The Nameless Ones: Educating Undocumented Learners

Thousands of learners across South Africa are being excluded from schools as a result of their failure to provide their schools with identity numbers, passports or permits. This follows the announcement by various provincial departments of education that funding transfers to schools for the Norms and Standards, post provisioning allocation and National School Nutrition Programme (NSNP) would be based only on learner numbers where valid South African identity, passport and permit numbers have been captured on the South African Schools Administration & Management System (SASAMS). This means that undocumented South African learners, as well as foreign learners, will no longer receive any education funding from government.

Schools that are most affected by this decision are the no-fee schools that are entirely dependent on state funding. These are the poorest schools and comprise around 60% of all schools in the country. The funding transfers are used by the schools to provide essential resources such as textbooks, stationery, as well as daily meals. Funding is also provided to pay for essential maintenance and municipal services. The decision also impacts on the provision of teachers to schools, as teacher posts are only allocated to those learners with valid identity numbers, passports and permits (as opposed to the number of children actually present in classrooms).

In the past, schools were funded based on actual numbers of learners, regardless of whether they had valid identity documents, passports and permit numbers. The SASAMS was introduced in 2013 and is a database that (theoretically) contains all the personal and academic information of learners attending public schools in South Africa. The SASAMS was introduced by the Department of Basic Education in an attempt to improve the accuracy of its resource distribution and prevent the problem of “ghost learners”. This is the phenomenon where schools request funding for more learners than are present in the school and then embezzle the additional funding. By only providing funding for learners with valid identity numbers, passport, or permit numbers the Department of Basic Education is better able to combat this fraudulent conduct. The decision has had unconstitutional consequences.

The decision to exclude undocumented learners from funding was announced in March 2016 to all schools in the Eastern Cape. Similarly, schools in KwaZulu-Natal were informed of the decision on 24 March 2017. On Friday, 26 May 2017, the Legal Resources Centre, on behalf of the Centre for Child Law and the School Governing Body of Phakamisa High School in the Eastern Cape, launched an application in the Grahamstown High Court to declare the decision of the Eastern Cape Department of Education (ECDOE) unconstitutional.

The application argues that, by withdrawing funding from undocumented learners, the ECDOE is violating the learners’ constitutional right to basic education, particularly when it is read in conjunction with the learners’ rights to dignity (and the right to equality and non-discrimination).

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 interests of the child and violates section 28(2) of the Constitution.

Many schools have been negatively affected by this decision. Phakamisa High School, the second applicant in the case, has 99 learners that were excluded from funding for the 2017/2018 financial year. The school has been forced to use funding from their maintenance budget to supplement the shortfall in their NSNP budget, while simultaneously reducing the food portions for all the learners in the school. Many other schools have simply decided to exclude undocumented learners or refuse them admission to the school.

It is usually the poorest and most vulnerable learners that fail to obtain their identity documents. This is a problem that disproportionately affects poor black learners living in rural areas of the country where access to resources are scarce and children are raised by grandparents or other extended family members. 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 application seeks to have the decision by the ECDOE set aside and for the Department to revise teacher post establishments and funding in line with actual numbers of learners in schools, regardless of their registration status. The LRC hopes to set a precedent that can be extended to other provinces where similar measures have been announced.

Cecile van Schalkwyk – 2017 Bertha Fellow

The Annual Bertha Convening is supported by the Bertha Foundation. We would like to thank them for their support of the next generation of young human rights lawyers. Read more about the Bertha Foundation and Bertha Fellows here: http://berthafoundation.org/

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Lawyering whilst Black

(featured photo of Lunga Siyo, LRC, and Mandisa Shandu, Ndifuna Ukwazi)

I am black-African, young and female, and working in the public interest sector. This is what it means to me:

It means that some of us are first generation graduates; we work with the added pressure of making money in order to financially support our families.

It means that sometimes we do not earn enough to sustain ourselves and our families and so many young, black-African lawyers end up leaving the public interest sector for jobs that they do not necessarily love, but that will make sure that they fulfil their obligations each month.

It means that we work in a sector that is not transformed enough: we see black-African lawyers within our organisations but they are not occupying senior positions.

It means that there has to be policies put in place, such as briefing policies, in order to hold organisations “accountable” for who they brief, or their failure to brief black counsel.

It means forming institutions such as the Black Workers Forum to “police” organisations when it comes to transformation….. 33 years after Democracy.

It means that there is a belief that young black lawyers are incapable of competently handling complicated matters or matters seen as falling within specialised areas of law.

It means that other black-African lawyers are afraid of putting their jobs on the line by briefing other black-African counsel because black-African counsel are “inexperienced and can’t take on matters probono”.

And on the burden of being both black-African and female: it means that your male counterparts are taken more seriously than you and that some clients will be more comfortable with their matters being handled by your male colleague.

But let us not forget the beauty of being a black-African lawyer:

As public interest organisations, the majority of our clients are black-Africans. This means that the majority of the work that we do is for our own people and for the betterment of our own people.

We are multi-lingual; we are able to communicate with our clients in a language that is their own. We understand the cultures and traditions of our clients.

We are a point of reference for clients. I have lost count of how many times I have been at court – going about my duties as a Candidate Attorney – and have been approached by members of the public, querying how to find a particular section of the court or how to fill in a domestic violence form. Our black skin means that we will understand better.

As a black-African child, we are taught that every elder is your mother/father or grandparent. For me this has meant that at every workshop or community consultations, I run to the aid of elderly people, making sure that they can get around with ease. My work as a black lawyer comes with a personal touch.

Lawyering whilst black…means that we have challenges; but we do our work anyway and we can understand the plight of our clients in a way that connects us to them.

Sindisiwe Mfeka – 2017 Bertha Fellow

The Annual Bertha Convening is supported by the Bertha Foundation. We would like to thank them for their support of the next generation of young human rights lawyers. Read more about the Bertha Foundation and Bertha Fellows here: http://berthafoundation.org/ 

Bertha Convening: A Synergy for Change

Transfixed in my seat, feeling the energy of a collective striving for change and human rights – this is how I felt at the 2017 Bertha Convening, where I sat amongst peers championing for human rights.

In reflection, the Convening truly provided a rare opportunity for legal peers and community representatives from different platforms around the country to come together, shed light on, and interrogate current and deeply entrenched issues plaguing the vulnerable and marginalised in our country.  Some of the issues that were raised were of violence against transgender persons, and of mining companies overriding the consent of rural communities by mining on their land. We listened to the plight of farm workers who continue to live on farms where they experience oppression not dissimilar to the Apartheid regime.

Bertha convening 2017

Community representatives reminded us young lawyers that we do not need to be lawyers to fight against injustice, as the very essence of a human rights violation is that it encroaches upon one’s humanity. However, they also reminded us of the importance of our role as lawyers in hacking at the chains that still bind so many to oppression of some form. Further, how valuable it is for lawyers and communities to partner if we want to create the change we envision.

Bertha convening 2017_Marikana

The law remains a fundamental tool to challenge the status quo, and help realise the promises made in the Constitution. Lawyers cannot do this without truly getting the perspective of the communities we represent, and whose lives ultimately will be improved by the cases we pursue. The Convening created a supportive space to nurture such a collaboration, and to gain from and learn the different perspectives on these challenging issues.

I will end off by saying that this was my first Bertha Convening and I cannot wait for the next one.

Naushina Rahim – 2017 Bertha Fellow

The Annual Bertha Convening is supported by the Bertha Foundation. We would like to thank them for their support of the next generation of young human rights lawyers. Read more about the Bertha Foundation and Bertha Fellows here: http://berthafoundation.org/ 

Bertha convening 2017_Group

OPERA: How Strategic Litigation + Strong Data = Implementation

In a new case study, the Center for Economic and Social Rights (CESR) and the Legal Resources Centre (LRC) reflect on a joint project piloting the use of the OPERA framework to analyze implementation in a case on the right to education in South Africa.

CESR and the LRC piloted OPERA in Madzodzo v Department of Basic Education, a case about chronic school furniture shortages that was brought by the LRC on behalf of the Centre for Child Law and a number of schools. In Madzodzo, the South African High Court declared that the government’s failure to address protracted delays in providing desperately needed desks and chairs to schools in the Eastern Cape was a violation of the Constitution’s protection of the right to a basic education. However, various rounds of litigation – resulting in multiple agreements, extensions, and a decision from the High Court – had not produced the desired results.

Madzodzo reflects a broader trend in socio-economic rights litigation in South Africa over the past 20 years that has seen courts increasingly ordering “dialogic” remedies—meaning the responsible government agency retains discretion to determine how it will rectify a rights violation. Unfortunately, government agencies have frequently failed to properly implement these types of orders, limiting the transformative potential of strategic litigation on economic and social rights.

“After years of engagement with the education department, thousands of learners continue to spend their days sitting on the floor, or squeezed together at desks that are broken, not designed for their age or otherwise unsuitable,” noted Cameron McConnachie, attorney at the LRC. “In this context, we were eager to explore ways to facilitate more constructive, evidence-based dialogue with the education department, to strengthen accountability for their failure to implement the court’s decisions.”

OPERA, which stands for Outcomes, Policy Efforts, Resources and Assessment, is an analytical framework that supports human rights advocates to use innovative methods for collecting, analyzing and presenting evidence of non-compliance with economic and social rights standards. When combined, the four steps enable a more convincing demonstration of the links between policies on paper and their impact on the ground. The Madzodzo pilot explored its potential for identifying quantitative and qualitative indicators to track progress in implementation and for gathering information on those indicators. This information was used to support follow-up legal proceedings, as well as dialogue on implementation, more broadly.

CESR and the LRC used OPERA to carry out a rigorous analysis of the documents submitted in the case, finding that up to 40% of all schools in the Eastern Cape were in need of adequate furniture, despite the allocation of approximately R290 million for such goods in the province between 2013 and 2015. Procurement and delivery processes were found to be characterized by irregularities, lengthy delays and poor management. We also found that past solutions failed because they did not address root causes such as poor information management systems on the school, district, provincial and national levels or the absence of furniture as an element in any infrastructure plan for the school system.

Nevertheless, the starkest takeaway from this analysis was the complete unreliability of the education department’s data on school furniture. Our subsequent strategy focused in large part on obtaining better data. We pursued this strategy in a number of ways:

  • by providing detailed recommendations to the national and provincial education departments on how to conduct an effective furniture audit, as well as on improving its information management systems;
  • by requesting access to relevant databases maintained by the education departments; and
  • by experimenting with mobile messaging platforms for communication while gathering information from schools directly.

Interestingly, the pilot project illustrated that the four steps of OPERA could align neatly with the various components of a judicial decision – a discovery that eventually facilitated significant steps towards compliance. In particular, it provided a cohesive system for categorizing, systematizing and, importantly, identifying gaps in the data that had been submitted in the case.

Systematizing that data, in turn, deepened our understanding of the political and structural limitations inhibiting productive operations within the department. The order made by agreement in February 2016 reflects the significant impact of applying OPERA to the case, in that it set out significantly more detailed obligations than previous orders, in terms of remedial actions to be taken. This has yielded greater visibility of the problem; increased the information available about it; and, importantly, helped identify energetic, dedicated officials willing to engage with it.

Read the final report: CESR_LRC_OPERA_Pilot.