Access to education for non-national children in South Africa
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- What does the law say?
- Do non-South African children have a right to education in South Africa?
- Must non-South African children pay school fees too?
- Do children need an identity document to enroll at a South African school?
- What kind of barriers do non-South African children face in accessing education in South Africa?
- What kind of problems are schools facing in terms of admitting undocumented children?
- What has been done, in the courts, about this, and what was the outcome?
- I have more questions, who can I ask?
What does the law say?
The right to education has been recognised under a number of international conventions and national laws, including in Article 26 of the Universal Declaration of Human Rights, Articles 13 and 14 of the International Covenant on Economic, Social and Cultural Rights, the South African Constitution, the Refugee Act of 1998, and the South African Schools Act of 1996.
Universal Declaration of Human Rights
Article 26 states:
“Everyone has the right to education. Education shall be free, at least in the elementary and fundamental stages. Elementary education shall be compulsory. Technical and professional education shall be made generally available and higher education shall be equally accessible to all on the basis of merit. Education shall be directed to the full development of the human personality and to the strengthening of respect for human rights and fundamental freedoms. It shall promote understanding, tolerance and friendship among all nations, racial or religious groups, and shall further the activities of the United Nations for the maintenance of peace. Parents have a prior right to choose the kind of education that shall be given to their children.”
While South Africa has not ratified this Declaration, it can be used as a guide in the development of universal rights for all in the country.
International Covenant on Economic, Social and Cultural Rights
Article 13 states:
- “The States Parties to the present Covenant recognize the right of everyone to education. They agree that education shall be directed to the full development of the human personality and the sense of its dignity, and shall strengthen the respect for human rights and fundamental freedoms. They further agree that education shall enable all persons to participate effectively in a free society, promote understanding, tolerance and friendship among all nations and all racial, ethnic or religious groups, and further the activities of the United Nations for the maintenance of peace.”
- “(a) Primary education shall be compulsory and available free to all”
Article 14 states:
“Each State Party to the present Covenant which, at the time of becoming a Party, has not been able to secure in its metropolitan territory or other territories under its jurisdiction compulsory primary education, free of charge, undertakes, within two years, to work out and adopt a detailed plan of action for the progressive implementation, within a reasonable number of years, to be fixed in the plan, of the principle of compulsory education free of charge for all.”
South Africa has signed, but not ratified this Convention. As with the Universal Declaration on Human Rights, it can be used as a guide towards achieving rights-based socio-economic jurisprudence in the country.
South African Constitution
While South Africa may not have ratified international conventions and declarations pertaining to the right to education, it has ensconced these in national legislation.
Section 29 of the South African Constitution enumerates to all persons a right to basic education, regardless of age.1 It states:
“(1) Everyone has the right – To a basic education, including adult basic education.”
As with many fundamental rights outlined in the Bill of Rights, many of these are only accessed with valid documentation, as outlined under barriers below, despite the law clearly stipulating that this should not be a barrier to accessing education.
Refugee Act of 1998
Refugees have access to the same educational services as citizens. Section 27 of the Refugees Act of 1998 states that “A refugee – (g) is entitled to the same basic health services and basic primary education which the inhabitants of the Republic receive from time to time.”
South African Schools Act of 1996
The South African Schools Act of 1996 provides further regulation of the education system. It defines the years during which education is compulsory, and outlines a nondiscrimination policy that applies equally to non-South Africans. It also bans any form of additional testing to withhold non-South Africans from enrolling in primary education.
Section 3(1) states “Subject to this Act and any applicable provincial law, every parent must cause every learner for whom he or she is responsible to attend a school from the first school day of the year in which such learner reaches the age of seven years until the last school day of the year in which such learner reaches the age of fifteen years or the ninth grade, whichever occurs first.
Section 5(1) states “A public school must admit learners and serve their educational requirements without unfairly discriminating in any way.”
Section 5(2) states “The governing body of a public school may not administer any test related to the admission of a learner to a public school, or direct or authorise the principal of the school or any other person to administer such test.”
Admissions Policy for Ordinary Public Schools
Section 10 states “A learner is admitted to the total school programme and may not be suspended from classes, denied access to cultural, sporting or social activities of the school, denied a school report or transfer certificates, or otherwise victimised on the grounds that his or her parent:
- is unable to pay or has not paid the required school fees;
- does not subscribe to the mission statement and code of conduct the school; or
- has refused to enter into a contract in terms of which the parent waives any claim for damages arising out of the education of the learner.
Section 19 states “The South African Schools Act, 1996 and this policy apply equally to learners who are not citizens of the Republic of South Africa and whose parents are in possession of a permit for temporary or permanent residence issued by the Department of Home Affairs.”
Section 21 states, “Persons classified as illegal aliens must, when they apply for admission for their children or for themselves, show evidence that they have applied to the Department of Home Affairs to legalise their stay in the country in terms of the Aliens Control Act, 1991 (No. 96 of 1991).”