Undocumented children — South African, from other countries and stateless — face being kicked out of the classroom, despite having a constitutional right to education and it being compulsory for all children to go to school.
The department of home affairs, under both its previous and new ministers, is not resolving the contradictions and schools are trapped by the department of education’s funding model that excludes children without the proper documentation.
Still fresh in our memories is the debacle at Eastleigh Primary School in Edenvale, Gauteng, in February. The school sent a letter advising “all foreign parents” that if they did not have up-to-date documentation for their children when they brought them to the school the following week, their children would be reported to the police.
The letter threatened: “If any foreign child arrives here on Monday we will phone the police to come and collect your child, and you can collect your child at the police station.”
The department of home affairs, through Twitter, said it had not advised the school to hand over pupils to the police if they were not properly documented.
Yet the department has also told civil society groups that it is empowered to hold a school’s principal accountable if pupils were undocumented and that this may result in a hefty fine.
That the school’s threat, addressed to “all foreign parents”, should happen at all is morally and constitutionally unacceptable. That it happens in the context of a society struggling to combat xenophobia and xenophobic violence is dangerously irresponsible.
“Xenophobia has been, and continues to be, a significant issue of societal injustice, and has led to widespread violence and displacement. The singling out of foreign nationals, and the imposition of unlawful and unreasonable threats to their fundamental right to education, is an irresponsible flaming of this fire and a poor example for educators to set for learners,” the Equal Education Law Centre said in its letter to Eastleigh.
Prior to the Eastleigh incident, several public-interest law centres worked for numerous clients whose children faced discrimination or exclusion from schools because of their nationality or lack of documentation.
The Equal Education Law Centre, the Legal Resources Centre, the Centre for Child Law, Section27 and Lawyers for Human Rights wrote to the departments of education and home affairs in March, requesting a meeting to discuss the best way to balance immigration regulation with the rights of all people in the country.
The letter emphasised the departments’ constitutional duties to protect the interests of all children in South Africa; the right to basic education is protected in section 29 of the Constitution.
“It is of great concern that the department of home affairs visited Eastleigh in the week prior to the school sending its letter, and appears to have exerted pressure with regard to undocumented learners. It is simply not constitutionally permissible for the department of home affairs to take this approach.
“While immigration control may be a legitimate government concern and function, it should never be addressed through the violation of children’s rights.”
Having received no response and with a new minister of home affairs in place following the president’s Cabinet reshuffle, we addressed a follow-up letter to the departments on May 2. Again, we received no response.
It is not only foreign schoolchildren who face this discrimination. Many South African parents who are not documented get turned away from schools for not being able to verify their status in South Africa. Children end up idle at home — often unsupervised — and without education.
Our organisations have intervened on behalf of children who are of compulsory schoolgoing age but have been outside the education system for up to two years. The children are prejudiced not only in those years, but in trying to catch up once they are finally placed.
In some of our cases, schools have been willing to extend the period for allowing the parents to regularise their status in South Africa but in other cases there has been less success.
Schools should not be vilified for this situation. Some, already stretched and penniless, cannot accept undocumented pupils if they will not receive state funds for them.
This is the case in the Eastern Cape, where the department of education has informed schools that no funding will be given to them for children without adequate documentation.
With the department refusing to revise its position, this decision is now the subject of a court review launched by the Legal Resources Centre on behalf of the Centre for Child Law in the Eastern Cape High Court.
Many poor families, both immigrant and not, are unable to afford the services of lawyers. Although we have been successful in finding placement at schools for many undocumented children, the systemic problem remains. It is not just education that is at stake, but the battle against the xenophobic undercurrents in our society. With this in mind, the need for civil society and the state to find solutions is more pressing than ever.
Child protection and advancement is at the forefront of our entire legal system. Rigid legislation and directives that threaten to limit that protection cannot be acceptable. National and provincial education departments will need to talk to each other, and to the department of home affairs, towards constitutionally sound solutions.
Nurina Ally is executive director of the Equal Education Law Centre and Kelly Kropman is an attorney at the Legal Resources Centre