The high court in Makhanda on Thursday delivered a landmark judgment that will ensure that no child will be barred from education because they are undocumented — even those who are seen as illegal foreigners.
This follows an application by the Centre for Child Law, Phakamisa High School and 37 children — represented by the Legal Resources Centre — against the department of basic education (DBE), the Eastern Cape education department and the department of home affairs.
The application comes after a 2016 circular issued by the Eastern Cape department of education to schools that said that funding for the purchases of learner support materials — such as textbooks and desks — and the allocation of teachers and funding for the school nutrition programme, would be based on the number of learners who have either a valid identity document, passport number or asylum permit number.
This led tosome schools expelling undocumented learners, or not admitting them.
The papers were filed in 2017 and the case was heard in September this year.
In the judgment, Judge President Selby Mfanelo Mbenenge found two clauses of the schools’ admissions policy problematic .These are clause 15 — which says that a parent must provide a birth certificate for a learner to be admitted at a school — and section 21 — which says children classified as illegal foreigners must provide evidence that they have applied to legalise their stay in the country.
He ruled that the clauses were unconstitutional and invalid. “Besides facing the danger of being stateless, the children are beset by two problems: first, being abandoned by their parents and, second, being denied the right to basic education on the basis that they lack a piece of paper identifying who they are and lack the means, themselves, to acquire identification documents.”
In September, the Mail & Guardian reported that, according to court papers by the Centre for Child Law, even children who were abandoned and orphaned, some of whom stayed in safe houses, were expelled from schools because they did not have birth certificates.
In the opposing affidavit, the deputy director general of planning, information and assessment in the department of basic education, Shunmugam Govindasamy Padayachee, said if an order was granted to the application it would render the DBE ineffective in terms of control, funding, administration and discharging its constitutional obligation to render basic education.
In the judgment, Mbenenge ordered the minister of basic education, the MEC for education in the Eastern Cape and the superintendent general of the Eastern Cape department of education to admit all children not in possession of an official birth certificate into public schools in the province.
Where children are unable to provide a birth certificate, he ordered that schools must accept alternative proof of identity, such as an affidavit or sworn statement by the parent, caregiver or guardian of the learner.
It further said that the respondents were interdicted and restrained from removing or excluding any child, even illegal foreign children, from school after they have been admitted just because they do not have an ID number, permit or passport, or have not produced any identification documents.
In a statement, the department of basic education said the judgment came at a time when it was in the process of reviewing the admission policy including the clauses that have been found to be unconstitutional and invalid. The department said it was also working with the department of home affairs, Centre for Child Law and the South African Human Rights Commission in addressing the issue.