No proof of birth, no education

Sonia Sigauke was only 10 years old when she dropped out of school in Mozambique.

After seven years at home, aged 17, Sigauke came to South Africa to look for her mother. She had left Mozambique in 1986, leaving Sigauke and her younger siblings to be raised by their grandmother.

“I came to look for my mother because our clinic cards and birth certificates were with her — and the reason I dropped out of school is because I did not have those documents, which were needed at school,” Sigauke said.

“My grandmother tried to get us to school. But eventually we had to drop out because we could not produce the documents that were required. After dropping out, we lived in hope that my mother would one day come back and we could go back to school again, but she never did.”

Sigauke, now 38 years old, came to South Africa illegally in 1997 and the following year met the man who would become the father of her four children.

Even though he is South African and the children were all born in the country, like her they do not have birth certificates. Now Sigauke’s fear is that her children will also be deprived of an education because they do not have the necessary documents. Sigauke managed to get her three older children into school using their immunisation cards but, even as they progress, they face the risk of having to drop out because they have no other form of identification.

Her 17-year-old firstborn, Patrick,is going to matric next year and she fears that, without an ID, he will not be able to register to write his finals.

Her second-born, Bertha, is going into grade eight next year and will need to apply through the Gauteng education department’s online admission system, which requires the IDs of both the parent and the pupil. “All I would like is to see my children having their documents and going to school. I couldn’t go to school because I didn’t have documents but I want my children to have an education,” she said.

Sigauke’s other nightmare has been that of her eight-year-old son, Sipoho, whom she struggled to enrol in grade one last year because he does not have a birth certificate.

“I started applying for school for him in 2016. I went to the district office of the Gauteng department of education and they said they would call me but they never did. I went again last year and they never helped me. He was supposed to have started school last year.

“There are many children in my area [Kaalfontein, Midrand] who do not go to school because they are undocumented. It hurts,” Sigauke said.

“It was hard seeing other children going to school and mine was not. He had even developed a habit of playing in the dumpsite because he had nothing to do — imagine! It was really hard.”

With the help of the Centre for Child Law, Sigauke’s son is in grade one — for now. But the school has made it clear that, if he does not produce a birth certificate soon, he will be kicked out.

According to the national admission policy for public schools, a pupil can be admitted conditionally if they don’t have a birth certificate but the parent must take steps to rectify the situation within three months.

Anjuli Maistry, a senior attorney at the Centre for Child Law, told the Mail & Guardian this week that, according to the Births and Deaths Registration Act, both parents have to provide valid proof of identity to register the birth of a child, but Sigauke and her partner cannot do so because she does not have any form of identification.

“The father is a South African with a valid South African ID but he is also prevented from being able to register [their children’s] birth because they are not married,” said Maistry.

This week, the Centre for Child Law went to the high court in Grahamstown to challenge the department of home affairs on these regulations. Judgment has been reserved.

“The court might say that those regulations are unconstitutional and home affairs needs to register children like [Sigauke’s son’s] birth,” Maistry said.

This week, the South African Human Rights Commission held a colloquium on undocumented children being denied an education and launched a position paper on the matter. In its paper, the commission said that all children, whether they have documents or not, have a “fundamental and undeniable right” to basic education.

The commission said there is no credible data on the number of undocumented children of school-going age. Although some pupils are helped to get into school, many others are not as fortunate.

“Although the lack of documentation may affect persons from all nationalities, racial and gender groups, as well as those from all geographic areas, the vast majority of learners adversely impacted by a lack of documentation are poor black learners from predominantly rural areas,” reads the paper.

“The effect of the exclusion of undocumented learners, therefore, has notable implications for the eradication of racial and socioeconomic disparities.”

Speaking at the colloquium, the director of legislative services at the department of basic education, advocate Charles Ledwaba, said no South African school is allowed to discriminate against any pupil, whether they are a citizen or not.

He said, however, that the admission of pupils has to be conducted within the confines of the law.

“It’s not a process that operates openly without reference to existing legislative instruments. So, mostly we are being guided by the department of home affairs with regard to immigrants and refugees. We are always in line with their legislative instruments when admitting learners in our schools,” he said.

In its paper, the Human Rights Commission made recommendations to the basic education department on how to handle undocumented pupils, including that:

  • It must issue a directive to public schools outlining the schools’ obligation to admit and retain all undocumented pupils;
  • It must review the laws and policies pertaining to access to public schools for undocumented pupils, and have a law and policy that states that no pupils can be excluded or removed from a school because of his or her status or documentation; and
  • All provincial education departments must review their admission policies and practices, including in online registration systems that exclude undocumented pupils.

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Bongekile Macupe
Bongekile Macupe is an education reporter at the Mail & Guardian.

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