The department of basic education (DBE) has published a national circular notice to all schools to allow undocumented pupils access to education following a landmark judgment by the Eastern Cape High Court in Makhanda in December, which declared it was unconstitutional and unlawful to deny undocumented pupils a right to education.
The Centre for Child Law, represented by the Legal Resources Centre (LRC) in Makhanda, filed an application after the superintendent-general of education in the Eastern Cape sent out a circular that budget, nutrition and post allocation to schools in the province would be allocated based on the number of children with documents, such as identity documents, permits and passports.
The decision to stop funding undocumented pupils was communicated to schools in the Eastern Cape in March 2016 and since then, undocumented children in the province have not received funding for textbooks, scholar transport, school nutrition or any benefit allocated to other children.
The LRC’s Cecile van Schalkwyk said Circular 1 of 2020 cancelled Circular 1 of 2019, which provided for the admission of pupils to public schools on the condition that they are able to provide documentation within a specific time period.
“Under the previous circular, the children could be excluded after 12 months if they could not provide the school with documentation,” said Van Schalkwyk.
The circular stated that all pupils must be admitted to public schools in South Africa, even if they were unable to provide documentation such as birth certificates, permits, or passports.
Van Schalkwyk said, as with the 2019 judgment, the publication of the circular opened the doors for children who had previously been denied admission into public schools because they lacked documentation, or were excluded from schools for this reason.
“Undocumented children have no control over their migration status and are dependent on adults to regularise their stay in South Africa, or to secure a birth certificate.
“The judgment and the subsequent circular is a victory for the constitution and the rights of children in the country as it recognises the fact that children deserve to be educated, irrespective of whether they have a birth certificate, passport, or permit,” she said.
According to the LRC, the application was initially opposed by the Eastern Cape department of education, which argued that it was necessary in order to curb human trafficking, child abduction, child prostitution and related abuses.
In a statement issued in December, the LRC said, according to the department of basic education, there were 998,433 undocumented children attending school in South Africa who cannot be accounted for by the department of home affairs.
Only 16.7% of these pupils were foreign nationals, while 83.2% were South African children whose parents, guardians or caregivers had not managed to secure birth certificates for them.
It was estimated the judgment would affect more than one million undocumented children, who were either seeking admission to public schools or had been warned to provide documentation to avoid being excluded.
The court declared that the right to education under the constitution extends to everyone within the boundaries of South Africa and that their nationality and immigration status is immaterial.
The court also directed that where pupils cannot provide a birth certificate, the principal of the school must accept alternative proof of identity, such as an affidavit or sworn statement by the parent, caregiver or guardian, wherein the pupil is fully identified.