By GEMMA RITCHIE
Judgment is reserved in a groundbreaking case heard in the High Court in Makhanda (Grahamstown) on 18 September that highlighted the disastrous plight of children who don’t have official documentation.
The application was brought by the Centre for Child Law, the governing body of Phakamisa High School and 37 children, with the departments of Education and Home Affairs as respondents. NGO Section27 and the South African Human Rights Commission intervened as amici curiae.
The application was heard before a full bench – Judge President Selby Mbenenge, Judge Irma Schoeman and Acting Judge SM Mfenyana.
The Department of Education agreed upon a draft order with the Centre for Child Law and the school governing body of Phakamisa on the matter of funding for undocumented school children. Advocate Sarah Sephton for the Centre for Child Law proposed the order on Wednesday morning which would see the government continue to subsidise undocumented school children in the new academic year.
The Department had revoked a circular issued in 2016 which stated that stipends – for resources such as teachers and textbooks to the National School Nutrition Programme – would be allocated only to school children with the correct documentation.
Attorneys of record, the Legal Resources Centre, said they were happy with the outcome of the funding issue which applies not only to the Eastern Cape, but the entire country.
“There are close to a million children in the [education]system who will receive funding,” LRC attorney Cecile van Schalkwyk said. “This will take children from the fringes of society into the education system where they can realise their potential.”
A new circular published by the Department of Education earlier this year on the schools’ Admissions Policy stated that undocumented South African and migrant children would be accepted into a state school conditionally: according to this ruling, parents have to apply to the Department of Home Affairs within 12 months for the necessary documentation.
Advocate Nick Ferreira, Senior Counsel on behalf of the 37 children, challenged this conditional acceptance and subsequent timeframe, calling it the “guillotine”.
According to the Admissions Policy, undocumented migrant children will be admitted to a school only if the child’s parents can prove they have begun their process to legalise their stay in South Africa. Of the more than a million undocumented schoolchildren in South Africa, 167 734 are children of migrants – most living in Gauteng and the Western Cape.
Highlighted in arguments was the number of children who had been unable to obtain a birth certificate because of outstanding paternity tests. Such was the case of couple Nomsa Ndlovu and Zwelethu Phongomile, who told Grocott’s Mail they were unable to get their child a birth certificate until they had paid for a paternity test, which neither could afford. The couple are the parents of one of the 37 children represented by the Centre for Child Law.
Some children had spent as long as four years out of school because they didn’t have the right documentation. Parent Amos Sokoyi explained that his stepson could not understand why he could not go to school like his cousin. “My kid was chased away from school,” Sokoyi explained. Sokoyi’s 11-year-old stepson has re-entered school for the first time since 2015 and is currently in grade 3.
In court on Wednesday, Senior Counsel for the Department of Education Chris Erasmus, defended the timeline proposed in the circular as a means to handle the issue and not “postpone it”.
He also proposed that undocumented migrant children should be brought within the programme with the right paperwork, so they have the right to be in South Africa.
“The Department of Education bent over backwards to assist undocumented learners. Everything is done on this side of government to help learners attain the correct documentation,” Erasmus told the court.
On the Immigration Act, Erasmus reminded the court that South Africa is a sovereign state and should keep its resources for its citizens and not for migrants wanting free education.
Ferreira responded vehemently, “We will do irreversible harm to the children in order to act as a lever to prevent their parents from entering the country illegally.”
It was the possibility of employment in a strong economy, and not free education, that encouraged migration to South Africa, he pointed out.
Judgement on the application was reserved.
*Additional reporting by Kathryn Cleary