Schools may not block pupils without papers, court rules

Undocumented children, including children of illegal foreigners, can now attend public schools, thanks to the Eastern Cape High Court in Makhanda.

The court granted the order in an application the Centre for Child Law lodged against the minister of basic education in 2017 in which it emerged that many children were unable to attend school because they didn’t have identity numbers, birth certificates, permits or passports.

National laws and policies prescribe that certain documents must be handed to schools when enrolling a pupil.

“The first to third respondent are directed to admit all children not in possession of an official birth certificate into public schools in the Eastern Cape province, and where a learner cannot provide a birth certificate, the principal of the relevant school is directed to accept alternative proof of identity, such as affidavit or sworn statement deposed to by the parent, caregiver or guardian of the learner wherein the learner is duly identified,” Eastern Cape Judge President Selby Mbenenge ruled.

Judge Irma Schoeman and Acting Judge SM Mfenyana agreed with him.

“Sections 39 and 42 of the Immigration Act 13 of 2002 do not prohibit the admission of illegal foreign children into schools and do not prohibit the provisions of basic education to illegal foreign children.”

The court also interdicted the respondents from removing or excluding children, including illegal foreign children, who were already admitted on the basis that the child has no ID number, permit or passport, or has not produced any identification documents.

In his ruling, Mbenenge said examples of parents’ experiences were narrated.

He said these experiences concerned parents who had abandoned and left their children in the care of relatives or other caregivers, “rendering it impossible for the children to obtain birth certificates”.

“Attempts to register some of the children [whose] biological parents’ whereabouts are unknown, have proved futile.

“Resulting from this, the children are stuck in limbo and there are no prospects of them obtaining the birth certificates which are a prerequisite to obtaining identification documents,” Mbenenge said.

The judge added that besides facing the danger of being stateless, they had other difficulties, such as being abandoned by their parents and being denied the right to basic education on the basis that they lack a piece of paper identifying themselves.

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