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Cliffe Dekker Hofmeyr, Johannesburg
Cliffe Dekker Hofmeyr, Johannesburg
In December 2019 a Division of South Africa’s High Court (the Eastern Cape Division sitting in Grahamstown) handed down a ground-breaking judgment upholding the right to education of undocumented children. The case was brought by the Centre for Child Law, an NGO based at the University of Pretoria dedicated to promoting the best interests of children, the Legal Resources Centre, a not for profit public interest law centre and 37 affected children (to be referred to collectively as the applicants). The South African Human Rights Commission (SAHRC), represented by our Pro Bono Practice here at Cliffe Dekker Hofmeyr, was admitted as an amicus curiae to make legal submissions to the Court, as was Section 27, another public interest law NGO. The application was brought in the public interest on behalf of all affected children in the country.
The reality in South Africa, as in many other countries on the African continent, is that hundreds of thousands, if not millions, of children do not have birth certificates or other forms of identity documents. Indeed, research conducted by the SAHRC and presented in a position paper, reveals that in Sub-Saharan Africa, only 43 per cent of births are registered and in South Africa, birth registration stands at only 38 per cent.
In the South African context, most undocumented children are in fact children of South African parents who are eligible for South African citizenship but who, for a variety of reasons, often linked to poverty, are not documented. These reasons range from inability on the part of parents to meet the onerous requirements of regulations passed under the Births and Registrations Act, to geographic and cost barriers which make it impossible for poor people to obtain the necessary documentation.
Prior to 2016, the Eastern Cape Department of Education (ECDE) had provided teaching staff and funding to all learners at schools in the Eastern Cape regardless of whether learners enrolled at schools had birth certificates or other forms of identity documents. This ensured that all children enrolled in schools gained access to a basic education and basic nutrition through the National School Nutrition Programme, even if they did not have a birth certificate or other form of official document.
However, in 2016, the ECDE took the decision to withhold funding to schools with respect to children who, according to their database, had not produced identity documents. The effect of this decision was that schools no longer received funding for undocumented learners enrolled with them. This resulted in undocumented learners being excluded from some schools which were either unwilling or unable to shoulder the burden of providing an education to unfunded learners. Similar exclusions of undocumented children occurred across the country, not only because schools faced budgetary constraints, but importantly because educators and principals feared contravening sections 39 and 42 of the Immigration Act of 2002 which prohibits ‘learning institutions’ from providing ‘training or instruction’ to illegal foreigners and makes it an offence to ‘aid and abet’ or assist an illegal foreigner to obtain instruction or training contrary to section 39.
The applicants not only challenged the lawfulness of the decision of the ECDE to withdraw funding for undocumented children, but also challenged the lawfulness of clauses 15 and 21 of the Department of Basic Education’s (DBE) Admission Policy for Ordinary Public [State] Schools of 1998 (Admission Policy) as well as sections 39 and 42 of the Immigration Act on the basis that they infringed upon several constitutional rights of undocumented children, including the right to a basic education (section 29(1)(a)), the right to equality (section 9), dignity (section 10) and the rights of the child (section 28).
Clause 15 of the Admission Policy requires that a parent must provide a birth certificate for the child concerned when applying for admission of their child to a state school and goes on to provide that if the parent is unable to produce a birth certificate then the child may be admitted conditionally, but faces potential exclusion from school after three months if the document is not forthcoming.
Clause 21 deals with so-called ‘illegal aliens’ and provides that when persons who are not lawfully present apply for admission of their children to state schools, they must show evidence that they have applied to the Department of Home Affairs (DHA) to legalise their stay in the country in terms of the Aliens Control Act.
The SAHRC sought to make representations to the Court on the proper interpretation of sections 39 and 42 of the Immigration Act.
The DBE and the DHA defended the matter strenuously arguing that the policies and provisions in issue were essential measures put in place, inter alia, to prevent or at least dissuade people from illegally entering the country to obtain free education for their children. It was argued that traditional methods of controlling and curbing illegal immigration through proper boarder control and enforcement of laws regulating illegal immigration, were ineffective.
In a robust ruling, a full bench of the Court confirmed that everyone has the right to basic education regardless of their status or their ability to provide proof of identity through the production of a birth certificate or other official documentation. It is within this context that it scrutinised clauses 15 and 21 of the Admission Policy and found that these clauses unjustifiably limit numerous constitutional rights, including the rights to equality, dignity, the right of children to have their best interest considered paramount (section 28(2)) and the right to basic education by excluding undocumented learners from state schools. They were accordingly declared unconstitutional.
It was further held that these clauses were not justifiable limitations under section 36 of the Constitution because constitutional rights may only be limited by law of general application. The Admission Policy is not a law of general application, but merely a policy, and accordingly incapable of sanctioning the limitation of any right contained in the Bill of Rights.
The Court noted that all children have their own dignity and are individuals with distinctive personalities not reliant on or measured in the light of the actions of their parents/guardians. Therefore, the learners (many of whom have no choice in being brought to South Africa or who have been abandoned by parents and left in the care of others) should not have to bear the negative consequences of their parents’ actions of either entering the country illegally, failing to obtain their own documentation, or perhaps failing to apply to have their children documented.
The Court adopted the SAHRC’s suggested approach to interpreting sections 39 and 42 of the Immigration Act. It found that when properly interpreted through the prism of the Bill of Rights as is required by section 39(2) of the Constitution, the reference to ‘learning institution’ and ‘training’ in section 39 of the Immigration Act should be construed not to include the provision of basic education by schools to children. Such an interpretation was consistent with section 29 and section 28(2) of the Constitution and international conventions. Considering this interpretation, it accordingly found it unnecessary to declare these provisions to be unconstitutional.
Furthermore, the Court held that the decision not to fund undocumented learners was also unconstitutional. The state was directed to admit all children not in possession of an official birth certificate into state schools in the Eastern Cape and where a learner is unable to provide a birth certificate, the principal of the relevant school is directed to accept alternative proof of identity (ie, an affidavit or sworn statement deposed to by the learner’s guardian/parent/care-giver that fully identifies them). It further interdicted/restrained the state respondents from removing or excluding children from schools (including illegal foreign children already admitted) for the sole reason of not being in possession of an identity document/number, permit or passport or if they are unable to produce any identity documentation.
This landmark judgment provides much needed protection to millions of undocumented and vulnerable children in South Africa. Due to various socio-economic reasons and challenges faced at the DHA, many parents/guardians will never be able to obtain documentation for themselves, let alone their children. This unfortunately leads to a vicious circle of statelessness, abuse, crime and poverty.
Thankfully, the state is not appealing the judgment and the Minister of Basic Education has recently issued a Circular to all provincial Education Departments and schools calling upon them to comply with the order of the Court and has announced that a process is underway to amend the offending provisions of the Admissions Policy.
We are proud to have played a part in this important case.
 SAHRC, ‘Position Paper: Access to a Basic Education for Undocumented Learners in SA’, September 2019, p3, available at: https://sahrc.org.za/home/21/files/SAHRC%20Position%20Paper%20on%20Access%20to%20a%20Basic%20Education%20for%20Undocumented%20Learners%20in%20South%20Africa%20-%2012092019.pdf, last accessed 2 April 2020.
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