Press Release: Undocumented learners get their day in court
On 18 and 19 September 2019 the Makhanda High Court (previously Makhanda) will hear an application to secure the constitutional right to education for undocumented learners in the Eastern Cape. The Legal Resources Centre in Makhanda is representing the Centre for Child Law and the school governing body of Phakamisa High School in an application to challenge the decision of the Eastern Cape Department of Education to stop funding learners without identity documents, passports, or permits.
The decision to stop funding undocumented learners was communicated to schools in the Eastern Cape in March 2016. The Legal Resources Centre challenged the decision on the basis that it was unconstitutional and unlawful as it violated undocumented learners’ rights to basic education, equality, and dignity. Since 2016 undocumented children in the province have not received funding for teachers, textbooks, scholar transport, school nutrition, school furniture, or any other funding that is allocated in terms of the paper budget of the schools.
This has particularly affected no-fee schools in the province that provide education to predominantly black South African learners living in rural areas. Many of these learners are growing up with extended family members who struggle to obtain the necessary documentation for the children when their parents are no longer around. The children are often born at home and their births are not registered within thirty days as provided for in the Birth and Death Registration Act. This is either due to a lack of resources to travel to the nearest Home Affairs office, or due to an inability to produce all the documents that are required by Home Affairs to register a birth.
Some schools in the province have well over a 100 learners that are undocumented. In practice, this means that the funding and resources that they receive for the documented learners have to be distributed amongst all the learners. This impact negatively on all the learners in the school as resources that are for example meant for 300 learners, are now being used to educated and feed 400 children. The result is that the rights of the entire school are being infringed. In the last two years this decision has seen many undocumented learners being denied admission into schools as the schools knew they would not receive funding for the learners. Many learners were thus being excluded from formal education, while their attempts to obtain birth certificates through Home Affairs were unsuccessful.
The application was initially opposed by the Eastern Cape Department of Education as they argued that it was necessary in order to curb human trafficking, child abduction, child prostitution, and related abuses. In respect of “illegal immigrants” or non-national children, the Respondents argue that they cannot provide public education to people who are in the country illegally and not documented, as these children do not have a right to basic education. Further, sections 39 and 42 of the Immigration Act make it an offence for any learning institution to provide training or instruction to an “illegal foreigner”.
It is worth noting that the perception often exists that undocumented learners must be “illegal foreigners” as all South African children have their births registered and are in possession of an identity document. This perception is however not supported by the data of the Department of Basic Education, which shows that the overarching majority of undocumented learners in the education system are in actual fact undocumented South African children. According to the Department of Basic Education 998 433 children are currently attending school in South Africa, are undocumented, and cannot be accounted for by the Department of Home Affairs. Only 16.7% of these learners are foreign nationals, while 83.2% are South African children whose parents, guardians or caregivers have not managed to secure birth certificates for them. This decision is therefore predominantly affecting South African children who, through no fault of their own, are unable to secure the registration of their births.
The 1998 Admissions Policy for Ordinary Public Schools provides for the conditional admission of undocumented learners for three months, within which time the learners must produce the required documentation. Although silent on what a school is supposed to do after three months, the Admission Policy has generally been used to exclude undocumented children if they are unable to produce the documents. The application also sought to have certain provisions of the Admissions Policy read in a constitutionally compliant manner so as to ensure that learners may not be excluded after three months if they are unable to produce the required documentation.
On 12 December 2018, thirty seven (37) children (“the Intervening Applicants”) represented by the Centre for Child Law, applied to intervene in the case as the third to twenty-sixth applicants, and to join the Minister of Home Affairs and Director-General of Home Affairs as respondents. The Intervening Applicants are children, or the parents, caregivers or co-caregivers of children, who were excluded from public schools because they do not have birth certificates or permits.
The Intervening Applicants attack the lawfulness of section 15 and 21 of the Admission Policy since they agree with the Legal Resources Centre that these provisions have the effect of barring children who do not have the requisite documentation from accessing education services. They submit that the right to education is an unqualified right that applies to “everyone” and does not have an internal limitation.
The Intervening Applicants also seek to have Sections 39(1) and 42 of the Immigration Act declared unconstitutional as these sections make it unlawful for anyone to provide instruction to “illegal foreigners”. They argue that these provisions unjustifiably limit non-national children’s rights to right to education, dignity and equality and to have their interests considered as paramount in any decision affecting them.
Both Section27 and the South African Human Rights Commission have been admitted as friends of the court and support the relief sought by the Legal Resources Centre and the Centre for Child Law. They will make submissions on the role of international law in interpreting the right to education as well as the correct interpretation of the Immigration Act, which the SAHRC contends does not prohibit instruction to illegal foreigners.
In response to the litigation, the Department of Education is in the process of revising the Admission Policy. The also published a circular in 2019 that sets out a process to allow for the admission of learners without documentation. This circular however still allows for learners to potentially be excluded from school if they are unable to secure documentation. In March 2019 the Eastern Cape Department of Education also published a circular to deal with the issue of funding. The circular provides for all learners captured on the SASAMS and LURITS system to be funded, irrespective of whether they have identity numbers, passports, or permits. The circular effectively recalled the 2016 circular to stop funding undocumented learners.
Despite these positive steps, the department persists with its opposition to the Legal Resources Centre’s application. They also oppose the relief sought by the Intervening Applicants and the court will on 18 and 19 September 2019 have to hear argument on all of the issues raised by the applicants. This is an incredibly important case in light of the pivotal role that education plays in children’s upbringing and the significance of the right under the Constitution. It is also important in light of the recent spell of xenophobic attacks, as part of this case deals with the rights of foreign national children who are living in South Africa and through no fault of their own are not documented. It is only when we protect and promote the rights of all children in the country, irrespective of their nationality, that we can be truly speak of an open and equal South Africa.
