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You’re wrong, Gayton McKenzie: Undocumented children do have the right to basic education

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Jos Venter is a human rights lawyer with an interest in children’s rights, socioeconomic rights, social justice and public governance.

The Patriotic Front’s Gayton McKenzie’s statements that undocumented children should not be admitted to schools are not just misinformed and xenophobic, they are contrary to the law.

A new school year started in South Africa this week. Thousands of learners commenced their schooling and others returned in continued pursuit of their dreams. This glorious event should be celebrated and we must pull out all the stops to ensure that every learner of schoolgoing age enjoys the constitutional entitlement to basic education.

Unfortunately, circumstances arise where the enjoyment of the right to basic education is undermined and learners run the risk of being denied access to education. For example, Gayton McKenzie, mayor of the Central Karoo District and president of the Patriotic Alliance, has repeatedly expressed on Twitter that undocumented children “should not be allowed at all in schools in South Africa”.

McKenzie’s views, which are misinformed, xenophobic and contrary to the law, were well received and supported by his tweeps and other antiforeigner Twitter users. This shows that not only is there a lack of understanding of what the right to basic education entails, but also that the xenophobic sentiment that dominates South Africa’s social discourse severely threatens the livelihood of undocumented children.

The right to basic education is a fundamental human right, recognised in a number of international and regional legal instruments. The United Nations Committee on Economic, Social and Cultural Rights regards education as “the primary vehicle by which economically and socially marginalised adults and children can lift themselves out of poverty and obtain the means to participate fully in their communities”.

Former President Nelson Mandela described it as “the most powerful weapon you can use to change the world”.

Integral empowerment

The right to basic education of every learner in South Africa is entrenched in section 29(1)(a) of the Constitution. On the face of it, the eight-word provision might seem nugatory, but when you delve into the true meaning of it, you find an empowerment right that plays an integral role in realising all other human rights.

In the landmark Juma Musjid judgment, the Constitutional Court affirmed that the right to basic education is unqualified and immediately realisable in nature. This means that every learner within the confines of the country enjoys an entitlement to this unfettered right, and that obstacles which unjustifiably limit or hinder its immediate enjoyment must be removed.

South Africa’s rich education jurisprudence that has developed since the Juma Musjid judgment informs us that this right must be enjoyed by every learner free from discrimination and on equal footing, regardless of race, language, religion, disability and status.

In December 2019, the Eastern Cape Division of the High Court delivered judgment in Centre for Child Law and Others v Minister of Basic Education and Others, a case concerning undocumented learners who were precluded from unconditionally attending public schools on the basis of their status.

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The court upheld the challenge to the policy that precluded the unconditional admission of undocumented learners to public schools, and re-emphasised that the right to basic education is “unqualified, unconditional and applies to everyone” and can never be limited to “everyone upon the production of a birth certificate or provided they are in the country legally”.

The constitutional guarantee of an unfettered right to basic education must be realised to ensure that the self-esteem, self-worth and potential for human fulfilment of every learner, especially the most vulnerable and marginalised among them, are protected.

Misinformed views

Gayton McKenzie’s expressions come at a time when xenophobic sentiments and associated violence are drastically increasing in South Africa. The worsening state of xenophobia and South Africa’s lack of reproach to it was recently criticised by Human Rights Watch in its World Report of 2023.

The report, which analyses human rights conditions across the globe, notes that despite efforts to curb xenophobia, there has been little tangible improvement in protecting the rights of all migrants who reside in South Africa.

Most alarming is the fact that xenophobic sentiments and violence, fuelled predominantly by members of anti-foreigner groups and politicians, is often based on misinformed and inaccurate views and opinions — such as those expressed by McKenzie.

When society blindly follows these misinformed and inaccurate views and opinions, especially when it disregards human rights, we run the risk of devaluing fundamental rights that have long been fought for. 

Threats aimed specifically at denying the fundamental rights of the most marginalised and vulnerable human beings — which include undocumented migrants and their children — should not be taken lightly.

It is our duty to uphold the constitutional promise of a society based on equality, human dignity, social justice and the advancement of human rights of everyone who lives in our beautiful country. DM

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  • Colin Louw says:

    Jos is absolutely correct. This is just another nail in that criminal turned politician McKenzie reputational coffin. I am baffled how someone as bright as Hersov can even consider this guy as a “saviour” in the wings for the sinking ship SA.

    • John Smythe says:

      I laughed myself silly when he uttered that rubbish. He must be craping right at the bottom of the barrel for favours.

    • Ahmed M says:

      So are you saying undocumented people have the same rights as citizens. Should we not be asking why they are undocumented and how did these children and parents enter the country

      • Palesa Tyobeka says:

        Indeed we should. One of the key reasons there is pressure around admissions and resourcing in schools is precisely because of the number of undocumented learners that Basic Education and the Department of Health have to cater for. And we are the first to complain about the poor service provided by these departments

      • Colin Louw says:

        Do they pay VAT? Do they pay for some services like electricity maybe? The answer is yes as much as the other 80% of the SA population does, so they should also therefor have access to the same services as that other 80%. Its all about money at the end of the day.

  • Jane Crankshaw says:

    The law might say everyone is entitled to an education but the ANC and other political fringe parties don’t want an educated voter – they want cannon fodder whose votes can be bought for a measly government grant creating more unwed mothers to spawn children who will be underfed and uneducated! It’s the vicious cycle of poverty that keeps the ANC in power and the EFF snapping at their heels!

  • Rod H MacLeod says:

    McKenzie plays the right wing coloured electorate. It is interesting to me that journalists always seek out the most extreme politicians to put forward a reason as to why we should not agree with what they’re saying. Hence McKenzie’s stance on undocumented kids getting into schools is due to provide the finest counterpoint as to precisely why we should allow them in. But that is not a good argument.
    It’s all well and good to extoll the virtuous line that everyone has the right to basic education, but you don’t offer who has the obligation to ensure this right, nor do you put forward what a “basic” education is.
    Is a “basic” education one in your home language, or one that the school offers? Is it up to Grade 10 mathematics and sciences including languages, biology, geography and whatever else you want to add to the smorgasbord? Or is it just reading and writing skills in English?
    I ask this because there is as always a cost implication. Who has the obligation to bear the cost of this “right”? Undefined noble ideas are just that – undefined ideas. We live in a world of finite resources, and in making allocation decisions on resources, charity begins at home I’m afraid.
    Once you’ve sorted our own legally documented citizens with proper facilities and care, and we have a budget left over, we can see what we can do to help others. But home kids come first in my book.

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