Nature of the Case
In 2016, the Minister of Basic Education in South Africa issued a circular announcing that children unable to produce birth certificates would be barred from attending public school. The circular sought to exclude thousands of children from school and had indeed begun to have the effect that some children were removed from school or were denied access on application to enter. As a result, 37 children, who were only some of the applicants involved in this matter, brought an application against the Minister of Basic Education. They stated that their constitutional right to a basic education was violated by the circular, as well as the national Admission Policy for Ordinary Public Schools and the Immigration Act 13 of 2002. Accordingly, they sought declaratory relief pronouncing the Admission Policy and Immigration Act invalid. Ultimately, the court held that the highlighted provisions in the Admission Policy and Immigration Act 13 of 2002 were unconstitutional and ordered the respondents to accept alternative proof of identity when learners cannot provide birth certificates or proof of study permits. The court reasoned that denying undocumented children access to education was inconsistent with the Constitution, which provides rights to equality, dignity, and basic education, and further declares children’s best interests to be of paramount importance. Additionally, the court determined that the Immigration Act applies only to adults seeking higher education, and therefore does not interfere with children’s right to basic education.
