Press Release: Case launched to protect right to education for undocumented children
Published by Legal Resources Centre 30 May 2017
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 Makhanda 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 1-3 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 (LTSM) (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.