This change of heart comes as the department is due to face judges of the Constitutional Court to answer to the fact that the children have not attended school this year.
The Centre for Child Law approached the Grahamstown High Court in December for an order allowing these children to attend school, pending a later application in which it intends challenging the department’s admission policy and the immigration legislation, which bars stateless children from attending school.
The high court turned down the application, as well as a subsequent application for leave to appeal.
In terms of the policy and the Immigration Act, 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 attending public schools.
Attorney Anjuli Maistry, of the Centre for Child Law, said if these children were not allowed to attend school, they would have to remain at home for the next two years until the legal challenge to the policy and the act was concluded. She said nobody would be prejudiced if the children were allowed to attend school until all the legal issues were heard in court.
“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,” she said.
The Education Department from the start insisted they would not allow anyone without a birth certificate to attend school.
Maistry, meanwhile, turned to the highest court in the country for an order allowing the children to go to school pending the legal challenge.
The ConCourt subsequently issued a directive to the department in which it was instructed to file an affidavit stating why this matter should not be heard as a matter of urgency and why the appeal in the interim to allow the children schooling should not be granted.
Despite the department’s earlier stance, they undertook in their affidavit to the ConCourt to admit these pupil for now. The undertakings included that the department would assist pupils over the age of 16 to be admitted to a basic education training centre. Those under 16 would be assessed and their attendance to a school in the past would be taken into consideration to determine their grade. The department was then to enrol them at public schools.
The department further undertook to help these children to apply for birth certificates.
Maistry said they were relieved at the department’s change of heart, and they would ask that this be made an order of court. But they would still ask the court to overturn the high court judgment, as it created a binding precedent to children who did not have birth certificates.
The judge in that judgment stood his ground that children who did not have birth certificates were not bearers of the right to education.
In light of the undertaking of the department, the centre will no longer ask the ConCourt to rule that the children may in the interim attend school.
No date has yet been set for the hearing, but it is expected to be soon.