Centre for Child Law and Others v Minister of Basic Education and Others

• Jurisdiction: South Africa
• Judgment Date: 12 December 2019
• Citation: 2020 (3) SA 141 (ECG)

Centre for Child Law and Others v Minister of Basic Education and Others
2020 (3) SA 141 (ECG)

2020 (3) SA p141

Citation	2020 (3) SA 141 (ECG)
Case No	2840/2017
Court	Eastern Cape Division, Grahamstown
Judge	Mbenenge JP, Schoeman J and Mfenyana AJ
Heard	December 12, 2019
Judgment	December 12, 2019
Counsel	SA Sephton for the first and second applicants.; N Ferreira (with I Cloete) for the third to thirty-ninth applicants.; MC Erasmus SC (with EM Baloyi-Mere) for the first to third respondents.; NA Cassim SC (with S Freese) for the fourth and fifth respondents.; N Stein for the first amicus curiae (South African Human Rights Commission).; K Hofmeyer (with N Makhaye) for the second amicus curiae (Section 27).

Flynote : Sleutelwoorde

Constitutional law — Human rights — Right to basic education — Extending to all within boundaries of South Africa — Nationality and immigration status irrelevant — Constitution, s 29(1).

Constitutional practice — Review — Condonation — For late filing of review application — Court's discretion — Alleged infringement of constitutional rights, especially those of children, by itself warranting condonation — Promotion of Administrative Justice Act 3 of 2000, s 9.

Education — School — Admission policy — Exclusion of learners without valid South African identity or passport numbers — Inconsistent with constitutionally enshrined best interest of children, and their right to education, dignity and equality — Declaration of invalidity issued — Constitution, ss 9(3), 10, 28(2) and 29(1).

Immigration — Illegal foreigner — Immigration Act's prohibition on training or instruction of illegal foreigners by learning institutions — Prohibition not applicable to illegal foreign children — Constitution, ss 28(2) and 29(1)(b); Immigration Act 13 of 2002, ss 39(1) and 42.

Headnote : Kopnota

Prior to 2016 the Department of Education of the Eastern Cape Provincial Government (the Department) provided teaching staff and funding to all learners at schools in the Eastern Cape, based on the actual learner numbers — regardless of whether the learners possessed identification documents. Then, in a circular dated 17 March 2016 (Circular 06 of 2016), issued by the Acting Superintendent-General of the Department, and in a further circular dated 6 June 2016, requirements were introduced that withheld funding for learners without valid identity or passport numbers.

This effectively resulted in the exclusion of such 'undocumented children' from school and from being funded if they remained at school. (See [6] – [8].) In particular, clause 15 of Circular 06 of 2016 (quoted at [73]) made the admission to public schools of children who were South African nationals conditional upon the production of a birth certificate within three months, failing which the child of the defaulting parent would be excluded from enrolment; and clause 21 required that learners classified as 'illegal aliens' must prove that they have applied to legalise their stay before they could be admitted to public schools.

On 26 May 2017 the first and second applicants, respectively the Centre for Child Law and the Phakamisa High School's governing body, applied inter alia for a declaratory order that Circular 06 of 2016 was 'inconsistent with the Constitution and/or the South African Schools Act and unlawful', and for certain consequential relief (see [10]). They were unsuccessful in obtaining an urgent interim order that pending this application, 37 affected learners at the Phakamisa High School be admitted into a public school. The Constitutional Court on 15 February 2019 however set aside the dismissal of their urgent application, affording them interim relief (see [13]).

2020 (3) SA p142

In the main application the 37 affected learners were granted leave to intervene as applicants; and the Minister of Home Affairs and the Superintendent-General of the Department of Home Affairs, respectively, joined as the fourth and fifth respondents. Two amici curiae were also admitted. Before the main application was heard, Circular 01 of 2019 was issued. The latter circular ostensibly recalled Circular 06 of 2016, by accommodating undocumented children at schools while their parents or caregivers were afforded a limited time within which to obtain the requisite documents.

The bases of the parties' respective cases are set out at [21] – [31]). The issues raised and the court's findings were as follows:

•

Whether the delay in launching the application of more than a year was unreasonable and, if so, whether it should be condoned in terms of s 9 of the Promotion of Administrative Justice Act 3 of 2000 (PAJA).

Held, that the delay was more than 180 days and was therefore per se unreasonable; it would however be condoned because it was sufficiently explained, and because the alleged infringement of constitutional rights — especially of children — on its own warranted granting condonation. (See [51] – [52].)

•

Whether the issue on the constitutionality of the admission policy embodied in Circular 06 of 2016 was rendered moot by Circular 01 of 2019.

Held, that, upon a proper interpretation, Circular 01 of 2019 gave guidance to schools when implementing the policy embodied in Circular 06 of 2016, pending a revision process that was still under way. The issue of the constitutionality of the latter circular was therefore not academic or hypothetical but very much alive. (See [55] – [70].)

•

The constitutionality of clauses 15 and 21 of the admission policy.

Held, that (apart from the right to education in s 29 of the Constitution) clause 15 constituted a severe limitation on other rights enshrined in the Constitution for the protection of children, namely the right of children to have their best interests considered paramount (s 28(2)); their right to dignity (s 10); and the right to equality (s 9(3)). As for clause 21, the right to education extended to everyone within the boundaries of South Africa (ss 12 and 35(2)); nationality or immigration status was irrelevant. Clause 21 undoubtedly also constituted a severe limitation on other rights that protect children. And because both were policy and not 'a law of general application', s 36 of the Constitution did not apply. Both clauses were therefore unconstitutional. (See [75] – [87], [90] – [93], [97] and [101.)

•

Whether ss 39(1) and 42 of the Immigration Act 13 of 2002 [*] should be interpreted as prohibiting the provision of basic education to children whose presence in the country was illegal.

Held, that on a proper interpretation, the sections fell to be interpreted in a way that did not prohibit children from receiving basic education from schools. Such interpretation would be consistent with the right to basic education enshrined in s 29; every child's rights under s 28(2) to have their best interests taken into account in matters concerning them; international conventions' emphasis on providing education to all children irrespective of their status and the existing obligation in the Schools Act 84 of 1996 placed on parents and schools to ensure that all learners receive basic education. (See [127].)

2020 (3) SA p143

Held, further, that clauses 15 and 21 were also liable to be set aside on the basis that they are ultra vires the Schools Act 84 of 1996, and the National Education Policy Act 27 of 1996 (NEPA). (See paras [102] – [106].)

Cases cited

Southern Africa

Afriforum NPC and Others v Eskom Holdings SOC Ltd and Others [2017] 3 All SA 663 (GP) ([2017] ZAGPPHC 199): dictum in para [110] applied

Akani Garden Route (Pty) Ltd v Pinnacle Point Casino (Pty) Ltd 2001 (4) SA 501 (SCA) ([2001] ZASCA 59): dictum in para [7] applied

Asla Construction (Pty) Ltd v Buffalo City Metropolitan Municipality 2017 (6) SA 360 (SCA) ([2017] ZASCA 23): referred to

Beweging vir Christelik-Volkseie Onderwys v Minister of Education [2012] 2 All SA 462 (SCA) ([2012] ZASCA 45): referred to

Biowatch Trust v Registrar, Genetic Resources, and Others 2009 (6) SA 232 (CC) (2009 (10) BCLR 1014; [2009] ZACC 14): applied

Brummer v Gorfil Brothers Investments (Pty) Ltd and Others 2000 (2) SA 837 (CC) (2000 (5) BCLR 465; [2000] ZACC 3): dictum in para [3] applied

Buffalo City Metropolitan Municipality v Asla Construction (Pty) Ltd 2019 (4) SA 331 (CC) (2019 (6) BCLR 661; [2019] ZACC 15): referred to

Camps Bay Ratepayers and Residents Association and Another v Harrison [2010] 2 All SA 519 (SCA) ([2010] ZASCA 3): dictum in para [54] applied

Centre for Child Law and Another v Minister of Home Affairs and Others 2005 (6) SA 50 (T): applied

Centre for Child Law and Others v Minister of Basic Education and Others ECG 3317/2018: referred to

City of Johannesburg Metropolitan Municipality v Blue Moonlight Properties 039 (Pty) Ltd and Another 2012 (2) SA 104 (CC) (2012 (2) BCLR 150; [2011] ZACC 33): referred to

Democratic Alliance v Speaker, National Assembly and Others 2016 (3) SA 487 (CC) (2016 (5) BCLR 577; [2016] ZACC 8): dictum in para [34] applied

Director of Public Prosecutions, Transvaal v Minister of Justice and Constitutional Development and Others 2009 (4) SA 222 (CC) (2009 (2) SACR 130; 2009 (7) BCLR 637; [2009] ZACC 8): dictum in para [75] applied

Dladla and Others v City of Johannesburg and Another 2018 (2) SA 327 (CC) (2018 (2) BCLR 119; [2017] ZACC 42): dictum in para [52] applied

eThekwini Municipality v Ingonyama Trust 2014 (3) SA 240 (CC) (2013 (5) BCLR 497; [2013] ZACC 7): referred to

Federation of Governing Bodies for South African Schools v MEC for Education, Gauteng and Another 2016 (4) SA 546 (CC) (2016 (8) BCLR 1050; [2016] ZACC 14): dictum in para [3] applied

Govender v Minister of Safety and Security 2001 (4) SA 273 (SCA) (2001 (2) SACR 197; 2001 (11) BCLR 1197): referred to

Governing Body of Juma Musjid Primary School v Essay NO (Centre for Child Law as Amici...