/ 5 July 2024

Lack of resources, not migration control, contributes to SA education problems, says law centre

Breakthrough: The Makhanda high court judgment means no child can be denied a place in South Africa’s public schools.
File photo by Madelene Cronjé

Neglect of the needs of undocumented children in South Africa’s education system stems not only from migration problems, but also from rural-urban disparities in birth registrations, according to experts.  

In October 2023, the then home affairs minister, Aaron Motsoaledi, responding to questions in parliament, said that 258 000 children under the age of 15 were caught up in registration of births backlog. 

This backlog, the Centre for Child Law (CCL) said, is the result of services not being centralised in rural areas and is not entirely caused by an influx of migrants. 

South Africa, a preferred destination for African migrants, refugees and asylum seekers, grapples with significant backlogs at the home affairs department, which exacerbates the challenges these children face. 

“An undocumented child is not automatically an irregular migrant,” said the CCL’s attorney and researcher, Moyahabo Thoka. 

The right to education for undocumented children gained significant attention with the groundbreaking Phakamisa judgment in 2020, which confirmed that undocumented learners must not be denied access to schools. The judgment challenged a 2016 circular from the Eastern Cape department of education that had restricted funding for educational resources to children without identification documents. 

The circular said 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 to some schools expelling undocumented learners, or not admitting them into the system. 

In the judgment, Judge President Selby Mfanelo Mbenenge found that two clauses of the schools’ admissions policy were unconstitutional and invalid. This was clause 15 — which stated that a parent must provide a birth certificate for a learner to be admitted at a school — and section 21 — which stated children classified as illegal foreigners must provide evidence that they have applied to legalise their stay in the country.

Mbenenge ordered the minister of basic education and the MEC for education in the Eastern Cape to admit all children not in possession of an official birth certificate into public schools in the province.

In cases where children were unable to provide a birth certificate, he ordered that schools accept alternative proof of identity, such as an affidavit or sworn statement by the parent, caregiver or guardian of the learner.

Since then, many schools have moved towards an online application process, with one of the requirements being that every learner provide a birth certificate. For undocumented children, a proof of birth document, clinic card or affidavit can be uploaded as an alternative on the system. 

The child will be placed into a school once that information is verified on the system and when the child is conditionally accepted, the district may request a birth certificate. 

At this point, the Phakamisa judgment will come into play — where a physical application is submitted to a school. 

“A child is a separate entity to their parents, and an individual rights holder that is entitled to basic education on an equal level with all children,” said Thoka. 

A Pakistani-born mother who spoke to the Mail & Guardian and asked to remain anonymous, said she was at first afraid that her two sons — born in the suburbs in North West — were not eligible to receive an education in the South African system. But she said it was an easy process getting her children registered into the schooling system. 

“I was not born here and I was scared my children would not be able to benefit from the school system here in South Africa, but the school was understanding and did not deny my children the right to an education,” she said. 

Another undocumented parent from Mozambique said she was able to receive a child support grant for her 10-year-old son because her husband is South African. 

She added she was afraid that the government would stop the grant because she is not a South African citizen. 

Based on the South African Citizenship Act of 1995, a child becomes a citizen by birth if one of the parents is a South African citizen, therefore the child in question is eligible for government funding.

But when a child is undocumented, attending school in South Africa is not a prerequisite or determinant for citizenship based on South African law.

“Once the child falls outside of the basic education system, the now adult will be subjected to serious challenges if they are not documented,” said Thoka.

The Phakamisa judgment and Department of Basic Education’s Circular 1 of 2020 only apply to basic education, and will not be accepted if an undocumented person wishes to register for tertiary education. 

In April, the government gazetted the White Paper on Citizenship, Immigration and Refugee Protection which outlines plans to reform South Africa’s overhaul of immigration by increasing border monitoring, establishing immigration courts and withdrawing from international and regional human rights instruments.

The Equal Education Law Centre objected to this and said the White Paper would have a detrimental effect on migrant and undocumented children’s rights, mainly the right to education. 

But the CCL said the White Paper does not hold much significance, because it is a collection of legislative proposals.  

On Monday, President Cyril Ramaphosa announced the appointment of Democratic Alliance members Siviwe Gwarube as the new minister of basic education and Leon Schreiber as the minister of home affairs.

 Reacting to the appointments, the Equal Education Law Centre said in a statement that it will “approach this new era with cautious optimism, and hopes that Gwarube will prioritise the constitutional rights of all learners and dedicate herself to ensuring equitable access to quality education for every child in South Africa”.