Fight for schoolchildren to get subsidy, even if they do not have papers, heads to court

A court challenge will be heard from Wednesday against the Eastern Cape education department's decision to withhold funding for pupils without identity documents, passports, or permits.

Many of the affected pupils are growing up with extended family members who struggle to obtain the necessary documentation for the children when their parents are no longer around, says the Legal Resources Centre.

“The children are often born at home and their births are not registered within 30 days as provided for in the Birth and Death Registration Act. This is either due to a lack of resources to travel to the nearest Home Affairs office, or due to an inability to produce all the documents that are required by Home Affairs to register a birth.”

The centre says some schools in the province have well over 100 pupils that are undocumented. “In practice, this means that the funding and resources that they receive for the documented learners have to be distributed among all the learners. This affects negatively on all the learners in the school, as resources that are meant for 300 learners, are now being used to educated and feed 400 children. The result is that the rights of the entire school are being infringed,” the centre argues.

The centre is representing the Centre for Child Law and the school governing body of Phakamisa High School against the education department in the Makhanda High Court. The case is set down for Wednesday and Thursday.

The decision to stop funding undocumented pupils was communicated to schools in the Eastern Cape in March 2016.

The Legal Resources Centre challenged the decision on the basis that it was unconstitutional and unlawful as it violated undocumented pupils' rights to basic education, equality, and dignity. Since 2016, it says undocumented children in the province have not received funding for teachers, textbooks, scholar transport, school nutrition, school furniture, or any other funding that is allocated in terms of the paper budget of the schools.

“This has particularly affected no-fee schools in the province that provide education to predominantly black South African learners living in rural areas ...

“In the last two years, this decision has seen many undocumented learners being denied admission into schools, as the schools knew they would not receive funding for the learners.”

The centre's application was initially opposed by the Eastern Cape education department, which argued that it was necessary to curb human trafficking, child abduction, child prostitution and related abuses.

In respect of “illegal immigrants” or non-national children, the department argued that it could not provide public education to people who are in the country illegally and not documented, as these children do not have a right to basic education. Further, sections of the Immigration Act make it an offence for any learning institution to provide training or instruction to an “illegal foreigner”.

The centre said, however, that data from the national department of basic education showed that 83% of undocumented pupils in the education system were undocumented South African children.

Currently, the education department is revising the admission policy and the provincial department this year published a circular that effectively recalled its decision to stop funding undocumented pupils. It is still contesting the High Court challenge, however.

The centre believes the revised policy under discussion would allow for pupils to potentially be excluded from school if they are unable to secure documentation.

“This is an incredibly important case in light of the pivotal role that education plays in children’s upbringing and the significance of the right under the constitution. It is also important in light of the recent spell of xenophobic attacks, as part of this case deals with the rights of foreign national children who are living in SA and through no fault of their own are not documented. It is only when we protect and promote the rights of all children in the country, irrespective of their nationality, that we can be truly speak of an open and equal SA.”