The Nameless Ones: Realising the Right to Education for Undocumented Learners

On 2 August 2017, News24 reported on the tragic death of Brenda Sithole, a grade 11 pupil at Thutopele Secondary School in Gauteng.[1] Brenda committed suicide after she was informed by her school that she needed an identity document (ID) to continue her education. Without the ID she would be unable to register for her matric examination and graduate from high school. Brenda’s birth was never registered with the Department of Home Affairs because her mother abandoned her shortly after she was born. She was raised by her father and maternal grandmother who have fought an endless battle to try and ensure that her birth is registered so that she can be issued with an ID number. The registration process was further complicated after Brenda’s mother passed away. The Department of Home Affairs required the family to produce the identity document and death certificate of Brenda’s deceased mother.  The family was only able to locate these documents when Brenda turned 16, but the subsequent death of her father made the registration of her birth nearly impossible.

Contextualising the Problem

Brenda is only one of thousands of learners across South Africa that are being excluded from schools as a result of their failure to provide the schools with ID numbers, passports, or permits. This follows the announcement by various provincial departments of education that funding transfers to schools for the Norms and Standards, post provisioning allocation and National School Nutrition Programme (NSNP) for quintile 1, 2 and 3 schools would be based on learner numbers where valid South African identity, passport and permit numbers have been captured on the South African Schools Administration & Management System (SASAMS).

Schools that fall within quintile 1 to 3 are categorised as no-fee schools and are entirely dependent on state funding. These are the poorest schools and comprise around 60% of all schools in the country. The funding transfers are used by the schools to provide essential resources such as textbooks, stationary, as well as daily meals. Funding is also provided to pay for essential maintenance and municipal services. The decision also impacts on the provision of teachers to schools as teacher posts are only allocated to those learners with valid ID numbers, passports, and permits (as opposed to the number of children actually present in classrooms).

In the past, schools were funded based on actual numbers of learners, regardless of whether they had valid identity documents, passports and permit numbers. The SASAMS was introduced in 2013 and is a database that (theoretically) contains all the personal and academic information of learners attending school in South Africa. The schools are expected to keep the system updated as their learner numbers change. The SASAMS was introduced by the Department of Basic Education in an attempt to improve the accuracy of its resource distribution and prevent the problem of “ghost learners”. This is the phenomenon where schools request funding for more learners than are present in the school and then embezzle the additional funding. By only providing funding for learners with valid ID numbers, passport, or permit numbers the Department of Basic Education is better able to combat this fraudulent conduct.

However, this approach has had unconstitutional consequences.

The Case before the Court

The decision to exclude undocumented learners from funding was announced in March 2016 to all schools in the Eastern Cape. Similarly, schools in Kwazulu-Natal were informed of the decision on 24 March 2017. It is unclear whether similar decisions have been made in the other provinces.

On Friday, 26 May 2017, the Legal Resources Centre, on behalf of the Centre for Child Law and the School Governing Body of Phakamisa High School in the Eastern Cape, launched an application in the Grahamstown High Court to declare the decision made by the Eastern Cape Department of Education (ECDOE) to stop funding learners without identity, passport or permit numbers unconstitutional.

The application argues that, by withdrawing funding from undocumented learners, the ECDOE is violating the learners’ constitutional right to basic education (section 29), particularly when it is read in conjunction with the learners’ rights to dignity (section 10) and the right to equality and non-discrimination (section 9).

The funding failure is also a gross violation of the learners’ constitutional rights to basic nutrition (section 28) and to have access to sufficient food (section 27). Furthermore, the decision to exclude learners without identity number, passports or permits is not in the best interests of the child and violates section 28(2) of the Constitution.

Many schools have been negatively affected by this decision and do not have sufficient teachers or budget for learner-teacher support material and the national schools nutrition programme. Phakamisa High School, the second applicant in the case, has 99 learners that were excluded from funding for the 2017/2018 financial year. This has placed an immense financial burden on the school. They have been forced to use funding from their maintenance budget to supplement the shortfall in their NSNP budget while simultaneously reducing the food portions for all the learners in the school. Many other schools have simply decided to exclude undocumented learners or refuse them admission to the school.

The application to review and set aside the decision of the ECDOE argues that, “any failure, whether inadvertent or not, on the part of parents to register their birth does not justify any action or decision adversely affecting the rights of learners….” It is usually the poorest and most vulnerable learners that fail to obtain their identity documents. This is also a problem that disproportionately affects poor black learners living in rural areas of the country where access to resources are scarce and children are raised by grandparents or other extended family members. Often parents or guardians fail to take the necessary steps to register the birth of a child due to a lack of access to an office of the Department of Home Affairs, the parents not being in possession of the necessary documents to have the birth registered, or as a direct result of migrant labour.

The application seeks to have the decision by the ECDOE set aside and for the Department to revise teacher post establishments and funding in line with actual numbers of learners in schools, regardless of their registration status. The LRC hopes to set a precedent that can be extended to other provinces where similar measures have been announced and ensure that learners like Brenda Sithole are given a fair chance to complete their education.

By Cecile van Schalkwyk

(Edited by Samantha Brener)

[1] http://www.news24.com/SouthAfrica/News/teen-commits-suicide-over-failure-to-obtain-id-birth-certificate-20170802

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