There is much to lauded in the most recent Basic Education Laws Amendment Bill (BELA) – including the balance it strikes between the ability of school governing bodies to adopt and enforce language and admissions policies and the power of provincial education departments to have a final say over these policies (after due process) in order to ensure they are not exclusionary or discriminatory. 

Despite this, as stated by numerous public interest organisations, the provisions in the BELA that relate to undocumented children are not fit for purpose, against recent case law and have serious potential for abuse. 

The stated intention behind these provisions – to assist pupils with obtaining documentation – is not objectionable. However, the way the BELA goes about this would grossly undermine the rights of learners to privacy and basic education. The government should address the root of the issues that have led to a high number of pupils (about 80% of whom are South African citizens) lacking documentation, which can to a significant extent be attributed to the Department of Home Affairs’ “bureaucratic inefficiencies, poor infrastructure and corruption”.

Read in Daily Maverick: “Attending School While Undocumented”

Read in Daily Maverick: “Undocumented migrants – The myths, realities, and what we know and don’t know”

It has been more than two and a half years since the High Court, Eastern Cape Division, confirmed that no child may be denied access to basic education based on a lack of documentation in the judgment of CCL v Minister of Basic Education. 

The court declared certain provisions of the Admissions Policy for Ordinary Public Schools unconstitutional and ordered that schools must admit learners and continue to provide them with education regardless of whether or not they have an official birth certificate or, in the case of those who are not South African, regardless of whether they have proof that they have applied to the Department of Home Affairs to legalise their stay in South Africa. This is because the right to basic education is granted to “everyone”, regardless of what documentation they have or whether they are in the country regularly. Whether a child has documentation or not is never the fault of the child and they should not be punished for a lack of documentation by the denial of their right to basic education. 

The high court thus ordered that where a pupil does not have official documentation identifying them, schools are obliged to “accept alternative proof of identity, such as an affidavit or sworn statement deposed to by the parent, caregiver or guardian of the learner wherein the learner is fully identified”. Following this judgment, the Department of Basic Education (DBE) issued Circular 1 of 2020, directing all public schools in the country to follow the order in the judgment.

Read in Daily Maverick: “Children of low-income immigrants excluded from tertiary education bursaries”

However, schools across the country have continued to deny learners their right to basic education based on a lack of documentation. In light of this, on 10 November 2021, the United Nations Committee on Economic, Social and Cultural Rights reported that South Africa had made “insufficient progress” to ensure access to the right to basic education for undocumented, migrant, asylum-seeking and refugee learners. 

The reasons behind the continued denial of access to basic education are, among others, that some schools and school administrators are not sufficiently informed of their obligation to admit learners who are undocumented, as well as the online portals to apply for admission in public schools in certain provinces requiring the submission of documentation and not providing an option to bypass this requirement.

Instead of ensuring that undocumented pupils are admitted to public schools without obstacles, the BELA contains provisions that may serve as further obstacles to their access to basic education and violate their right to privacy. The bill states that a litany of arbitrary documentation is needed from learners and their parents. Where such documentation is not available, the BELA says learners would still “be allowed to attend school” but that schools would be obliged to alert the “Provincial Intergovernmental Committee” about the learner and their parents. 

According to the BELA, the DBE and each provincial education department would need to form “intergovernmental committees” to assist learners with obtaining the “required” documentation. Such intergovernmental committees would comprise representatives from a number of departments – most of which simply play no role in acquiring documentation for learners (for instance, representatives from the South African Police Service and the Department of Labour). There are several serious concerns that are raised by these provisions in the BELA. 

First, the list of “required” documentation from learners and their parents, as defined in the BELA, is unnecessary and irrational. At present, according to the judgment of CCL v Minister of Basic Education and Circular 1 of 2020, all that is required from learners for their admission is their official birth certificate or any alternative form of identification. Where this is not available, an affidavit or sworn statement that identifies the learner must be accepted. The BELA proposes that far more documentation is required upon learners’ admission to school. In particular, it states that learners’ parents must also provide their documentation (such as their IDs, passports, or visas) to schools – a requirement that is not in the Admissions Policy or even the recently published Draft Admissions Policy. 

The BELA does not explain why schools and the DBE would need to have access to parents’ identity documents or their passports or visas. It is difficult to imagine a reason for this requirement other than for the government to verify whether learners or their parents are in the country regularly, a function that schools and the DBE should never perform. 

Read in Daily Maverick: “Neither here nor there: South Africa’s undocumented children battle for recognition, access to education”

Further, although the BELA states that learners are still allowed to attend schools without documentation, it does not clearly state that schools have an obligation to admit undocumented children and provide them with an education unconditionally. The list of required documentation will ultimately confuse learners, parents and schools regarding what documentation is required for admission to school, which will invariably lead to them being excluded from schools or victimised by schools for not having documentation. 

Another serious problem with the provisions in BELA relating to documentation is the introduction of the intergovernmental committees. According to the bill, the function of the provincial intergovernmental committees would be to assist with acquiring documentation for learners who have been referred to it by schools. However, the functioning of such committees would be a violation of learners’ privacy rights in terms of domestic legislation and international law. This is because the intergovernmental committees would function by sharing the personal information of children between governmental departments without consent, which is unlawful in terms of their constitutional right to privacy and the Protection of Personal Information Act 4 of 2013. 

It is also detrimental to learners’ right to basic education for access to schools to be used to share personal information between the Department of Education and the departments responsible for enforcing immigration laws (such as Home Affairs). The UN Committee on the Protection of the Rights of All Migrant Workers and Members of their Families and the UN Committee on the Rights of the Child issued a joint general comment on the general principles regarding the human rights of children in the context of international migration in 2017, which addressed exactly this issue. In the comment, the committees implored states to create a “firewall” to prevent the sharing of children’s personal information that is collected for the use of social services (such as education) with authorities responsible for immigration control. The reason for such a firewall is that if such data is shared, learners and their parents may be subjected to punitive measures (such as the risk of deportation, incarceration or fines), which disincentives learners from enrolling in or attending school and therefore prevents them from realising their right to basic education. 

It is also unclear how the committees would even be able to perform their function of assisting learners to obtain documentation. Obtaining documentation for learners is not in the mandate of the Department of Education and it is not equipped to assist Home Affairs in performing this function. The problems that make it difficult for learners to obtain documentation lie with Home Affairs and legislation, which intergovernmental committees will not solve. For instance, Home Affairs’ long closure of numerous Refugee Reception Offices has led to inordinate delays and administrative chaos in the processing of asylum seekers’ applications. The involvement of the Department of Education will not fix this. 

The provisions in the BELA regarding the documentation required from learners and the formation of intergovernmental committees are in direct contradiction with the judgment of CCL v Department of Education. The purpose of the order in the judgment was to ensure that a lack of documentation would not serve as an obstacle to accessing basic education. Nothing more than a document identifying the learner was required. However, the BELA imposes a long list of required documents that are wholly unnecessary to provide a learner with education, which may lead to learners who are undocumented being denied access to education. 

While it is important for learners to obtain documentation, the formation of intergovernmental committees would not achieve this and would violate learners’ rights to privacy and basic education. These provisions in the BELA should thus be abandoned in their entirety and the DBE should ensure that all undocumented learners are able to realise their right to basic education without any obstacles. DM/MC

Mila Harding is a legal researcher at SECTION27. 

European Union funding supports SECTION27’s work on health and education issues.