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Press Release: Case launched to pro­tect right to edu­ca­tion for undoc­u­mented chil­dren


 For Imme­di­ate Release: 30 May 2017


On Fri­day, 26 May 2017, the Legal Resources Cen­tre, on behalf of the Cen­tre for Child Law and the School Gov­ern­ing Body of Phakamisa High School in the East­ern Cape, launched an appli­ca­tion in the Gra­ham­stown High Court to declare a deci­sion made by the East­ern Cape Depart­ment of Edu­ca­tion (ECDOE) to stop fund­ing learn­ers with­out iden­tity, pass­port of per­mit num­bers uncon­sti­tu­tional.


This fol­lows the announce­ment made on 17 March 2016 that fund­ing trans­fers to schools for the Norms and Stan­dards, post pro­vi­sion­ing allo­ca­tion and National School Nutri­tion Pro­gramme (NSNP) for quin­tiles 13 would be based on the learner num­bers where valid South African iden­tity, pass­port and per­mit num­bers have been cap­tured on the South African Schools Admin­is­tra­tion & Man­age­ment Sys­tem.


The Norms and Stan­dards trans­fers include fund­ing for learner-teacher sup­port mate­ri­als (includ­ing text­books and sta­tionery), munic­i­pal ser­vices and school main­te­nance. The fund­ing for NSNP is allo­cated to each school in a sep­a­rate bud­get. The post pro­vi­sion­ing allo­ca­tion funds the salaries of teach­ers and sup­port staff.


Many schools have already been affected by this announce­ment and do not have suf­fi­cient teach­ers or bud­get for LTSM and the NSNP.


The appli­ca­tion argues that, by with­draw­ing fund­ing, the ECDOE is vio­lat­ing the learn­ers’ con­sti­tu­tional right to basic edu­ca­tion (sec­tion 29), par­tic­u­larly when it is read in con­junc­tion with the learn­ers’ rights to dig­nity (sec­tion 10) and the right to equal­ity and non-discrimination (sec­tion 9).


The fund­ing fail­ure is also a gross vio­la­tion of the learn­ers’ con­sti­tu­tional rights to basic nutri­tion (sec­tion 28) and to have access to suf­fi­cient food (sec­tion 27). Fur­ther­more, the deci­sion to exclude learn­ers with­out iden­tity num­ber, pass­ports or per­mits is not in the best inter­est of the child and vio­lates sec­tion 28(2) of the Con­sti­tu­tion.


In the past, schools were funded based on actual num­bers of learn­ers, regard­less of whether they had valid iden­tity, pass­port and per­mit num­bers, not on those reg­is­tered in the sys­tem.


With­out fund­ing pro­vided for learn­ers with­out iden­tity, pass­port and per­mit num­bers, schools will have less to spend on learn­ers reg­is­tered in the sys­tem, com­pro­mis­ing their edu­ca­tion and nutri­tion. To sup­port those not reg­is­tered in the sys­tem, schools will either have to fundraise for their short­fall or will ask unreg­is­tered learn­ers to leave.


This appli­ca­tion argues that, “any fail­ure, whether inad­ver­tent or not, on the part of par­ents to reg­is­ter their birth does not jus­tify any action or deci­sion adversely affect­ing the rights of learn­ers….” It notes that it is usu­ally the poor­est and most vul­ner­a­ble learn­ers that fail to obtain their iden­tity doc­u­ments and that some bar­ri­ers to access­ing these are insur­mount­able. Often par­ents or guardians fail to take the nec­es­sary steps to reg­is­ter the birth of a child due to a lack of access to an office of the Depart­ment of Home Affairs, the par­ents not being in pos­ses­sion of the nec­es­sary doc­u­ments to have the birth reg­is­tered or as a direct result of migrant labour.


Fur­ther­more, the appli­ca­tion con­tains infor­ma­tion regard­ing the schools that are doing every­thing in their power to assist learn­ers obtain iden­tity doc­u­ments and finalise pro­vi­sional learner enrol­ment but are not able to do so.


The appli­ca­tion seeks to have the deci­sion by the ECDOE to be set aside and for the Depart­ment to revise post estab­lish­ments and fund­ing in line with actual num­bers of learn­ers in schools, regard­less of their reg­is­tra­tion sta­tus.  







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