South Africa’s Constitution is one of the most inclusive and progressive in the world, a hard fought achievement to be proud of. Under section 29 of our Constitution everyone has the right to a basic education. “Everyone” includes every person within the borders of South Africa irrespective of race or place of birth. This has been upheld by the Supreme Court of Appeal: “Human dignity has no nationality. It is inherent in all people — citizens and non-citizens alike — simply because they are human.”
The South African Human Rights Commission recently released a position paper on inclusive basic education for undocumented children. The paper addresses all children who, for various reasons, are unable to obtain documentation that allows them to access government services. This includes South African children whose birth has not been, or is unable to be, registered in terms of the Births and Deaths Registration Act; stateless persons; and migrants in an irregular situation.
According to 2016 survey data, there are about 176 000 children who live in South Africa but were not born here — and it is likely that this is underreported. It also excludes children born in South Africa to migrants and facing the same challenges accordingly.
The Lunchbox Fund encounters these children regularly in the schools it supports with daily fortified nutrition. Their stories are always of struggle and hardship. Moreover, many have fled dire circumstances in their home countries to find some safety, security and the hope of a future.
The obstacles in South Africa to obtain documentation can be enormous — for South Africans and foreigners alike. A home affairs visit means travel expenses, day-long waits in queues and on top of all that there remain policy gaps and poor implementing protocols and guidelines, especially in relation to migrants.
The government school admissions process requires foreigners to produce evidence that they have applied to home affairs to legalise their status in South Africa. But the guidelines for processing these applications are reportedly unclear to officials, leading to delays and errors and the exclusion of many children from schools.
Last week we read in the Mail & Guardian (“Schools expel children with no IDs”) of one case being heard in the high court (filed in 2017) representing 37 children in the Eastern Cape who have been forced to leave school because they do not have birth certificates or ID documents.
Following a circular sent out to schools by the Eastern Cape department of education, these children have reportedly been denied access to classrooms, learner support materials, textbooks and school nutrition since 2015 because they do not have the correct documentation. Eight of the children are from a safe house for abandoned and orphaned children; now they are being subjected to deeper vulnerabilities.
Missed years of schooling cannot be easily caught up — they are likely never to complete matric and so to struggle all the more to find employment as adults.
The children in this case are not alone. Thousands of children born in South Africa of South African parents, as well as many born in South Africa to foreigners, or born outside her borders, face similar exclusion. They are not only being denied their right to education, but also access to government school nutrition support, impinging on their basic right to access food.
Children without documentation are often in that position precisely because they have been born into a myriad of disadvantages. They include children without parents, living in safe houses or with extended family and strangers who have taken them in.
Many children have lost mothers to gender-based violence or illness. On top of that, if you’re poor and live in a rural area there are the sheer logistical problems involved in reaching the closest home affairs offices.
Without documentation, people become marginalised, trapped in an intergenerational cycle of poverty and vulnerability, and unable to access any form of government service or social protection — including education and government grants.
Not to serve these children, not to educate them, signals a failure to meet their most basic human rights. It is unconscionable and unconstitutional.
The Lunchbox Fund works alongside many other nongovernment agencies to facilitate access to school nutrition and education for every single child in South Africa.
We must continue to speak, and write, and work to ease these failures in meeting children’s rights; and to ensure we support and propel government policies and practices that are currently being moulded to uphold our Constitution.
Dr Alison Misselhorn is director of research and strategy at The Lunchbox Fund, a nonprofit organisation providing a daily meal for orphaned and vulnerable school children in township and rural areas of South Africa