Rights commission wants in on undocumented children court case

The South African Human Rights Commission will on Tuesday ask to be admitted as a friend of the court in a groundbreaking case concerning the right of undocumented learners to have access to basic education.

The application, in the case launched by the Centre for Chid Law against the minister of basic education in 2017, will be heard in the Grahamstown High Court.

The Centre for Child Law applied to the court for an order that no learner may be excluded from a public school on the basis that he or she does not have an identity number, permit or passport.

The commission said on Monday the lack of documentation affected South African, stateless, refugee and migrant children as well as the children of asylum seekers, who remain some of the most vulnerable in society.

The commission said persons without documentation face extreme barriers in accessing basic services and fundamental rights.

"Currently, in order for learners to access their right to a basic education, the legal framework requires certain documentation to be submitted to schools.

"The reality, however, is that this documentation is not always easily attainable due to existing legal gaps and practical barriers. The right to a basic education – as a key empowerment right and a critical tool for the eradication of poverty – is guaranteed to all persons, regardless of documented or legal status," the commission said.

The commission said it had been actively involved in this issue over the past few years, highlighting the fact that the lack of documentation should not be a barrier to access the right to a basic education.

"The commission thus hopes to bring guidance to the court around the correct interpretation of the relevant laws and obligations of the state in this matter."

In December last year, the same court dismissed an urgent application by the Centre for Child Law that 37 children should be admitted to a public school pending final determination of the main case.

These children were among many whose guardians had not managed to secure the paperwork needed to be allowed to register in public schools. In an order in February this year, the Constitutional Court directed the department to admit learners to the schools by March 1 pending the determination of the 2017 case.