File photo: African News Agency (ANA)

Pretoria - The hopes of 37 children in the Eastern Cape to be able to join their friends soon at public schools for the 2019 academic year, was yet again dashed - all because the do not have birth certificates.

A Grahamstown judge in December turned down their application, brought with the help of the Centre for Child Law, to be allowed to attend school this year.

This was pending a larger application which is expected to be heard later this year, in which the constitutionality of the education department’s admission policy and the Immigration Act, will be challenged.

According to the policy of the education authorities, all children who attend public schools, had to within three months of enrollment, produce a birth certificate. 

These children do not have these documents. This is due to a number of reasons - some of them are orphans and the parents of others faced various challenges in obtaining birth certificates.

The judge in December said the law is the law and although he felt sorry for these children, the policy was that they could not be admitted without a birth certificate.

The centre meanwhile returned to the court to ask for permission to appeal this refusal. 

It is of the opinion that it would not harm anyone of these children were allowed to attend school until the final word was spoken on the law pertaining to the department’s policy.

But the judge, sitting in Grahamstown on Tuesday yet again dashed the hopes of these children, as he turned to application for leave to appeal down.

Attorney Anjuli Maistry of the Centre for Child Law, shortly after their second defeat, said she dreaded giving the parents the bad news. 

She said the children pinned their hope on the leave to appeal application, as it provided light in the dark tunnel to them.

She said the next step will be to petition the Supreme Court of Appeal in Bloemfontein directly for permission to appeal the judgment.

Maistry said if these children are not allowed to attend school at this stage, they will have to remain at home for the next two years until the legal challenge to the policy and the act was concluded.

"The children remain out of school whilst their counterparts receive an education, are given the opportunity to improve their lives, and are able to dream about what the future holds for them.”

“ With the Department of Education actively denying their admission, it is only through the courts that they can ever hope to attend school. So far, the courts have failed them. They are on the margins of society where they will likely remain if they are not to receive an education. 

“Some of the children's parents have expressed to us that they feel their children's futures lie in the court's hands and that it is their last hope if they are ever to receive an education,” Maistry said.

The legal fight could last up to 2021. 

“It is simply untenable that the children must spend all of that time out of school. The children have a right to education,” she said.  

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