Our Johannesburg Pro Bono Practice represented the SAHRC (which was admitted as an amicus curiae) in an important case concerning the right to basic education of undocumented children heard by a full bench of the Grahamstown High Court on 17 September 2019.

The two main issues before the court were the lawfulness of a decision by Eastern Cape Department of Education (communicated by way of a circular on 17 March 2016) to withdraw funding for undocumented learners enrolled in public schools, and the lawfulness of the Department of Basic Education's (DBE) Admission Policy for Public Schools (Admission Policy) as well as certain provisions of the Immigration Act, which the DBE/schools have been relying upon to deny access to schools to undocumented children, many of whom are SA citizens.

The Admission Policy makes it mandatory for a parent to provide a birth certificate for the child concerned when applying for admission of their child to a public school. If the parent is unable to produce a birth certificate the child may be admitted conditionally until a copy of the certificate is obtained from the DHA. However, after three months, if the relevant documentation has not been produced the child faces potential exclusion from school. Meanwhile section 39 of the Immigration Act prohibits "learning institutions" from providing training or instruction to an illegal foreigner and section 42 of the Immigration Act goes on to render it an offence to "aid and abet" or assist an illegal foreigner to obtain instruction or training contrary to section 39.

Evidence placed before the court showed that cumulatively both the Admissions Policy and the provisions of the Immigration Act, have resulted in many children who despite the best efforts of their parents/ guardians have been unable to obtain birth certificates, either being forced out of schools or denied entry into schools because of their undocumented status. The applicants accordingly challenged the constitutionality of both on the basis that they infringe, amongst others, the right to basic education of undocumented children.

The SAHRC made submissions on the proper interpretation of sections 39(1) and 42 of the Immigration Act and demonstrated to the court that if interpreted correctly, the Immigration Act does not in fact prohibit the provision of basic education to foreign undocumented children and invited the court to provide clarity on the proper interpretation of these sections so as to ensure that the deprivation of a basic education to any undocumented learners is no longer permitted as such deprivation has far-reaching social and other implications. Although the DBE tried to argue at the hearing that the whole matter had become moot because of the fact that the decision to stop funding undocumented children had never been carried out, and because it was planning to revise its Admission Policy, the court heard argument in the matter and reserved judgment.

The case draws attention to the stark reality that hundreds of thousands of deeply vulnerable children in SA (the majority of whom are born to SA parents) face impossible barriers as a result of poverty and an array of systemic administrative hurdles in obtaining birth certificates or other forms of identification, and that many of these children are being denied access to school as a result. Ultimately, the outcome of this hearing will have a profound impact on the lives of many of the most vulnerable children in our country and we hope that the court will take heed of the plight of undocumented children across SA.

The Pro Bono Practice has undertaken other work in the education sector and to promote the right to education:

OTHER WORK UNDERTAKEN IN THE EDUCATION SPACE:

  • Assisting a family to claim damages pursuant to the death of their daughter/sister who died tragically by electrocution as a result of an illegal electrical connection in a mobile classroom in a township school. The Gauteng Department of Education was aware of the illegal connection but failed to act.
  • Assisting undocumented children living in an informal settlement in a farming community to access their right to education - the children have been excluded from the formal schooling system due to their lack of documentation and are now attending Field of Dreams Childrens Centre. The Centre is a registered NPO, which seeks to provide a safe haven for these children which keeps them mentally stimulated and ready to eventually re-enter the formal schooling sytem should they obtain documentation.

The Cape Town Practice, conducted workshops in partnership with Just Grace, a non-profit organisation located in Langa focused on the meaningful development and holistic support of the Langa community, for school students enrolled in Just Grace's youth development program. These included a Basic Introducion to Human Rights Workshop.

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