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 Justice 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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We do not have toilets

In a previous entry, Talita Mshweshwe, shared the story of Siyabonga, who attends school in what is known as a “mud school”. There are approximately 300 mud schools in the Eastern Cape, although the Department of Basic Education (DBE) is not exactly sure how many there are. It is concerning that the DBE has still not given information as to when the schools will be built, which schools will be built or where Siyabonga’s school is on the list. Siyabonga reveals the extent of the problem in the mud school.

We do not have toilets

The school used to have toilets that were made out of iron. We can’t use the toilets because they are in such a bad state. The bad weather has damaged the toilets and it is really dangerous when the younger children use them. Out teachers told us not to use them any longer.

The toilets at Ncincinikwe Senior Primary School
The toilets at Ncincinikwe Senior Primary School

We have been using the veld that is far away from school. Because of the distance, we can’t go to the toilet during class time. Our teacher takes us to the veld during break. It is not safe for us to go to the veld alone. We really suffer because we can’t go to the toilet when we need to and the walk is so long. The girls have a really hard time when they are menstruating. We do not feel comfortable changing our sanitary pads in front of boys. Even when we go deeper into the veld, there are always herd boys who look at us while we are trying to change and we cannot avoid them. We would rather stay at home than embarrass ourselves. I feel really bad about missing school, but what else can I do?

Children relieving themselves outside
Children relieving themselves outside

We live in a nation where women and children are classified as a vulnerable group. Siyabonga is doubly vulnerable. It is concerning that the lack of school infrastructure impedes on her access to education, which affects great number of children in the province who face the same problems. Being stuck at home because they are menstruating is as if they are serving time for being women. The issue is, however, not confined to this school. In Melibuwa Senior Primary School the conditions are no better. When the school children need to relieve themselves, they also use open grassy areas where they are clearly visible.

Children cannot influence policy in a direct way. They are completely dependent upon the government and civil society to protect and to promote their rights. The parents of these rural areas try as far as possible to refurbish broken down schools. However, because they come from poverty stricken areas, they are not able to provide the necessary upgrades. The responsibility of advancing rights of human dignity and access to education rests with the government. A toilet should be seen as a basic part of the fabric of the building.

We have no electricity

Our classrooms are always dark. We have no electricity so we open the windows for the light to come in. In winter when it is very cloudy we can’t see the board, so sometimes we do not understand exactly what our teacher is saying. In summer we feel so hot because we do not have any fans. It is really difficult to pay attention to our teacher because we share a single desk between three girls.

We have no water

Our school gives us food because so many of us do not have enough food at home. Sometimes, when we want food, the teachers tell us that we will not be getting any because the water from the tanks has run out. Other times they tell us not to drink the tank water because it is being saved to prepare tomorrow’s meal. It is so hard on us in the summer because we get thirsty and the heat in the classroom is awful. Some children have nosebleeds because of the heat and they are sent home.

Buildings affected by water
Buildings affected by water

Water and electricity are basic amenities essential for survival. A school without water is potentially life threatening. Furthermore, the Constitution recognises these as rights. It is unimaginable what a summer’s day is like in this school. Such levels of discomfort should not be experienced by children.

The dust in the classroom makes me cough

My school is falling apart. The roof is caving in and the mud at the corners of the building is crumbling. The dust from the mud makes us cough so much and it gets into our eyes. The iron roof looks like it will fall in the windy weather. My books also get damaged when the roof leaks. Sometimes, I cannot concentrate because I am worried that the wind outside will blow my school roof away like what has happened at another school.

The conditions of the school illustrate the systematic failure of the DBE in achieving its goal of eradicating mud schools, as it promised to do by 2004. It is unacceptable that the DBE has not pushed for change when the funds have been made available through the ASIDI programme. Instead there has been serious under-spending of the funds and thus future project funding will be reduced. The ASIDI programme has been rolled out with serious delays. These delays will leave scores of children in the Eastern Cape in the same position as they have been for the past twelve years.

By: Talita Mshweshwe

Disclaimer: The opinions expressed by the Realising Rights bloggers and those providing comments are theirs alone, and do not reflect the opinions of the Legal Resources Centre. The Legal Resources Centre is not responsible for the accuracy of any of the information supplied by the bloggers.

The Mud Schools of the Eastern Cape

Talita Mshweshwe is a law student from East London doing an internship at the Legal Resources Centre (LRC). She interviewed a young girl named Siyabonga, a grade 7 pupil at Ncincinikwe Senior Primary School in Votini in the Eastern Cape. Ncincinikwe Senior Primary School is one of approximately 300 mud schools in the province. This is Siyabonga’s story.

My name is Siyabonga, I am in grade seven at Ncincinikwe Senior Primary School. The Department of Basic Education (DBE) says that my school is a quintile one school, which apparently is the poorest. We come from a rural community in the Butterworth area. There are 167 of us in the school. We really want to learn but it is very difficult for us to pay attention to our teachers because the school building is not in a good condition. But we try to come to school every day. It is hard for the girls in my school because we can’t come to school when we are menstruating. We stay at home because it is very embarrassing to go to school when there are no toilets for us to use. My school does not have any toilets and the building is collapsing. We are scared because it looks like the roof is going to fall. When it rains we have to run to save our books because the roof leaks very badly.

Ncincinikwe Senior Primary School
Ncincinikwe Senior Primary School

Visiting the mud schools

In 2011, the LRC reached an out-of-court settlement agreement with the DBE to eradicate all mud schools in the province. This was good news for about 50 schools whose structures were replaced by new school buildings. However, the benefits did not reach Siyabonga’s school because the DBE did not have proper plans in place to identify the needy schools and replace them, even though the Department had sufficient funds. They did not communicate their plans for rolling out the programme. Some schools were left off the list completely and those that are on the list are not aware of the dates on which their school would be upgraded. Because of the poor planning, money dedicated to replacing mud schools is being taken away from this programme and reallocated to other provinces. This is a tragedy for schools like Siyabonga’s.

On 28th October 2013, the LRC team from the Grahamstown office visited our school. They took pictures of our school and the toilets. They told us about the Accelerated Schools Infrastructure Delivery (ASIDI) programme and how the government had set aside more than R6 billion to fix the mud schools in the Eastern Cape. The teachers told us that DBE had made promises to the school since 2003, so they did not believe that any change would come. The teachers and the principal had never heard of the ASIDI programme and did not know how it would work. There are over 300 mud schools in the area. I heard them say that these are not new promises, but they were interested because the LRC explained what kind of work it did.

The LRC told my school principal that it would ask the courts to force the DBE to produce the plan so that schools like mine would know whether not they were going to be fixed and when. Then our community can plan properly. We still go to school. It’s the law. But the DBE seems to think its fine for us not to have toilets and classrooms that are crumbling. We don’t know if our school will be fixed, but we will continue to attend as much as possible.

The inside of the classrooms
The inside of the classrooms

What makes a good school? Is it good teachers, textbooks? Does the actual building of a school matter? Does Siyabonga have the right to expect a strong, steady and safe building as part of her right to basic education? While the challenges of learning in a mud school do not affect the majority of leaners in South Africa, a large number of children in the distant corners of the Eastern Cape struggle to get an adequate education. The LRC will continue to monitor the situation and take action when necessary.

By: Talita Mshweshwe

Disclaimer: The opinions expressed by the Realising Rights bloggers and those providing comments are theirs alone, and do not reflect the opinions of the Legal Resources Centre. The Legal Resources Centre is not responsible for the accuracy of any of the information supplied by the bloggers.