In September 2019, the LRC took on the Department for Education in the Makhanda High Court in order to defend the right to education of undocumented learners.
In South Africa, the funding for “no-fee” schools used to be determined by a survey at the beginning of each school year which, among other things, required schools to self-report the number of learners at their institution onto a central database.
Unfortunately, some schools inflated their numbers with “ghost learners”, resulting in serious misallocation of funds. The risk of fraud, coupled with the Department of Home Affairs’ desire to curb illegal immigration, formed the backdrop to the Department of Education’s decision to publish a circular in 2016 which stated that it would only provide funding for learners who were uploaded onto the central database with the required documentation (i.e. birth certificate, ID number or passport).
The policy potentially affected millions of learners, both national and non-national. While it is a common misconception that a lack of documentation is an irregular migration issue, the bureaucratic barriers to birth registration within South Africa mean that an estimated 5% of its population is unregistered. Indeed, around 83% of undocumented learners currently attending school in South Africa are South African.
For Phakamisa High School, whose governing body was represented by the LRC, the policy change meant that over 10% of its students no longer received funding, resulting in shortages which affected all students. Phakamisa decided not to admit any more undocumented students. Other schools took the more drastic measure of expelling current undocumented learners if they could not provide the required documents.
After several unsuccessful attempts to persuade the Department for Education to alter its stance on funding, the LRC made an application to review and set aside the policy. They argued that the withdrawal of funding constituted an infringement of the learners’ right to a basic education, as well as their rights to equality and dignity under sections 9 and 10 respectively. Following months of delay, the Centre for Child Law (CCL), who was also represented by the LRC, made an urgent application at the end of 2018 to reinstate 37 children who had been out of school pending the challenge.
The Department defended its policy on the basis that it was intended to curb activities like human trafficking and child abduction and prostitution. Regarding undocumented non-national learners, it was argued that these children are not bearers of the unqualified right to a basic education and, in any case, the Immigration Act renders it an offence to provide schooling to an “illegal foreigner”.
In January 2019, the Makhanda High Court dismissed the urgent application but, following the threat of appeal, the Department placed the 37 children into school and proceeded to revise its policy on funding and admissions of undocumented learners. In the High Court Challenge on Wednesday, the LRC sought to crystallise this shift with a court order, which would compel the Department to fund undocumented learners in the school system nationwide. The rest of the High Court case revolved around the human rights compliance of the revised admissions policy.
It was a thrilling experience to listen to the advocates eloquently defend their clients’ right to a basic education drawing on international rights instruments, constitutional provisions and a wide range of case law, both domestic and foreign. Perhaps the most powerful moment, however, was when a number of the learners entered the courtroom with their parents to watch the case unfold. Throughout the various legal arguments made during the hearing, their presence served as a reminder of the real lives and futures which have been placed at risk since 2016.
If the Court finds a violation of section 29 regarding the revised admissions policy, the impact will affect undocumented learners across the country, who will be able to go to school by virtue of their fundamental rights, rather than the fortune of their birth registration. The judgment could also contribute significantly to international and comparative jurisprudence seeking to more clearly define the contours of the right to a basic education.
The judgment was reserved and is likely to be published within the next three months.
Abbey is an Oxford Human Rights Hub/Rhodes University Travelling Fellow and will be blogging about her experiences at the Legal Resources Centre (LRC) and the Rhodes University Law Faculty for the next five months.