What has been done, in the courts, about this, and what was the outcome?

In Minister of Home Affairs v Watchenuka, the Court found that prohibition of study for migrant children pending finalisation of their asylum status is in conflict with the Bill of Rights of the Constitution (human dignity) especially as it is a general prohibition without guidelines or case by case considerations.

“Human dignity has no nationality. It is inherent in all people – citizens and non-citizens alike – simply because they are human. And while that person happens to be in this country – for whatever reason – it must be respected, and is protected, by S10 of the Bill of Rights.”

“The freedom to study is also inherent in human dignity for without it a person is deprived of the potential for human fulfilment. Furthermore, it is expressly protected by S29(1) of the Bill of Rights, which guarantees everyone the right to a basic education, including adult basic education, and to further education.”

“But where, for example, the person concerned is a child who is lawfully in this country to seek asylum (there might be other circumstances as well) I can see no  justification for limiting that right so as to deprive him or her of the opportunity for human fulfilment at a critical period, nor was any suggested by the appellants.”

In Mubake v Home Affairs, the Court found that orphaned children who have been separated from their parents should be defined as caregivers of the existing refugee or asylum seeking adults who accompanied them into South Africa. Such children should now be guaranteed asylum or refugee status, and therefore school admission.