SA’s new school rules protect undocumented and pregnant learners

Rights

Cape Town – South Africa’s Department of Basic Education has introduced new regulations under the Basic Education Laws Amendment (BELA) Act, reinforcing the constitutional right to education for all children — regardless of nationality, immigration status, or pregnancy.

As reported by The Citizen, Minister Siviwe Gwarube emphasised that the regulations reaffirm the principle that the right to basic education belongs to “everyone within the boundaries of South Africa, regardless of nationality and immigration status.”

According to the draft regulations open for public comment, undocumented parents seeking to enroll their children “need only submit the standard admission application along with a sworn affidavit explaining why they are unable to provide formal identity documentation.”

The principal of the school is then obliged to notify the district education office “within seven days of admitting a child under such circumstances,” while the provincial Head of Department must assist families in obtaining official documents, such as a birth certificate, “while the child continues to attend classes uninterrupted.”

The regulations also confront discriminatory practices against pregnant learners. The rules explicitly state that “pregnancy is not a valid ground for refusing or removing a student from school.” The regulations further uphold a guiding principle of non-discrimination, prohibiting refusal of admission on grounds of, among others, nationality, pregnancy, HIV status, religion, culture, or disability.

Legal experts have highlighted that the department’s stance aligns with existing court rulings. The African Human Rights Law Journal (AHRLJ), in its analysis of the Centre for Child Law & Others v Minister of Basic Education & Others case, noted that the department’s position upholds the constitutional right to basic education for every child, regardless of immigration status.

In that judgment, the court held that section 29(1) of the Constitution guarantees access to basic education to “every person within the country,” and struck down policies that required identity documents for admission — recognising that “many families cannot comply with such requirements through no fault of their own.”

Civil society groups have largely welcomed the new regulations.

According to IOL, under the Basic Education Laws Amendment (BELA) Act, “Learners without valid documentation are equally entitled to admission to public schools as documented learners, provided that their parents … submit … required documents or a sworn affidavit explaining why they are unable to provide such documents.”

“The principal must report undocumented admissions within seven working days to the Head of Department, and the HOD has authority to require governing bodies to review policies that conflict with the new rules.”

The Southern Africa Human Rights and Migration Association (SIHMA) said the changes “promise relief for children of undocumented foreign parents, many of whom were previously excluded.”

SIHMA further noted that the Department of Basic Education had already issued internal directives allowing undocumented learners to write matric exams without identification, highlighting “the urgent need to formalise inclusive admission policies across all provinces.”

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