Abstract

Keywords

Basic education; admission to school; public schools; immigrants; undocumented children; South Africa.

……………………………………………………….

1 Introduction

The right to basic education is a fundamental human right guaranteed to everyone under section 29(1)(a) of the Constitution of the Republic of South Africa, 1996 (hereinafter Constitution). 1

 Bridget Joyce Machaka. Bachelor of Laws (LLB), Master of Laws (LLM), Doctor of Laws (LLD/PhD). Post-Doctoral Research Fellow, Stellenbosch University, South Africa. (Faculty of Law). E-mail: bmachaka@sun.ac.za. ORCiD: https://orcid.org/0000-0002-4188-0345.

1 Section 29(1)(a) of the Constitution of the Republic of South Africa, 1996 (the Constitution).

In response to these challenges, the Basic Education Laws Amendment Act 32 of 2024 (hereinafter BELA Act) amending some provisions of the South African Schools Act was signed into law on 13 September 2024, marking a significant legislative step towards dismantling the legal barriers faced by undocumented children. 5

5 Basic Education Laws Amendment Act 32 of 2024 (the BELA Act).

steps through these recent legal developments to effectively address the challenges undocumented children face in gaining admission to public schools. To achieve this, the paper will identify normative standards relevant to the protection of undocumented children from international and regional frameworks. These standards will serve as a benchmark for evaluating South Africa's legal developments and their impact on undocumented children's access to education. The article adopts a doctrinal research approach that involves analysing and interpreting various legal resources, such as international instruments and their general comments, the Constitution, legislation, case law, policies, circulars and regulations. 8

8 Hutchinson and Duncan 2012 Deakin LR 84.

2 Decontextualising the term "undocumented"

In this context, undocumented children are children born to South African parents who have, for a variety of reasons, been unable to obtain birth certificates or any other form of identity documents in terms of the Births and Deaths Registration Act. 9

9 Births and Deaths Registration Act 51 of 1992.

3 Exploring the contextual meaning of basic education

Basic education is a term used in the South African legal framework and is regarded as equivalent to the term primary education under international law. 12

12 Section 29(1)(a) of the Constitution and Art 28(1)(a) of the Convention on the Rights of the Child (1989).

attendance from the first school day of the year in which such a Iearner reaches the age of seven years until the last school day of the year when such a learner reaches the age of fifteen years or the ninth grade, whichever occurs first. 13

13 Section 3(1) of the South African Schools Act 84 of 1996 (the Schools Act).

The reference to primary education poses the challenge of what exactly is meant by primary education and whether it is the same as basic education. The United Nations Committee on Economic, Social and Cultural Rights explained the proper interpretation of the term "primary education" during its 21st session in 1990. It explained the term as follows:

The Committee obtains guidance on the proper interpretation of the term primary education from the World Declaration on Education for All which states: "The main delivery system for the basic education of children outside the family is primary schooling. Primary education must be universal, ensure that the basic learning needs of all children are satisfied, and take into account the culture, needs and opportunities of the community" (art. 5). "[B]asic learning needs" are defined in article 1 of the World Declaration. While primary education is not synonymous with basic education, there is a close correspondence between the two. In this regard, the Committee endorses the position taken by UNICEF: "Primary education is the most important component of basic education." 16

16 CESCR General Comment No 13: The Right to Education UN Doc E/C.12/1999/10 (1999) (CESCR General Comment No 13).

Both terms, "primary education" and "basic education", are used to ensure the fulfilment of fundamental educational rights, with a focus on ensuring free and compulsory education for all children. While basic education can extend beyond primary schooling to include other stages of learning, primary education remains the central focus of international efforts to guarantee that every child receives at least the minimum necessary education for functional literacy, numeracy and societal participation. 17

17 UNICEF 2000 https://www.right-to-education.org/sites/right-to-education.org/

files/resource-attachments/UNICEF_Defining_Quality_Education_2000.PDF 3-4.

The next section of this article examines the relevant legal framework in the context of determining whether the right to basic education extends to undocumented children in South Africa.

4 The scope and ambit of basic education under international law

International and regional frameworks protecting the right to basic education serve as benchmarks for assessing State compliance with globally recognised standards. Key instruments such as the International Covenant on Economic, Social, and Cultural Rights (ICESCR), the Convention on the Rights of the Child (CRC) and the African Charter on the Rights and Welfare of the Child (ACRWC) explicitly affirm children's right to basic/primary education. 18

18 Article 13(2)(a) of the International Covenant on Economic, Social and Cultural Rights (1966) (the ICESCR); Art. 28(1)(a) of the Convention on the Rights of the Child (1989) (the CRC); Art. 11(3)(a) of the African Charter on the Rights and Welfare of the Child (1990) (the ACRWC).

Article 13(2)(a) of the ICSECR provides that primary education must be compulsory and free for all children. A compulsory education system must ensure that all children, regardless of their legal status, can attend school without fear of discrimination or exclusion. 19

19 CESCR General Comment No 13 paras 51 and 57.

The 4A framework developed by Tomaševski is the cornerstone of the CESCR General Comment No 13 on the right to basic education. 23

23 CESCR General Comment No 13 para 55.

(a) ensure universal access at an appropriate age, progression through the system and completion of education cycles by all children;

(b) prohibit discrimination on the grounds of nationality, gender, race, and other status, and actively promote the inclusion of vulnerable children;

(c) address administrative obstacles such as onerous documentation requirements. 25

25 SAHRC Charter of Children's Basic Education Rights 34.

Furthermore, Article 28(1)(a) of the CRC requires States Parties to make primary education compulsory and free. In the context of the article, emphasis is placed on one of the four general principles of the CRC - non-discrimination. 26

26 Article 2(1) of the CRC.

Lastly, Article 11(3)(a)-(b) of the ACRWC obliges States Parties to provide free and compulsory basic education to all children. Article 11(2) states that

education must be directed towards the development of children, including their personalities, their talents and their mental and physical development. 30

30 Article 11(2)(a)-(h) of the ACRWC.

A discussion of the nature and scope of basic education in South Africa follows.

5 The scope and ambit of basic education in South Africa

Section 29(1)(a) of the Constitution guarantees the right to basic education to everyone. 31

31 Section 29(1)(a) of the Constitution states: "Everyone has the right - (a) to a basic education, including adult basic education."

central facilitative right that is not qualified by expressions such as "available resources", "progressive realisation", or "reasonable legislative measures" which apply to other socio-economic rights enshrined in our Constitution. 37

37 SAHRC Charter of Children’s Basic Education Rights 12.

The right to basic education can be limited only in terms of section 36 of the Constitution, the general limitation clause. 38

38 Section 36 of the Constitution.

a right refers to its essence, that is, the "essential element without which a right loses its substantive significance as a human right". 40

40 Coomans Clarifying the Core Elements of the Right to Education 7.

Through this lens, the article explores the current status of South Africa's response to the obligation to provide basic education and to make it accessible to undocumented children, as well as the related legal developments. Firstly, the article interrogates the court's interventions in determining whether the right to basic education extends to undocumented children.

6 A review of the legal changes related to undocumented children's admission

6.1 Judicial approach

Centre for Child Law v Minister of Basic Education

In Centre for Child Law and 37 Children 42

42 Centre for Child Law v Minister of Basic Education 2020 1 All SA 711 (ECG) (the Centre for Child Law and 37 Children).

Clause 15 of the Admission Policy requires that parents must provide official birth certificates for their children when applying for admission of their children to public schools, and if they are unable to produce such birth certificates the children may be admitted conditionally for only three months. 46

46 Clause 15 of the Admission Policy.

In a robust judgment, the court found clauses 15 and 21 of the Admission Policy invalid and inconsistent with the Constitution. 50

50 Centre for Child Law and 37 Children para 93.

Conversely, sections 39 and 42 of the Immigration Act were declared constitutional, but the court pointed out that these provisions should be interpreted in a manner consistent with the Constitution, meaning that they should not be read in a way that prevents children from receiving basic education in schools. 53

53 Centre for Child Law and 37 Children paras 127-128.

education. 54

54 Centre for Child Law and 37 Children para 124.

Drawing inferences from the foregoing, the judgment carries significant legal implications for undocumented children in South Africa, reinforcing their entitlement to basic education without prejudice. As highlighted by the Abidjan Principles, Overarching Principle 1, under the principles of equality and non-discrimination, States bear the obligation to respect, protect, promote and fulfil the right to education to all individuals within their jurisdictions. 56

56 Overarching Principle 1 of the Abidjan Principles: Guiding Principles on the Human Rights Obligation of States to Provide Public Education and to Regulate Private Involvement in Education (2019).

6.2 Legislative approach

6.2.1 Department of Basic Education Circular 1 of 2020

Given that the Constitution and the case law guarantee a robust, immediately enforceable right to basic education for undocumented children, this must be mirrored and effectuated through corresponding education laws and policies. Immediately after the Centre for Child Law and 37 Children judgment, the Minister of Basic Education issued the Department of Basic Education Circular 1 of 2020, which addressed the admission criteria for undocumented children. 58

58 Department of Basic Education Circular 1 of 2020.

(a) Accept an official birth certificate, but in the absence of that-:

(b) Accept alternative proof of identity such as an affidavit or sworn statement deposed to by the parent, caregiver or guardian of the learner wherein the learner is fully identified.

(c) Amend the unconstitutional provisions of the Admission Policy with immediate effect. 59

59 Department of Basic Education Circular 1 of 2020 paras 1.2(c) and 2.3.

Steps have been taken to implement the Centre for Child Law and 37 Children's Judgment, with some degree of success. The next section reviews some of the measures undertaken to enforce the judgment.

6.2.2 Basic Education Laws Amendment Act 32 of 2024

As indicated earlier, the BELA Act has been signed into law. However, the implementation of sections 4 and 5 concerning admission and language policies has been delayed due to ongoing disputes surrounding these provisions. 60

60 Presidency of the Republic of South Africa 2024 https://youtu.be/Cl62rjYJOmM.

Building on this crucial amendment, the BELA Act outlines specific procedures for the submission of documents during the admission process while also making provisions for exceptional cases. 63

63 Section 1(n) and 4(b)(1A) of the BELA Act.

Section 4, amending section 5 of the South African Schools Act, 1996, provides:

(1) A public school must admit, and provide education to, learners and must serve their educational requirements for the duration of their school attendance without unfairly discriminating in any way. 65

65 Section 4(a)(1) of the BELA Act.

(1A) Any learner whose parent or guardian has not provided any required documents, whether of the learner or such adult person acting on behalf of the learner, during the application for admission, shall nonetheless be allowed to attend school, and the principal of the school must advise the parent or guardian to secure the required documents. 66

66 Section 4(b)(1A) of the BELA Act.

The BELA Act represents a crucial and positive advancement in South African education law. Its primary objective is to eliminate any form of discrimination against learners, particularly undocumented children, whose rights were previously unacknowledged under the Schools Act. 67

67 Aims as provided in the Preamble of the BELA Act.

6.2.3 Admission Policy for Ordinary Public Schools GN 38 in GG 44139 of 10 February 2021 - call for comments

On 10 February 2021, as part of its efforts to implement the Centre for Child Law and 37 Children judgment, the Department of Basic Education released a draft amendment to the Admission Policy for Ordinary Public Schools (hereinafter Proposed Amended Admission Policy), inviting public comment. 71

71 Call for Comments on the Admission Policy for Ordinary Public Schools (GN 38 in GG 44139 of 10 February 2021) (the Proposed Amended Admission Policy).

dependent on the appropriateness and the regulation of the policy itself. 73

73 Sibanda and Beckmann 2021 South African Journal of Education 8.

Clause 15 of the new draft provides that:

15. When a parent applies for admission of a learner to an ordinary public school, the parent must present an official birth certificate (with an identity number) of the learner or a written affirmation or sworn written statement (in the form of an Affidavit) about the age of a learner to the principal of the school.

15.1. If the parent is unable to submit the birth certificate or has only submitted a written affirmation or sworn written statement about the age of a learner, the learner must be admitted.

15.3. If the parent fails to submit the birth certificate of a learner, the principal must admit the learner and refer the matter to the Head of Department concerned. The Head of Department must hold the parents accountable to acquire birth certificates for their children. The Head of Department may liaise with the nearest office of the Department of Home Affairs for assistance relating to the matter. It remains the primary responsibility of parents to acquire birth certificates for their children. 74

74 Clauses 15, 15.1 and 15.3 of the Proposed Amended Admission Policy.

It can be observed that even though the draft policy requires learners to submit identification documents, it explicitly allows for the submission of an affidavit as an alternative. The acceptance of an affidavit as the sole document for school admission represents a significant advancement in improving educational access for undocumented children. This measure directly responds to the court's ruling, which highlights the necessity of accepting alternative proof of identity, such as an affidavit or sworn statement. 75

75 Department of Basic Education Circular 1 of 2020 paras 1.2(c) and 2.3.

In addition to that, clause 23 further provides that,

The right to education extends to everyone within the boundaries of South Africa, the nationality and immigration status is immaterial. All schools are advised to admit learners and serve their education requirements irrespective of whether the learner or parent of a learner does not produce documents listed in paragraphs 15, 17 to 20 of this policy. 79

79 Clause 23 of the Proposed Amended Admission Policy.

It can be inferred that this revision was designed to address concerns related to sections 39 and 42 of the Immigration Act, as discussed in Centre for Child Law and 37 Children. The proposed amendments to the Admission Policy deserve commendation for their clarity and responsiveness to these legal challenges. Since ratifying the ICESCR, whose Committee mandates equal access to education regardless of immigration status, the state has made significant progress. 80

80 CESCR General Comment No 13 paras 51 and 57.

On the other hand, despite these laudable advancements, several areas still require further attention. The following discussion provides some areas for concern and potential improvement recommendations.

7 Shortcomings and proposed remedial strategies

7.1 A revamp of the provisions of the Immigration Act

Argumentatively, the court's ruling in Centre for Child Law and 37 Children does not adequately address the stance of sections 39 and 42 of the Immigration Act. This argument is supported by the Immigration Act Regulation, published in GN R413 in GG 37679 of 22 May 2014, which explicitly denotes that a "learning institution" includes a "school contemplated in section 1 of the South African Schools Act" - referring to basic education. 85

85 Regulation 1(c) of the Immigration Regulations (GN R413 in GG 37679 of 22 May 2014).

provides detailed guidelines for implementing the Immigration Act. 86

86 Section 7 of the Immigration Act.

While the court provided its interpretation of sections 39 and 42, it is argued that these provisions need revision to eliminate any remaining ambiguity. Amending the language in the Immigration Act, notwithstanding the court's interpretation, remains crucial to ensure clarity, consistency and legal certainty. 90

90 Shcherbanyuk et al 2023 Juridical Tribune 21.

The Argentina Immigration Act specifies that:

Under no circumstances shall a foreign national's illegal migration status preclude enrolment as a student in a public, private, national, provincial, or municipal educational institution at the elementary, secondary or higher levels. Officials of the educational institutions shall provide orientation and guidance regarding the corresponding procedures to correct illegal migratory status. 92

92 Article 7 of the Argentina Immigration Act Law 25.871.

The Mexican Migratory Act explicitly states that:

Migrants may access public and private education services, independent of their migratory status and in accordance with the applicable regulations and

legal provisions … With respect to the provision of educational and medical services, no administrative act will establish restrictions on foreigners that are more extensive that those generally established for Mexicans. 93

93 Article 8 of the Mexican Migration Law of 2011.

The aforementioned migratory laws clearly outline their position on the admission of undocumented children, thus providing a benchmark for South Africa.

7.2 Legal systemic uniformity

Secondly, while the primary focus of this article is on undocumented children, it is essential to examine the broader legal systemic flaws embedded within recent school admissions policies and legislation. Although these provisions do not explicitly target undocumented children, they perpetuate a cycle of exclusion for all children. If these legal inconsistencies are not rectified, the ongoing shortcomings will continue to entrench exclusionary practices, inevitably leading to a surge in protracted litigation and judicial intervention. It is, therefore, important to ensure that the legal and policy frameworks governing the admission of learners are comprehensive and uniform, leaving no child at risk of exclusion.

The admission requirements outlined in the BELA Act and the Proposed Amended Admission Policy differ considerably, leading to a conflict between these two frameworks. Although both legal frameworks generally require similar types of documentation when a person applies for a learner's admission, the BELA Act introduces additional requirements such as the parents' passports and visas. 94

94 Section 1(n) of the BELA Act: "(b) where both parents of the learner are foreign nationals and hold either permanent residence permits or temporary residence visas, the following documents: (i) the learner’s foreign issued birth certificate; (ii) the learner’s passport; (iii) a study visa or permanent residence permit issued to the learner; (iv) the parents’ passports; and (v) the parents’ temporary residence visas or permanent residence permits".

'where available' 'may' submit any 'one' of the following documents." While these required documents are important, it is crucial to ensure that they are not overly burdensome. Excessive documentation, particularly documentation not directly related to age verification or grade placement, ultimately undermines the goal of inclusive education and the judgments established in Centre for Child Law and 37 Children.

Moreover, the Proposed Amended Admission Policy specifies a requirement for an official birth certificate that includes an "identity number", a condition not addressed in the BELA Act. 98

98 Clause 15 of the Proposed Amended Admission Policy.

7.3 Use of online portals - gatekeeping

Thirdly, in addition to the discrepancies in the drafting of recent developments, another major challenge confronting undocumented children that demands immediate attention is the use of online portals as a gatekeeping strategy for accessing basic education. A significant barrier to basic education for undocumented children arises from the online application portals for school admissions implemented in provinces such as Gauteng and the Western Cape. 104

104 Gauteng Provincial Government 2022 https://www.gauteng.gov.za/ Publications/PublicationDetails/%7Bf9bdd652-1500-4af2-9085-1dc22823de46%7D; Western Cape Education Department 2023 https://wcedonline.westerncape.gov.za/admissions2023-24.

access to schools due to the use of online portals 105

105 Province of the Northern Cape 2023 http://www.northern-cape.gov.za/index.php/component/content/article?id=1610:all-systems-go-for-online-admission-system.

7.4 Beyond policy provisions - privacy and confidentiality

The author respectfully submits that it is imperative that schools maintain the privacy and confidentiality of each learner's documentation status to uphold the rights of undocumented children and foster a secure educational environment. 112

112 Article 16(1) of the CRC and s 14 of the Constitution.

implementation. Under no circumstances should a learner's documentation status be disclosed to external departments, including law enforcement or immigration authorities, even under the guise of assisting the child. Blessed-Sayah has probed the issues that arise when such information is repurposed for immigration enforcement rather than its intended use, highlighting how this shift infringes upon the child's right to privacy. 113

113 Blessed-Sayah Children Moving Across Borders 142-151.

Children's personal data, in particular biometric data, should only be used for child protection purposes, with strict enforcement of appropriate rules on collection, use and retention of and access to, data. The Committees urge due diligence regarding safeguards in the development and implementation of data systems, and in sharing of data between authorities and/or countries. States parties should implement a "firewall" and prohibit the sharing and use for immigration enforcement of the personal data collected for other purposes, such as protection, remedy, civil registration, and access to services. This is necessary to uphold data protection principles and protect the rights of the child, as stipulated in the Convention on the Rights of the Child. 114

114 Joint General Comment No 3 of the CMW and No 22 of the CRC in the Context of International Migration: General Principles UN Doc CMW/C/GC/3-CRC/C/GC/22 (2017) para 17.

Plyler v Doe is a landmark judgment in the United States of America regarding the admission of undocumented children to schools. 115

115 Plyler v Doe 457 US 202 (1982).

It has been suggested that undocumented children's right of access to public education entailed various procedural rights. Schools should not ask about a student's status. They should not treat one student differently from others on the basis of undocumented status. They should further not make inquiries of a student or parent that might expose the undocumented status of either. Schools are not entitled to contact the immigration authorities about any undocumented student. Should a school inadvertently discover the undocumented status of a student, it may not supply such information to the immigration authorities. 116

116 Beiter Protection of the Right to Education 420.

While the government has made commendable strides in meeting its international obligations by facilitating the admission of undocumented children into schools, if the environment to which these children are exposed lacks adequate security and confidentiality, many parents may be disinclined to disclose their own or their children's undocumented status.

This reluctance could ultimately deter them from enrolling their children in school altogether.

8 Conclusion

South Africa's commitment to inclusive education and its adherence to international obligations are evident in its policies, legislation and court rulings that advocate that schools accommodate all learners. The State has made significant legal strides in promoting inclusivity and prohibiting discrimination within the education system. The litigation initiated by the Centre for Child Law and 37 Children has played a pivotal role in clarifying the legal rights of undocumented learners in South Africa. 117

117 Centre for Child Law and 37 Children para 93.

The circulars and policies issued by the Department of Basic Education serve as regulatory guidelines rather than binding legislation. While they provide authoritative direction for schools, they do not hold the weight of an Act of Parliament. 120

120 Lewis 2010 ICT Policy Review 3.

essential to ensuring that undocumented children receive the education to which they are legally entitled. Without these measures, the constitutional and international obligations will remain unfulfilled, and thousands of undocumented children will continue to be denied their fundamental right to education, exacerbating the existing inequalities and social divisions in South Africa.

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United Nations Children's Fund 2000 Defining Quality in Education: A Paper Presented at the Meeting of the International Working Group on Education, Florence, Italy, June 2000 https://www.right-to-education.org/sites/right-to-education.org/files/resource-attachments/UNICEF_Defining_Quality_Education_2000.PDF accessed 3 February 2025

Western Cape Education Department 2023 https://wcedonline. westerncape.gov.za/admissions2023-24

Western Cape Education Department 2023 Admissions 2023/2024 https://wcedonline.westerncape.gov.za/admissions2023-24 accessed 15 January 2024

List of Abbreviations