Litigating the right to basic education for undocumented children in South Africa: The role of the courts in advancing access to schools

The right to basic education is enshrined in section 29(1) of the Constitution of the Republic of South Africa, 1996, which clearly states that basic education is extended to 'everyone'. In 2016 the Eastern Cape Department of Education took a decision to stop funding the education of learners without birth certificates, passports or permits. In 2019 the High Court in Makhanda declared this decision unconstitutional and found that all learners, irrespective of their documentary status or their nationality, are entitled to attend school in South Africa. This article considers the Centre for Child Law & Others v Minister of Basic Education & Others judgment and its role in advancing the right to basic education in South Africa. It maps the events leading up to the litigation, the strategy in bringing the matter and the findings of the Court, and considers the challenges in implementing the judgment. It finds that while the findings of the Court have provided some clarity on the interpretation of section 29(1) of the Constitution and its application to undocumented learners, some ambiguity in the framing of the order and a lack of awareness of the judgment among schools and provincial education departments have hampered implementation. In addition, new legislative and policy developments may undo some of the strides occasioned by the judgment.

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Publication Details

Journal
African Human Rights Law Journal
Published
2024-08-15
DOI
https://doi.org/10.17159/1996-2096/2024/v24n1a11
Primary Topic
Human Rights and Development
Type
article
Field-Weighted Citation Impact
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article

Litigating the right to basic education for undocumented children in South Africa: The role of the courts in advancing access to schools

Cecile Van Schalkwyk, Anjuli Maistry
African Human Rights Law Journal
Human Rights and Development
article

Litigating the right to basic education for undocumented children in South Africa: The role of the courts in advancing access to schools

Cecile Van Schalkwyk, Anjuli Maistry
article en

Abstract

The right to basic education is enshrined in section 29(1) of the Constitution of the Republic of South Africa, 1996, which clearly states that basic education is extended to 'everyone'. In 2016 the Eastern Cape Department of Education took a decision to stop funding the education of learners without birth certificates, passports or permits. In 2019 the High Court in Makhanda declared this decision unconstitutional and found that all learners, irrespective of their documentary status or their nationality, are entitled to attend school in South Africa. This article considers the Centre for Child Law & Others v Minister of Basic Education & Others judgment and its role in advancing the right to basic education in South Africa. It maps the events leading up to the litigation, the strategy in bringing the matter and the findings of the Court, and considers the challenges in implementing the judgment. It finds that while the findings of the Court have provided some clarity on the interpretation of section 29(1) of the Constitution and its application to undocumented learners, some ambiguity in the framing of the order and a lack of awareness of the judgment among schools and provincial education departments have hampered implementation. In addition, new legislative and policy developments may undo some of the strides occasioned by the judgment.

African Human Rights Law JournalVol. 24(1)
Equal Education Law Centre (ZA), Right to Care (ZA)
Peace, Justice and strong institutions
Openalex Percentile: Top 79%
Human Rights and Development
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