SA's undocumented children have a right to free education, EC high court rules

All undocumented children, including children of illegal foreigners, are entitled to receive basic education, the high court in Makhanda in the Eastern Cape ruled on Thursday.

The basic education department will in future be obliged to provide and fund a basic education for all undocumented children, including children of illegal foreigners.

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

Eastern Cape judge president Selby Mbenenge set aside sections of the schools’ admission policy which in any way hindered undocumented children’s access to school.

He also set aside an Eastern Cape education department 2016 circular warning that the department would fund only children at schools who had valid documentation.

Mbenenge said that all provisions of the Immigration Act had to be interpreted to be in line with the constitution.

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

Judge Irma Schoeman and acting judge SM Mfenyana agreed with Mbenenge.

The ground-breaking case, which will have national implications, kicked off when some 37 children in the Eastern Cape were denied access to school because they had no birth certificates, study permits or passports.

The Centre for Child Law 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 basic education as well as their right to equality and dignity.

In a statement issued in response to the high court ruling, the LRC said a common yet false perception was that undocumented pupils must be “illegal foreigners” as all SA children have their births registered and are in possession of an identity document.

“According to the department of basic education, 998,433 children are currently attending school in SA, 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 SA children whose parents, guardians or caregivers have not managed to secure birth certificates for them.

“ ... 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 30 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.

“ ... This judgment is therefore predominantly affecting SA children who, through no fault of their own, are unable to secure the registration of their births.”

The Equal Education Law Centre hailed the judgment, describing it as a “phenomenal victory for children across SA”.

The centre also shared that late last month, it had secured placement of more than 100 children in Matatiele for the 2020 academic year.

The children were out of school due to lack of identity documentation.

— DispatchLIVE with additional reporting by TimesLIVE