On Thursday 12 December, the Makhanda High Court affirmed that all learners in South Africa have the constitutional right to a basic education and that the right cannot be denied because of a lack of identification documents.

The High Court found that a policy and circular which made school admission and funding conditional on learners being documented were unconstitutional. The Court Order directed the Department of Education to admit all undocumented leaners in the Eastern Cape to school and interdicted the authorities from excluding any further leaners for lack of ID. The Department also argued that the Immigration Act, 2002 made the provision of schooling to illegal foreign learners a criminal offence. The Court disagreed and instead read the Act consistently with the Constitution. The result was that the Court Order applied to both foreign and national undocumented learners.

Substantive equality and ‘documentary status’ as an analogous ground

In addition to the Court’s finding that the impugned policies constituted an unjustified limit on the learners’ rights to a basic education, to dignity and to have their best interests held paramount, the Court also found a violation of the right to equality. To do this, it found that ‘documentary status’, though not explicitly protected under the equality clause, was a ground analogous to those enumerated in the Constitution such as race and gender.

As established in Khosa and Others, the criteria for extending the grounds under section 9(3) of the Constitution is that the classification must have an adverse effect on the dignity of the individual or some other comparable effect. After finding their dignity impaired, the question became whether the discrimination was unfair. For the enumerated grounds, discrimination is presumed to be unfair. For unenumerated grounds, however, unfairness must be proven by the Applicants looking into the ‘position of children in society’, whether they have been ‘disadvantaged in part’ and ‘the extent to which their fundamental right to dignity has been impaired’.

The Court noted that the Applicants were all from the ‘vulnerable, poor black community’. Accounts of learners falling behind at school and becoming depressed gave an insight into the further disadvantage and affront to dignity caused by the policy. Taking these factors into consideration, the Court was led to the ‘ineluctable conclusion’ that the discrimination on the basis of documentary status was unfair.

The extension by analogy to documentary status as a protected ground under the right to equality is a progressive – even radical – move. Somewhat disappointingly, though, the Court dealt with this point rather fleetingly, leaving many questions unanswered. For instance, what exactly does ‘documentary status’ mean? Can it stretch beyond the facts of this case? Is this status confined to children?

The use of international and comparative jurisprudence

Another noteworthy aspect of the case was the reliance on foreign jurisprudence to inform the interpretation of the right to a basic education under section 29(1) of the Constitution. South Africa is unusual in that section 39(1)(c) of its Constitution explicitly states that judges may have regard to foreign law when interpreting the Bill of Rights.

One comparative example drawn upon was the US Supreme Court case of Plyler v Doe (1982). The Court here, faced with similar facts, ruled that the withholding of state funds from Texan schools with students who were not ‘legally admitted’ constituted a violation of the Equal Protection Clause of the Fourteenth Amendment of the US Constitution. The provision was struck down as unconstitutional because it did not serve ‘either the purpose or effect of keeping illegal aliens out of the state of Texas’.

This case clearly bolstered the Applicants’ case by refuting the Department’s claims that the right to education could be limited to those with the correct documentation. The Department claimed that granting illegal foreign learners unfettered access to South African schools would encourage illegal immigration. The Court gave short shrift to this argument after ‘not one iota of evidence’ was produced in support. The evidence produced to the contrary demonstrated that most people who risk entering South Africa illegally do so for employment. The correct way to address this problem is therefore through labour law, not the ‘invasion of the fundamental rights of children’.

The Department will decide over the coming weeks whether to appeal the decision.

Background to the case can be found here. A more detailed summary of the judgment can be found in the Legal Resources Centre’s press release here.