SA's undocumented children have a right to free education, EC high court rules

The basic education department will in future be obliged to provide and fund a basic education to all undocumented children including children of illegal foreigners.

This is the effect of a judgement by a full bench of the Grahamstown high court delivered this morning.

It is estimated that the judgment will affect over one million undocumented children who are either seeking admission to public schools or who have been warned to provide documentation to avoid being excluded.

Eastern Cape Judge President Selby Mbenenge set aside sections of the schools’ admission policy which in any way hindered undocumented children’s access to school.

He also set aside an Eastern Cape education department 2016 circular warning that the department would only fund children at schools who had valid documentation.

Mbenenge said that all provisions of the Immigration Act had to be interpreted to be in line with the constitution. This meant that it had to be read in a way that meant that it in no way prohibited the provision of a basic education to illegal foreign children.

The ground-breaking case which will have national implications kicked off when some 37 children in the Eastern Cape were denied access to school because they had no birth certificates, study permits or passports.

The Centre for Child Law (CCL) and Phakamisa High School in Port Elizabeth, represented by the Legal Resources Centre, set out to challenge all the regulations and laws that inhibited undocumented children from accessing basic education. They successfully argued that they constituted an unjustifiable limitation on children’s constitutional right to access basic education as well as their right to equality and dignity.

Section 37 and the SA Human Rights Commission supported the CCL as amicus curiae (friends of the court) in their argument.

Judge Irma Schoeman and acting Judge SM Mfenyana agreed with Mbenenge.

Provincial education department spokesman Malibongwe Mtima said they had not yet had an opportunity to study the judgment, and to discuss it with their legal team.

He said once they had studied the judgment and discussed it with the other respondents in the matter they would comment full.

The national department had not commented at the time of writing.