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You’re wrong, Gayton McKenzie: Undocumented children do have the right to basic education

Jos Venter
By Jos Venter
15 Jan 2023
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The Patriotic Front’s Gayton McKenzie’s statements that undocumented children should not be admitted to schools are not just misinformed and xenophobic, they are contrary to the law.

A new school year started in South Africa this week. Thousands of learners commenced their schooling and others returned in continued pursuit of their dreams. This glorious event should be celebrated and we must pull out all the stops to ensure that every learner of schoolgoing age enjoys the constitutional entitlement to basic education.

Unfortunately, circumstances arise where the enjoyment of the right to basic education is undermined and learners run the risk of being denied access to education. For example, Gayton McKenzie, mayor of the Central Karoo District and president of the Patriotic Alliance, has repeatedly expressed on Twitter that undocumented children “should not be allowed at all in schools in South Africa”.

McKenzie’s views, which are misinformed, xenophobic and contrary to the law, were well received and supported by his tweeps and other antiforeigner Twitter users. This shows that not only is there a lack of understanding of what the right to basic education entails, but also that the xenophobic sentiment that dominates South Africa’s social discourse severely threatens the livelihood of undocumented children.

The right to basic education is a fundamental human right, recognised in a number of international and regional legal instruments. The United Nations Committee on Economic, Social and Cultural Rights regards education as “the primary vehicle by which economically and socially marginalised adults and children can lift themselves out of poverty and obtain the means to participate fully in their communities”.

Former President Nelson Mandela described it as “the most powerful weapon you can use to change the world”.

Integral empowerment


The right to basic education of every learner in South Africa is entrenched in section 29(1)(a) of the Constitution. On the face of it, the eight-word provision might seem nugatory, but when you delve into the true meaning of it, you find an empowerment right that plays an integral role in realising all other human rights.

In the landmark Juma Musjid judgment, the Constitutional Court affirmed that the right to basic education is unqualified and immediately realisable in nature. This means that every learner within the confines of the country enjoys an entitlement to this unfettered right, and that obstacles which unjustifiably limit or hinder its immediate enjoyment must be removed.

South Africa’s rich education jurisprudence that has developed since the Juma Musjid judgment informs us that this right must be enjoyed by every learner free from discrimination and on equal footing, regardless of race, language, religion, disability and status.

In December 2019, the Eastern Cape Division of the High Court delivered judgment in Centre for Child Law and Others v Minister of Basic Education and Others, a case concerning undocumented learners who were precluded from unconditionally attending public schools on the basis of their status.

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The court upheld the challenge to the policy that precluded the unconditional admission of undocumented learners to public schools, and re-emphasised that the right to basic education is “unqualified, unconditional and applies to everyone” and can never be limited to “everyone upon the production of a birth certificate or provided they are in the country legally”.

The constitutional guarantee of an unfettered right to basic education must be realised to ensure that the self-esteem, self-worth and potential for human fulfilment of every learner, especially the most vulnerable and marginalised among them, are protected.

Misinformed views


Gayton McKenzie’s expressions come at a time when xenophobic sentiments and associated violence are drastically increasing in South Africa. The worsening state of xenophobia and South Africa’s lack of reproach to it was recently criticised by Human Rights Watch in its World Report of 2023.

The report, which analyses human rights conditions across the globe, notes that despite efforts to curb xenophobia, there has been little tangible improvement in protecting the rights of all migrants who reside in South Africa.

Most alarming is the fact that xenophobic sentiments and violence, fuelled predominantly by members of anti-foreigner groups and politicians, is often based on misinformed and inaccurate views and opinions — such as those expressed by McKenzie.

When society blindly follows these misinformed and inaccurate views and opinions, especially when it disregards human rights, we run the risk of devaluing fundamental rights that have long been fought for. 

Threats aimed specifically at denying the fundamental rights of the most marginalised and vulnerable human beings — which include undocumented migrants and their children — should not be taken lightly.

It is our duty to uphold the constitutional promise of a society based on equality, human dignity, social justice and the advancement of human rights of everyone who lives in our beautiful country. DM

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