Judgment ensures kids are at school - documented or not

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Pretoria - Come Wednesday when the country’s schools open for the 2020 academic year, no school may turn a pupil away - local or foreign - if they do not have IDs, permits or passports. This is after a judgment delivered on December 12 by the high court in Grahamstown in which it declared the admission policy of the Department of Basic Education unconstitutional where it barred undocumented children - both South African and non-national children - from attending school because they were undocumented. The judge president of that division, Judge Selby Mbenenge, ruled that the department acted unconstitutionally in not permitting children to continue receiving education in public schools, purely because they lacked ID documents. While the judgment was sparked by an application launched on behalf of undocumented pupils in the Eastern Cape, the Centre for Child Law, which challenged the provisions barring these children from the education system, said the order, in no uncertain terms, prevents the removal or exclusion from schools of children by reason that they do not have identity document numbers, permits or passports. In his ruling, Judge Mbenenge ordered that the schools in the Eastern Cape, which barred these undocumented children because they could not provide a birth certificate, had to accept an alternative form of identification.

This may include an affidavit or a sworn statement from the parents or guardians in which the pupil is fully identified.

The Centre for Child Law last month said this monumental finding had positive implications for the rights of thousands of undocumented children across South Africa.

It said that this judgment affected both South African children as well as non-national children.

The judgment noted the importance of education and it quoted the Constitutional Court where it held that “basic education is an important socio-economic right directed, among others, at promoting and developing a child’s personality, talents and mental and physical abilities to his or her fullest potential”.

The judge said some of the affidavits handed to court by these children who were denied education by no fault of their own, unleashed a horrifying picture of their hardships.

Some described their embarrassment and depression due to the fact that other children their age who were in school could perform tasks which they could not.

It was earlier argued that almost one million children could be denied access to public schools unless they obtain birth certificates as a matter of urgency, which Home Affairs was unable to provide due to a host of reasons.

The Department of Basic Education said during the court hearing there were 998 433 undocumented children enrolled in public schools - many of whom were without birth certificates.

Of these children, the majority (880 968) are South African citizens.

They were mostly provisionally accepted in the past, provided that their parents or guardians could within 12 months provide a birth certificate to the school.

The court was told that due to the circumstances of many of these children, there was no end in sight for them to receive the relevant documents on time, or at all.

Many of these children have been abandoned and left with guardians or family members who struggled for several reasons to obtain these documents.