Why does my son need to write a letter explaining why he wrote matric without a study permit?

The long answer

VFS Global, the company which handles visas etc for the Department of Home Affairs (DHA), says that to get a study permit, you must complete Application Form (DHA-1738) in black ink and submit together with a valid passport and application fee.

The website of the Department of Education said in 2024 that a foreign student must have a study permit issued by the Department of Home Affairs through VFS Global to write matric, but that if a study permit was not available, “proof of application to the DHA or a police affidavit may suffice”. 

That seems clear enough, but the question I have is whether this requirement for a study permit to write matric is affected by the 2019 ruling made by Judge Selby Mbenenge in the Makhanda High Court in the Eastern Cape. 

In that 2019 case, Judge Selby Mbenenge said that all children had the right to basic education in terms of Section 29(1)(a) of the Constitution, and this right applied to every child in South Africa, whether they had official documentation or not.

He found that clauses 15 and 21 of the Schools Admission Policy for Ordinary Public Schools of 1998 were unconstitutional:

Clause 15 said that a parent had to give the school an official birth certificate for the child, and if they could not get the certificate from Home Affairs in 12 months, the school could remove the child.

Clause 21 said that non-citizen parents had to prove that they had applied to Home Affairs to legalise their stay in the country, or the child could be removed.

The Department of Basic Education was interdicted from excluding or removing any child, even illegal foreign children, after being admitted to school simply because the child did not have an ID, a birth certificate or other documentation. Where a learner could not provide a birth certificate, school principals were ordered to accept alternate proofs of identity such as an affidavit or sworn statement by the parent, caregiver or guardian.

So in terms of that judgement, a child could not be excluded from writing matric because of not having an ID card. This meant that in 2019 more than 13,000 undocumented students were able to write their matric.

In 2020 the body that issues the matric certificates, Umalusi, said that learners without documentation are issued matric certificates using the learner’s date of birth. The spokesperson, Lucky Ditaunyane said that this matric certificate was as good as those with an ID.

If your son was older than 21 when he wrote matric, he would not be able to write the ordinary National Senior Certificate (NSC) matric, but would have to write the Amended Senior Certificate (ASC) which is for adults who are 21 years old and older.

UCT’s FAQ document on Adult Matric for the Amended Senior Certificate (ASC) says: “Adult Matric learners from outside of South Africa will need their passport, visa and a study permit when entering South Africa to write their final ASC examinations. This will need to be shown at the examination venue before writing your final matric.”

I think the 2019 Makhanda judgment means that the requirement for a foreign student to show a study permit still applies, but I think it would be worth asking for legal advice about this and what your son should write in his letter.

You could approach one of the following organisations for help and advice:

Legal Resources Centre: 

Email: info@lrc.org.za 

Tel: Cape Town: 021 481 3000 

Tel: Johannesburg: 011 836 9831

Lawyers for Human Rights: 

Email: info@lhr.org.za 

Tel: Cape Town: 021 424 8561 

Tel Johannesburg Office and law clinic: 011 339 1960

Wishing you the best,
Athalie