Know your rights!

The Right to Freedom and Security

The right to freedom and security is protected by section 12 of the Constitution. This section protects the right to physical freedom and prevents wrongful arrest and detention without trial.  

This right applies to everyone in South Africa regardless of nationality or immigration status. In line with this right, the South African Police Service must serve and protect all people in South Africa to ensure their safety and security. In 2017, the Constitutional Court ruled that it was unconstitutional for people detained as ‘illegal foreigners’ to not be brought before a court after being arrested and detained for deportation. This means that all people charged with not having a ‘legal stay’ in the country must be allowed to access the courts within 48 hours to contest the charge and allow for adequate judicial oversight.

For information on immigration detention and deportation see here. There is also a free National Immigration Detention Hotline which you can contact on 0800079614 or via WhatsApp on +27817168791.  

The Right to Education  

Everyone has the right to a basic education. All children in South Africa whether born in and out of South Africa, have a right to education. Children who are not originally from South Africa have the same education rights as South African children. Children have the right to be admitted in school with or without a document. Foreign children have the right to education from primary to secondary school. In no fee schools, foreign children also do not pay school fees. In 2019, the department of education drafted a circular to inform school principals to accept all undocumented children into schools. This circular was drafted after the Centre for Child Law and Phakamisa High School judgement. The case arose when children, mostly South African, were not being accepted in schools if they were undocumented. Schools were following admission policies preventing access. The judgement of the court founds that the policies were unconstitutional because they violated the children’s right to education. Following the case all children can be admitted in schools and a Department of Basic Education circulated a circular to schools confirming that undocumented children may access schools.

As Scalabrini, we encourage parents to use the right to education by making sure that they apply for schools regardless of the child’s documentation or lack of documentation. If you are having difficulty with this, we advise that you contact your local education office. You can also contact our Scalabrini Advocacy WhatsApp line on 0782603536. We also encourage parents to document themselves so that they can document their children before they turn 18. For more information on right to education see this video and information.  

Freedom of Movement and Residence 

Everyone including people who are migrants, asylum seekers and refugees under section 27 of the Constitution have the right to freedom of movement within South Africa. People are not limited or confined to certain spaces but may go to any area. There are additional movement rights given to people who flee their countries seeking asylum. In these cases the right to freedom of movement is added to by the right for asylum seekers not to be prevented from entering the country or forced to leave it if being kept out or forced to leave would put their life, freedom and basic human rights in danger. This is called the principle of non-refoulement.  The principle of non-refoulement says that no person may be refused entry into the Republic of South Africa, expelled, extradited or returned to any other country, or be subject to any similar measure, if this means that the person would be returning to or remaining in a country where they may face any of the risks or dangers envisaged by the refugee definitions under the 1951 Refugee convention and 1969 OAU conventions. Furthermore, freedom of movement of people assists in addressing the protection gap for disaster displaced persons, by permitting entry and stay in other areas or in other countries. 

Children’s Rights 

The Constitution in Section 28 says the rights of all children are the most important of all rights and must apply in every case that relates to children. Children’s rights are for all children living in South Africa regardless of where they originally come from. Every child has a right to be given a name and a nationality at the time of their birth, the right to education and time to relax and play, the right to say how they feel, be listened to and be taken seriously, the right to be treated well, and not hurt by anyone and finally the right to food water and growing up healthy. For more information on children’s rights see here.  

The Right to Health  

The right to health is an inclusive right. Although we mostly think of it in terms of access to health care, it extends to many other factors that allow us to live healthy lives. The Constitution protects the right to health under section 27, which states that “everyone has the right to have access to healthcare, food, water, and social security” and that “no one may be refused emergency medical treatment.” People who are refugees and asylum seekers enjoy the benefit of this protection of this right as confirmed in the Refugees Act. The Department of Health also issued a revenue directive in 2007 reiterating that people who are refugees/asylum seekers with or without a permit are entitled to health care services. For more information on the right to Health see here.