified in Van Heerden, to dismantle practices that perpetuate
systemic disadvantage and promote substantive equality.
3.2 Volks v Robinson
Albertyn and Goldblatt’s critique of Volks 23 employs three lines of
argument: it resorts to formal equality, endorses a moral
conservatism and fails to understand the constraints on women’s
choices within intimate relationships. Volks, in my opinion, is a much
more difficult case than Jordan. 24 The right to choose, particularly in
the private sphere of one’s life, is often central to one’s happiness in
a society such as ours. There must be a substantial state interest to
justify the setting aside of conscious decisions made by individuals
within the private domain.
The question is whether such intervention is justified in a life
partnership, where one or both partners consciously chose not to
marry. Volks was about being able to access adequate maintenance
from the estate of a partner. Given the nature of this case, the
exclusion of vulnerable partners could amount to unfair
discrimination. However I would leave it to the legislature to
determine the criteria that would have to be established to
demonstrate vulnerability or need. If vulnerability is not established,
then there may be another adequate justification to interfere with a
22
It must be noted that the High Court found that the State had failed to provide
any compelling evidence in favour of justification of this regulation.
23 Volks NO v Robinson & Others 2005 5 BCLR 446 (CC).
24
Jordan & Others v The State (Sex Workers Education and Advocacy Task Force &
Others as Amici Curiae) 2002 6 SA 642 (CC), 2002 11 BCLR 1117 (CC).