In a monumental ruling at the Makhanda high court, judges found it was unconstitutional to bar learners without birth certificates from receiving basic schooling.

Thirty-seven children have changed the law for themselves and an estimated one million others in South Africa who have been deprived of an education because they are undocumented.

In a ruling penned by Judge President of the Eastern Cape Selby Mbenenge, from a full bench of the Makhanda high court, the judges couldn’t have been more explicit. Literally laying down the law, they ordered government officials to “conduct themselves within the bounds of their constitutional obligations to provide access to the right of basic education”.

Where a learner cannot provide a birth certificate, principals must accept alternative proof of identity, such as an affidavit or sworn statements by a parent, caregiver or guardian, the judges said.

The importance of education, Mbenenge said, cannot be overemphasised. It is a mighty tool in the hands of the possessor.

Citing case law, he said: “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. Basic education also provides a foundation for a child’s lifetime learning and work opportunities.”

The Centre for Child Law, with the support of public interest law centre Section 27 and the Human Rights Commission, spearheaded the case before Mbenenge on behalf of 37 children without birth certificates who had been barred from local schools.

The children gave affidavits, speaking of their shame and embarrassment at not being allowed to attend school and not being able to read and write, at feeling excluded and fearful that they would be condemned to live on the margins of society.

Their lawyers argued that the admission policy for ordinary public schools was unconstitutional to the extent that it prevents undocumented children – South African and the children of migrants – from attending school and accessing education.

The case against education

The court heard that there are almost one million undocumented learners. The vast majority, 82%, are South African citizens. They are black and poor.

The children fall into two groups: South African children who, for various reasons, have been unable to obtain birth certificates and the children of migrants who do not have residence permits. Most of these children do not have birth certificates.

While some are initially admitted to schools, they are often expelled when they can’t produce the documents. Others are refused from the outset and still, others don’t apply because they know they will be refused, it was submitted to the court.

The situation came to a head in 2016 when the Eastern Cape Education Department said it would no longer fund learners who were not registered on the database with either a valid passport or ID number. These learners would be “regarded as no longer in existence and removed from enrolment”, the circular advised principals.

While the matter was pending before the local court, the Constitutional Court intervened and directed that the 37 children were enrolled at school for the 2019 academic year.

The department continued to oppose 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 and child labour and that the law stated that every birth had to be registered within 30 days. The admission policy eliminated “ghost learners”, promoted accountability and protected state resources.

The department said the issue had become “moot” anyway because the 37 children had been enrolled.

But the judge said that far from being moot, the case was of national importance. The new policy only extended the period within which the required documentation must be provided to schools from three months to 12 months, “after which the affected children must leave school”.

Children in limbo

The case also affected more than a million other children “and it is clear that from the personal circumstances of some of their caregivers and parents that there is no end in sight to secure the documents, leaving the children in limbo”.

“The issues are not hypothetical or academic, but very much alive. These children end up without hope of being able to rid themselves of poverty or being allowed to participate meaningfully in society. They are denuded of their self-esteem, self-worth and potential for human fulfilment. Due to be being idle, some of them end up involved in criminal activity and become a menace to the social fabric.”

Mbenenge said undocumented children brought into the country should not be punished for the choices made by their parents or caregivers, ruling that the relevant clauses in the admissions policy constituted a severe limitation to other rights that protect children and were therefore unconstitutional.

“Section 29 of the Constitution, which protects the right to basic education, is an immediate and realisable right that stands on a higher pedestal.

“There is not an iota of evidence to support the submission that illegal foreigners come to this country in order to receive free basic education. All indications are that immigrants come to seek employment. Besides putting in place proper immigration controls, the responsibility remains with the government to enforce compliance with labour laws. All of this could and should be achieved without the invasion of the fundamental rights of children.”

Regarding the Immigration Act, which purportedly prohibits schools from enrolling migrants, the judge said this was a misinterpretation of the law.

“It makes no reference to schools, education or basic education. It makes reference to learning institutions, training and instruction. These terms ought to be interpreted to refer not to the rights of children who receive basic education, but adults attending learning institutions to obtain something over and above basic education.”

The Centre for Child Law, which is based in the law department of the University of Pretoria, described the judgment as “monumental”, with positive implications for the rights of thousands of undocumented children across South Africa who have been denied access to education.

A better life

Senior attorney Anjuli Maistry said there are various reasons why South African children are undocumented. Some parents or caregivers cannot meet the rigid requirements of the Births and Deaths Registration Act, which includes the provision of documents they are sometimes unable to obtain. For instance, unmarried fathers are not allowed to register the births of their children without the mother of the child being present (and in the absence of the mother, and expensive paternity test). Parents who abandon their children are still obliged to register their births but seldom do.

“Non-national children are unable to obtain a study permit as the Immigration Act requires that they provide bank statements and a medical aid scheme. Many children that qualify for asylum cannot obtain the documents required because of unlawful practices at the Department of Home Affairs, and some are stateless with no pathway to documentation.

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