Abstract

Keywords

Statelessness; undocumented; children; education; South Africa; international law.

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1 Introduction

Various pieces of legislation deal with the right to education. 1

 Yeukai ND Mahleza. LLB (UNILIM) LLM (Uni of Notre Dame) LLD (UNISA). Lecturer, Constitutional Law and Human Rights, University of Pretoria, South Africa. Email: ynd.mahleza@up.ac.za. ORCiD: https://orcid.org/ 0000-0001-8494-3134.

 Mahlatse I Maake-Malatji. LLB (UNILIM) LLM LLD (UCT). Senior Law Lecturer, Constitutional Law, North-West University, Potchefstroom. South Africa. Email: Mahlatse.MaakeMalatji@nwu.ac.za. ORCiD: https://orcid.org/0000-0002-4494-1916.

1 Other relevant legislation dealing with documented and undocumented children in South Africa include the Children's Act 38 of 2005, the Births and Deaths Registration Act 51 of 1992, and the South African Citizenship Act 88 of 1995 (the Citizenship Act), and the South African Schools Act 84 of 1996 (SASA).

Furthermore, section 28(1)(a) provides that every child has the right to a name and nationality from birth. Section 28(1)(a) is of interest in this paper because it provides for the right to nationality, which is proven through documentation such as birth certificates and identity documents which stateless and undocumented children do not possess. They do not possess identification documents which are required by national educational policies to register at schools, 3

3 GN 2342 in GG 19377 of 19 October 1998 (National Admission Policy for Ordinary Schools of 1998).

As will be discussed below, the researchers posit that the Immigration Act 13 of 2002 (the Immigration Act) contains provisions that are detrimental to stateless and undocumented children. The Constitution accentuate the child's interests, showing them to be of paramount importance in every matter concerning the child. The concept contained in the Constitution, namely that of a child's best interests, is of paramount importance as it is also cemented in international and/or regional instruments such as the Convention on the Rights of the Child (CRC) and the African Charter on the Rights and Welfare of the Child (ACRWC). Article 4(1) of the ACRWC importantly provides that in "all actions concerning the child undertaken by

any person or authority the best interests of the child shall be the primary consideration." Accordingly, this shows how essential it is to protect the right to education for stateless and undocumented children despite the children having nationality and identification issues. Despite the existence of various laws applicable to children's rights in South Africa, challenges are experienced in relation to access to education for stateless and undocumented children. 4

4 The concepts "stateless" and/or "undocumented", though they have different meanings, will be used interchangeably throughout the article. The paper refers to undocumented children because they are at risk of becoming stateless.

The challenges faced by undocumented or stateless children do not end with basic education but continue to the time when they must register at institutions of higher learning. For example, at the matric level such children are unable to register with the Department of Basic Education (DBE) in order for them to write the national exams and obtain a National Senior Certificate. 5

5 SAHRC 2019 https://www.sahrc.org.za/index.php/sahrc-media/news-2/item/1976-media-statement-sahrc-s-application-tojoin-undocumented-learners-litigation-to-be-heard-in-grahamstown-high-court 1.

2 The international normative framework

This section examines how international and regional law addresses the right to education. While some instruments guarantee everyone's right to an education, others apply only to certain groups such as children, refugees or immigrants. This study examines instruments that guarantee this right with the understanding that a reference to children would include stateless and undocumented children.

2.1 The right to basic education in international and regional law

The right to education is acknowledged in many human rights instruments. These instruments broadly emphasise that it is in the best interest of every child to exercise the right to education. Equality is the core foundation in providing the right to education, and no child must be discriminated against on the basis of the child's legal status. South Africa is a party to some of the instruments providing for the right to education. For example, the International Covenant on Economic, Social and Cultural Rights (ICESCR) 6

6 See Articles 13 and 14 of the ICESCR.

Africa (the Maputo Protocol of 2003) (Article 12). 8

8 See Article 12 of the Maputo Protocol of 2003.

Article 13(2)(a) of the ICESCR provides that "[p]rimary education shall be compulsory and available free to all." Article 13(1) stipulates that "education shall be directed to the full development of the human personality and the sense of its dignity, and shall strengthen the respect for human rights and fundamental freedoms." Article 2(2) stipulates that the rights that are pronounced in the ICESCR shall be practised free from all forms of discrimination such as national or social origin, birth, or other status. Furthermore, Article 10(3) guarantees in the relevant parts that "[s]pecial measures of protection and assistance should be taken on behalf of all children and young persons without any discrimination for reasons of parentage or other conditions." As a result, the South African Government should comply with and fulfil its obligations under these instruments as provided for in sections 39 and 233 of the Constitution.

Governments violate the rights of learners by applying standards stipulating who should fully exercise the right to education. 9

9 SAHRC 2019 https://www.sahrc.org.za/index.php/sahrc-media/news-2/item/1976-media-statement-sahrc-s-application-tojoin-undocumented-learners-litigation-to-be-heard-in-grahamstown-high-court 3-4.

The international legal instruments examined above provide insight into the importance of the right to education. Therefore, the policies and regulations related to the right to education must be clear. This is to avoid different interpretations resulting in the violation of the right by educational institutions and any stakeholders involved with undocumented and stateless learners. 12

12…… See s233 of the Constitution. Also see SAHRC 2019 https://www.sahrc.org.za/index.php/sahrc-media/news-2/item/1976-media-statement-sahrc-s-application-tojoin-undocumented-learners-litigation-to-be-heard-in-grahamstown-high-court 9.

To the extent that some of the policies and practices experienced by the undocumented and stateless learners from the South African Government do not conform to the provisions of sections 39 and 233 of the Constitution, the South African Government has failed to comply with the international human rights standards related to the right to education. It is the authors' view that if the South African Government, especially through the DBE and Department of Home Affairs (DHA) continues to show a lack of concern in providing solutions, this translates into an uncertain future for the children affected and their immersion in a cycle of poverty-stricken generations. The contention made in this regard is in support of the removal of barriers hindering stateless and undocumented children from enjoying the fruits of the right to education.

In addition to the points made above, it is the authors argument that every child should be able to enjoy the right to education, notwithstanding the child's nationality. Accordingly, the enjoyment of the right to education should be an absolute right that every child should be able to exercise, notwithstanding the child's nationality, whether documented and/or stateless; and whether in the context of basic education or institutions of higher learning.

2.2 The right to education for stateless children through the ACRWC

A closer look at the provisions of the ACRWC in relation to stateless children guides the discussion towards Article 6, which pronounces the right to

nationality and birth registration. Of interest and particularly linked to stateless children is the wording of subsection 4, which stipulates as follows:

States Parties to the present Charter shall undertake to ensure that their Constitutional legislation recognize the principles according to which a child shall acquire the nationality of the State in the territory of which he has been born if, at the time of the child's birth, he is not granted nationality by any other State in accordance with its laws.

Failure by any state to apply Article 6 would lead to the child being stateless with the consequences of not being afforded the rights guaranteed to nationals. While the right to education is provided for in the ACRWC, it is made available for every child and this means that whether the child is stateless or not, the child must be afforded the right. Furthermore, the child may not be discriminated against while the child exercises this right. In the case that the child encounters a situation that may hinder him/her from exercising any rights provided for, the ACRWC takes a step further and emphasises that any person or authority must consider the best interest of a child when making decisions related to that child. Read together, these provisions stipulate that when an issue related to a stateless child's education arises and a right is affected, the "best interest of the child" principle will be activated.

3 The normative guidance on the right to basic education in South Africa

Sections 39(1) and 233 the Constitution convey the understanding that the Bill of Rights shall be interpreted in accordance with international law. This means that international law provides details about the nature of the right to education. The ICECSR calls for the right to education to be immediately realised. 14

14 CESCR 1999 https://www.refworld.org/pdfid/4538838c22.pdf (CESCR General Comment No 13) paras 31, 32. See also CESCR 1990 https://www.refworld.org/docid/4538838e10.html (General Comment No 3) para 1.

Two of the relevant regulations and policies in South Africa include the National Admission Policy for Ordinary Schools of 1998 (National Admission Policy), and the South African Schools Act 84 of 1996 (SASA). The National Education Policy Act 27 of 1996 governs educational policies. According to this Act, the Minister of Education has the authority to enact educational policy in terms of sections 3(4) and 7. The National Admission Policy provides for documents that are required for admission and also provides that no student will be unfairly discriminated against. 17

17 Sections 9 and 15 National Admission Policy for Ordinary Schools of 1998 read with ss 19-21 (for the documents required) and s 5 of the SASA.

The use of the word "may" in section 15 of the National Admission Policy refers to the conditional admission of students pending their final admission upon the parents ensuring "that the admission of the learner is finalised within three months of conditional admission" through the submission of the required documents. 19

19 On 10 February 2021 there was a call for comments on the National Admission Policy for Ordinary Schools of 1998 which includes changes such as removing words like "may". Documents such as asylum seeker visas or refugee visas have been included, but the final stages of the policy had not been reached at the time this paper was written; see GN R38 in GG 44139 of 10 February 2021. Also see SAHRC 2019 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 6-7.

Despite the existence of provisions not allowing unfair discrimination when admitting undocumented learners into schools, undocumented learners still struggle to be admitted. It is argued that in cases where a child is found without documents, the assumption must be that the child is a refugee or is stateless and must be admitted into school. This is aligned with the provisions of section 44 of the Immigration Act, which stipulate in the relevant parts that "any person whose status or citizenship could not be ascertained, cannot be prevented from receiving services or performance 'to which illegal foreigners and foreigners are entitled under the Constitution or any law.'" 20

20 Also see SAHRC 2019 https://www.sahrc.org.za/index.php/sahrc-media/news-2/item/1976-media-statement-sahrc-s-application-tojoin-undocumented-learners-litigation-to-be-heard-in-grahamstown-high-court 7.

rural areas, and whose birth was not correctly captured or not yet captured. For those that are migrants and undocumented or are stateless for various reasons, they should be afforded their right to education, as the right is provided for without excluding any child on the basis of the child being documented.

3.1 The position of stateless children in South Africa

This section discusses the definition of a child and who a stateless child is and contextualises the categories that undocumented children may fall under, considering their risk of becoming stateless and their status having not been ascertained in terms of the Immigration Act. It further contextualises the place of the four guiding principles on the rights of the child, with guidance from the ACRWC.

3.1.1 Defining the term stateless child

Before we define the term stateless child, it is prudent to understand the definition of a child and the rights a child has. Article 2 of the ACRWC defines a child as "every human being below the age of 18 years". The CRC also has a similar definition in Article 1. Both the CRC and the ACWRC not only define who a child is but they explain their rights too. Four essential principles form the foundation of children's rights, which must be seen as rights and as guides to practice. They are also interrelated, cannot be used in isolation, and one cannot be applied without considering the other three. 21

21 Humanium date unknown https://www.humanium.org/en/the-guiding-principles-of-the-childrens-rights-convention/; see also Committee on the Rights of the Child 2009 https://www2.ohchr.org/english/bodies/crc/docs/AdvanceVersions/CRC-C-GC-12.pdf (General Comment No 12) para 68.

(a) Non-discrimination, which ensures that all children without exception have equal access to their rights.

(b) The best interests of the child guarantee that "in all actions concerning children the best interest of the child shall be a primary consideration."

(c) Life, survival and development ensure that the child's rights to economic and social well-being are fully protected, in addition to the right to life.

(d) Inclusion and participation maintain that all children have the right to express their thoughts, as well as the right to have those viewpoints recognised. 22

22 Humanium date unknown https://www.humanium.org/en/the-guiding-principles-of-the-childrens-rights-convention/; see also General Comment No 12 1-7.

In relation to the use of the above principles when it comes to decisions and actions that affect a child in either the public or the private sphere, the child's best interests must be assessed and taken into account as the primary consideration. When it comes to children's rights "there is no hierarchy of rights in the Convention; all the rights provided for therein are in the 'child's best interests' and no right could be compromised by a negative interpretation of the child's best interests." 23

23 Committee on the Rights of the Child 2013 https://www2.ohchr.org/English/bodies/crc/docs/GC/CRC_C_GC_14_ENG.pdf (General comment No 14) paras 1-7.

Article 1 of the 1954 Convention Relating to the Status of Stateless Persons (1954 Convention) defines a "stateless person" as a person who is not considered a national by any State under the operation of its law. On the other hand, an "undocumented person" is someone with no government-issued proof of identity (for example, a birth certificate, an identity document or a passport) either because no attempt was made to apply (for any reasons) or the document was lost but can be reapplied for. 27

27 LHR 2021 https://static.pmg.org.za/210309Presentation_by_LHR_on_Stateless ness.pdf.

The South African Government is a party to neither the 1954 Convention nor the 1961 Convention on the Reduction of Statelessness (1961 Convention). In 2011 the South African Government pledged to become a party to the 1954 and 1961 United Nations (UN) Conventions on Statelessness. 28

28 LHR 2021 https://static.pmg.org.za/210309Presentation_by_LHR_on_Stateless ness.pdf.

by its pledge to the Global Refugee Forum (GRF) in 2019. 29

29 LHR 2021 https://static.pmg.org.za/210309Presentation_by_LHR_on_Stateless ness.pdf.

As undocumented children are at risk of becoming stateless and their status may be irregular, it is important to note that the concept is "driven by multiple distinct factors and affects South African[s], migrant, and stateless persons simultaneously". Therefore, "[u]ndocumented learners can be part of the following categories": 33

33 SAHRC 2019 https://www.sahrc.org.za/index.php/sahrc-media/news-2/item/1976-media-statement-sahrc-s-application-tojoin-undocumented-learners-litigation-to-be-heard-in-grahamstown-high-court 2.

i. South African children whose birth has not been, or is unable to be, registered in terms of the Births and Deaths Registration Act in South Africa

ii. stateless persons

iii. migrants in an irregular situation (Emphasis added.)

Based on the guiding principles on how all rights related to children should be interpreted and implemented, it is posited that it is in the best interest of the stateless and/or undocumented children to be afforded the right to education without any form of discrimination, especially based on their nationality or lack of documentation. These are the principles that states should consider in all issues related to stateless and undocumented children. Other scholars support the best interest principle and it has been noted that "this principle serves as a gap-filling tool that reconciles the violation of the rights of a child with the expected solution to the violation ... clarifies approaches and meanings of the rights under a given law and gives a mediating principle to resolve conflicts among competing rights." 34

34 Nanima and Durojaye 2019 LDD 281.

4 A critical analysis of the courts in relation to access to basic education by stateless children

This section evaluates how courts deal with basic education and stateless children. The discussion shows the challenges that they experience which they attempt to resolve by approaching the courts.

4.1 The challenges to the right to education for stateless and undocumented children in South Africa

There is a broad swathe of literature discussing the role of the 1954 and 1961 Conventions in addressing issues arising from statelessness. This study is not grounded on such discussions but closely looks into the realities and challenges of statelessness as it impacts on access to education. The issue of statelessness seems to be an ongoing problem, and there are few ameliorative mechanisms for addressing the challenges attached thereto. Hence, there appears to be room for improvement.

According to Tigere, 35

35 Tigere 2015 De Rebus 41.

In the case of the Governing Body of the Juma Musjid Primary School (Juma Musjid), 38

38 Juma Musjid para 37.

It is important ... to understand the nature of the right to 'a basic education' under section 29(1)(a). Unlike some of the other socio-economic rights, this right is immediately realisable. There is no internal limitation requiring that the right be 'progressively realized' within 'available resources' subject to 'reasonable legislative measures'. The right to a basic education in section 29(1)(a) may be limited only in terms of a law of general application which is 'reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom'. This right is therefore distinct from the right to 'further education' provided for in section 29(1)(b). The state is, in terms of that right, obliged, through reasonable measures, to make further education 'progressively available and accessible'. (Italics added only for purposes of emphasis.)

Relying on the Juma Musjid case, the authors ask the question: what does it help for a child to be given the right to basic education which is

disconnected from the right to further education? How does does this right assist the children after they have completed their basic education, as they would not have access to higher education in the country that gave them the right to basic education? Presumably, the net effect of all this is to disregarded that educating our children should be the most urgent priority. 39

39 Mandela Nelson Mandela by Himself 129.

Most importantly, as has been held in case law, children "are the soul of our society", and if they are failed, "then we have failed as a society". 40

40 SS v Presiding Officer of the Children's Court: District of Krugersdorp 2012 6 SA 45 (GSJ) para 1.

Arguably, identification documents must be provided before the child is registered. In the 2020 case of Centre for Child Law v Minister of Basic Education (the Centre for Child Law), it was highlighted that "there are over a million children who have been admitted subject to the condition that they will be excluded should they not produce the requisite documents." 42

42 Centre for Child Law para 65.

Eventually the High Court found that restricting undocumented children's access to education was against the Constitution, which guarantees the rights to equality, dignity and a basic level of education, and further asserts

that children's best interests come first. 44

44 Centre for Child Law.

The Constitutional Court on appeal made an order that the learners be readmitted to school. The history of the Centre for Child Law case resonates with the argument that despite the Constitution and other laws providing for the right to basic education for all children, stateless and undocumented children struggle to access their right to basic education. When a court is approached to decide whether to allow learners to access their right to basic education and in doing so the court makes an unfavourable order or an order that is not in the best interest of the learners, as the High Court did initially in this case, 49

49 Centre for Child Law v Minister of Basic Education (ECG) (unreported) case number 3317/2018 of 10 December 2018.

The stateless and undocumented children's only hope, in this case, then came from the Constitutional Court, which overruled the High Court's first ruling. If it were not for the Constitutional Court's order, which was followed by a second High Court judgment allowing the children to attend school, the children would still not be admitted. It is also contended that children who lack legal status and are stateless may not even benefit from a foundational

education when they reach adulthood because they will not be able to find employment, open bank accounts and access healthcare, and will not be able to avoid being detained frequently, among other things. 50

50 Mahleza Interplay of Citizenship 23-26.

Besides facing the danger of being stateless, the children are beset by two problems: first, being abandoned by their parents and, second, being denied the right to basic education on the basis that they lack a piece of paper identifying who they are and lack the means, themselves, to acquire identification documents. 51

51 Centre for Child Law para 65.

In addition, other challenges include the problem of undocumented mothers who live and give birth to children in South Africa and are unable to register the births of stateless and undocumented children. 52

52 Centre for Child Law para 5.

[5]. Sections 39 and 42 of the Immigration Act 13 of 2002 do not prohibit the admission of illegal foreign children into schools and do not prohibit the provision of basic education to illegal foreign children.

[6]. The first, second and third respondents are interdicted and restrained from, in any manner whatsoever, removing or excluding from schools, children, including illegal foreign children, already admitted purely by reason of the fact that the children have no identity document number, permit or passport, or have not produced any identification documents. 54

54 Centre for Child Law para 135.

Furthermore, it is argued that while the right to education for stateless and undocumented children should be defended, more should be done for them to become documented and regularised. Fighting for their education is only a part of the solution, which is in some ways counterproductive if they are not going to be accepted as citizens or if their status is not regularised because they will not be able to work or even enrol in a tertiary institution. 55

55 Mahleza Interplay of Citizenship 24.

The challenges of statelessness and being undocumented are not unique to non-nationals but affect many South Africans as well. 56

56 LRC 2015 http://lrc.org.za/art_external/pdf/2015_06_12_Submission_UN_Arbitrary _deprivation_of_Nationality.pdf11.

DHA. 57

57 LRC 2015 http://lrc.org.za/art_external/pdf/2015_06_12_Submission_UN_Arbitrary _deprivation_of_Nationality.pdf 11; Mahleza Interplay of Citizenship 25.

To comply with the "international law norms for access to nationality in international treaties to which several SADC States are signatories", 59

59 Muller 2017 http://www.southernafricalitigationcentre.org/wp-content/uploads/ 2017/08/GOAL-16-Book-Muller.pdf.

In addition, there are conversations on inclusive education. South Africa has adopted an inclusive education policy to address barriers to learning in the education system. 62

62 Dalton, Mckenzie, Kahonde 2012 Afr J Disabil 1-7.

The 1951 Convention Relating to the Status of Refugees makes provision for states to consider providing documentation to the beneficiaries of the Convention to enable them to exercise their rights, such as the right to

education. Furthermore, the Children's Act applies to all children, and this places direct responsibility for meeting the socio-economic and educational needs of refugee, stateless and undocumented children on the South African Government. 67

67 Serfontein 2019 Obiter 131.

There is a need for children to realise the role played by education in their lives. It is doubtful that any child may reasonably be expected to succeed in life if s/he is denied the opportunity of an education. 68

68 Centre for Child Law para 4 following remarks articulated by the United States Supreme Court case of Brown v Board of Education of Topeka 347 US 483 (1954) 493.

Arendt argues that it is not just "a question of statelessness but one of common humanity and the responsibility we have to one another as human beings who share the world in common." 71

71 Arendt discussed in Hill 2018 https://medium.com/quote-of-the-week/arendt-on-citizenship-d9e23beb4aad. Also see Minister of Home Affairs v Jose 2021 6 SA 369 (SCA) para 1 where the Supreme Court of Appeal cited this.

In addition to the points made in the paragraph above, the courts in South Africa have noted the practice of the DHA of failing to recognise the applicants' citizenship and to give effect to the rights emanating from it without providing adequate reasons for this denial in a manner consistent

with the superior court orders and procedural requirements. 74

74 Chisuse v Director-General, Department of Home Affairs 2020 6 SA 14 (CC) (Chisuse) para 84.

[43] In terms of the 1995 Citizenship Act, citizenship by birth was acquired in the following ways. First, any person who, immediately prior to the commencement of the 1995 Citizenship Act was a citizen by birth, remained a citizen by birth under the new legislation. 77

77 Section 2(1)(a) of the Citizenship Act 88 of 1995.

In addition, the Constitutional Court held as follows: 82

82 Chisuse para 44.

[44] A person could acquire citizenship by descent in the following ways. First, if they were a citizen by descent immediately before the 1995 Citizenship Act commences, they would remain so. 83

83 Section 3(1)(a) of the Citizenship Act 88 of 1995 states that "[a]ny person ... who, immediately prior to the date of commencement of this Act, was a South African citizen by descent ... shall, subject to the provisions of subsection (2), be a South African citizen by descent."

outside of South Africa and they had subsequently been adopted by a South African citizen in terms of the Child Care Act and their birth was registered. 86

86 Section 3(1)(b)(iii) of the Citizenship Act 88 of 1995.

It is against this background that we see the impact that statelessness has on the right to education. The significant causes of statelessness are the lack of the registration of births and the issuing of birth certificates. 87

87 Sustainable Development Knowledge Platform 2019 https://sustainabledevelopment.un.org/sdg16; Muller 2017 http://www.southern africalitigationcentre.org/wp-content/uploads/2017/08/GOAL-16-BookMuller.pdf 140; and the African Commission on Human and Peoples' Rights 2014 https://www.refworld.org/pdfid/54cb3c8f4.pdf 5.

In some cases, the DBE has used its lack of resources as an excuse not to admit stateless or undocumented children into schools. 90

90 Centre for Child Law para 29 also referred to as the Phakamisa judgment; also see in general cases about a lack of resources discussed in Nanima and Durojaye 2019 LDD 270-298.

choices they did not make, as education ensures a dignified self-sufficient future, and the lack thereof fosters a culture of poverty and dependency. 93

93 SAHRC 2019 https://www.sahrc.org.za/home/21/files/SAHRC%20Position%20 Paper%20on%20Access%20to%20a%20Basic%20Education%20for%20Undocumented%20Learners%20in%20South%20Africa%20-%2012092019.pdf. Also see Centre for Child Law v Minister of Basic Education (ECG) (unreported) case number 3317/2018 of 10 December 2018 (this case illustrates how a court can make a decision that is not in the best interest of undocumented learners) and a discussion by Buttle 2019 https://ohrh.law.ox.ac.uk/protecting-the-right-to-a-basic-education-for-undocumented-learners-an-update-from-the-legal-resources-centre/, discussing the Centre for Child Law case, which is also known as the Phakamisa judgment.

5 The executive's position considering the interpretative declaration by the government following the ratification of the ICESCR

This section analyses the executive's position considering the interpretative declaration by the government following the ratification of the ICESCR. It is important to note the executive's compliance or non-compliance in this regard. The section further interrogates whether the South African Government meets international law standards on human rights in relation to the executive's position on education for stateless and/or undocumented children. It also critically examines whether the policies violate the children's rights and the position of the jurisprudence in that regard.

The South African Government’s declaration that in ratifying the ICESCR it would "give progressive effect to the right to education, as provided for in Article 13(2)(a) and Article 14, within the framework of its National Education Policy and available resources" was not spared of criticism. 94

94 Education declaration mars ICESCR ratification by Section 27 21 Jan 2015

available at http://section27.org.za/2015/01/education-declaration-mars-icescr-ratification/, cited in Nanima and Durojaye 2019 LDD 276.

to create policies that might violate rights, basing their reasons on declarations such as this one, which is not consistent with the Constitution.

5.1 Whether South Africa meets international law standards on human rights

The existence of the legal gaps and practical impediments that prevent stateless and undocumented learners from fully exercising their right to education 98

98 SAHRC 2019 https://www.sahrc.org.za/home/21/files/SAHRC%20Position%20 Paper%20on%20Access%20to%20a%20Basic%20Education%20for%20Undocumented%20Learners%20in%20South%20Africa%20-%2012092019.pdf.

Compliance and enforcement become difficult to implement if in deciding cases involving undocumented or stateless children the judiciary interprets the law in such a manner as to exclude them. This observation emanates from the outcome of the Centre for Child Law v Minister of Basic Education, 100

100 Centre for Child Law v Minister of Basic Education (ECG) (unreported) case number 3317/2018 of 10 December 2018.

It is the thesis of this paper argues that when educational policies, rules, and regulations exclude undocumented or stateless children, it proves that states are failing to comply with international and regional standards providing for the right to education. Different treaties 103

103 Convention on the Rights of the Child (1990) in Arts 28 and 29, the International Covenant on Economic, Social and Cultural Rights (1966) in Arts 13 and 14 and s 29 of the Constitution.

Quite clearly there are gaps with respect to immigration control and education policies or laws of South Africa. These gaps include uncertainty on the procedures to follow in matters concerning stateless and undocumented learners. These gaps contribute to the difficulties in obtaining children's documentation and often lead to litigation, as may be seen in the cases discussed above. Hence, more problems in terms of compliance are created by these existing gaps. The failure by the Government to fulfil its obligation, as provided for by the Constitution, exacerbates these challenges. It is therefore suggested that the DHA should work together with civil society groups to eradicate the existing impediments

that hinder access to education. The same can be said about the DBE. It could also work with civil society groups with the support of the DHA to develop a guide to help all parties involved in issues relating to education. This is not impossible, as an example may be drawn from the recent activity of "[t]he Children's Institute and the Legal Resources Centre, with the support of the [South African Social Security Agency], [who] have developed a guide to help parents and caregivers without Home Affairs documentation to understand the grant application process and to navigate the barriers to access." 108

108 Van Schalkwyk, Nyathi and Proudlock 2023 https://www.dailymaverick. co.za/article/2023-04-25-new-guide-released-on-how-to-apply-for-sassa-grants-for-children-without-birth-certificates/.

As noted above, the right to education is immediately realisable. Therefore, South Africa cannot rely on the defence of limited resources as a basis for excluding stateless and undocumented children. 109

109 As confirmed by the Constitutional Court in the case of Juma Musjid para 37.

Some of the provisions in the National Admission Policy and the Immigration Act, and practices such as utilising immigration control in a manner that violates the exercise and protection of fundamental rights are a violation of the right to education. Such practices have created fear and resulted in the conclusion that South Africa has not fully complied with its obligation to realise the right to education for every child, because through such practices it excludes stateless or undocumented learners. 112

112 SAHRC 2019 https://www.sahrc.org.za/home/21/files/SAHRC%20Position%20 Paper%20on%20Access%20to%20a%20Basic%20Education%20for%20Undocumented%20Learners%20in%20South%20Africa%20-%2012092019.pdf 11-15.

Government must address the inequalities and discriminatory conditions undocumented and stateless learners face.

As noted above, South Africa's non-compliance and exclusionary tendencies are found in section 42(1) of the Immigration Act, which provides that it is a criminal offence to "aid, abet, assist, enable or in any manner help" an "illegal foreigner" or a "foreigner" "in a manner that violates their status, including by providing instruction or training to him or her, or allowing him or her to receive instruction or training." 113

113 See s 44 of the Immigration Act 13 of 2002, which refers to "any illegal foreigner, or any person whose status or citizenship could not be ascertained." The fact that a person's status or citizenship cannot be ascertained may make the person fall under the category of having an irregular status. Also see the term "undocumented" as explained in this paper.

The provisions in the SASA do not exclude any learner based on documentation. In this regard, this paper notes that there is no documentation requirement in the sections for accessing basic education. The Committee on Economic, Social and Cultural Rights (CESCR) regards the birth registration certificate requirement as possible indirect discrimination against persons who do not have the certificates. 115

115 CESCR General Comment No 13.

In support of the above observations it is noted that other international bodies 116

116 CESCR General Comment No 13 para 34; CESCR 2005 https://www.refworld.org/docid/42dd174b4.html (CESCR General Comment No 6) para 41; and the Committee on the Protection of the Rights of All Migrant Workers 2011 https://www.refworld.org/docid/4ed3553e2.html para 57.

bodies and that provisions of these treaties have become part of customary international law means that South African is bound to provide the right of access to basic education to everyone, and that it violates these rights by refusing such access. 118

118 In this regard, see the International Covenant on Economic, Social and Cultural Rights (1966) in Arts 13 and 14 and the Convention on the Rights of the Child (1990) in Arts 28 and 29.

In summary, South Africa must address the issues faced by undocumented and stateless learners "in accessing basic education as a result of multiple barriers, including a lack of clarity in the legal and policy framework, legal gaps, administrative and socio-economic barriers, funding models for schools, the lack of awareness of applicable laws and policies, and the lack of separation between the provision of basic services and immigration control." 119

119 SAHRC 2019 https://www.sahrc.org.za/home/21/files/SAHRC%20Position%20 Paper%20on%20Access%20to%20a%20Basic%20Education%20for%20Undocumented%20Learners%20in%20South%20Africa%20-%2012092019.pdf 8.

Another aspect worth considering is the creation of substantial information enlightening people (the beneficiaries and officials) on the rules, regulations,

procedures and rights concerning the admission of stateless or undocumented students. 122

122 SAHRC 2019 https://www.sahrc.org.za/home/21/files/SAHRC%20Position%20 Paper%20on%20Access%20to%20a%20Basic%20Education%20for%20Undocumented%20Learners%20in%20South%20Africa%20-%2012092019.pdf 21.

6 Conclusion and recommendations

It is against this background that it has been observed that there are many gaps the State needs to address in the educational, legal and policy framework. It is concluded that since it has been established that the right to education serves as an essential right that assists in eradicating poverty, every child should be able to fully exercise it despite their legal status or whether they are documented or not. 123

123 SAHRC 2019 https://www.sahrc.org.za/home/21/files/SAHRC%20Position%20 Paper%20on%20Access%20to%20a%20Basic%20Education%20for%20Undocumented%20Learners%20in%20South%20Africa%20-%2012092019.pdf.

In addition to all the observations and findings that have been highlighted throughout this article, it is suggested that the rules and regulations for birth registration should be revisited and amended to accommodate undocumented and stateless children. If this ineffectiveness is not addressed, South Africa will be non-compliant with the international instruments that have been discussed in this paper.

As noted above, the DBE must ensure that when policies and processes related to education are updated, issues such as access to writing Matric Examinations and access to results for undocumented and stateless children must be addressed. This information should be distributed to all stakeholders. 126

126 SAHRC 2019 https://www.sahrc.org.za/home/21/files/SAHRC%20Position%20 Paper%20on%20Access%20to%20a%20Basic%20Education%20for%20Undocumented%20Learners%20in%20South%20Africa%20-%2012092019.pdf 20.

information must be disseminated to all schools and district offices. Furthermore, the information in the awareness material should also be considered when the National Admission Policy is updated with specific reference to information such as: allowing the admission of learners and access to school despite a lack of documentation; schools should not threaten removal from classes based on a lack of documentation; there is to be no exclusion from school post the lapsing of the period specified for the completion of admission; and any circular from the Department impeding the admission to schools of undocumented, stateless and migrant children should be withdrawn. 127

127 SAHRC 2019 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 19; also see CCL 2022 https://pmg.org.za/files/221115Submission_-_Centre_for_ Child_Law.docx.

Lastly, South Africa should make provision to implement educational policies and practices aligned with the existing international and regional treaties and should comply with its obligation to provide the right to education, for example by eradicating any policies and practices preventing stateless and undocumented learners from accessing education, by ensuring that administrative barriers such as the requirement of identification documentation are removed, and by affording stateless and undocumented learners prospects of formal and informal learning.

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List of Abbreviations