Advocates for learners without birth certificates who have been barred from schools argue that the state is punishing them for circumstances beyond their control.
The voices of 37 children barred from school because they have no birth certificates will be heard at the Eastern Cape High Court in Makhanda this week when they argue, on behalf of themselves and almost a million other "undocumented" children, that they are entitled to a basic education. Without education, they say, they will be condemned to a life "on the margins of society".
"Ashamed", "embarrassed" and "depressed" are words used to describe the situation of these children in affidavits they have submitted to the court. One of these children is nine years old, has never attended school and cannot read and write. She says she does household chores and looks after her siblings.
Another nine year old, who was initially admitted to school but excluded two years later because his parents had not produced his birth certificate, says he fears that without an education, he will never fulfil his dream of becoming a policeman. "I loved school. I will work really hard to catch up. I feel hurt ... left out," he says.
A similar sentiment was expressed by a 13-year-old, who says her friends laugh at her as they pass her home every morning on their way to school.
A million undocumented learners
Their case was first raised in the Eastern Cape court in 2017 by the Centre for Child Law against policies and laws which, it argues, negates these children's constitutional right to education.
With the matter pending, the Constitutional Court ordered the Department of Basic Education (DBE) to enrol them in local schools from March 2019 until the case is finalised.
In written submissions filed with the court, Advocates Nick Ferreira and Ingrid Cloete said the case was not just about their 37 young clients. "The DBE says there are almost one million learners enrolled who are undocumented. The majority, 82%, are South African citizens. They are black and poor. They will face exclusion if the present policies and legislation is enforced."
The advocates' focus - which is supported by Section 27 and the South African Human Rights Commission - is on the public school's admission policy, which requires a birth certificate for enrolment. For migrant children, they need proof of an attempt to regularise their status.
Further, sections of the Immigration Act make it a crime punishable by up to five years imprisonment for schools to teach "illegal foreign children".
"The children fall into two groups: South African children who, for various reasons, have been unable to obtain birth certificates, and foreign children, who do not have residence permits and most of whom do not have birth certificates," the advocates say. "Some are initially admitted and then expelled when they can't produce the documents. Others are refused up front and still others don't apply because they know they will be refused."
The Constitution, they say, guarantees the right to basic education for everyone - not just for everyone who is legal. "It is wide in scope because only through education can children develop to their full potential and empower themselves. And yet these policies and the Act render the realisation of this right conditional. This is a violation of their rights."
They say that many of the 37 children have undocumented mothers from Lesotho and South African fathers. "The mother cannot register their births and when the father tries to, he has to undergo a paternity test, which costs R1 400 and has to be done at an approved government laboratory - financially out of reach.
Many South African mothers had not given birth in hospitals or clinics and had not seen doctors afterwards, so they too did not have the required proof to register the birth. The caregivers of orphans or abandoned children often do not have the means to obtain guardianship, so these children are also left in a legal no man's land.
"The children have no control over their situation, they are powerless but bear the brunt of it with devastating consequences," the advocates say. "It goes to the heart of the right to dignity. It impacts on their self-esteem, self-worth, their potential for human fulfilment, and their ability to improve their own positions."
Effort and persistence
The education department, in its written argument, says the application is "moot" because the children are at school now. But the children's advocates say they were only allowed in after the Concourt ruling - which the department had "mounted fierce resistance to" - and their placement remains temporary.
The department also says it is amending its admissions policy with regard to undocumented South African children and has adopted a more "permissive" approach from June this year.
The advocates say this has only extended the time period from three to 12 months for parents and guardians to obtain the necessary documents "and for a number of children, this is simply not possible".
"The Department of Home Affairs has admitted it does not have the capacity to assist all those waiting for late registrations of births or requiring paternity tests." The department, in its court submissions, says there have been "positive trends" from its efforts to make birth registration easier, including more offices and mobile units - and the process of late registration was not as onerous as has been suggested.
"It simply requires some effort and persistence. Documents such as clinic records, baptismal certificates and affidavits may be sufficient proof. A paternity test is required in the event that the citizenship for the children is claimed through the father. We have to insist on this, in order to prevent fraudulent claims." It said allowing children to enter the education system without official documents did not solve "the overall problem they will face in life, and arguably, negates their constitutional rights to a name and nationality from birth".
The department described the Act as a "powerful tool to dissuade economic migrants from coming into the country". Free education was a "pull factor" and that is why "illegal" children should be barred from schooling.
The children's advocates say the state cannot punish their clients this way. "It is not the child who makes the decision [to enter the country without documents]. And if there is a deportation process, it can be done while the child has access to basic education."
Section 27 say the desire "to drive out migrants and deter any future migrants so that South Africa becomes a less attractive option" had undertones of discrimination and xenophobia.
The Human Rights Commission has argued that the court needs to give a proper legal interpretation of the policy that outlaws "training" undocumented migrants. "We believe that it must not be interpreted to mean basic education," it says.