Centre for Child Law and Others v. Minister of Basic Education and Others 2840/2017
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.
In early 2016, the Acting Superintendent-General issued a circular that demanded learners present their birth certificates to the school administration. Learners unable to submit their birth certificates would no longer receive funding. This had to effect of forcing schools to exclude undocumented children or to allow them to remain while forcing schools to spread already scarce resources. Although the circular demanded birth certificates, in practice schools also excluded non-national children where they were unable to present permits which allowed them to reside in the country. It was the national Admission Policy for Ordinary Public Schools that contained the requirement that learners must have birth certificates or permits in order to be admitted to school. The Immigration Act 13 of 2002 similarly contained provisions which prevented undocumented learners from accessing schools. Thus, the applicants sought both to set aside the circular as unlawful and unconstitutional and also sought orders as to the constitutionality of certain provisions of the Admission Policy and Immigration Act. Specifically, the applicants challenged the Admission Policy stating that (a) reading section 29(1)(a) with section 28(2)(a) of the Constitution grants “everyone” a basic right to education, regardless of documentation status; (b) the Admission Policy was not within the best interests of the children contrary to section 28(2); (c) the decision was discriminatory within the equality clause of section (9); and (d) it infringed upon the children’s right to dignity under section 10. The court did not find that sections 39 and 42 of the Immigration Act were unconstitutional and unlawful, instead finding that they could be interpreted in line with the Constitution.
Initially, the High Court refused to admit the named 37 learners to public school while litigation was pending. However, in February 2019, the Constitutional Court set aside that order and granted learners their requested interim relief, which enabled them to attend school during the litigation process without having to show identification documents. When the main application was heard, the High Court held the Admission Policy excluding undocumented students from attending public school to be unconstitutional, as described above. The court agreed with the applicants that section 29(1)(a) of the Constitution accords everyone the right to basic education, non-contingent on the production of a birth certificate or one’s immigration status. Next, the court determined section 28(2) of the Constitution, declaring that “[a] child’s best interests are of paramount importance in every matter concerning the child,” encompasses both South African children and non- national children alike. The court also found the Admission Policy to be discriminatory on the basis of documentation status in violation of section 9. Finally, after reading affidavits filed by the affected children describing their feelings of shame, embarrassment, and low self-worth, the court concluded the Admission Policy incompatible with their right to dignity.
The court rejected the respondents’ argument by stating that the language of the Immigration Act applies only to adults attending institutions beyond basic education, and therefore does not forbid undocumented children from attending school. The court’s construction of the Immigration Act is accordingly consistent with the right to basic education in the Constitution.
The court declared the relevant sections of the Admission Policy unconstitutional, deemed it invalid, and declared that the Immigration Act did not prevent undocumented children from being admitted to public school or receiving basic education. In addition, the court ordered the defendants to accept alternative proof of identification for students unable to present a birth certificate, such as a sworn statement deposed by a parent, caregiver, or guardian that identifies the student.
The judgment affirms the right of all children, regardless of their ability to produce a birth certificate, to receive basic education in South Africa. Numerous socio-economic and legislative barriers prevent many parents and guardians from obtaining official documentation for their children. The court order allowing parents and guardians to provide alternative proof of identification alleviates the challenges associated with securing official documentation. Furthermore, the decision emphasizes that education should not be viewed as a privilege based on documentation status, but rather as a right.
For their contributions, special thanks to ESCR-Net members: the Program on Human Rights and the Global Economy (PHRGE) at Northeastern University.