Thousands of children across the country face insurmountable barriers in accessing school on a continuous basis as a result of their undocumented status. In line with the current laws and policies, certain documentation must be submitted in order to enroll a child at school, and the failure to submit, or the inability to do so, results in the exclusion of the child.

This phenomenon, which affects South African children whose birth has not been or cannot be registered, stateless children, as well as migrant children in an irregular situation, results in some of the most vulnerable children in our society remaining virtually invisible and exposed to a multitude of dangers. The current policies, the SAHRC has found, unfairly punish the child and hinders their development at what is likely to be a crucial time in their life.

The practice of requiring documentation as a condition for enrolment and access to basic education runs contrary to the spirit and values espoused in the Constitution, and directly violates the obligations of the State in terms of international and domestic human rights standards. While the SAHRC notes that the right to a basic education as contained in section 29(1) of the Constitution is not absolute, given its far reaching implications, any limitation of the right would need to meet a high threshold in order to pass the test of being reasonable and justifiable.

The SAHRC notes that a number of efforts have been made by various state departments with a view of addressing the issues, but remains concerned that existing policies and processes are insufficient to adequately safeguard fundamental rights. In line with its Constitutional mandate to review government policies and make recommendations to the State, the SAHRC has developed a Position Paper with a view of providing guidance on bringing our practice and legal framework in line with the Bill of Rights and international obligations.

The Paper, which makes findings and recommendations on access to school; funding policies; and immigration control can be accessed on its website at the following link: https://www.sahrc.org.za/home/21/files/SAHRC%20Position%20Paper%20on%20Access%20to%20a%20Basic%20Education%20for%20Undocumented%20Learners%20in%20South%20Africa%20-%2012092019.pdf

The issues dealt with in the Position Paper will be heard before the Grahamstown High Court in the matter of Centre for Child Law and 25 others v Minister of Basic Education and 4 others on 18 and 19 September 2019, which matter is anticipated to establish ground-breaking jurisprudence on the right to a basic education and the rights of undocumented persons in South Africa. Members of the media are encouraged to attend the proceedings.

– Ends –

Issued by the South African Human Rights Commission

Gushwell Brooks – Communications Co-ordinator Tel: 082 645 8573 This email address is being protected from spambots. You need JavaScript enabled to view it.  or Alucia Sekgathume Tel: 082 689 2364 This email address is being protected from spambots. You need JavaScript enabled to view it.