The short answer
Excluding ZEP holders from accessing school fees exemption is not in line with the spirit of the Constitution or the Schools Act.
The whole question
I have a Zimbabwean Exemption permit (ZEP). My daughter's school won't exempt me from paying school fees because I am not a refugee or asylum seeker. But I cannot afford to pay. What does the law say about foreign nationals and school fee exemption?
The long answer
The problem is that the law says nothing about foreign nationals and school fees exemption.
All that is emphasised about the ZEP is that it:
Entitles the holder to work/study and/or conduct business.
Does not entitle the holder the right to apply for permanent residence, irrespective of the period of stay in the Republic of South Africa.
Will not be renewable/extendable.
The Minister of Home Affairs has recently said that the ZEPs which will expire on 31 December 2021 will not be renewed automatically and he would need to discuss such renewal with Cabinet.
The only information I have been able to access about how school fees exemption might apply to ZEP holders is the statement that government has restricted access to basic education and housing for temporary workers. ZEP holders are classified as temporary workers.
A 2019 study on Zimbabwean migrants notes that not being able to apply for permanent residence means that access to social benefits is severely limited: "Most social assistance benefits in South Africa are accessed through South African citizenship or permanent residence (Deacon et al., 2015; Carciotto, 2018)."
As exemption for school fees is a form of social assistance or benefit, it is likely that the ZEP holders are excluded from this, as your daughter’s school states.
We know that the Constitution says that every child living in South Africa is entitled to basic education. We know that the South African Schools Act of 1996 says that no child can be refused admission to a public school on the grounds of their parent being unable to pay or has not paid the school fees laid down by the school governing body. We know that Section 9 of the Admissions Policy for Ordinary Schools lays down that admissions must not unfairly discriminate against any learner, and Section 19 of the Admissions Policy says this applies equally to learners who are not citizens but whose parents are temporary permanent residence holders.
So, it would seem that excluding ZEP holders from accessing school fees exemption is not in line with the spirit of the Constitution or the Schools Act.
It’s important to note that no pupil may be excluded from any school or extramural activities because their parents have not paid the school fees, and the school may not withhold a School Report or Transfer Certificate for this reason.
You could ask the Department of Education to explain it on their toll-free hotline at 0800 202 933.
You could also consult with one of the following organisations for help and advice:
Consortium for Refugees and Migrants in South Africa (CORMSA):
Tel: 011 403 7560/0032/0033.
Equal Education Law Centre
Tel: 011 356 4100
Lawyers for Human Rights
Tel: 021 424 8561
Wishing you the best,
Answered on Feb. 18, 2021, 11:20 a.m.
Please note. We are not lawyers or financial advisors. We do our best to make the answers accurate, but we cannot accept any legal liability if there are errors.