Undocumented children, including children of illegal foreigners, can now attend public schools, thanks to the Eastern Cape High Court in Makhanda.

The court granted the order in an application the Centre for Child Law  lodged against the minister of basic education in 2017 in which it emerged that many children were unable to attend school because they didn't have identity numbers, birth certificates, permits or passports, News24 previously reported.

National laws and policies prescribe that certain documents must be handed to schools when enrolling a pupil.

"The first to third respondent are directed to admit all children not in possession of an official birth certificate into public schools in the Eastern Cape province, and where a learner cannot provide a birth certificate, the principal of the relevant school is directed to accept alternative proof of identity, such as affidavit or sworn statement deposed to by the parent, caregiver or guardian of the learner wherein the learner is dully identified," Eastern Cape Judge President Selby Mbenenge ruled. Judge Irma Schoeman and Acting Judge SM Mfenyana agreed with him. 

"Sections 39 and 42 of the Immigration Act 13 of 2002 do not prohibit the admission of illegal foreign children into schools and do not prohibit the provisions of basic education to illegal foreign children."

The court also interdicted the respondents from removing or excluding children, including illegal foreign children, who were already admitted on the basis that the child has no ID number, permit or passport, or has not produced any identification documents.  In his ruling, Mbenenge said examples of parents' experiences were narrated.  He said these experiences concerned parents who had abandoned and left their children in the care of relatives or other caregivers, "rendering it impossible for the children to obtain birth certificates".

"Attempts to register some of the children [whose] biological parents' 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," Mbenenge said. 

The judge added that besides facing the danger of being stateless, they had other difficulties, such as being abandoned by their parents and being denied the right to basic education on the basis that they lack a piece of paper identifying themselves.

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Minister of Home Affairs Aaron Motsoaledi after briefing Parliament.

Every child needs to go to school, Minister of Home Affairs Aaron Motsoaledi has said.

He said when he asked the Department of Basic Education why immigrant children were barred from school, he was told the department was scared of home affairs inspectors.

"That can't happen in any modern democracy. I told them home affairs inspectors must not visit any schools unless there is a crime committed that needs home affairs. It's more dangerous to have a child who is not in school."

"Send them to school … We'll look at the documentation later."

He was speaking to GroundUp after briefing a joint meeting of the portfolio committees on Home Affairs and Cooperative Governance and Traditional Affairs on Tuesday.Motsoaledi told GroundUp that the three special permits which were issued to legalise the status of nationals from Lesotho, Zimbabwe and Angolans already living in South Africa, would be renewed.

"The Lesotho permit is expiring in December. I am already in the process of renewing it," said Motsoaledi. "We can't stop those special permits if the problems that led to those special permits are not yet resolved. "Unfortunately the Zimbabwean permit was for four years and the situation never became normal in those four years. We will renew, but we can't automatically as the department. We have got to discuss with the Cabinet."

"The issue of migration is not purely a problem of home affairs as the mayor of Johannesburg would like people to believe," said Motsoaledi. "It talks to many government departments because it talks to economy; it talks to job creation; it talks to inequality; it talks to unemployment – all those issues cannot be resolved by one department which is called home affairs.

"We have accepted long ago that our borders are porous. We have presented to Parliament before that we are going to spruce up the Border Management Authority. We want to bring that forward," he said.

In 2009, the South African government introduced a Dispensation of Zimbabwean Permit(DZP) to legalise the many Zimbabweans already inside the countrybecause of the political and socio-economic situation there.

In 2014, the DZP was renewed and renamed ZSP (Zimbabwean Special Permit), which expired in December 2017. The ZSP was replaced with the ZEP (Zimbabwe Exemption Permit), which will expire in 2021.

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The Equal Education Law Centre says it has secured placement of more than 100 children in Matatiele for the 2020 academic year. The children were out of school due to lack of identity documentation.

All undocumented children, including children of illegal foreigners, are entitled to receive basic education, the high court in Makhanda in the Eastern Cape ruled on Thursday.

The basic education department will in future be obliged to provide and fund a basic education for all undocumented children, including children of illegal foreigners.

It is estimated that the judgment will affect over a million undocumented children who are either seeking admission to public schools or who have been warned to provide documentation to avoid being excluded.

Eastern Cape judge president Selby Mbenenge set aside sections of the schools’ admission policy which in any way hindered undocumented children’s access to school.

He also set aside an Eastern Cape education department 2016 circular warning that the department would fund only children at schools who had valid documentation.

Mbenenge said that all provisions of the Immigration Act had to be interpreted to be in line with the constitution. This meant that it had to be read in a way that meant that it in no way prohibited the provision of a basic education to illegal foreign children.

Judge Irma Schoeman and acting judge SM Mfenyana agreed with Mbenenge.

The ground-breaking case, which will have national implications, kicked off when some 37 children in the Eastern Cape were denied access to school because they had no birth certificates, study permits or passports.

The Centre for Child Law and Phakamisa High School in Port Elizabeth, represented by the Legal Resources Centre (LRC), set out to challenge all the regulations and laws that inhibited undocumented children from accessing basic education. They successfully argued that they constituted an unjustifiable limitation on children’s constitutional right to basic education as well as their right to equality and dignity.

In a statement issued in response to the high court ruling, the LRC said a common yet false perception was that undocumented pupils must be “illegal foreigners” as all SA children have their births registered and are in possession of an identity document.

“According to the department of basic education, 998,433 children are currently attending school in SA, are undocumented, and cannot be accounted for by the department of home affairs. Only 16.7% of these learners are foreign nationals, while 83.2% are SA children whose parents, guardians or caregivers have not managed to secure birth certificates for them.

"... Many of these learners are growing up with extended family members who struggle to obtain the necessary documentation for the children when their parents are no longer around. The children are often born at home and their births are not registered within 30 days as provided for in the Birth and Death Registration Act. This is either due to a lack of resources to travel to the nearest home affairs office, or due to an inability to produce all the documents that are required by Home Affairs to register a birth.

"... This judgment is therefore predominantly affecting SA children who, through no fault of their own, are unable to secure the registration of their births.”

The Equal Education Law Centre hailed the judgment, describing it as a “phenomenal victory for children across SA”. The centre also shared that late last month, it had secured placement of more than 100 children in Matatiele for the 2020 academic year. The children were out of school due to lack of identity documentation.

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As more than 100 home-bound, desperate Australians boarded a rescue flight at London's Heathrow Airport on Thursday in Melbourne the Torres family from Colombia prepared for another day of purgatory on their "holiday", six months-long and counting.

"It’s a little difficult," says Clara Torres from her nephew's two-bedroom Caulfield apartment where she, her sister, Amparo, and 90-year old mother Ines have slept on mattresses on the floor of the spare room for half a year.

Each day is much the same for the three – breakfast, a bit of exercise, read, call the family in Colombia – followed by a COVID-safe walk to the park and home again to her nephew John and his partner Carla's apartment.

The Colombian trio saved up for the trip of a lifetime to visit their nephew after he moved to Australia 10 years ago. They arrived in Melbourne at the start of February for what was meant to be a two-month stay.

But in mid-March, with escalating coronavirus case numbers worldwide, Colombia shut its borders with no warning, and the Torres family's return tickets were cancelled.

International flights into Colombia didn't resume until September 21, but LATAM airlines is still not operating flights in or out of Australia.

"When our ticket was cancelled, [we] were a little shocked," Ms Torres said. "But when they cancelled, we did not assume it [was] going to be this long."

The Torres family are among thousands of stranded holidaymakers in the country. According to the Department of Home Affairs, there are more than 82,000 visitor visa holders still in Australia. Among those, more than 3000 have applied for the government's "pandemic event" visa which allows people to stay after their visas expire.

There have been a handful of humanitarian flights sent to Australia to pick up citizens from different countries, but for the trio the cost was prohibitive.

"Each flight had a different cost, the cheapest was $3000 per person, but with additional costs it was more like $4500 per person," said Carla Peixoto, who has been hosting her partner's family.

“They’ve only got about $2000 [in savings] left and so they’ve not even got enough for one ticket."

Ms Peixoto said the many months of working from home, uncertainty and close quarters living with her partner's family had been "very stressful mentally and emotionally".

"It's been a very big learning curve, especially with the lockdown," she said.

The Torres family say their only hope of returning home is to wait for LATAM flights to resume so they can use their pre-paid ticket.

Clara and sister Amparo work in the middle of the night to try to keep their real estate business afloat back home, but they say their income does not count for much when converted to Australian dollars. It is not enough to pay for a new ticket home, or a complicated trip through various countries and quarantine programs.

"[People think] maybe you have a lot of money to come to Australia but no one knows the number of sacrifices we made to come here," Clara said.

The Colombian embassy has issued the family two supermarket vouchers throughout the six months to assist with grocery bills, but there's been little other support from their home country.

A Department of Home Affairs spokesperson said the government had allocated $7 million in funding to Red Cross to provide emergency relief to temporary visa holders.

"Temporary visa holders are also able to access relief services from other community organisations, receiving a total of $200 million in new funding," the spokesperson said.

Until flights resume, Clara said the trio were trying to stay positive and make the best of their bizarre situation.

"It was about 2½ months before I decided to be calm," she said. "Don’t think too much, that’s the clue, because you don’t know what is going to happen.

"Melbourne is a beautiful city. When I come back to Colombia, I will have many stories to tell my family."

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A self-employed salon and internet café operator based in Piet Retief, Mpumalanga, has been sentenced to an effective six years behind bars for selling fake tertiary qualifications.

Edmond Okechuku, 45, appeared in the Piet Retief Magistrate's Court on Monday for sentencing on charges of fraud, forgery and manufacturing false tertiary qualification certificates.

According to Hawks spokesperson Captain Dineo Lucy Sekgotodi, Okechuku was arrested by the Hawks' Serious Organised Crime Investigation team in Mpumalanga on 16 October 2019 during an intelligence-driven operation after information was received about the sale of fake tertiary certificates.

He was released on bail of R2 000 on 24 October 2019.

During the operation, he was approached by a police agent who needed an N6 Human Resources certificate, for which he charged R1 500. Okechuku pleaded guilty on all charges.

Subsequently, the Piet Retief Magistrate's Court sentenced him to six years' direct imprisonment. He was denied leave to appeal the sentence and declared unfit to possess a firearm.

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