Victory for undocumented children
12 December 2019
“Education is a mighty tool in the hands of the possessor. Its efficiency depends largely on the bulwark that surrounds it – the right to education.” – Mbenenge JP
The Legal Resources Centre in Makhanda represented the Centre for Child Law and the school governing body of Phakamisa High School in this 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.
Today the Grahamstown High Court in Makhanda confirmed that children without documentation have the right to basic education under the Constitution. This is a landmark judgment that will better the lives of undocumented children in the Eastern Cape and the rest of South Africa, and allow them the opportunity to access basic education.
The court declared that the right to education under the Constitution extends to “everyone” within the boundaries of South Africa and that their nationality and immigration status is immaterial. Clauses 15 and 21 of the Admission Policy for Ordinary Public Schools (19 October 1998) has been declared unconstitutional and the Department of Basic Education has been directed to admit all children not in possession of an official birth certificate into public schools in the Eastern Cape. The court also directed that where learners cannot provide a birth certificate, the Principal of the school must accept alternative proof of identity, such as an affidavit or sworn statement by the parent, care-giver or guardian of the learner wherein the learner is fully identified.
Circular 6 of 2016 that provided for learner funding to be provided only to those learners with valid documentation has also been declared unconstitutional and invalid. This means that in future education resources such as teachers, school nutrition, and funding for a school’s budget will be provided to all children in public schools and not just the learners with valid documentation.
The Department of Basic Education has also been interdicted from removing or excluding children from school, including illegal foreign children, if the child does not have an identity number, permit, or passport or have not produced any identification documents. Furthermore, the court found that sections 39 and 42 of the Immigration Act 13 of 2002 do not prohibit the provision of education to illegal foreign children.
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 argued 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 made it an offence for any learning institution to provide training or instruction to an “illegal foreigner”.
The judgment will have far-reaching implications for all children struggling to access education due to a lack of documentation as well as for the schools that provide education to undocumented learners. The court found that it is an undeniable fact that the children affected by the Circular that stopped funding for undocumented learners emanate from vulnerable, poor black communities. 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 Eastern Cape have well over a 100 learners that are undocumented. In practice, this means that the funding and resources that they received for the documented learners had 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 educate 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 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 judgment is therefore predominantly affecting South African children who, through no fault of their own, are unable to secure the registration of their births.
On 12 December 2018, thirty seven (37) children (“the Intervening Applicants”) represented by the Centre for Child Law, applied to intervene in the case, and to join the Minister of Home Affairs and Director-General of Home Affairs as respondents. The Intervening Applicants were 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 attacked the lawfulness of section 15 and 21 of the 1998 Admission Policy for Ordinary Public Schools since they agreed 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 submitted that the right to education is an unqualified right that applies to “everyone” and does not have an internal limitation.
The Intervening Applicants also argued that sections 39(1) and 42 of the Immigration Act do not make it unlawful for anyone to provide instruction to “illegal foreigners”. Both Section27 and the South African Human Rights Commission acted as friends of the court and supported the relief sought by the Legal Resources Centre and the Centre for Child Law. They made 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 contended did not prohibit instruction to illegal foreigners.
Not only will all the undocumented learners who are currently in school receive funding, but those learners who have been excluded due to a lack of documentation will now be able to access schooling. 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. The Legal Resources Centre welcomes this ground-breaking decision and the positive impact it will have on the lives of undocumented learners. It is only when we protect and promote the rights of all children in the country, irrespective of their nationality, that we can truly speak of an open and equal South Africa.
Issued by Tad Khosa, Communications officer, LRC, 12 December 2019
