A High Court sitting in Makhanda last week delivered a landmark judgment against the barring of children without birth certificates from receiving basic education. The judges found it was unconstitutional to prevent learners without birth certificates from receiving schooling.
The verdict follows a case filed against a directive by the Eastern Cape department of education by the Centre for Child Law, Phakamisa High School and 37 children without birth certificates who had been barred from local schools, represented by the Legal Resources Centre. Other defendants include the Eastern Cape education department and the department of home affairs.
In a circular issued to schools in 2016, the department said funding for the purchases of learner support materials, the allocation of teachers as well as funding for the school nutrition program would be based on the number of learners who have either a valid identity document, passport number or asylum permit number.
According to the judges, where a learner cannot provide a certificate, principals must accept alternative proof of identity, such as an affidavit or sworn statements by a parent, caregiver or guardian.
In a ruling by Judge President of the Eastern Cape, Selby Mbenenge, the court ordered government officials to conduct themselves within the bounds of their constitutional obligations to provide access to the right of basic education.
“It is an important socioeconomic right directed, among other things, at promoting and developing a child’s personality, talents and mental and physical abilities to his or her fullest potential,” Judge Mbenenge said. “Basic education also provides a foundation for a child’s lifetime learning and work opportunities.”
In a report by UNICEF, all children have the right to go to school and learn, regardless of who they are, where they live or how much money their family has.
Meanwhile, the children gave affidavits, speaking of the embarrassment depriving them of attending school, and not being able to read and write, at feeling excluded and fearful that they would be condemned to life on the margins of society.
The lawyers argued that the admission policy for ordinary public schools was unconstitutional to the extent that it prevents undocumented South African and migrants children from attending school and accessing education.
The Eastern Cape Education Department opposed the constitutional challenge, citing administration requirements and the need to manage and control migrants. It said that undocumented children are vulnerable to human trafficking, sexual exploitation, child labor, and that the law stated that every birth had to be registered within 30 days.