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In December, the Grahamstown High Court in the Eastern Cape handed down a judgment that found that the right to a basic education could not be extended to undocumented children.
Last week, the application for leave to appeal against this judgment was dismissed, and the implications are potentially massive.
In terms of national laws and policies, certain documents must be submitted to schools when enrolling a pupil.
This includes, among other things, a copy of the child’s birth certificate or identity document and, in the case of a migrant pupil, a copy of their legal residency permit.
While temporary exemptions may be applied, in practice, where such documentation is unable to be submitted, the pupil is simply excluded from school.
The court, in handing down judgment, questioned whether undocumented children could simply “demand” to be given access to a basic education without first complying with national laws and policies.
Its conclusion was that they cannot.
The judgment, sadly, reveals a stark ignorance to the challenges facing undocumented people in the country. The situation is far more complex than sheer and willful “noncompliance”.
The debate around undocumented pupils in South Africa is often centred on considerations of migration.
First of all, basic education is a right that extends to all people, regardless of their documented or legal status.
But let’s put this aside for the moment and take cognisance of the fact that the current policy of exclusion on the basis of a lack of documentation is not actually a question of irregular migration at all.
The term ‘undocumented’ is often misperceived as a consequence of irregular migration, where, in fact, the lack of documentation affects South Africans without birth certificates, stateless people, as well as undocumented migrants.
The vast majority of pupils adversely affected by a lack of documentation are poor black pupils from predominantly rural areas.
Globally, about one fourth of children younger than five have not had their births registered and, in sub-Saharan Africa, only 43% of births are registered.
Some countries in the region have as little as 3% birth registration, and even South Africa, with the highest rate of birth registration on the continent, has an estimated unregistered population of 5%.
So even where an argument is made around the need to comply with immigration laws, or to put measures in place to stop schools from artificially inflating pupil numbers to receive additional funding, the state’s current position on the matter, quite frankly, has failed to take key considerations into account.
The gaps in the country’s own legal and policy framework make it difficult and, at times, impossible to register the birth of a child, and late registration comes with a penalty fee that is unaffordable to many.
Assisting stateless people to obtain citizenship often takes years, and often results in costly litigation as a result of gaps in the legal system.
The immigration and asylum-seeking system is shrouded in allegations of inefficiency and corruption, while the complexity of migration is such that documentation is simply not always available.
But even this explanation is far more simplistic than the multitude of barriers that exist.
The effect of the judgment is that, where parents or guardians are unable to comply with the relevant laws to obtain documentation, the child is deprived of a basic right recognised as being at the core of development.
The court, in this matter, was incorrect when it opined that the right to a basic education, as expressed in section 29(1) of the Constitution, had not been given a clear scope and content. In fact, the right consists of a number of clearly defined elements that are recognised at domestic and international levels.
The right is compulsory, universal and immediately realisable. The right is not conditional on documentation and, even though the right can be limited, this limitation must be done in line with section 36 of the Constitution – a fact that, while referred to in the judgment in passing, was not actually applied to the facts of this case.
Yes, the state does have laws and policies in place. And yes, there is an obligation for everyone to comply with these.
But what the court – and, in fact, the state – has failed to do is to consider the dire consequences of its policy to exclude undocumented pupils from the school system.
Not only does this potentially create a generation of virtually invisible people, but it denies them the ability to become active participants in economic life and the nation in the long term.
This policy inevitably only contributes to the rate of illiteracy and to potential unemployment or, alternatively, a confinement to the informal labour market.
To disregard the practical barriers and long-lasting implications is not only a reflection of ignorance about the realities of thousands of people, but, in effect, perpetuates a system of inequality and a generational confinement to exclusion, exploitation and poverty.
In a country where an estimated 17 million people are reliant on social welfare and where the unemployment rate stands at 27% (and unemployment among youngsters is even higher), our attention should be on uplifting every child through education – as our Constitution demands – rather than oppressing them.
This judgment almost seems to release the state from its obligation to fix a broken system and to grapple with real issues.
Perhaps the strict application of the current policy system is an easy fix – when undocumented pupils are excluded from the school system, they become invisible and the problem disappears.
But at what cost?
Is it justifiable to hold to ransom the rights and wellbeing of our children for a situation they have no control over?
And what is it that we are teaching our future leaders – that it is okay to stigmatise those who are vulnerable? That, as a child without documentation, you are somehow less worthy of rights?
When our own policies, meant to uplift and secure the wellbeing of people, essentially turn a blind eye to the most vulnerable in our society, we have to ask what happened to our humanity.
When we embedded into our Constitution the principle that the best interest of the child is of paramount importance in every matter concerning the child, surely we must have intended for this to play a greater role than for the rights enshrined to be limited to paper, and taken away from those who are most in need.
This is not about legal compliance. This is not about migration or economic cost to the state.
This is about the sheer lack of a concerted effort to develop innovative and effective solutions capable of balancing the interest of the state with the very people it is meant to serve.
The fact that gaps in the legal system precluding many from obtaining documentation have existed for years, and that it has taken multiple court cases (at the cost of taxpayers) to make small inroads towards a holistic solution is simply not acceptable.
But perhaps it is easier to draw on the sensationalised public fears of immigration, fraud and stretched resources rather than face the state’s own failings.
The truth is that there are solutions to this issue outside of a blanket and inexorable policy of exclusion of access to a basic education for perhaps the most vulnerable children in our society.
The only way forward is for us to stop relying on an outdated and draconian legislative scheme, and for the state to take seriously its obligation to address its own gaps and inefficiencies.
Until this happens, it surely cannot be condoned to arrest the future of a potentially invisible generation of people – human beings – for the sake of efficiency.
Surely our Constitution and our commitment to a truly democratic dispensation, which places people at its very centre, must mean more than words on paper.
Gaum is a commissioner with the SA Human Rights Commission and Esterhuizen is a research adviser
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