Groundbreaking judgment regarding education of undocumented children

Two applications (on behalf of 37 children) were brought in the Grahamstown High Court regarding the legality of a  decision by the Eastern Cape Department of Education (ECDE) to withdraw funding from provincial schools who enrolled children without the necessary birth documents.

Part of the ECDE’s decision rested on sections 39 and 42 of South Africa’s Immigration Act prohibiting learning institutions to providing training or instruction to illegal foreigners. It was seen as an  offense to assist an illegal foreigner to obtain instruction or training in this country.

With the Human Rights Commission involved, as well as various NGO’s and a well-known attorney-at-law firms acting pro bono, the court rejected arguments by the ECDC and in a groundbreaking ruling found that everyone has the right to basic education, regardless of their status or their ability to provide proof of identity through the production of a birth certificate or other official documentation. Denying anyone education was deemed by the court as unconstitutional. In its final ruling, those who cannot afford to pay for education, should not be discriminated against.

In Nelspruit (Mbombela) certain schools in January this year charged over R3000, a non-refundable fee for accepting a Grade 1 child’s application. This did not mean that the child was guaranteed a place and such monies would be forfeited if the child could not be accommodated at said specific school.






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