File picture: Independent Media
File picture: Independent Media

No child can be barred from school for not having documents - ruling

By Zelda Venter Time of article published Dec 13, 2019

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Pretoria - No child may be prevented from attending school simply because they don’t have birth certificates, identity documents, permits or passports.

Yesterday, the Grahamstown High Court declared unconstitutional the admission policy of the Department of Basic Education barring undocumented children - both South African and non-national - from attending school because they were undocumented.

The judge president of that division Judge Selby Mbenenge ruled that the department was acting unconstitutionally in not permitting children to continue receiving education in public schools, purely because they lacked documents.

The Centre for Child Law was at the forefront of launching the application when it came to light that some schools in that province refused a number of undocumented children schooling.

It was sparked by a department circular which stated that certain forms of funding, including for support materials and food,would only be provided to those pupils who had valid ID or passport numbers.

Subsequently, several schools opted to reject undocumented children.

The small number of schools that allowed undocumented children to remain in school spread their existing funding thinly through their learners and in doing so, risked facing fines and imprisonment under the Immigration Act.

The Centre for Child Law, represented by the Legal Resources Centre, challenged this policy.

It was earlier argued that almost 1million children could be denied access to public schools if this policy continued, unless they obtained birth certificates as a matter of urgency, which Home Affairs was unable to provide due to a host of reasons.

The Department of Basic Education said there were 998433 undocumented children enrolled in public schools, mostly without birth certificates.

Of these, 880968 were South African citizens.

Judge Mbenenge said the right to basic education was enshrined in the Constitution.

Thus, no child could be denied this right simply because he or she had no documentation.

Zita Hansungule, of the Centre for Child Law, said this monumental finding had positive implications for the rights of thousands of undocumented children across South Africa who were denied access to education.

“This has inhibited their ability to reach their full potential, uplift themselves and break cycles of poverty. This affected South African children who did not have birth certificates and non-national children,” she said.

According to Hansungule, there were various reasons why South African children were undocumented or did not have birth certificates.

These included instances where their parents did not meet the requirements to obtain the documents and the inability of unmarried fathers to register the birth of the child without the mother being present.

Paternity tests were also very expensive and not always an option.

Many children who qualified for asylum also battled to obtain documents because of some unlawful practices at Home Affairs, the court heard.

The centre’s senior attorney, Anjuli Maistry, who was closely involved with the case, applauded the judgment.

“Education is a fundamental right which has the power to change a child’s life for the better. A denial of this right had irreversible consequences and keeps children locked in cycles of poverty. We are happy that the court recognised this.”

Judge Mbenenge, meanwhile, declared the circular by the department which prevents undocumented children from accessing basic education, invalid.

The schools in the Eastern Cape which barred the 37 children and sparked this application, were ordered to admit them despite not being in possession of official birth certificates.

The judge also declared that the Immigration Act did not prohibit the admission of illegal foreign children into schools and that they too had a right to basic education.

Pretoria News

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