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October 07, 2015 | Last Updated 7:30 AM
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Comment & Analysis
Imbizo–My Debate: Children’s right to education has no borders

Jonathan Crush

Despite the common assumption to the contrary, children born outside the country have the right to an education in South Africa through the Constitution, as well as various international human rights conventions, to which South Africa is a signatory.

In discussions about the Children’s Act, the Department of Social Development argued that there was no need to build in special protection for migrant children because the act applies to all children, regardless of origin or nationality. Research by the Southern African Migration Programme calls this argument into question and demonstrates that the country is, in practice, regularly in violation of the UN Convention on the Rights of the Child, the African Charter on the Rights of the Child and the Bill of Rights.

Earlier investigations of discrimination in South African schools focused on the persistence of racism but had little to say about the associated problem of xenophobia. More recently, there have been case studies of the experiences of foreign children in South African schools. One study of five schools in Johannesburg’s inner city found that migrant children were regularly subject to verbal abuse and name-calling from fellow pupils.

In another study of the inner city, by Wits University and Khanya College, refugee children talked about “taunts by teachers in the classroom and by pupils in the playground”. Others pester them by asking what they are doing in South Africa and when they are going back to their countries of origin. A micro-study in Athlone, Cape Town, reported similar findings among a group of younger refugee children.

A recent survey showed that school attendance rates vary considerably with the migration status of the parents and child. Among the school-going age children of permanent residents, the non-attendance rate is 12%. Among refugees it is 21% and among asylum seekers 23%. Finally, 43% of the children of irregular migrants are not in school. Such a wide variation can only be explained by the existence of “gatekeeping” at the level of individual schools. The intensity of gatekeeping by schools seems to vary from place to place, possibly even from school to school. For example, 13% of migrant children in Pretoria do not attend school, compared to 24% in Gauteng, 28% in Durban, 31% in Port Elizabeth and 33% in Cape Town.

Given the extra guarantees of the Refugees Act, child refugees should have no difficulty at all in gaining access to schools. But parents who have come to South Africa to seek asylum are frustrated by South Africa’s overburdened and inefficient refugee system.

Given that most Zimbabweans are in South Africa to make a living (and contribute significantly to the South Africa economy), it would be an appropriate neighbourly gesture for South Africa to agree to educate Zimbabwean children in the country until such time as conditions in that country permit their parents or guardians to return home. However, appeals to the goodwill of South Africans are unlikely to be successful given the pervasiveness of anti-foreign (and anti-Zimbabwean) sentiment.

The national policy and legislative framework around school admission not only appears to violate the convention, charter and Bill of Rights at points but is also contradictory. The Immigration Act, in particular, unfairly places the burden of immigration enforcement on schools and also makes schools unsafe spaces for children. It is not unreasonable for government schools to ask for identity documentation (but not necessarily birth certificates) and proof of immunisation. But to use non-compliance or a lack of documentation to single out non-South African pupils, relegating them to the bottom of enrolment lists or denying them access altogether, is highly problematic. The Department of Education’s legislation from the 1990s and the Immigration Act certainly need to be re-examined for their constitutionality.

Many migrant children come from a tortured past and need to be welcomed rather than abused and to be made part of the school rather than continuously reminded that they do not belong.

Jonathan Crush edits the Southern African Migration Programme’s policy series – www.





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