Type to search


Child Law



This article first appeared on The Conversation.

Is South Africa frequently denying youngsters their right to get admission to education in addition to fitness care on the grounds both of petty bureaucracy or by a misinterpretation of u? S. A .’s laws and global obligations?

The solution is yes.

U. S. Places obstacles on kids get admission to schooling and affordable health care. This is particularly authentic of migrant kids. These limitations are, in my view, unconstitutional and in violation of South Africa’s international responsibilities. For example, South Africa is sure by way of the International Covenant on Economic, Social and Cultural Rights. In the interpretation of this conference, the United Nations Committee on Economic Social and Cultural Rights has emphasized that:

all youngsters inside a kingdom, which includes people with undocumented fame, have a proper to receive education and get entry to adequate food and less expensive fitness care.

However, South Africa isn’t living up to this promise.

What’s clear is that South Africa’s current faculty admission coverage has a severe impact at the get entry to basic training of both children who’re South African citizens and people who are overseas nationals or stateless.

The demanding situations for folks who are not South African residents and don’t have the desired allows are compounded using section 39 of the Immigration Act thirteen of 2002. This states that a “learning group” might not provide “schooling or education” to an “illegal foreigner.” Principals of colleges that enroll a baby who is an “unlawful foreigner” may be charged and may face penalties.

Children who are not South African residents regularly also conflict to get right of entry to low-cost fitness care through what’s been referred to as “clinical xenophobia.”

A current Constitutional Court ruling gives some desire that the necessities of birth certificate and have a look at lets in for kids to enroll in college will finally be cozy. However, litigation remains ongoing, and as with access to affordable health care, there’s regularly a discrepancy among what the regulation offers and the actual situation at the ground.


On 10 December 2018, the Grahamstown High Court gave an order disregarding an urgent application with the aid of the Centre for Child Law that 37 children must be admitted to a public faculty pending very last willpower of a case instituted by means of the Centre in 2017, in which the candidates, amongst others, requested an order that:

no learner can be excluded from a public school on the premise that he or she does not have an identification range, permit or passport.

The 37 youngsters had been some of the many children whose guardians have not managed to at ease the office work needed to be allowed to register in a college below the 1998 Admission Policy for Ordinary Public Schools.

On 15 February 2019, the Constitutional Court granted leave of enchantment against the High Court order and overturned it, ordering that the youngsters need to be admitted and enrolled in faculty using 1 March. However, this order does now not, in the end, decide the difficulty of requirements for enrolling in school because the case instituted in 2017 is still pending before the High Court.

The proper to health care is provided for in article 27 of the Constitution. The National Health Act 61 of 2003 presents free of charge health care at public centers for children beneath six years antique unless a child is included using private health insurance.

According to the Uniform Patient Fee Schedule all non-South African residents – except those with everlasting or temporary house and residents of the member states of the Southern African Development Community who “enter the (the republic) illegally” – are labeled as full-paying patients. Children without the required allow who’s over six years old, who lack medical insurance and are not from a Southern African Development Community member state, therefore, lack access to subsidized health care.


The Global Compact for Safe, Orderly and Regular Migration turned into adopted in December 2018 with South Africa’s guide. Among other matters, the global compact calls on states to undertake toddler sensitive migration policies. It additionally promotes international legal responsibilities with regards to the rights of the kid and upholds the precept of the exceptional interests of the kid always.

The precept of the friendly interest of the kid changed into the first set out in an international treaty 30 years in the past within the United Nations Convention on the Rights of the Child. It turned into reiterated within the African Charter on the Rights and Welfare of the Child. South Africa is a birthday celebration to each these treaties. Also, the South African Constitution presents:

an infant’s social interests are of paramount importance in every counting number regarding the kid.

A baby is defined as all of us under the age of 18.

The right-holder within the bill of rights in the Constitution is with few exceptions “every person.” This is, includes now not only South African residents; however anyone who is inside the country. Most rights aren’t absolute and can be constrained underneath phase 36

in phrases of regulation of general utility to the volume that the predicament is affordable and justifiable in an open and democratic society based on human dignity, equality, and freedom.

The Immigration Act is a “law of fashionable application.” However, the child’s best interest is “of paramount importance.”

In my view, the rights of youngsters to primary education and less costly health care in South Africa can’t be constrained and “each person” ought to be examined to include every child, irrespective of their immigration reputation. When it comes to getting admission to fitness care the situation is even more apparent as there are no limitations set out inside u — S. A .’s legal guidelines. The Uniform Patient Fee Schedule have to consequently be revised to offer for subsidized fitness care for all children whose guardians can not find the money for medical health insurance.