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Transforming Society

Securing Rights

Restoring Dignity

Human Rights Commission joins application in battle for rights of undocumented pupils


3 July 2019

The South African Human Rights Commission (SAHRC) has been allowed to join as an amicus curiae (friend of the court) in a case fighting for the rights of undocumented pupils to receive a basic education.
The Centre for Child Law launched the application against the Minister of Basic Education in 2017, highlighting the reality of many children being excluded from school because they don't have an identity number, birth certificate, permit or passport.
National laws and policies dictate that certain documents must be handed to schools when enrolling a pupil.
The Eastern Cape High Court in Grahamstown ruled on Tuesday that the SAHRC could join as a friend of the court. The SAHRC said it hoped the legal action would provide clarity.


"Despite guidance having been provided by international human rights bodies confirming that the right is guaranteed to all persons irrespective of documented or legal status, the current legal system in South Africa does not provide adequate protection to such learners," it said in a statement.
'Term 'undocumented' often misperceived'
"Human rights are guaranteed to all persons by virtue of the fact that they are human, and the exclusion of children from accessing a basic education would have devastating implications, not only on the individuals concerned, but on the country and the region as a whole."
SAHRC commissioner André Gaum and research advisor Eden Esterhuizen said in February that the debate around undocumented pupils in South Africa often centred around migration.
"The term 'undocumented' is often misperceived as a consequence of irregular migration, where, in fact, the lack of documentation affects South Africans without birth certificates, stateless people, as well as undocumented migrants," they said.
They explained that most pupils adversely affected by a lack of documentation were poor, black pupils from predominantly rural areas.
"So even where an argument is made around the need to comply with immigration laws, or to put measures in place to stop schools from artificially inflating pupil numbers to receive additional funding, the state’s current position on the matter, quite frankly, has failed to take key considerations into account," they said.
The case is expected to be heard in September.

Source: News24

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The Human Rights Commission is the national institution established to support constitutional democracy. It is committed to promote respect for, observance of and protection of human rights for everyone without fear or favour.

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