Cape Town - The Centre for Child Law is concerned that migrant learners are being deliberately sidelined, and claims that, according to article 26 of the Universal Declaration of Human Rights, everyone has the right to education.
The centre says that provincial education departments have battled to place some migrant pupils in schools for 2023.
This follows after Patriotic Alliance leader Gayton McKenzie said children of undocumented foreigners should not be placed in public schools ahead of those born to South African parents.
Speaking to Newzroom Afrika, Liesel Muller, a senior attorney at the Centre for Child Law, said the Constitution of South Africa was clear that everyone was entitled to basic education.
“Not only does international law guarantee the right to education, but even section 9 of our Constitution tells us that everybody is entitled to basic education. And there is case law which tells us that everyone, including a child who for whatever reason does not have the required legal documents to be in the country, must be able to go to school.”
“This is clear in law, and there is a recent case, which the Centre for Child Law collaborated on with the Legal Resources Centre, involving an Eastern Cape school called Phakamisa Senior Secondary School where there were children who were not admitted. The court found that every child must be admitted to school in line with the Constitution.”
“Following that case, the Department of Basic Education released a directive confirming that, so the position in law is not complicated. And in that case, when we interviewed the children ourselves, we found that more than 50 of them were South Africans,” Muller said.
Muller said that education departments would have to reconsider and amend the online application system, as most learners struggled to get school places because the process required a lot of documentation.
“The department will have to change its online system to bring it into line with the law. It requires you to provide an identification number, and that does not allow the children of the refugees or asylum seekers to apply online,” she said.
“When an identification number is required, there can be problems with the application process, so the department will have to change that. The department would change if someone had to bring a case against them, and they would definitely lose such a case.”
“I think it is a problem when we have to bring a case to court to enforce the rights of a child. It often takes years, and we do not want that. We want the department to act on their constitutional duty to implement the right to education, but as it stands they are not doing that,” Muller added.