Chapter 5 CHILDREN’S RIGHTS Children’s rights are entrenched in the Bill of Rights in the Constitution of South Africa. These rights apply to all children in South Africa and include; the right to education, the right to health care, and the right to social assistance. However, to secure these rights, children need to be documented. Nonetheless, there have been certain developments in South African laws and policies that have encouraged greater inclusion - and access to rights for undocumented children. 1. Right to education: Section 29 of the Constitution states that everyone has the right to basic education. Previously, a birth certificate and ID (or a visa or permit) were compulsory for the admission of a learner to school in terms of the Schools Admission Policy under the South African Schools Act 84 of 1996. This effectively meant that children with no form of identity documentation could not go to school. On 12 December 2019, the High Court in Centre for Child Law and Others v Minister of Basic Education and Others (2840/2017) [2019] ZAECGHC 126 declared these provisions unconstitutional - and ruled that the right to education as entrenched in the Constitution applies to all children in South Africa regardless of documentation or legal status. This includes: • • • the right to be admitted to a school; the right to participate in school activities and programmes, including nutrition programmes; and the right to write exams and receive exam results. DBE circular 1 of 2020 on the admission of learners requires all schools to comply with the High Court judgment and admit all learners regardless of documentation or legal status. Schools are forbidden to send children away due to lack of a birth certificate, ID, passport, permit or visa. 34 | 2. Right to health care: Section 27(1)(a) of the Constitution states that everyone has the right to have access to health care services, and Sec 27(3) states that no one may be refused emergency medical treatment. South African citizens, asylum seekers and refugees, temporary and permanent residents, therefore all have the right to access health care services in South Africa. Primary health care services are provided free of charge, but higher levels of care are subject to a fee that is determined by a means-test, i.e., depending on the patient’s income. The means-test applies to South African citizens, asylum seekers and refugees, temporary and permanent residents, and undocumented SADC residents – anyone who does not fall under these categories will have to pay total fees. It is also worth noting that Sec 4 of the South African National Health Act 61 of 2003 states that pregnant and breastfeeding women and children below six years old are entitled to free health care services (including termination of pregnancy). The provision of these services is regardless of documentation or legal status. DOH circular dated 19 September 2007 on hospital fees assessment of asylum seekers and refugees (with or without a visa or permit): The circular confirms that asylum seekers and refugees (with or without visas or permits) can access the same basic health services as South African citizens and can access Antiretroviral Treatment for HIV. 3. Right to social assistance: Section 27(1)(c) of the Constitution states that everyone has the right to have access to social security, including appropriate social assistance. In Khosa and Others v Minister of Social Development and Others;