The High Court found that a policy and circular which made school admission and funding conditional on learners being documented were unconstitutional. The Court Order directed the Department of Education to admit all undocumented leaners in the Eastern Cape to school and interdicted the authorities from excluding any further leaners for lack of ID. The Department also argued that the Immigration Act, 2002 made the provision of schooling to illegal foreign learners a criminal offence. The Court disagreed and instead read the Act consistently with the Constitution. The result was that the Court Order applied to both foreign and national undocumented learners.

Substantive equality and ‘documentary status’ as an analogous ground

In addition to the Court’s finding that the impugned policies constituted an unjustified limit on the learners’ rights to a basic education, to dignity and to have their best interests held paramount, the Court also found a violation of the right to equality. To do this, it found that ‘documentary status’, though not explicitly protected under the equality clause, was a ground analogous to those enumerated in the Constitution such as race and gender.

As established in Khosa and Others, the criteria for extending the grounds under section 9(3) of the Constitution is that the classification must have an adverse effect on the dignity of the individual or some other comparable effect. After finding their dignity impaired, the question became whether the discrimination was unfair. For the enumerated grounds, discrimination is presumed to be unfair. For unenumerated grounds, however, unfairness must be proven by the Applicants looking into the ‘position of children in society’, whether they have been ‘disadvantaged in part’ and ‘the extent to which their fundamental right to dignity has been impaired’.

The Court noted that the Applicants were all from the ‘vulnerable, poor black community’. Accounts of learners falling behind at school and becoming depressed gave an insight into the further disadvantage and affront to dignity caused by the policy. Taking these factors into consideration, the Court was led to the ‘ineluctable conclusion’ that the discrimination on the basis of documentary status was unfair.

The extension by analogy to documentary status as a protected ground under the right to equality is a progressive – even radical – move. Somewhat disappointingly, though, the Court dealt with this point rather fleetingly, leaving many questions unanswered. For instance, what exactly does ‘documentary status’ mean? Can it stretch beyond the facts of this case? Is this status confined to children?

The use of international and comparative jurisprudence

Another noteworthy aspect of the case was the reliance on foreign jurisprudence to inform the interpretation of the right to a basic education under section 29(1) of the Constitution. South Africa is unusual in that section 39(1)(c) of its Constitution explicitly states that judges may have regard to foreign law when interpreting the Bill of Rights.

One comparative example drawn upon was the US Supreme Court case of Plyler v Doe (1982). The Court here, faced with similar facts, ruled that the withholding of state funds from Texan schools with students who were not ‘legally admitted’ constituted a violation of the Equal Protection Clause of the Fourteenth Amendment of the US Constitution. The provision was struck down as unconstitutional because it did not serve ‘either the purpose or effect of keeping illegal aliens out of the state of Texas’.

This case clearly bolstered the Applicants’ case by refuting the Department’s claims that the right to education could be limited to those with the correct documentation. The Department claimed that granting illegal foreign learners unfettered access to South African schools would encourage illegal immigration. The Court gave short shrift to this argument after ‘not one iota of evidence’ was produced in support. The evidence produced to the contrary demonstrated that most people who risk entering South Africa illegally do so for employment. The correct way to address this problem is therefore through labour law, not the ‘invasion of the fundamental rights of children’.

The Department will decide over the coming weeks whether to appeal the decision.

Background to the case can be found here. A more detailed summary of the judgment can be found in the Legal Resources Centre’s press release here.

Hundreds of Makhanda residents are currently living with raw sewage periodically flooding homes, roads and grazing land. In some areas, children are having to cross sewerage spills in order to get to school. On top of the unimaginable stench which residents face on a daily basis, the spills have caused serious health problems and irreparable property damage with knock-on effects on people’s livelihoods. One area, Sun City, has about 20 families relying on a “bucket system” to dispose of human waste. Each family (usually of around five people) is given one bucket which the Municipality would then collect on a regular basis. Since the start of 2019, regular collection of the buckets has ceased, forcing the residents to find ways – often dangerous ways – of disposing of the waste themselves.

The LRC is working with twelve Makhanda residents to address this sanitation crisis. There are six Respondents, including the national, provincial and local governments, as well as the relevant departments.

While ostensibly this case is about sewerage spills and government mismanagement it is, in reality, about so much more. Indeed, it is hard to think of a case which engages so many potential human rights violations at once. The Respondents’ failures have resulted in inhumane living conditions which negatively impact on the residents’ rights to health, a healthy environment, property, adequate housing, dignity, equality, education and the best interests of their children. Fortunately, all of these rights are justiciable rights under the South African Constitution, making the legal challenge more straightforward than would otherwise be the case in jurisdictions with more minimalist human rights protections.

The Applicants argue that improving sewerage maintenance for all is essential to creating an equal society. In South Africa, persistent disparities in access to basic services has been recognised as a key impediment to overcoming poverty and inequality in the post-Apartheid state.

While the case is in its early stages, the relief sought is twofold. Firstly, the Applicants are demanding immediate relief to address the sewerage spills, resume the regular collection of the buckets, appoint a permanent director to oversee these actions and to fix or replace the machine used to temporarily unblock the sewerage pipes. The second part of the application demands a long-term plan from the Respondents which seeks to address the systemic causes of this sanitation catastrophe. Included in the second part is a request is for the Respondents to launch an awareness campaign for the residents to educate and inform them about the correct way to dispose of rubbish so as to avoid exacerbating any blockages.

In addition to the demands made, the LRC has been engaging with the community in novel and creative ways.

Firstly, in order to demonstrate the scale of the sewerage crisis, the LRC set the residents up with an app called Mobisam, developed at nearby Rhodes University. The app enabled the residents to report service delivery problems directly to the Municipality and to send photographs of the spills to the LRC lawyers. One report showed 107 sewerage related issues reported between January 2019 and mid-July 2019. The collation of data and photographic evidence not only proved a helpful resource later down the line when drafting affidavits but also served as a way of forging an active role for a community accustomed to being ignored by the authorities. If an order is eventually granted directing the municipality to act, the app will be critical in monitoring and reporting on the municipality’s compliance.

Secondly, as is unfortunately the norm with litigation of this nature, the case will take many months to come to fruition. A challenge therefore becomes keeping the community informed and engaged in the process. One way in which the LRC is seeking to do this is by recording interviews with the residents, creating the space for them to explain, in their own terms, their experiences over the past few years. The recordings are to form part of a short video explaining the case. It is hoped that the footage will also alert the wider community about the residents’ struggle to vindicate their constitutional rights.

The video will be posted shortly, along with any updates regarding the case.

Day one of the Fellowship got off to an exciting start as I observed a constitutional law case on the right to education of undocumented learners in the Makhanda High Court.

Background

In South Africa, the funding for “no-fee” schools used to be determined by a survey at the beginning of each school year which, among other things, required schools to self-report the number of learners at their institution onto a central database.

Unfortunately, some schools inflated their numbers with “ghost learners”, resulting in serious misallocation of funds. The risk of fraud, coupled with the Department of Home Affairs’ desire to curb illegal immigration, formed the backdrop to the Department of Education’s decision to publish a circular in 2016 which stated that it would only provide funding for learners who were uploaded onto the central database with the required documentation (i.e. birth certificate, ID number or passport).

The policy potentially affected millions of learners, both national and non-national. While it is a common misconception that a lack of documentation is an irregular migration issue, the bureaucratic barriers to birth registration within South Africa mean that an estimated 5% of its population is unregistered. Indeed, around 83% of undocumented learners currently attending school in South Africa are South African.

For Phakamisa High School, whose governing body was represented by the LRC, the policy change meant that over 10% of its students no longer received funding, resulting in shortages which affected all students. Phakamisa decided not to admit any more undocumented students. Other schools took the more drastic measure of expelling current undocumented learners if they could not provide the required documents.

The Case

After several unsuccessful attempts to persuade the Department for Education to alter its stance on funding, the LRC made an application to review and set aside the policy. They argued that the withdrawal of funding constituted an infringement of the learners’ right to a basic education, as well as their rights to equality and dignity under sections 9 and 10 respectively. Following months of delay, the Centre for Child Law (CCL), who was also represented by the LRC, made an urgent application at the end of 2018 to reinstate 37 children who had been out of school pending the challenge.

The Department defended its policy on the basis that it was intended to curb activities like human trafficking and child abduction and prostitution. Regarding undocumented non-national learners, it was argued that these children are not bearers of the unqualified right to a basic education and, in any case, the Immigration Act renders it an offence to provide schooling to an “illegal foreigner”.

In January 2019, the Makhanda High Court dismissed the urgent application but, following the threat of appeal, the Department placed the 37 children into school and proceeded to revise its policy on funding and admissions of undocumented learners. In the High Court Challenge on Wednesday, the LRC sought to crystallise this shift with a court order, which would compel the Department to fund undocumented learners in the school system nationwide. The rest of the High Court case revolved around the human rights compliance of the revised admissions policy.

It was a thrilling experience to listen to the advocates eloquently defend their clients’ right to a basic education while relying on authorities that I had studied in the Comparative Human Rights Law course on the BCL. Perhaps the most powerful moment, however, was when a number of the learners entered the courtroom with their parents to watch the case unfold. Throughout the various legal arguments made during the hearing, their presence served as a reminder of the real lives and futures which have been placed at risk since 2016.

If the Court finds a violation of section 29 regarding the revised admissions policy, the impact will affect undocumented learners across the country, who will be able to go to school by virtue of their fundamental rights, rather than the fortune of their birth registration. The judgment could also contribute significantly to international and comparative jurisprudence seeking to more clearly define the contours of the right to a basic education.

The judgment was reserved and is likely to be published within the next three months.

One of the major challenges for disabled rights activists has been (and continues to be) the struggle to reclaim the meaning of ‘disability’. A misconception which prevails even today is that disability is a medical problem, residing in the individual, which must either be treated or managed. Many believe that this narrow, supposedly neutral view of disability has impeded the full recognition of disabled people’s human rights, because they are conceived as deficient or lacking in comparison to ‘normal’ human body of the medical imagination.

In response to the medicalised view, disability studies scholars promote a more nuanced understanding of disability, termed the ‘social model’. Underpinning the social model is a distinction between ‘impairment’, on the one hand, and ‘disablement’, on the other. While impairment refers to a physical or mental condition, disablement takes a broader perspective and refers to the disadvantage which is imposed on a person by a society which has failed to accommodate for that impairment. Such a failure may constitute physical barriers, such as inaccessible buildings, but they may also include discriminatory attitudes which prevent a disabled person from fully participating in her community.

In a similar way to feminists and critical race scholars, advocates of the social model seek to demonstrate the ways in which disability is socially constructed. It contends that the decision to provide accommodations for some individuals to function (from stairs to childcare) is a political one which is heavily influenced by a medicalised ideal of the ‘normal’ body. However, there is a divergence in opinion as to the extent to which the link between impairment and disability should be severed. One argument is that the disability rights movement should focus almost exclusively on the barriers which disabled people face in society, rather than analysing individual impairment. Some disabled feminists, however, have argued that such an approach removes the narrative from the individual with the impairment in a way that fails to take into account her lived experience of, for instance, pain and tiredness. Listening to individual experiences ensures that any policy response is sensitive to context and the many intersecting identities which a person may have.

Understanding the social model of disability is a crucial part of understanding the struggle for the disability rights. In 2009, it achieved international endorsement in Article 1 of the United Nations Convention for the Rights of Persons with Disabilities (CRPD) which reads:

“those who have long-term physical, mental, intellectual or sensory impairments which in interaction with various barriers may hinder their full and effective participation in society on an equal basis with others.”

The social model forces us to rethink entrenched views of the human body and the organisation of society. While there may be disputes over the exact contours of the concept in practice, it has undoubtedly been instrumental in challenging those who seek to define disabled people according to what they lack, as opposed to their equal dignity and status as human beings.

This is the first post in a series on disability and the law this week, culminating in the Oxford Disability Law and Policy Conference 2018.