Source: High Court of South Africa, Eastern Cape Division (Grahamstown)
(2840/2017)  ZAECGHC 126
 Central to this application is the right to basic education enshrined, without any qualification, in section 29 of the Constitution. The application concerns children who have been precluded from unconditionally continuing to attend public schools unless they or their parents/guardians identify themselves by means of, inter alia, passports, identity documents, birth certificates or permits. Justification for the requirements set by the Department of Basic Education is to improve the administration within the Department and, at another level, to manage and ameliorate challenges associated with the control of immigration.
In ordinary parlance, learners lacking the requisite documents have become known and are referred to in this judgment as “undocumented children.”
 Prior to the year 2016, the Department of Education of the Eastern Cape Provincial Government provided teaching staff and funding to all learners at schools in the Eastern Cape regardless of whether the learners possessed identification documents. Funding was provided to schools based on the actual number of learners in the school, and not on the number of learners whose identification document particulars were entered into the South African Schools Administration and Management System. This system ensured that all learners in the Province gained access to basic education and the concomitant nutrition provided by the National School Nutrition Program, with the result that learners without identification documents were not excluded from attending school.
 It came to pass that the then Acting Superintendent-General of the Provincial Department issued a Circular dated 17 March 2016 for “SCHOOLS TO UPDATE SASAMS WITH IDENTITY OR PASSPORT NUMBERS OF LEARNERS”.
 Circular 06 of 2016 was followed by a further circular issued by the Acting Superintendent-General on 06 June 2016 advising that funding for learners with no identity numbers or with invalid numbers would be withheld until corrected, failing which, by 17 June 2016, the affected learners would be regarded as no longer in existence and thereupon removed from enrolment at the affected schools.
 Efforts by the first and second applicants to urge the Provincial Department not to give effect to Circular 06 of 2016 yielded naught. In practical terms, the consequences of the decision to stop funding undocumented children resulted in their exclusion from school and the exclusion of learners from being funded if they remained at school. It is common cause that in the case of Phakamisa High School, a no-fee school located at Zwide Township, Port Elizabeth, on whose behalf the second applicant launched the application, there were, at the time of the launch of the application, 37 learners without valid identity numbers. This number constitutes a decrease from the 2016 academic year when there were 99 such learners.
 The papers make it plain that besides the 37 children, there are over a million children who, even on the respondents’ showing, have been admitted subject to the condition that they will be excluded should they not produce the requisite documents at the expiry of 12 months. It is further clear that due to the personal circumstances of some of the children’s care-givers and parents, there is no end in sight to the children concerned securing these documents. Also, examples of other parlous experiences of how impossible it has been to obtain the necessary documents are narrated. These experiences concern parents who have abandoned their children, leaving them in the care of relatives or other care-givers, and rendering it impossible for the children (invariably born at home or residing in other inaccessible areas due to geographical remoteness) to obtain birth certificates. Attempts to register some of the children, absent their biological parents whose whereabouts are unknown, have proved futile. Resulting from this, the children are stuck in limbo and there are no prospects of them obtaining the birth certificates which are a prerequisite to obtaining identification documents. Besides facing the danger of being stateless, the children are beset by two problems: first, being abandoned by their parents and, second, being denied the right to basic education on the basis that they lack a piece of paper identifying who they are and lack the means, themselves, to acquire identification documents. In any event, the application is not brought only in the interest of the 37 children but also on behalf of a class and in the public interest, in terms of section 38 of the Constitution.
 In sum, therefore, the DBE and the Provincial Department are acting unconstitutionally in not permitting children to continue receiving education in public schools purely by reason of the fact that they lack identification documents.
Download full judgment from SAFLII: http://www.saflii.org/za/cases/ZAECGHC/2019/126.html