South Africa is failing the rights of children to education and health

Source: New Edge, 03/03/2019

The country places limitations on children`s access to education
and affordable health care. This is particularly true of migrant
children. These limitations are, in my view, unconstitutional and
in violation of South Africa`s international obligations. For
example, South Africa is bound by the International Covenant on
Economic, Social and Cultural Rights. In the interpretation of
this convention, the United Nations Committee on Economic Social
and Cultural Rights has emphasised that :
all children within a state, including those with an undocumented
status, have a right to receive education and access to adequate
food and affordable health care.
However, South Africa isn`t living up to this promise.
What`s clear is that South Africa`s current school admission
policy has a serious effect on the access to basic education of
both children who are South African citizens and those who are
foreign nationals or stateless.
The challenges for those who are not South African citizens and
don`t have the required permits are compounded by section 39 of
the Immigration Act 13 of 2002 . This states that a `learning
institution` may not provide `training or instruction` to an
`illegal foreigner`. Principals of schools that enrol a child who
is an `illegal foreigner` can be charged and may face penalties.
Children who are not South African citizens often also struggle to
access affordable health care through what`s been called `medical
xenophobia` .
A recent Constitutional Court ruling gives some hope that the
requirements of birth certificates and study permits for children
to enrol in school will eventually be relaxed. However, litigation
is still ongoing and as with access to affordable health care,
there`s often a discrepancy between what the law provides and the
actual situation on the ground.
Denial of rights
On 10 December 2018, the Grahamstown High Court gave an order
dismissing an urgent application by the Centre for Child Law that
37 children should be admitted to a public school pending final
determination of a case instituted by the Centre in 2017 , in
which the applicants, among others, requested an order that:
no learner may be excluded from a public school on the basis that
he or she does not have an identity number, permit or passport.
The 37 children were among the many children whose guardians have
not managed to secure the paperwork needed to be allowed to
register in a school under the 1998 Admission Policy for Ordinary
Public Schools.
On 15 February 2019 the Constitutional Court granted leave of
appeal against the High Court order and overturned it, ordering
that the children should be admitted and enrolled in school by 1
March. However, this order does not finally decide the issue of
requirements for enrolling in school as the case instituted in
2017 is still pending before the High Court.
The right to health care is provided for in article 27 of the
Constitution. The National Health Act 61 of 2003 provides for free
health care at public facilities for children under six years old,
unless a child is covered by private medical insurance.
According to the Uniform Patient Fee Schedule all non-South
African citizens â€` except those with permanent or temporary
residence and citizens of the member states of the Southern
African Development Community who `enter the (the republic)
illegally` â€` are classified as full-paying patients. Children
without the required permits who are over six years old, who lack
medical insurance and are not from a Southern African Development
Community member state therefore lack access to subsidised health
care.
International obligations
The Global Compact for Safe, Orderly and Regular Migration was
adopted in December 2018 with South Africa`s support. Among other
things, the global compact calls on states to adopt child
sensitive migration policies. It also promotes international legal
obligations in relation to the rights of the child, and upholds
the principle of the best interests of the child at all times.
The principle of the best interest of the child was first set out
in an international treaty 30 years ago in the United Nations
Convention on the Rights of the Child . It was reiterated in the
African Charter on the Rights and Welfare of the Child . South
Africa is party to both these treaties. In addition, the South
African Constitution provides that:
a child`s best interests are of paramount importance in every
matter concerning the child.
A child is defined as anyone below the age of 18.
The right-holder in the bill of rights in the Constitution, is
with few exceptions `everyone`. Clearly this includes not only
South African citizens but everyone who is in the country. Most
rights are not absolute and may be limited under section 36
in terms of law of general application to the extent that the
limitation is reasonable and justifiable in an open and democratic
society based on human dignity, equality and freedom.
The Immigration Act is a `law of general application`. However,
the child`s best interest is `of paramount importance`.
In my view, the rights of children to basic education and
affordable health care in South Africa can`t be limited and
`everyone` must be read to include every child, irrespective of
their immigration status. When it comes to access to health care
the situation is even clearer as there are no limitations set out
in the country`s laws. The Uniform Patient Fee Schedule should
therefore be revised to provide for subsidised health care for all
children whose guardians cannot afford medical insurance.
Human rights right to education access to healthcare International
standards Immigrant children