On Monday night, 6 January 2020, among the buzz of the imminent release of matric results, a tweet appeared containing a table of statistics and comments from MEC for Education in Gauteng, Panyaza Lesufi.

Lesufi noted: “Almost 7,066 South Africans won’t receive their matric results because they don’t have ID’s. @HomeAffairsSA let’s assist them. Almost 5,000 foreign citizens will not be resulted due to lack of proper documents #MatricFigures @Steve_Mabona @ElijahMhlanga”

Although Lesufi’s intentions were good, the message of the Gauteng department of education was clear. If learners are unable to provide missing documentation, irrespective of the reasons why they are unable to produce the documents, their results and/or matric certificates will be withheld from them. This would be despite their having been registered for matric; despite being taught throughout the school year (and the 11 years prior); despite having studied hard for preliminary and final exams; despite having had their exams marked and scores processed in the system.

The effect of the withholding of results is very serious. Learners will be unable to apply for jobs, or for tertiary education institutions because they will not have a certificate proving they have matriculated, or that they are eligible for entry to tertiary study.

How devastating, not just for the learners themselves, but for everyone involved in their lifetime of education. Countless hours of wasted teachers’ contact time, pointless homework, unnecessary exam preparation and squandered hours for exam markers.

But is this lawful?

On 12 December 2019, the High Court in Makhanda handed down a judgment that provides guidance on how the law requires that departments of education deal with questions of education access for undocumented learners.

In Centre for Child Law, the SGB of Phakamisa High School and others v Minister of Basic Education and others (“Phakamisa”), a full bench of the High Court held, unanimously, that section 29(1)(a) of the South African Constitution, the right to basic education, applies to all children, unconditionally. The right applies irrespective of whether a child can provide a birth certificate or ID document, and irrespective of whether that child is in the country lawfully or not (paragraph 71 and 91).

The court found that it is unlawful to prevent a child’s access to schools based on their documentation or immigration status – it is an infringement of that child’s right to education (paragraph 83 and 127).

Preventing access to schools (and therefore to education), on the basis of a child’s documentation status is also unfair discrimination, the court held. The children affected by the problem of missing documents tend to be those which “emanate from the vulnerable, poor black community”. To differentiate them from other learners impairs their fundamental right to dignity and is therefore unfairly and unlawfully discriminatory (paragraph 86).

Relying on one of our seminal judgments in education law, Juma Musjid Primary v Essay N.O, Judge President Selby Mbenenge discussed the significance of education: “Education is a mighty tool in the hands of the possessor. Its efficacy depends largely on the bulwark that surrounds it – the right to education.”

Access to school is a necessary condition to fulfil the right to education. This access is necessary to achieve the ends of education – “basic education … provides a foundation for a child’s lifetime learning and work opportunities” (paragraph 3).

To deny a learner their matric results, or a matric certificate is to deny that child some of the key benefits of education – a lifetime of learning and work opportunities. It is to deny them access to education in a way expressly outlawed in the Phakamisa judgment. It is also discrimination on the basis of documentation status – something that the Phakamisa judgment finds to be unfair, unlawful and a violation of the right to equality in the Constitution.

The law is therefore clear on this question. The Gauteng department of education must provide matric results and certificates to all learners who registered and wrote (and where relevant, passed), matric exams. A decision not to do so is a constitutional challenge in the making. DM

Samantha Brener is an education attorney at SECTION27.