In December 2019, the deputy judge president of the Eastern Cape High Court, Selby Mbenenge, handed down a judgment in Makhanda declaring that it was unconstitutional for the Department of Education to bar children from school if they lack identification documents. Mbenenge also declared the admission policy for schools to be invalid and policies that only allow for learners to benefit from the nutrition programme were also declared invalid. 

The court said principals can accept other acceptable forms of identification like a sworn affidavit. The court added that the Immigration Act does not prohibit the admission of illegal foreign children into schools and does not prohibit the provision of basic education to illegal foreign children.

According to Mbenenge’s judgment, there might be close to a million children who have been kept out of school due to the policy that birth certificates were required to get into school and that this situation is not close to being resolved because of the personal circumstances of the children’s caregivers and parents.

“These experiences concern parents who have abandoned their children, leaving them in the care of relatives, or other caregivers, and rendering it impossible for the children (invariably born at home or residing in other inaccessible areas due to geographical remoteness), to obtain birth certificates.

“Attempts to register some of the children, absent their biological parents whose whereabouts are unknown, have proved futile. Resulting from this, the children are stuck in limbo and there are no prospects of them obtaining the birth certificates which are a prerequisite to obtaining identification documents. Besides facing the danger of being stateless, the children are beset by two problems: first, being abandoned by their parents and, second, being denied the right to basic education on the basis that they lack a piece of paper identifying who they are and lack the means, themselves, to acquire identification documents,” Mbenenge wrote in his judgment.

Legal Resources Centre attorney Cecile van Schalkwyk who represented the learners in the case said they had no problems at the start of the school year.

The judge’s order has also brought a wave of hope in the small town of Matatiele in the Eastern Cape where hundreds of undocumented children have not been able to access schooling since the controversial policy implementation in 2017.  The town, on the Lesotho border, has communities that move across the border all the time.

Asiphe Funda, a candidate attorney at the Equal Education Law Centre, received the first call on the desperate situation in the town at the beginning of last year. “The lady was running an after-school centre, but children were coming there all day because they were denied access to schools. Funda said the first time they had a meeting about the issue, more than 150 parents arrived.

She said they were approaching the Eastern Cape Department of Education for help and liaised with the Alfred Nzo District Office.

“When we had a meeting, we realised that the school principals wanted to help and they were keen to admit the children conditionally for a year, as prescribed by policies at the time. They did not know what to do with the children after a year,” she said.

She said they were very happy when the judgment was delivered in December 2019.

“I want to congratulate officials from the Eastern Cape Department of Education for how they handled the court’s judgment. We are really struggling to get a similar result in Gauteng and other towns where there are a lot of migrant workers,” she said. 

“When we had the first meeting, you could see people’s desperation,” said Funda. “After we gave them copies of the court order, you could see them double-checking if it was okay to send the kids to school now. They kept on double-checking. It seemed unreal for them.

“This was a very big moment for me. It is good to see the real impact of the work you do.”

She said principals were also very willing to accommodate over-age learners whose schooling was interrupted when the policy requiring children to have birth certificates was brought in during 2017.

Eastern Cape Education Department spokesperson, Loyiso Pulumani, said the head of the department, Themba Kojana has issued correspondence to the effect that our district offices must ensure that there’s full compliance with the letter and spirit of the judgment. “In effect, we are also actively monitoring compliance across the entire province,” he added. MC