On September 18, SECTION27 intervened as amicus curiae in the Makhanda High Court in a landmark case against the Department of Basic Education (DBE) and the Department of Home Affairs (DHA). An application submitted to the High Court by the Centre for Child Law, the governing body of Phakamisa High School and 37 children sought relief to ensure undocumented learners were allowed to attend schools and funded by the education department regardless of identity documentation.

The South African Human Rights Commission (SAHRC) intervened as second amicus, to make a submission on the interpretation of the Immigration Act which would allow the right to basic education for undocumented learners.

The application was heard by Judge President Selby Mbenenge, Judge Irma Schoeman and Acting Judge SM Mfenyana.

SECTION27 attorney Samantha Brener, head of education rights programme Faranaaz Veriava, legal researcher Vuyisile Malinga and advocate Nikki Stein. (Photos supplied)

The proceedings began with the presentation of a draft order by advocate Sarah Sephton, counsel representing the Centre for Child Law and the governing body of Phakamisa High School. The order states that undocumented learners irrespective of their ability to provide documentation, be registered on the South African School Administration and Management System (SASAMS), ensuring that all learners received funding.

The order was later revised and agreed upon by the DBE, the Centre for Child Law and the Legal Resources Centre.

The guillotine

A hot point of contention included the education department’s Circular 1 of 2019 which gave undocumented learners conditional acceptance to schools with a 12-month period to file their documentation. Following the 12-month period, should learners fail to submit documentation, discretion lies with the head of department to exclude the child from school.

Counsel for the 37 children, advocate Nick Ferreira called this the “guillotine”.

“What this policy does is contemplates and in fact requires that a child that does not have a birth certificate within a certain period of time must be removed from the school,” said Ferreira. “Conditional acceptance is not permissible because the guillotine still falls.”

Ferreira submitted there are an estimated one million undocumented learners in South Africa, but suggests the number is larger given that some have already been excluded and others did not apply due to this policy.

“You can’t limit rights using policy,” he said.

Ferreira argued against Home Affairs’ requirement that a paternity test must be done to determine the father of an undocumented child.

“I have 12 learners in the position where Home Affairs requires a paternity test, this ignores the social and financial difficulties of the principle, considering fathers have abandoned families.

“Denying a child a right to education is irreversible. The child is not liable for their parents’ actions.”

Ferreira argued that these illegal children are bearers of rights, and that the heads of argument for the DHA suggest that these children have no rights or that education is a limitation.

“This limitation causes severe harm to the children it applies to; what [DHA] poses is that we will do a severe and irreversible harm to the children just to incentivise their parents to go back to where they came from,” said Ferreira.

A sledgehammer to crack a nut

SECTION27’s advocate Nikki Stein made submissions on the right to education and called for cooperative governance between the DHA and the DBE. Stein argued education was a transformative and empowering right, and no jurisdiction limits access to education based on a child’s immigration status.

SECTION27’s heads of argument state, “The respondents’ justification for the systemic exclusion of undocumented learners from accessing schools through the impugned provisions is, in essence, a desire to drive out migrants and deter any future migrants from entering South Africa.

“Indeed, the DHA spells this out in its assertion that its policies are developed on the basis of a denial of basic and necessary services to migrants so that South Africa becomes a less attractive option for them.”

“Not a single shred of evidence is offered to the court to support the assertion that migrants are entering South Africa on the promise of free education,” Stein told the court.

DHA counsel advocate Nazeer Cassim was noticeably irritated during Stein’s submissions.

Stein argued that the respondents had failed to show the court why there are less restrictive means of managing migration, stating that this was like using a “sledgehammer to crack a nut”.

Stein further submitted that the disputed provisions violated the right to education and ought to become invalid.

In terms of cooperative governance, Stein asserted that there was little cooperation between the DBE and DHA.

“Whatever co-operation there is, is based on excluding children,” she said. “Both respondents have stated their will to deny undocumented learners the right to education; they strive to deny the right rather than cooperate and ensure universal access.”

Stein said this was a direct violation of what the law requires of them.

The SAHRC intervened with powerhouse advocate Kate Hofmeyr as counsel.

Hofmeyr sought to provide the court with a “proper” interpretation of the Immigration Act, one that does not prohibit schools from providing basic education to undocumented foreign children.

Hofmeyr said the DBE was between a rock and a hard place, noting its alignment with the DHA’s interpretation of the act concerning criminality. Hofmeyr suggested officials had perpetuated a crime in Circular 1 of 2019, should they adhere to this staunch interpretation.

“The DBE can’t admit illegal foreigners for 12 months and agree with section 39 and 42 of the Immigration Act, this is an act of criminality,” said Hofmeyr.

Hofmeyr stated that the sections of the Act do not prohibit schools from providing basic education, and that international law states unequivocally that no matter the status of the child they are entitled to the right to education.

Denying the guillotine…

The DBE counsel, advocate Chris Erasmus, argued there was no evidence of “millions of excluded learners” as Ferreira had submitted, and said the respondents sought to make the DBE seem “insensitive”.

Erasmus stated the DBE’s interpretation of the Immigration Act was not in line with the SAHRC’s, and called the SAHRC’s interpretation “strained”.

“An illegal foreigner, is an illegal foreigner, regardless of age,” he said.

Erasmus argued that as a sovereign state, South Africa must protect the sovereignty of the country, and measures have to be put in place to make it unattractive for illegal foreigners to enter. He said this was why the DHA makes it clear that illegal foreigners are not entitled to education.

He said should illegal migrants be unable to “regulate” their stay, the government can deport them.

Erasmus defended the “guillotine” period as a means to address, rather than “postpone” the issue.

…and the sledgehammer

Cassim called Hofmeyr’s submission “seductive”, and that documentation is “indeed the keys to that child’s future”.

“Where does your basic right to education start and end?” he asked the court.

“We accept that there is a basic right to education for children. But we say, under the exemption clause, look, we have a population of 55 million, pressure on our resources. We say there are immense pressures on the resources of the country, we submit that if you look at the northeast part of the world, Pakistan, Bangladesh, they don’t have basic clean air and water. Immigration must be in a controlled environment.”

Cassim further denied Ferreira’s concept of the “guillotine”, but did not provide the court with an answer concerning further action after the 12-month conditional acceptance period.

“Nobody is saying, ‘kick the child out of school’.”

Cassim said the parents of the child must apply to the DHA and the embassy of a foreign learner to finalise documentation.

He suggested that allowing undocumented learners access to basic education would result in the separation of families, similar to the actions of US President Donald Trump.

Ferreira immediately countered the DBE, stating his client was evidence enough to support the fact that learners had previously been excluded on the basis of documentation.

“We don’t say that it’s impermissible for the department to request documentation, or to interact with parents or for the HOD to assist. The only thing that is impermissible is the expulsion of the child at the end of the road,” emphasised Ferreira.

Proceedings concluded following brief replies from Hofmeyr and Stein and judgment was reserved.

Hope for Thato*

After the proceedings, Maverick Citizen spoke to one of the parents of the 37 children, Amos Sokoyi.

Sokoyi and his family have struggled with access to basic education for the past six years. Sokoyi’s stepson, Thato* is 11 years old and in Grade 3, but had spent almost the past three years at home. Sokoyi said Thato had been chased away from school because he did not have a birth certificate.

“My son was just sitting around, it was so sad [and] painful. I didn’t know what to do; I didn’t even concentrate at work because my child was sitting at home asking me, ‘Daddy, when am I going back to school?’ ”

“I said, ‘No my child, one day, I will fight this and you will go back to school,’ and I saw a smile from him.”

Thato wants to be a police officer when he grows up, but can’t achieve his dream without going to school.

Sokoyi said he had been caring for Thato since he was two, and that Thato’s biological father had died. Thato was born in Lesotho, but had a South African father.

“It was difficult because I was turned down from Home Affairs; the Department of Education told me that I can take the child back to Lesotho, because the child does not belong to South Africa, irrespective that the father is a South African,” said Sokoyi.

“What scares me is that [Thato] becomes angry one day. Because once you deny a child education access, they become angry and one day, when you grow up without an education he will end up in jail. That will eat me inside until the rest of time.”

Sokoyi found the court proceedings impressive and is confident the judgment will rule in favour of children like Thato.

“I am so impressed,” he said, “and happy because it shows clearly that there are people who care and who stand for our children.”

Fingers crossed for sound judgment

SECTION27 head of education, advocate Faranaaz Veriava thought the proceedings went well.

“I think the judge president was with us on some very basic issues from the start, like the right to education. Education is an unqualified right, that you don’t visit the sins of the father on the child,” she said.

“I think the arguments that we intervened as an amicus on, which was around constitutionality of the admissions policy provisions and the immigration provisions, I do think we will be successful there.”

“The issue will be what kind of remedy they will provide. My sense of that is that they look at the systemic issues of undocumented learners which is that undocumented learners have historically been excluded, not just these 37 learners, not just these million learners, but everywhere. At SECTION27 we get all sorts of complaints. I think the only way, particularly in this xenophobic context we’re living in now, would be to declare all those provisions invalid.”

Veriava took offence at the Trump allusions made by Cassim.

“I don’t understand an argument like that, I think it’s very problematic. We’re not talking about separation of families, we’re talking about not disrupting education,” she said.

Veriava strongly disagreed with the attitudes towards foreigners expressed by the DBE and the DHA during the proceedings:

“It goes to the kind of institutionalised xenophobia that we are seeing in this country and rather we take a fact-based approach and find evidence- based solutions.

“It’s quite startling to think that restricting rights is a way to manage migration but moreover, if you look at it in the bigger picture, it’s akin to cutting off your nose to spite your face,” said SECTION27 legal researcher Vuyisile Malinga.

“If you’re denying an empowerment right, you’re denying a human being economically active in the long run. There’s broader sustainability issues that will come out of it, that for me is what is worrying about [DBE and DHA’s] remarks.”

Potential to set an international precedent

Cecile van Schalkwyk, attorney of record for the Legal Resources Centre, said it was clear there was a collective effort from civil society to say the conduct of the DBE and DHA does not equate with the standards set out in the Constitution, and infringes on the basic rights of undocumented children.

“We’re very happy about the funding issue”, she said. “We want the court to say ‘if the child is sitting in school, the child is funded’. For us that’s the main thing and that will likely come out in the judgment.”

Van Schalkwyk emphasised the LRC’s gratitude that what initially was only sought as relief for Eastern Cape learners and schools, will hopefully be felt nationwide as a result of the Department of Basic Education’s Circular 1 of 2019.

“It’s a great win for us, because we need the entire country to be on board with us.”

She added that the case sets an international precedent, particularly in light of the violence and xenophobia South Africa has seen in recent weeks.

“We’ve been going through a period of immense xenophobic attacks in South Africa, and a lot was talked about in court about the right to education for foreign migrants. A judgment in favour of these children will send out a clear message that the South African government and South Africans care for the rights of foreign migrants, and it’s important for the national rhetoric that the courts come out strongly in favour of a constitutional approach that isn’t based on xenophobia or violence.” MC

*Names of children have been changed to protect their identities