Dozens of desperate children denied the right to attend school because they are undocumented may yet get relief from the courts.
The Grahamstown high court last month rejected the application by 37 undocumented children to be allowed to attend school and also refused them leave to appeal the decision.
The Centre for Child Law (CCL), acting on behalf of the children, petitioned the Constitutional Court, which seems inclined to hear the appeal.
The Concourt has given the provincial education department until Monday to file affidavits, firstly setting out why it was not in the interest of justice for the court to hear the appeal.
Secondly, it wanted the department to set out why the appeal should not succeed and the interim relief for schooling be granted to the children.
The CCL brought the urgent application to temporarily have the 37 children placed in schools pending a much bigger application to challenge the constitutionality of departmental policies and laws preventing all undocumented children from attending school. The children were either refused admission to schools or removed from the schools they attended on the basis that they could not produce birth certificates, study permits or passports.
The 37 children are the tip of a massive iceberg involving thousands of children countrywide who cannot attend school because they lack the documentation to do so.
Last month, acting judge Ntsikelelo Mtshabe found that while the constitution guaranteed the right to a basic education for all children, it did not mean undocumented children could demand and be given an education as their undocumented status put them on the wrong side of national policies and laws.
He said he sympathised with the 37 children and others who as a result of being “stateless” could not be educated, could not travel abroad and could not be employed.
But, he said, until the law changed, the fact remained that the 37 children had no right to basic education...