The unenforceability of the unalienable socio-economic rights of undocumented children in South Africa

Abstract

All children are entitled to constitutional rights in terms of the Constitution of the Republic of South Africa, 1996, and human rights in terms of regional and international law, gaining access to these rights is however problematic to undocumented children because of the illegal position of the parents or caregivers, the absence of any caregivers and the undocumented status of the child. The study attempts to disentangle these discrepancies in human rights law and practice. The research question is addressed by laying a philosophical basis by means of integrating and refining existing contemporary legal philosophical concepts. Working with Hannah Arendt's concept of rightlessness and Georgio Agamben's concept of bare life, this dissertation aims to analyse and criticize the unenforceability of the inalienable socio-economic rights of undocumented children residing in South Africa. The study illustrates that undocumented children are, similar to the stateless in Arendt’s work, reduced to live bare life due to their rightless condition. Within the philosophical framework, an analysis is then done of the relevant international human rights instruments. The analysis is completed by an investigating into South African constitutional law and recent case law. In conclusion, this study illustrates that undocumented children, in both domestic and international law, are entitled to the exact same rights as citizen children. However, due to a lack of documentation, as well as procedural and legal barriers, these unalienable rights are not enforceable and the children are in effect rightless.