Undocumented kids, even those of illegal foreigners, have right to schooling

LAWYERS for Human Rights has again stressed no child may be prevented from attending school simply because they do not have birth certificates, IDs, permits or passports.

Thandeka Chauke, a lawyer at the organisation, said that under the Constitution, every child in South Africa had the right to go to school, irrespective of whether they had documentation.

“We urge the Department of Basic Education and schools to ensure that no child is turned away or disadvantaged due to lack of documentation.

“We further urge the Department of Home Affairs to accelerate efforts to ensure all children in South Africa are documented and have full access to their rights,” Chauke said.

Karabo Ozah, the director at the Centre for Child Law, also reaffirmed all children, including those whose parents were illegal foreigners, had a right to schooling. She said no government school was allowed to turn them away if they did not have birth certificates or other documentation.

She referred to the landmark judgment in December 2019, by the Grahamstown High Court in the Eastern Cape, which confirmed the right to basic education of all children, irrespective of the child’s birth registration status.

The court declared the admission policy of the Department of Basic Education, which barring undocumented children – both South African and non-national – from attending school because they were undocumented, was unconstitutional.

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

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

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

It was earlier argued almost a million children could be denied access to public schools if the 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, in 2019, said there were 998433 undocumented children enrolled in public schools, mostly without birth certificates. Of these, 880 968 were South African citizens.

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

He said in the country’s constitutional dispensation, basic education was a pivot of transformation, serving as it did to redress the entrenched inequalities caused by apartheid.

It was argued at the time there were many reasons why parents often battled to obtain the necessary documentation for their children.

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.

The courts have, however, meanwhile came to the assistance of these unmarried fathers, who are now able to register their children.

Lawyers for Human Rights and the Centre for Child Law maintained education was a fundamental right which had the power to change a child’s life for the better. A denial of the right had irreversible consequences and kept children locked in cycles of poverty.