Victory for a million ‘undocumented’ schoolchildren

The national basic education department will in future be obliged to fund a basic education for all undocumented children, including children of foreigners illegally in the country.

This is the effect of a judgment by a full bench of the high court in Makhanda on Thursday.

It is estimated the judgment will affect more than one million undocumented children who are either seeking admission to public schools or who have been warned to produce appropriate documentation to avoid being excluded.

Eastern Cape judge president Selby Mbenenge, with judge Irma Schoeman and acting judge SM Mfenyana agreeing, set aside sections of the schools national admission policy which in any way hindered undocumented children’s access to schooling.

He also set aside an Eastern Cape education department 2016 circular which warned schools that the department would only fund children who had valid documentation at schools. Mbenenge also ordered that all relevant provisions of the Immigration Act had to be interpreted to be in line with the constitution.

This meant it had to be read in a way which meant it in no way prohibited the provision of a basic education to illegal foreign children.

Provincial education department spokesperson Malibongwe Mtima said officials had not yet had an opportunity to study the judgment, and to discuss it with their legal team.

He said once it had been “studied and discussed” with the other respondents in the matter, the department would comment in full.

The ground-breaking case, which will have implications for the country, was heard after 37 children in the Eastern Cape were denied access to schooling because they had no birth certificates, study permits or passports. The Centre for Child Law (CCL) and Phakamisa High School in Port Elizabeth — represented by the Legal Resources Centre (LRC) — set out to challenge all the regulations and laws that inhibited undocumented children from accessing basic education.

They successfully argued that they constituted an unjustifiable limitation on children’s constitutional right to access basic education, as well as their right to equality and dignity.

LRC spokesperson Cecile van Schalkwyk said they were ecstatic about the outcome of the case. “This will undoubtedly have a positive impact on the lives of many undocumented children in South Africa.

“Education plays a pivotal role in bettering our country and today the court confirmed that everyone has the right to receive basic education, even if they do not have birth certificates.

“We welcome this recognition of the right to education under the constitution and the positive impact this will have for children at the start of the 2020 school year.”

In his judgment, Mbenenge said court papers had shown the horrifying effect of children being denied an education on the basis of being undocumented.

Many had felt shame and embarrassment at being unable to perform tasks that other children of their age easily carried out. “These disadvantaged children end up without hope of being able to rid themselves of poverty and without hope of being able to participate meaningfully in the societies of which they are a part. They are denuded of their self-esteem and self-worth and the potential for human fulfilment.”

He said those sections of the admissions policy that required pupils classified as “illegal aliens” to prove they had applied to legalise their stay before they could be admitted to public schools, was a “nigh impossible” requirement.

“The children were brought into South Africa illegally and therefore cannot meet the requirements of a residence or study permit.

“They can thus not apply to legalise their stay.

“They had no choice in being brought to this country, but end up bearing the negative consequences of attached to their parents’ choices.”

He said the right to education in SA extended to everyone in its borders, immaterial of their nationality or immigration status.

He interdicted national minister Angie Motshekga, and her Eastern Cape counterpart Fundile Gade, from in any way excluding children from schools, including “illegal foreign children” on the basis of being undocumented.