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School takes Eastern Cape education dept to court over funding for undocumented learners

May 30, 2017
School takes Eastern Cape education dept to court over funding for undocumented learners

The Legal Resources Cen­tre, which is based in Grahamstown, on Tuesday said that on behalf of the Cen­tre for Child Law and the School Gov­ern­ing Body of Phakamisa High School in the East­ern Cape, it launched an appli­ca­tion in the Gra­ham­stown High Court on Friday to declare a deci­sion made by the East­ern Cape Depart­ment of Edu­ca­tion (ECDOE) to stop fund­ing learn­ers with­out iden­tity, pass­port or per­mit num­bers as uncon­sti­tu­tional.

"This fol­lows the announce­ment made on 17 March 2016 that fund­ing trans­fers to schools for the Norms and Stan­dards, post pro­vi­sion­ing allo­ca­tion and National School Nutri­tion Pro­gramme (NSNP) for quin­tiles 1–3 would be based on the learner num­bers where valid South African iden­tity, pass­port and per­mit num­bers have been cap­tured on the South African Schools Admin­is­tra­tion& Man­age­ment Sys­tem," the centre said in a statement.

"The Norms and Stan­dards trans­fers include fund­ing for learner-teacher sup­port mate­ri­als (includ­ing text­books and sta­tionery), munic­i­pal ser­vices and school main­te­nance. The fund­ing for NSNP is allo­cated to each school in a sep­a­rate bud­get. The post pro­vi­sion­ing allo­ca­tion funds the salaries of teach­ers and sup­port staff.

"Many schools have already been affected by this announce­ment and do not have suf­fi­cient teach­ers or bud­get for LTSM and theNSNP." 

In the appli­ca­tion, the LRC argues that, by with­draw­ing fund­ing, the ECDOE is vio­lat­ing the learn­ers’ con­sti­tu­tional right to basic edu­ca­tion (sec­tion 29), par­tic­u­larly when it is read in con­junc­tion with the learn­ers’ rights to dig­nity (sec­tion 10) and the right to equal­ity and non-discrimination (sec­tion 9).

"The fund­ing fail­ure is also a gross vio­la­tion of the learn­ers’ con­sti­tu­tional rights to basic nutri­tion (sec­tion 28) and to have access to suf­fi­cient food (sec­tion 27).

"Fur­ther­more, the deci­sion to exclude learn­ers with­out iden­tity num­ber, pass­ports or per­mits is not in the best inter­est of the child and vio­lates sec­tion 28(2) of the Con­sti­tu­tion," it said.

"In the past, schools were funded based on actual num­bers of learn­ers, regard­less of whether they had valid iden­tity, pass­port and per­mit num­bers, not on those reg­is­tered in the sys­tem.

"With­out fund­ing pro­vided for learn­ers with­out iden­tity, pass­port and per­mit num­bers, schools will have less to spend on learn­ers reg­is­tered in the sys­tem, com­pro­mis­ing their edu­ca­tion and nutri­tion. To sup­port those not reg­is­tered in the sys­tem, schools will either have to fundraise for their short­fall or will ask unreg­is­tered learn­ers to leave." 

The centre further said that the appli­ca­tion argues that, “any fail­ure, whether inad­ver­tent or not, on the part of par­ents to reg­is­ter their birth does not jus­tify any action or deci­sion adversely affect­ing the rights of learn­ers….”

"It notes that it is usu­ally the poor­est and most vul­ner­a­ble learn­ers that fail to obtain their iden­tity doc­u­ments and that some bar­ri­ers to access­ing these are insur­mount­able.

"Often par­ents or guardians fail to take the nec­es­sary steps to reg­is­ter the birth of a child due to a lack of access to an office of the Depart­ment of Home Affairs, the par­ents not being in pos­ses­sion of the nec­es­sary doc­u­ments to have the birth reg­is­tered or as a direct result of migrant labour," the centre said.

"Fur­ther­more, the appli­ca­tion con­tains infor­ma­tion regard­ing the schools that are doing every­thing in their power to assist learn­ers obtain iden­tity doc­u­ments and finalise pro­vi­sional learner enrol­ment but are not able to do so.

"The appli­ca­tion seeks to have the deci­sion by the ECDOE to be set aside and for the Depart­ment to revise post estab­lish­ments and fund­ing in line with actual num­bers of learn­ers in schools, regard­less of their reg­is­tra­tion sta­tus."