LRC submits it is time for the Minister of Home Affairs to practise what he preaches
On 22 October 2019 the Minister of Home Affairs, Aaron Motsoaledi, was asked to comment on why the Department of Basic Education was barring undocumented children from going to school. The Minister was briefing a joint meeting of the portfolio committees on Home Affairs and Cooperative Governance and Traditional Affairs. According to him the Department of Education indicated that it was concerned about school inspections by Home Affairs officials. He stated that this situation “can’t happen in any modern democracy.” “Send them to school,” he demanded, “we’ll look at the documentation later”.
While many read the Minister’s comments with relief, the integrity of his pronouncements is doubtful in light of the ongoing legal battle in the High Court in Makhanda that the Department of Home Affairs and the Department of Basic Education have been embroiled in since 2016.
The case launched by the Legal Resources Centre on behalf of the Phakamisa High School and the Centre for Child Law, is a challenge to a circular published in 2016 by the Eastern Cape Department of Education making all education funding dependent on a child having the required identification documents. According to court papers filed by the Department of Education, the decision was heavily influenced by the Department of Home Affairs’ desire to curb illegal immigration. The argument is that the decision was intended to target activities like human trafficking, child abduction and prostitution to assist Home Affairs in executing its mandate of immigration control.
The Department of Home Affairs was joined to the proceedings in 2018 when 37 children who were excluded from school due a lack of documents, challenged sections 39 and 42 of the Immigration Act. These provisions render instruction to an illegal foreigner a criminal offence. The application has been vehemently opposed by the Department of Home Affairs and the Department of Education.
In the application heard on 19 September 2019 the Department of Home Affairs argued that undocumented non-national learners in South Africa do not enjoy the unqualified constitutional right to a basic education. Sections 39 and 42 of the Immigration Act render it an offence to provide schooling to an “illegal foreigner” and the Minister vigorously opposed the constitutional challenge to these sections. The Minister argued that declaring these sections unconstitutional will increase illegal immigration and it was necessary to deny undocumented non-national learners access to schools to ensure that learners are not incentivised to come to South Africa for education purposes.
The application was argued just over a month before the Minister made his comments to the portfolio committee. This came as a surprise to the Legal Resources Centre that has been litigating this issue since 2017. It is inconsistent for the Minister to publically denounce the exclusion of undocumented learners from schools in one forum, whilst fighting to preserve legal provisions that criminalise teachers and principals for providing instruction to undocumented learners.
The Minister’s comments when read in light of this ongoing litigation, portray at best, a concerning obliviousness on the position of his own Department and, at worst, a startling level of hypocrisy. The litigation has undoubtedly cost the state considerable (tax payer’s) money in legal fees – an expenditure that now seems fruitless in light of the Minister’s comments. But while the legal fees can be quantified in monetary terms, the cost to the learners is immeasurable.
As the Minister has correctly pointed out, “it is more dangerous to have a child who is not in school.” Unfortunately, the argument of the Minister and his department during the litigation has left many undocumented learners completely excluded from formal education which makes them more vulnerable to social ills as they become invisible to the state. For those that have been denied access to education and education funding, the last three years cannot be recovered. Even if the court finds in favour of the LRC’s clients, those who have already been excluded from school will struggle to catch up, or simply never enter formal education. These children, and their educational potential, are lost to South Africa. But while a favourable outcome will never replace the years of schooling already lost by the children in the case, it might hopefully encourage the Minister and his Department to align their positions to guarantee the constitutional rights of all learners in South Africa.
Judgment is reserved in this matter.