Authored By: Nandipha Mangethe
University of the Witwatersrand
INTRODUCTION
In South Africa, thousands of migrant children are turned away at the school gate or denied admission as a form of exclusion.[1] This is not because the school is full or because of their academic record, but because their parents cannot produce a birth certificate, identity document or a permit. This article asks whether the exclusion of undocumented learners from public schools violates the right to basic education under section 29(1)(a) of the Constitution of the Republic of South Africa 1996(the Constitution), read with the right to equality under section 9 of the Constitution. The right to education is unqualified and applies to everyone within the South African boarders, not only citizens. It argues that excluding a child based on documentation status is unconstitutional and also unlawful under the Regulations of the Department of Education. The article will first set out the constitutional and statutory framework that protects learners. It will then examine the practice of exclusion and why it violates the rights to education and equality. Finally, it will consider the counterargument based on resource constraints and conclude with recommendations for reform.
The Constitutional and Statutory Framework
The Constitution protects the right to education in unqualified terms as it provides that everyone has the right to basic education.[2] The term ‘everyone’ is deliberate, it does not say ‘every citizen or “every permanent resident.” The Constitutional Court confirmed in some cases that rights guaranteed to everyone extent to non-citizens and excluding them from statutory benefits on the basis of their legal status requires compelling justification.[3] This right is also immediately realisable unlike the right to further education. Basic education is not subject to the availability of state resources and must be provided without delay.
Section 9 of the Constitution reinforces this protection.[4] Section 9(1) guarantees equality before the law and equal protection and benefit of the law.[5] Section 9(3) prohibits unfair discrimination on listed grounds, including ethnic or social origin and birth.[6] The exclusion of a child from school on the basis that she lacks identity documentation is discrimination on grounds that are closely tied to the circumstances of her birth and her social origin. It marks them as less deserving of a future that children who have the right documents. The law also provides that a child’s best interests are of paramount importance in every matter concerning that child.[7] It is difficult to see how denying a child education could ever be in their best interests.
Statutory framework reinforces these protections by requiring public schools to admit learners without unfair discrimination.[8] The Admission of Learners to Public Schools Regulation gives practical effect to this duty. Regulation 17(2) makes express provision for the provisional admission of a learner whose documents are not immediately available, provided the parent undertakes to obtain them within a reasonable time.[9] The regulatory scheme recognises that the child’s presence in the classroom cannot wait for the resolution of administrative delays.
The Practise of Exclusion and Its Constitutional Consequences
Despite the load of legal framework, undocumented learners continue to be excluded from public schools. Schools demand birth certificates, identity documents, or valid permits as a condition of admission. In the Phakamisa judgement, the court explicitly declared that undocumented children cannot be denied school admission due to a lack of birth certificates or identification.[10]Following this ruling the Department of Basic Education issues Circular 1 of 2020 to align provincial and local school policies to the courts mandate.[11]Yet reports from human rights organisations indicate that school officials often remain unaware of these regulations or apply policies inconsistently, as a result, migrant children continue to be excluded and this exclusion violated the Constitution[12]
The right to basic education under section 29(1)(a) is granted to everyone, it is not qualified by documentation status. A school that refuses to admit a child because she lacks papers imposes a condition the Constitution does not allow. The right is immediately realisable and cannot be suspended while a parent waits for documents. At the same time, the exclusion discriminates on grounds closely tied to birth and social origin, in violation of section 9 of the Constitution since it the exclusion implies that a child born to parents is admitted and a child born to parents without documents is not. The difference between them has nothing to do with ability and behaviour but entirely determined by the circumstances of their birth. The exclusion also conflicts with section 28(2), which requires that a child’s best interests be put first, even before administrative issues. Denying a child access to education causes immediate harm and damages her long-term prospects, a child can end up illiterate and unable to get a job or even tertiary education, resulting in homelessness and poverty which can affect the dignity of the child.
Resources Constraints Argument
A common defence offered for the exclusion of undocumented learners is that schools lack the resources to accommodate additional children. Public schools in South Africa are underfunded and overcrowded so admitting undocumented learners places further strain on already limited infrastructure, teaching staff, and learning materials. Schools that insist on documentation often claim they are managing scarce resources, not discriminating.
This argument fails for two reasons. First, resource constraints do not justify the violation of a constitutional right. The right to basic education is immediately realisable and unqualified. The state cannot plead limited capacity as a defence for excluding children from a right the Constitution guarantees without condition. If resources are insufficient, the remedy is to allocate them equitably and to budget for the full realisation of the right, not to exclude the most vulnerable from the classroom. Second, the argument proves too much. If resource constraints justified excluding undocumented learners, they would equally justify excluding other categories of children. The Constitution does not permit the state to ration fundamental rights by administrative convenience. The correct response to capacity challenges is to address the capacity, not to abandon the right.
CONCLUSION
The exclusion of undocumented learners from public schools is unconstitutional. Section 29(1)(a) of the Constitution guarantees the right to basic education to everyone, without qualification. Section 9 prohibits discrimination on grounds tied to birth and social origin. Section 28(2) demands that the best interests of the child come first. The Phakamisa judgment and Circular 1 of 2020 have made the legal position clear. Regulation 17 of the Admission of Learners to Public Schools Regulations already provides a lawful mechanism for provisional admission. Yet children continue to be turned away because the law is not being enforced.
The Department of Basic Education must issue binding regulations that impose clear consequences for schools that deny admission to undocumented learners. School governing bodies and principals must be trained on their constitutional and statutory obligations. The Departments of Basic Education and Home Affairs must work together to ensure that no child is denied an education while waiting for paperwork. The right to education does not ask for a passport. It is time South African schools stopped asking for one.
REFERENCE(S):
Constitution of the Republic of South Africa, 1996.
LEGISTLATION
South African Schools Act 84 of 1996.
Admission of Learners to Public Schools Regulations GN 3415 OF 2025.
CASES
Centre for Child Law and Others v Minister of Basic Education and Others [2020] 1 All SA 711 (ECG)
Khosa and Others v Minister of Social Development and Others [2004] ZACC 12, 2004 (6) SA 505 (CC).
OFFICIAL DOCUMENTS
Department of Basic Education, Admission of Learners to Public Schools Circular 1 of 2020.
ONLINE SOURCES
Cape Flats News, ‘Undocumented Children Denied School Access in South Africa’ (16 July 2026) available at Undocumented Children Denied School Access in South Africa accessed on 01 August 2026.
[1] Cape Flats News ‘Undocumented Children Denied School Access in South Africa’ (16 July 2026) Undocumented Children Denied School Access in South Africa
[2] Section 29(1)(a) of the Constitution
[3] Khosa and Others v Minister of Social Development and Others, and Another v Minister of Social Development (CCT 13/03, CCT 12/03) 2004 (C6) SA 505 (CC)
[4] Constitution of the Republic of South Africa, 1996
[5] Ibid 9(1)
[6] Ibid 9(3)
[7] Section 28(2) of the Constitution
[8] Section 5 of the South African School Act 8 of 1996
[9] Admission of Learners to Public Schools Regulation Notice 3415 of 2025
[10] Centre for Child Law and Others v Minister of Basic Education and Others [2020] 1 ALL SA 711 (ECG) 131
[11] Admission of learners to Public Schools Circular 1 of 2020 (2)
[12] Supra 1
