Authored By: Andile Mbili
University of KwaZulu-Natal
ABSTRACT
This article follows an ongoing issue in South Africa about the constitutional right to basic education. It highlights why the foreign, just like citizen children belong in South African Public Schools by analyzing the rights afforded to them under the Constitution of the Republic. The aim of this paper is to show that South Africa Contrary to the ongoing protests and debate, does in fact have the resources to cater to the needs of every child within its territory in relation to the access to basic education by pinpointing where the gap is that hinders effective implementation, touching only the KZN and Gauteng region and makes recommendation to the outlined issues accordingly
INTRODUCTION
When frustration rises due to unemployment and the lack of opportunities, we all turn to seek out someone we can blame. The issue in South Africa is no different, and it is quite unfortunate that the group closest to the firing line is foreign individuals. The South African Constitution is a carefully drafted piece of legislative authority with sections that expressly state that the right to access basic education should be afforded to everyone, regardless of their nationality, documentation status, or ability to fund their own education. While international and domestic laws guarantee this right to all learners and place the burden on the state to ensure that it is realized, this right is still not uniformly respected and promoted in South Africa, as there are still many refugee and migrant learners who face significant barriers to learning. This statement is based on the current ongoing issue in South Africa, mainly in the Durban and Gauteng region, where the members of the public are protesting against the legal and constitutional mandate to enroll foreign pupils in public schools, the main point of contention being that “they are taking up space”, and arguing that the foreign pupils should be pulled out of classes, and be replaced with citizen pupils who were not admitted due to the school being in full capacity. This research will look into the laws of this country relating to the provision of basic education to all people within it, how it promotes the realization of this constitutionally entrenched right and identify how the gaps of resource mismanagement and infrastructural deficiency negatively impact the successful implementation of what appears to be a transformative set of laws, with the intention of proving the hypothesis that South Africa has the resources to cater to both nationals and non-nationals all that is required is a different approach, with its focus being in the KZN and Gauteng regions.
Constitutional Rights and The Right to Access Basic Education
The South African constitution of 1996 protects the rights of everyone in south Africa, including non-nationals. Section 9(4) specifically is a mechanism put forward to prohibit discrimination on a range of grounds including, race, gender, ethnicity, and social origin and affirms that all persons are equal in the eyes of the law.The deliberate use of the word everyone is significant as it reflects the constitutions broader intent to drive inclusion and human dignity rather than entitlement based on citizenship. In the context of access to basic education this means that no child should be excluded from a public school on the basis that they have no identity document, permit or passport as such an act is in contravention of the equality clause. Accordingly, while there is public frustration due to the non-placement of citizen children is understandable, the Addington primary school dilemma defined by protests against foreign nationals is in fact a violation of their constitutionally protected right. Accordingly, while the court’s interpretation is constitutionally sound, practically enforcing it relies heavily on administrative compliance at school level.
Subsequent to the equality clause, section 29 of the constitution of the Republic of South Africa states that everyone in the republic has the right to access basic education placing emphasis on “everyone” which has been interpreted by our courts in Lawyers for Human Rights v Minister of Home affairs [2004], paragraph [26] – [27] case where the constitutional court held that: … “The only relevant question in this case therefore is whether these rights are applicable to foreign nationals who are physically in our country, but who have not been granted permission to enter and have therefore not entered the country formally, these rights are integral to the values of human dignity, equality and freedom which are values fundamental to our constitutional order and therefore denial of these rights to human beings who are physically inside the country at sea- or airports merely because they have not entered South Africa formally would constitute a negation of the values underlying our Constitution.”…paragraph 27 goes on to say: “Once it is accepted, as it must be, that persons within our territorial boundaries have the protection of our courts, there is no reason why the term “everyone” in sections in question should not be given its ordinary meaning, furthermore when the Constitution intends to confine rights to citizens it says so”. With this it is quite evident that all pupils in the context of this paper are beneficiaries of this right and it cannot be said that the ambit of section 29 (1)(a) does not extend to pupils who are foreigners is south Africa.
What the constitution of this country also does is afford the right of human dignity and individuality in a sense that no one is an extension of another (specifically in the parent-child context), this would mean that no foreign child must have their human dignity stripped away by being removed from school as a consequence of their parent failing to make available to them the relevant documentation essential for their citizenship, this was expressed by Justice Albie Sachs in the case of Dawood v Minister of Home Affairs and others;[ 2000] (3) SA 936; [ 35] judgement as follows: “Every child has his or her own dignity and so if a child is to be constitutionally imagined as an individual with a distinctive personality, and not merely as a miniature adult waiting to reach full size, he or she cannot be treated as a mere extension of his or her parents, umbilically destined to sink or swim with them”, the supreme law of this country also puts the rights and interests of a child above all else in matters pertaining to them, making them of “ paramount importance”. This right is entrenched in section 28(2) of the 1996 constitution and exists for the purpose of ensuring that when decisions about children are made, their rights and wellbeing ought to be made a priority. The right to access basic education is essential to a child’s cognitive development, so denial or limitation of such a right based on nationality is contrary to the “ best interest principle” in that what is best for the child is not being prioritized ,The centre for child v Minister of home affairs case presents us with the interpretation of this clause where it was said to be non-restrictive and that it should include every child and not just children who are south African citizens or those lawfully present in the country.
Factors Hindering Effective Implementation
Now the burning question is in a country that has laws tailored for driving positive transformation, equality, equity and inclusion, why are we still debating on the exclusion of certain pupils from school despite having legislative measures to address this?
The answer to this is the gap that exists between these progressive laws and the means to ensure that their implementation is a success, while the government has done a great job in expanding access to education, the south African schools still face a number of issues that are supposed to be a thing of the past had it been that proper implementation of the legislation was prioritized. Some of these factors include overcrowding in classrooms, infrastructural deficiency, resource mismanagement and staff shortage. A report by the South African Human Rights Commission shows that after they had conducted the annual school readiness inspection in the year 2025, schools like Vukani Mawethu Secondary and Ditshaba primary school in Gauteng reflect massive structural dilapidation, with building structures that are in no condition to accommodate learners, security concerns as well as massive overcrowding and congestion in classrooms, the same report revealed that the same is true in the Kwa-Zulu Natal region with multiple schools, to name a few, Mahlashana primary school and Gugulesizwe Secondary school under the UGU district struggled with access to electricity and water, relying heavily on storage tanks, it is noted that they also battle with overcrowding in classrooms and staff shortage that has impacted the teaching and learning process.
Despite the recommended ration of learner-to-teacher being 1:30 in grade R and 1:40 from grades 1-12, reality is different in schools where due to lack of infrastructure and development parents and caregivers decide to move from one area to another which in turn results in reduced number of learners in a school, and subsequently the number of teachers has to be reduced too by being moving a substantial number of educators to another school where their skills will be used to avoid retrenchment. The question then is what happens to the remainder of the small number of learners that do not move, as they are still entitled to the same education, an interview with a circuit manager revealed that cases like this lead to teachers being overworked. While policy prescribes that schools be merged in instances like these, there is often resistance within teachers refusing to be placed far from their place of residence, and this is how certain schools end up having 3 teachers taking on more than 3 subjects each to facilitate the teaching and learning process, this draws our attention to how much of a major contributing factor infrastructure is in the realization of the right to access quality basic education.
While the government has taken measures to provide learning resources, the systems that facilitate delivery of and the amount materials delivered in proportion to learners poses difficulties as some schools receive the material late and at times this very material is not enough for all the learners enrolled in the particular school, consequently 4-5 Learners are therefore forced to share 1 textbook in a class of 70 pupils, showing a major imbalance between the provision of resources and number of people receiving them.
Counter-Argument and Recommendations
Now we can deceive ourselves by adopting the false narrative that foreign nationals are “taking up space”, pull them out of schools risking an increase in a population of unemployable individuals likely to turn to crime as survival means at a later stage against our better judgement and disregarding data evidence provided by the department of basic education indicating that foreign pupils make up only 1.8% with the vast majority being South African children or we can call for the problem to be tackled from its root.
We advise the government starts by addressing the need for infrastructure such as roads leading to schools for better access, sanitation, drawing from the fact that some schools still use pit latrines which are proven to be detrimental to the safety and hygiene of learners and provision adequate learning material by designing a system that will work hand in hand with the SAHRC, collect accurate data from its annual schools’ readiness reports and cater to the specific number of learners enrolled, tackling the specific deficiencies and issues in different provinces without applying a blanket approach. The relevant authority must redirect funding and resources to help achieve this goal by funding development of the quality of school buildings as well because as highlighted above, the realization of the right to quality basic education hinges on a conducive learning environment. We stand on the statement that South Africa does not lack resources to accommodate both citizen and foreign children it is only a matter of re-evaluating its distribution to meet the current needs of the country.
CONCLUSION
Conclusively Legislation clearly provides for the inclusion of both national and non-national children into the South African education system, and while perfectly curated, there still exists limitations to accessing the quality education that is contemplated in these laws posed majorly by poor infrastructure and poor resource management in this sector, the question to the public now is will we continue to fight against one another and point fingers or will we seek out avenues from the relevant body that will change South Africa’s lived reality in the education system?.
BIBLIOGRAPHY
[1] Centre for Child Law and Another v Minister of Home Affairs and another [2005] SA 50 (T) paras 22-25.
[2] Constitution of the Republic of South Africa, 1996 s9(4).
[3] Constitution of the Republic of South African constitution, 1996 s28(2)
[4] Constitution of the Republic of South African constitution, 1996 s29(1)(a)
[5] Dawood and Another v Minister of Home Affairs and others 2000 (3) SA 936 (CC) par 35.
[6] van Niekerk, Sarisa. (2019), ‘Imagining children constitutionally strategic litigation and advocacy for children’s rights in South Africa’, De Jure Law Journal, 52(spe), 496-500. https://doi.org/10.17159/2225-7160/2019/v52a28
[7] Lawyers for human rights and another v minister of home affairs and another [2004] ZACC 12; BCLR 775(CC) [26] – [27]
[8] South African Human Right Commission, A national overview of public schools’ readiness in South Africa (2025), pg [6] and [9]
[9] The South African Human Rights Commission, Final non-nationals education booklet.
