RADAR

UNDOCUMENTED CHILDREN DO HAVE THE RIGHT TO BASIC EDUCATION

BY JOS VENTER | JOHANNESBURG

A NEW school year has started in South Africa. Thousands of learners commenced their schooling and others returned in continued pursuit of their dreams. This glorious event should be celebrated. Unfortunately, circumstances arise where the right to basic education is undermined
and learners run the risk of being denied to it. For example, Gayton McKenzie, mayor of the Central Karoo District and president of the
Patriotic Alliance, has repeatedly expressed on Twitter that undocumented children “should not be allowed at all in schools in South Africa”.

McKenzie’s views, which are misinformed, xenophobic and contrary to the law, were well received and supported by his Twitter followers and other anti-foreigner users. This shows not only a lack of understanding of what the right to basic education entails, but also that the xenophobic sentiment that dominates South Africa’s social discourse, severely threatens the livelihood of undocumented children.

The right to basic education is a fundamental human right, recognised in several international and regional legal instruments. The United Nations
Committee on Economic, Social and Cultural Rights (1999) regards education as “the primary vehicle by which economically and socially marginalised adults and children can lift themselves out of poverty and obtain the means to participate fully in their communities”. Former President Nelson Mandela described it as “the most powerful weapon you can use to change the world”.

Integral empowerment

The right to basic education for every learner in South Africa is entrenched in section 29(1)(a) of the Constitution. On the face of it, the eight-word provision might seem nugatory, but when you delve into the true meaning of it, you find an empowerment right that plays an integral role in realising all other human rights.

In a landmark Juma Musjid judgment (2011), the Constitutional Court affirmed that the right to basic education is unqualified and immediately realisable in nature. This means that every learner within the country enjoys an unfettered right to basic education.

South Africa’s rich education jurisprudence, developed since the Juma Musjid judgment, informs us that this right must be enjoyed on equal footing, regardless of race, language, religion, disability and status.

In December 2019, the Eastern Cape Division of the High Court delivered judgment in the Centre for Child Law and Others versus
the Minister of Basic Education and Others (2019), a case concerning undocumented learners who were precluded from unconditionally
attending public schools based on their status.

The court upheld the challenge to the policy that precluded the unconditional admission of undocumented learners to public schools, and re-emphasised that the right to basic education is “unqualified, unconditional and applies to everyone” and can never be limited to “everyone upon the production of a birth certificate or provided they are in the country legally”.

The constitutional guarantee of an unfettered right to basic education must be realised to ensure that the self-esteem, self-worth and potential for human fulfilment of every learner, especially the most vulnerable and marginalised among them, are protected.

Misinformed views

Gayton McKenzie’s expressions come at a time when xenophobic sentiments and associated violence are drastically increasing in South Africa. The worsening state of xenophobia and South Africa’s lack of reproach to it was recently criticised by Human Rights Watch in its World Report of 2023.

The report, which analyses human rights conditions across the globe, notes that despite efforts to curb xenophobia, there has been little tangible improvement in protecting the rights of all migrants who reside in South Africa.

Most alarming is the fact that xenophobic sentiments and violence, fuelled predominantly by members of anti-foreigner groups and politicians, are often based on misinformed and inaccurate views and opinions—such as those expressed by McKenzie.

When society blindly follows these misinformed and inaccurate views and opinions, which disregard human rights, we run the risk of devaluing
fundamental rights that have long been fought for.

Threats aimed specifically at denying the fundamental rights of the most marginalised and vulnerable human beings—which include
undocumented migrants and their children— should not be taken lightly.

It is our duty to uphold the constitutional promise of a society based on equality, human dignity, social justice and the advancement of the human rights of everyone who lives in our beautiful country.

* Jos Venter is a human rights lawyer with an interest in children’s rights, social justice and public governance.