The South African Human Rights Commission  (SAHRC) has joined the Centre for Child Law as a friend of the court in a case challenging laws regulating the exclusion of undocumented children from accessing basic education.

The application by the Centre will be argued in the Grahamstown High Court in September.

The application by the South African Human Rights Commission to be admitted as a friend of the court was unopposed.

The commission was also granted leave to make written and oral submissions in the matter.

“So, this matter is about South African learners without birth certificates and also about foreign migrant learners without the necessary documentation and we say, the right to basic education is so fundamental that you can’t exclude learners purely because they don’t have documentation. It deals with SA and foreign migrant learners,” says SAHRC Commissioner Andre Gaum.

The national and provincial Departments of Basic Education and the Department of Home Affairs are respondents in the matter.

The Centre for Child Law is taking up the application after 37 learners from Phakamisa High School near King Williamstown were excluded because they are undocumented.

However, the Constitutional Court ruled in favour of the learners until this application is finalised.

“One of the problems is that the head of education in this province, the Eastern Cape, issued a directive that the number of teachers in a school and the nutrition must be determined by the number of learners with valid IDs, passports and permits for that school. That may have the direct result or indirect. That schools may exclude learners without documentation, but also schools are now discouraged to take in the scholars,” says Gaum.

Efforts to get a response from the Education Department have not been successful yet.

The matter will be heard in the Grahamstown High Court in Makhanda in September.