Centre for Child Law v Minister of Basic Education and Others

1. Case Details and Citation

Full Case Name: Centre for Child Law v Minister of Basic Education and Others – Case Summary

Citation: Case no (2840/2017) [2019] ZAECGHC 126

[2020] 1 All SA 711 (ECG)

2020 (3) SA 141 (ECG)

Judges/bench composition: MBENENGE JP (Judge President), I SCHOEMAN (Judge of the High Court), S M MFENYANA (Acting Judge of the High Court)

Court: Eastern Cape High Court, Grahamstown

Date of judgment: 12 December 2019

2. INTRODUCTION

This case law highlights the importance of South Africa’s socio-economic rights, whereby Section 29(1) of the South African Constitution is involved and infringed upon, whereby the case emphasized the critical need and the importance of basic education for children, which is a basic human right within the South African Constitution.

Children were being denied their basic right to education, whereby it required that a child should provide documents such as passports, ID and proof of citizenship to essentially be a part of the education system. This affected many learners from many schools as now even those who were undocumented now were being restricted and denied from access to education and now leaners needed to provide documents to essentially gain the right and access to education.

This case is an important landmark case as it established and underscored the importance of the preserving the right to education for all children.

3. Facts of the case

The facts of the case involved how, in 2016, the Department of Basic Education of the Eastern Cape Provincial Government had announced a circular decision which stated that children needed to be registered with their identity documents, and those who were unable to provide the necessary documents, such as IDs, permits, passports, and birth certificates were excluded from attending public school. This decision then affected thousands of children who were unable to provide these documents, as many schools started to deny and exclude undocumented learners, and thus those who provided documents were granted access to education. The decision of the government, in practical terms, meant the consequences of the decision to stop the funding of undocumented children resulted in their exclusion from school and the exclusion of learners from being funded if they remained at school. Undocumented learners had received no education funding up until they had sorted out their documents and were in possession of their identity documents such as their IDs, permits and birth certificates anything other than that they were excluded from their primary right towards education and accessing public education.

As a result, this was found to be unfair, which led up to 37 children brining an application upon the Minister of Basic Education declaring that their rights towards education were being violated by the circular as well as the National Admission to Public schools and Immigration Act 13 of 2002. They had sought for declaratory relief pronouncing the Admission Policy and Immigration Act 13 of 2002 invalid.

It was then in 2019 found by the High Court in Makhanda that the circular (circular 16) was then declared that the decision that the department had adopted was declared unconstitutional. It was found that learners irrespective of their documentary, status or their nationality are to be granted and entitled to attend school in South Africa.

4. Legal Issues

These were issues that the court was called upon to address which were:

1. Whether there was unreasonable delay in launching the application and if so whether they should be condoned in terms of Section 9 of the PAJA.
2. Whether the issue on the constitutionality of the Admission Policy embodied in circular 2016 had become moot or not.
3. The constitutionality of clauses 15 and 21 of the Admission Policy (whether requiring learners to bring birth certificates, documentation was unconstitutional)
4. Whether sections 39(1) and 42 of the Immigration Act should be interpreted as prohibiting the provision of basic education to children whose presence in country is illegal.
5. And what order should the court grant

5. Arguments Presented

Applicant’s Argument: Accordingly, the applicants which were 37 children in this case had argued that the Constitution provides everyone the right to basic education (section 29) and that a child’s best interests are of paramount importance in every situation concerning the child.[1] When both provisions were read together in the context of this case, the applicants contended that the rights of these children may not be subject to a condition that they must provide identification documents. The applicants also argued that the decision not to fund the undocumented children and require proper documentation such as IDs, passports, and permits constituted to the infringement of sections 10 (the right to human dignity),28( a child’s best interests are of paramount importance in every matter concerning the child) and 29(the right to basic and further education) of the South African constitution.[2] It also submitted that the decision was discriminatory, which violated section 9 (the right of equality) of the constitution.

Respondents: In opposition to the relief sought by the applicants were the respondents who relied on exiting legislation and policy framework in support of their argument. They relied on and submitted that the Births and Deaths Registration Act which had stipulated that every birth of a child by South African citizens needed to be registered by the Department of Home Affairs within 30 days.[3] Essentially, the respondents had further argued that sections 39 and 42 of the Immigration Act prohibited the provision of basic education to children whose presence was in the country was illegal.[4] And the applicants argued to say that these provisions were unconstitutional.[5]

6. Court’s Reasoning and Analysis

The courts essentially rejected an argument on which involved a matter being moot, and they found evidence essentially and live controversy that it was clear that due to personal circumstances and problems systematically with the Department of Home Affairs that it was impossible for the children to obtain the necessary documentation that was required by the Department of Home Affairs.[6] It was on the evidence in which was presented before the courts by the Department of Home Affairs the court had taken note that over a million undocumented children most from South Africa are within the schooling system.

Essentially, the court had declared that children have the right to basic and further education irrespective of their capability of providing identity through documents such as IDs, passports and permits or any other documentation. It was within this context that it scrutinized clauses 15 to 21 of the Admission Policy and it found that these clauses were limiting unjustifiably numerous constitutional rights such as the right of equality (section 9), section 10 which provided the right to human dignity and the right to basic education and further education found   in (section 29) by denying children/ learners from public schools.

The court correctly took note that all children have their own dignity and that therefore learners who were brought in the country unlawfully with no choice due and those who may have been abandoned by their parents shouldn’t have to bear the negative consequences attached to their parents for entering the country illegally and for failing to obtain/ apply for their children’s documentation.[7]

The court concluded with the rejection of the circular decision, and it was then declared invalid. State respondents declared to admit all children who were not in possession with the relevant documents such as birth certificates to public schools in the relevant province whereby a learner who is not able to provide documentation the principal of the relevant school is mandated to accept any other alternative documents such as an affidavit or sworn statements by the parents or guardian that identifies the learner. It further restrained the state respondents from the removing or excluding illegal foreign children already admitted) for the sole purpose of not providing proper documentation.

This case, as mentioned, has provided and serves an important landmark for the protection of millions undocumented children and protection for vulnerable children within South Africa. This judgement provided hope for many undocumented children as the key to unlocking their success is finally available in their disposal which is the right to education.

7. Judgement and Ratio Decidendi

In overall, the application was successful. The schools in question were now directed to essentially start to accept alternative proof of identity such as affidavits or sworn statements, which deposed by parents and guardians or care giver, where a learner who was not in possession of an ID, passport, or permit, and it further directed to not exclude learners who were not in possession of producing such documents. And the circular decision of the Department of Basic Education was then declared invalid.

Ratio Decidendi: The ratio decidendi would be that essentially, they couldn’t allow the fact that children needed to provide documentation to restrict children’s right to essentially access education, and it restrained the state respondents from the removing or excluding of illegal children already admitted for the sole purpose of not providing proper documentation. The courts had observed the limitation of not entering school and held that education plays significant role for the development of a child and provides a foundation towards a child’s future and lifetime learning and work opportunities. The courts held that limiting this right to a specific group of children violates the most fundamental right of the child, which is enshrined in terms of sections 9,10, and 28 of the South African Constitution of 1996.

8. Critical Analysis

Significance and Implications: The significance of this case is that the judgement had affirmed the right of children, irrespective of their ability to provide the necessary documentation such as birth certificates, they are entitled to receive their basic right towards education. Circumstances may affect many parents and guardians to obtain the official documentation. The decision amplified that education should not be seen as a privileged based only on documentation but rather as a basic and fundamental right.

Potential strengths: The strengths of this case would be that children especially in our current society now have the privileged right to attend school essentially without being discriminated or being treated unfairly especially in SA whereby they do not need to provide documentation to enter school but this is essentially their right and may attend school regardless of where they may come from the constitution which still plays an integral role in our country till today protects citizens’ rights.

Potential Limitations: Arguably, the court’s ruling in the child centre case and 37 children doesn’t address the stance of sections 39 and 42 of the Immigration Act. While the court has provided an analysis of sections it is argued that these provisions need some revision to get rid of remaining uncertainty.

Impact of the case within South Africa and society: The litigation that was initiated in the Child Centre case has played an integral role in clarifying rights legal rights of undocumented children within South Africa. The litigation was incredibly important tool in protecting the rights of the undocumented children and although the judgement was not perfect it significantly improved access to undocumented children in the country and it brought positive steps towards ensuring undocumented learners have access to education. And it paved a way for any future litigation on the issue whereby if an issue may arise of illegal documentation may approach the courts, they may rely on this case and compare the facts to try resolve the case.

9. CONCLUSION

In conclusion of this case summary this case underscored the critical need of education and showcased that the decision which was taken by the Department of Basic Education in the Eastern Cape was unconstitutional and invalid and that children should not be prohibited from accessing education due to not providing documentations.

As said in the constitution in section 29(1) provides that “everyone” has a right to basic education, including adult education, and to further education, which the state through reasonable measures, must make progressively available and accessible.

The landmark of this case serves and provides much-needed hope to the millions of undocumented and the vulnerable children within our country. Children can now have access to education and not be limited due to the consequences of their parents/caregivers or guardians in not obtaining the registration. They can now have access to education, which is now the mightiest tool found in education, is in the grasp of children. This judgement of this case serves as a representation of substantial progress in enhancing access for these children towards education.                                                                                           

10. REFERENCE(S):

LEGLISLATION

1. Constitution of the Republic of South Africa, 1996 S9, S10, S28, S29
2. Births and Deaths Registration Act 51of 1992
3. Immigration Act 13 of 2002, S39 and S42

CASE LAW

4. Centre of Child Law v Minister of Basic Education 2020 (1) SA 309

JOURNAL

5. A Maistry & C van Schalwyk “Litigating the right to basic education for undocumented children in South Africa: The role of the courts in advancing access to schools” (2024) 24 African Human Right’s Law Journal 229-263

WEBSITE

6. Inge Papp “Centre for Child Law and Others v Minister of Basic Education and Others” available <https://iarmj.africa/%7eiarmj/web/case-summary/centre-child-law-and-others-v-minister-basic-education-and-others />accessed: 02 July 2026
7. Jacquie Cassette and Tricia Adams “High Court hands down groundbreaking judgement on the right to basic education” available< https://www.bizcommunity.com/Article/196/828/200435.html/>accessed:03 July 2026

[1]  A Maistry & C van Schalwyk “Litigating the right to basic education for undocumented children in South Africa: The role of the courts in advancing access to schools” (2024) 24 African Human Right’s Law Journal 229-263

[2] Constitution of the Republic of South Africa, 1996

[3] Births and Deaths Registration Act 51of 1992

[4] Immigration Act 13 of 2002

[5] Inge Papp “Centre for Child Law and Others v Minister of Basic Education and Others” available <https://iarmj.africa/%7eiarmj/web/case-summary/centre-child-law-and-others-v-minister-basic-education-and-others />accessed: 02 July 2026

[6] Jacquie Cassette and Tricia Adams “High Court hands down groundbreaking judgement on the right to basic education” available<https://www.bizcommunity.com/Article/196/828/200435.html/>accessed:03 July 2026

[7] Jacquie Cassette and Tricia Adams “High Court hands down groundbreaking judgement on the right to basic education” (n6)