The Basic Education Laws Amendment Bill proposes several changes that will affect whether children gain admission to public schools. More specifically, it lists a host of “required documents” that children’s parents or caregivers should present when they seek admission, including the pupils’ birth certificates and their parents’ identity documents as well as their travel documents (where children are foreigners). 

However, the proposal for presenting “required documents” when being admitted to school, without foregrounding the right to and mechanism for admission without the required documents, contradicts the 2019 landmark judgment of Centre for Child Law v Minister of Basic Education, the Department of Basic Education’s (DBE) instructions to schools to follow that judgment in a 2020 circular, and the recently published Draft Admissions Policy for Ordinary Public Schools. 

In CCL v Minister of Basic Education, the Makhanda High Court held that the requirements in the current Admissions Policy for learners to provide certain identification documents within limited timeframes, without which they be excluded from schools, was a violation of their right to basic education. The judgment further states that “the right to education extends to everyone within the boundaries of South Africa, [and that] the nationality and immigration status is immaterial”. As a result, the use of the term “required documents” is fundamentally incongruent with the judgment. 

Over and above the fact that the term is at odds with the judgment, is the fact that many of these documents are difficult to get, if not impossible. For instance, many South African children struggle to obtain birth certificates as a result of the way Home Affairs implements the late registration of birth process, a lack of clarity on the role of  supporting departments such as Social Development in the process, and insufficient resources (such as vehicles to do home visits) to enable them to play their role.

Children who seek asylum are required to present their asylum seeker permit, and then, within three years of admission to school, their finalised refugee permit. But there is nothing in the Refugees Act 130 of 1998 that states an application for asylum will be finalised within three years. It is consequently out of their control whether they are able to provide their asylum seeker permits within that time.

Another example is that some children, such as stateless children, do not have a passport and are therefore not able to provide one for admission to school. In fact, it was these very difficulties that led the high court to rule in CCL v Minister of Basic Education that when a pupil does not have identifying documentation, all that was needed for admission into a school and the provision of education was an affidavit confirming the identity of the child.

More barriers to admission

It is also notable that much of the documentation that is listed as “required” appears to be unnecessary and is not in the current Admissions Policy or even the Draft Admissions Policy. For instance, if either or both parents are deceased, their death certificate is a “required document” according to the list. As mentioned, lists of required documentation, even with the (quiet) assurance that children must still be admitted if they cannot bring the documents, inevitably create barriers to admission. 

Basic Education Minister Angie Motshekga. In CCL v Minister of Basic Education, the high court ruled that when a pupil does not have identifying documentation, all that was needed for admission into a school and the provision of education was an affidavit confirming the identity of the child. (Photo: GCIS)

The bill does state that if the “required documents” cannot be provided the child can still attend school, but this is lost in the quagmire of documentation that a child must present at admission. When seen together with the fact that parents, pupils and civil society organisations have struggled to implement the judgment, it seems inevitable that the bill in its current form, even with its (quiet) assurance, will only create further barriers to admission. 

Particularly concerning is that the bill proposes that where pupils or their parents cannot supply the required documentation, the principal of the school has an obligation to alert a proposed new intergovernmental committee (which is also likely to be unconstitutional in many ways).

Undocumented children

The barriers that the list of required documents will create is worrying when considering the large number of undocumented children in South Africa. Well more than half a million pupils could be negatively affected by the bill’s proposal. While it is difficult to calculate the exact number of undocumented children in South Africa, what is clear is that it is large. The DBE reported to the Makhanda court in 2019 that they had more than one million undocumented pupils and that more than 80% of them were South African citizens. Department data for the 2020 school year, submitted to Parliament in response to a question by a member of Parliament, revealed that there were 660,331 undocumented learners in public schools (excluding the Eastern Cape, for which data was not available). The vast majority of these children (73%) were reported by the department to be South African citizens. 

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According to the Children’s Institute, if the numbers of undocumented learners in the Eastern Cape from previous years is included, the total rises to about 700,000. In 2021, the department reported to Parliament that it had 465,826 South African pupils in public schools without ID numbers. The total number of undocumented learners for 2021 is not yet available.

Children can become undocumented in South Africa for a variety of reasons and the children of both foreigners and South African citizens can be affected. Practitioners in the child protection sector often come across cases of foundling children (those whose parents are unknown) whose births have never been registered, because the Department of Home Affairs demands to know the identity of their parents. In 2018, Lawyers for Human Rights (LHR) launched a court case in which it represented 33 foundling children who had been denied birth certificates by Home Affairs. Only once the department was faced with court action did it offer to register the births. 

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The children of unmarried South African fathers who are the primary caregivers of their children are also subject to discrimination and very often end up undocumented. In 2021, the Constitutional Court ruled that unmarried fathers may register the birth of their children. The Centre for Child Law and LHR presented the cases of 30 South African fathers who were refused birth certificates by Home Affairs for many years by the time the case reached the courts. Again, implementing the judgment has been difficult, and Home Affairs has requested them to provide paternity test results linking them to their fathers. The tests cost a minimum of R1,500 per child, which is unaffordable for most fathers. 

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Children whose mothers have died or abandoned them in the care of a relative also struggle to access birth certificates. Home Affairs requires a social worker report and a court order before it will register the births. Social workers generally do not prioritise birth registration cases, or lack the knowledge on what to do or the tools of the trade (especially cars) required to do home visits. Many abandoned or orphaned children living with relatives therefore do not have birth certificates.

Many young women do not yet have their IDs between the ages of 16 and 21. If they give birth without yet having an ID, they cannot apply for the child’s birth. Some maternity wards also refuse to issue Proof of Birth Notices for undocumented moms, meaning that it becomes impossible later for that mom to register the child’s birth since a POB notice is a required document for a birth registration.

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Refugee children also have a difficult time becoming documented. The infamous corruption at Home Affairs’ Refugee Reception Offices, coupled with their yearslong backlog, means refugees and asylum seekers are often unable to renew permits or obtain them in the first place. Unaccompanied refugee children in provinces other than Gauteng have to travel to Pretoria every six months to renew their permits. Children’s homes and foster parents simply do not have the funds to transport them there. Many go undocumented as a result and risk becoming stateless for life.

Hardship compounded

The reasons children are undocumented in South Africa are complicated and many. These children are particularly vulnerable already – orphaned, abandoned, asylum seeking, unaccompanied, born to teen mothers – and will be detrimentally affected by the further obstacles to accessing education proposed by the bill. By listing a host of documentation “required” for admission, and understating the right and mechanism to be admitted without the required documentation, the approach adopted in the bill punishes children for a lack of documentation over which they (and often also their caregivers) have no control – the very scenario CCL v Minister of Basic Education sought to remedy. 

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While it is important for pupils to obtain documentation, this can only be achieved through Home Affairs, and supporting departments such as Social Development and Health, improving their services to ensure undocumented children gain access to birth registration and immigration and refugee permits. But Home Affairs and supporting departments’ failures cannot and should not be remedied through the creation of a framework that excludes children from education. Instead of the proposed provisions, the bill’s focus should be to ensure education is provided to all children, irrespective of their documentation status. DM/MC

Anjuli Maistry is a senior attorney at the Equal Education Law Centre. Before that she worked at the Centre for Child Law and Lawyers for Human Rights. Paula Proudlock is a senior researcher at the Children’s Institute, UCT. Cecile van Schalkwyk is an attorney at the Legal Resources Centre. Liesl Muller is a senior attorney at the Centre for Child Law, focusing on strategic litigation for the development of child rights law. She holds an LLB and two LLM in international and human rights law in Africa.