The children, South Africans and non-nationals between the ages of six and 17, were removed from school or denied admission as long ago as 2014. Most have been denied the opportunity to attend school since 2015.

Some of the children described the humiliation and shame they felt when their names were called out in the class by a social worker, who told them, in front of their peers, that they could no longer attend school because of their undocumented status. After this announcement they were made to pack their belongings, again in front of their peers, and were sent home, underlining the growing stigma children without birth certificates face.

A parent explained that “having a birth certificate is a symbol of status and people who do not have one are looked down on. [My child] has therefore been insulted on account of not having a birth certificate. He notices that people view him through this lens and as ‘less than’. This is in addition to the stigma that is already attached to lacking an education”.

Obtaining birth certificates an impossible feat

After the school removals, which were enforced throughout the small Eastern Cape town that the 37 children live in, parents and caregivers intensified efforts to obtain birth certificates for their children.

One parent, Mirriam,* described the run-around she was given by the Department of Home Affairs. Advised that she needed to obtain the hospital card issued to her at her own birth, she saved for two years to travel to the Johannesburg hospital she was born in. However, a parent’s hospital card is not required in terms of the legislation which governs the registration of births.

After a 700km trip, the hospital advised her that while her mother’s information appeared in their records, Mirriam’s was not recorded as the name of the child her mother gave birth to. On this basis, they refused to issue her with the hospital card the Department of Home Affairs had demanded. Despite being unable to produce her hospital card, she returned to the Department of Home Affairs with every other document she could obtain.

However, the provision of these documents did not satisfy the Department of Home Affairs — and her child’s birth remains unregistered. Describing how it felt when it had become apparent to her she may never register her child’s birth, Mirriam said:

“I felt an extreme sense of loss. This was not only on account of the fact that my children and I would forever remain on the outside and be excluded but also for the energy and time spent saving the money which was simply wasted.”

A caregiver to a nine-year-old boy, with his partner, approached the Department of Home Affairs more than four times in order to register the boy’s birth. They were turned away each time for the failure to produce some or other document. Again, none of the requests were required in terms of the legislation governing the registration of births.

Undeterred and determined to obtain a birth certificate for him, the couple approached the Department of Social Development to obtain assistance. They were similarly unable to assist. Eventually, the couple concluded that “[w]e have not been able to register [his] birth in order to prove that he is a South African citizen, nor have we been able to have him placed back into school”.

Knock-on effects

While one government department refuses to issue children with birth certificates, another demands them as a precondition to entering school.

In about 2016 a pastor noticed a number of children playing in unused spaces at an informal settlement in the Eastern Cape town. After making enquiries with their parents, he was concerned to find out that the children were out of school because of a lack of documentation.

Countless meetings with officials of both the Departments of Home Affairs and Education did not bear fruit, so he instead arranged makeshift classes for the children in the local church, where some learnt to read and write. By chance, in 2018, a colleague of his was introduced to a lawyer at the Centre for Child Law, whose staff arranged consultations with the affected children and their parents.

Litigation

After their letters requesting the children’s placement into school did not yield results, the Centre for Child Law brought an urgent court application for the 37 children’s admission into the school. It was filed in November 2018. Another court application which directly challenged the laws and policies that prevent undocumented children from attending school was issued in mid-December 2018.

The urgent application sought only the children’s admission into school on a temporary basis. Specifically, it sought their admission into school only until the court application regarding the offending laws had been decided — and if it was decided that the laws should be kept in place, the 37 children could be removed from school.

Shockingly, given that the urgent application sought only their temporary admission into the school, the Department of Education vigorously opposed the children’s case. Not delving into their right to a basic education or whether attending school was in their best interests, they instead argued a series of technical points against the children.

The Centre for Child Law, both before and during the litigation, implored the Department of Education to consider its duty to the children. In the context of litigation, this includes a duty on the state not to contest the case using technical points. In the context of matters concerning children, it includes a duty to consider the children’s best interests and to work proactively and non-combatively with them to ensure that these interests are met.

On 10 December 2018, the Grahamstown High Court, in its capacity as upper guardian of all children, dismissed the urgent application, with the court upholding some of the department’s technical points. With all hopes pinned on the court application, this was the children and their parents’ greatest fear. One parent said:

“I am terrified that if the law fails [my child] we have absolutely no options left available to us, and that [my child], and his children after him, will forever be locked into a poverty cycle”.

The effects of no education

This is the effect of the department’s insistence on birth certificates and other documentation in order to access education — it locks people, including its own citizens, into cycles of poverty that only an education can break one out of. It also creates an underclass of people living in South Africa, whose lives, through the actions of the state, are irreversibly changed.

With a Constitution meant to be transformative and with laws that are meant to give us not only formal but also substantive equality, the department’s stance is counter-intuitive. In a province in which the legacy of apartheid is most acutely felt, it is also deeply unsettling.

A sibling to two children of school-going age, Gloria* is now 19 years old and unable to benefit from the court application. She described the effect that the denial of education has had on her:

“I will never be able to complete my schooling. I will never be able to go to college or university or any other tertiary institution. I will never be able to take on skilled work. I wanted to be a pilot but I will never be able to become one. In fact, my employment prospects, even in the informal sector, are weak and I have only managed to find one piece job in town which I eventually had to leave”.

Appeal

An application which sought leave to appeal against the Grahamstown High Court’s decision was heard on 17 January 2018. This too was opposed by the Department of Education, which again raised only technical legal arguments against the children.

The issues brought up were complex and required the knowledge of experienced and dedicated litigators to sift through. Unfortunately, the vast majority of people in South Africa are unable to afford such services, which, unlike the Centre for Child Law, are largely commercialised. With a stance such as the department’s, many of our country’s most vulnerable and marginalised will never be able to realise their rights.

While the legal battle plays out, the children continue to lose out with every day that they are out of school. Education has been described by the International Committee on Economic, Social and Cultural Rights as “the primary vehicle by which economically and socially marginalised adults and children can lift themselves out of poverty and obtain the means to participate fully in their communities”.

The committee says the importance of education is “not just practical: A well-educated, enlightened, active mind, able to wander freely and widely is one of the joys and rewards of human existence”.

With that in mind, the children continue to remain hopeful that they will one day be able to attend school and be lifted from their status as second-class citizens which the state has relegated them to. DM

*Real names have been omitted to protect the identities of the children.

Anjuli Leila Maistry is an attorney with the Centre for Child Law. The centre is an impact litigation organisation that aims to promote the best interests of children. Prior to this, she was an attorney at Lawyers for Human Rights.