(2840\/2017) [2019] ZAECGHC 126<\/p>\n
Introduction<\/i><\/span><\/span><\/span><\/p>\n [1]\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 Central to this application is the right to basic education enshrined, without any qualification, in section 29 of the Constitution. \u00a0The 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, <\/span><\/span><\/span>inter alia<\/i><\/span><\/span><\/span>, passports, identity documents, birth certificates or permits.[1]<\/a> \u00a0Justification for the requirements set by the Department of Basic Education[2]<\/a> is to improve the administration within the Department and, at another level, to manage and ameliorate challenges associated with the control of immigration.<\/span><\/span><\/span><\/p>\n In ordinary parlance, learners lacking the requisite documents have become known and are referred to in this judgment as \u201cundocumented children.<\/i>\u201d<\/span><\/span><\/span><\/p>\n […]<\/p>\n Factual Background<\/i><\/span><\/span><\/span><\/p>\n [5]\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 Prior to the year 2016, the Department of Education of the Eastern Cape Provincial Government[8]<\/a> provided teaching staff and funding to all learners at schools in the Eastern Cape regardless of whether the learners possessed identification documents. \u00a0Funding 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.[9]<\/a> \u00a0This system ensured that all learners in the Province gained access to basic education and the concomitant nutrition provided by the National School Nutrition Program,[10]<\/a> with the result that learners without identification documents were not <\/span><\/span><\/span>excluded from attending school.<\/span><\/span><\/p>\n [6]\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 It came to pass that the then Acting Superintendent-General of the Provincial Department issued a Circular dated 17 March 2016[11]<\/a> for \u201c<\/span><\/span><\/span>SCHOOLS TO UPDATE SASAMS WITH IDENTITY OR PASSPORT NUMBERS OF LEARNERS<\/i><\/span><\/span><\/span>\u201d. \u00a0<\/span><\/span><\/span><\/p>\n […]<\/span><\/span><\/span><\/p>\n [7]\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 Circular 06 of 2016 was followed by <\/span>a further circular issued by the Acting\u00a0Superintendent-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.<\/span><\/span><\/span><\/p>\n [8]\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 Efforts <\/span><\/span><\/span>by the first and second applicants to <\/span><\/span>urge the Provincial Department <\/span><\/span><\/span>not to <\/span><\/span>give effect to Circular 06 of 2016[13]<\/a> yielded naught. \u00a0In 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. \u00a0It 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. \u00a0This number constitutes a decrease from the 2016 academic year when there were 99 such learners.<\/span><\/span><\/span><\/p>\n […]<\/p>\n