Undocumented learners are still being turned away

With the new school year well under way, the Department of Basic Education has been accused of not complying with a court order to admit children who do not have identity documents to schools.

A department district official threatened to deport a young learner and her family when they approached the official to organise her enrolment at school. This was despite the December judgment that found it unconstitutional to bar learners without birth certificates from receiving basic schooling.

The Centre for Child Law at the University of Pretoria has dealt with 12 cases so far of children being turned away. “This involves calling school principals, writing to them, writing to the office of the deputy minister for education and writing to the provinces. 

“There has been a lot of back and forth. In a majority of cases, we have sent the judgment to the school, and then they say it’s full or that there is a registration fee. Most remain unresolved and the children are out of school,” said senior centre attorney Anjuli Maistry.

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Section 27 attorney Samantha Brener said the social justice organisation has dealt with three cases, one involving a South African child and two involving the children of migrants.

“Once we wrote to the schools [or] districts concerned, explaining the judgment, they were placed without pushback. However, these are just the cases where parents have had the knowledge and resources to approach us to ask for help. There could be many more where children have been excluded from schools on the basis of documentation status but parents, schools and education districts are unaware that this is unlawful.”

Constitutional obligations

The judgment handed down on 12 December in the Grahamstown high court declared sections of the “admissions policy”, which demands proper identification before a child can be enrolled at a school, invalid and inconsistent with the Constitution. The judgment also interdicted the education minister from removing or excluding from schools, South African and migrant children who have no identity number, permit or passport.

The Centre for Child Law launched the court application with the support of Section 27 and the Human Rights Commission, on behalf of 37 children barred from schools because they had no birth certificates.

But it is estimated that there are a million other children in the country – the majority of whom are South African – being deprived of an education because they are undocumented.

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Judge President Selby Mbenenge 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 an alternative proof of identity, such as an affidavit or sworn statement deposed by a parent, caregiver or guardian.

Poor communication

Maistry said the sticking point appeared to be the fact that the department had not yet issued a revised circular to principals and district offices, who were unaware of the court ruling.

“We are told it has been drafted and waiting for the minister’s signature. But we have not seen it yet. We wanted to make comments on it, but it seems that is not to be,” she added.

One matter the centre is dealing with is that of nine-year-old Lebo*, who was born in South Africa to Mozambican parents. The Department of Home Affairs refused to register her birth because her parents did not have identity documents. She attended preschool in 2017 but was refused admission to grade 1 because she could not produce a birth certificate or identity document. As a result, she did not attend school in 2018 and 2019. 

A friend of her father’s went to the district office earlier this month and spoke to a senior administration officer.

“[The officer] listened to the story and responded … that he is required to phone the Department of Home Affairs immigation office, who would immediately collect Lebo and her parents for a deportation process. He emphasised that he is legally not allowed to provide admission without proper documentation,” said Maistry.

Lebo’s father said she cannot even write her name. “She does nothing all day. She sits with her grandmother.” He has been living in South Africa since 1984. 

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Fear of deportation

“The problem is I don’t have an ID and neither does her mother,” he said. “I am now scared of trying to get her into school because we may be deported. Everyone is here, my father, my mother, my brother. And people are asking questions, asking why she is not at school. I am very stressed and scared, and I don’t know what to do.” 

Department of Basic Education spokesperson Elijah Mhlanga said the circular had been drafted, and that the minister had signed it and it was being circulated.

“The matter was discussed several times since the judgment and consultation was also done with legal counsel to inform the next steps,” he said. “It was drafted in January, but quality assurance needed to be done to ensure we communicate without confusion.”

Regarding the alleged threat of deportation, he said this was “highly disturbing if it did happen. No instruction was issued to threaten people with arrest if they brought their undocumented children to schools. We communicated publicly [on television and radio] and urged schools to admit learners whether or not they had ID documents.”

*Not her real name

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