This is according to the legal team of 37 Eastern Cape children who were not able to attend school for a number of years - or at all - because they did not have birth certificates, a prerequisite for enrolment.
However, at least 10 Constitutional Court justices, headed by Chief Justice Mogoeng Mogoeng, earlier this year ordered that the Minister of Basic Education and the Eastern Cape MEC for Education had to admit the learners into the schooling system, or training centres, depending on their needs.
This was pending the outcome of further litigation in which the Immigration Act and the Admission Policy for Ordinary Public Schools would come under the spotlight.
This constitutional challenge will be heard tomorrow and Thursday in the Grahamstown High Court. The Centre for Child Law is challenging the act, which bars stateless children (those without birth certificates) from attending school.
As the act stand, parents or caregivers must within three months of enrolment at a school provide a birth certificate for the child. Without it, they are barred from further attending public schools.
Counsel for the 37 pupils will argue that if the Department of Basic Education enforced the policies, almost a million children presently in schools could face the boot. The majority of these children who do not have birth certificates are black and poor.
In respect of both South African children and children of foreign nationals, Section 15 of the Admission Policy makes admission to a public school conditional on producing a birth certificate.
Foreign children who are illegally in the country must in terms of the policy submit proof of their parents' or caregivers’ attempt to regularise their status in the country before admission. Sections of the Immigration Act in fact make it a crime for learning institutions to teach these “illegal foreign” children.
It will be argued the right of basic education is guaranteed in the Constitution and this right is not only reserved for those with birth certificates. Children are without birth certificates for reasons which include that some parents have died or they have been abandoned.
Lawyers will argue the problem is far broader than 37 children and that is why the Centre for Child Law is asking for an order which will ensure no child is excluded from school because he or she is undocumented. It will be argued that the only solution is to declare the Admission Policy and sections of the Immigration Act which deal with this unconstitutional.