The Eastern Cape Education Department is facing yet another legal challenge from an Eastern Cape school.
Papers were filed in the Grahamstown High Court on Friday by the Legal Resources Centre, on behalf of the Phakamisa High School in Port Elizabeth and the Centre for Child Law.
They're contesting a 2016 decision by the Eastern Cape Education Department that funding transfers to schools would be based on the learner numbers only where valid South African ID, passport and permit numbers have been captured on the SA Schools Administration and Management System.
The LRC said they want this directive to be declared unconstitutional, arguing that that by withdrawing funding, the Bhisho Education Department is violating the learners' constitutional right to basic education.
In a statement Tuesday the LRC said that the Norms and Standards transfers include funding for learner-teacher support materials (LTSM) (including textbooks and stationery), municipal services and school maintenance.
"The funding for NSNP is allocated to each school in a separate budget. The post provisioning allocation funds the salaries of teachers and support staff. Many schools have already been affected by this announcement and do not have sufficient teachers or budget for LTSM and the NSNP," said LRC attorney Cameron McConnachie.
"The application argues that, by withdrawing funding, the ECDOE is violating the learners' constitutional right to basic education (section 29), particularly when it is read in conjunction with the learners' rights to dignity (section 10) and the right to equality and non-discrimination (section 9). 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 interest of the child and violates section 28(2) of the Constitution," he said.
McConnachie said that in the past, schools were funded based on actual numbers of learners, regardless of whether they had valid identity, passport and permit numbers, not on those registered in the system.
"Without funding provided for learners without identity, passport and permit numbers, schools will have less to spend on learners registered in the system, compromising their education and nutrition. To support those not registered in the system, schools will either have to fund raise for their shortfall or will ask unregistered learners to leave," he said.
McConnachie said that their application argues that,"any failure, whether inadvertent or not, on the part of parents to register their birth does not justify any action or decision adversely affecting the rights of learners…."
He said it further noted that "it is usually the poorest and most vulnerable learners that fail to obtain their identity documents and that some barriers to accessing these are insurmountable.
"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".
He said the application seeks to have the decision by the ECDOE to be set aside and for the Department to revise post establishments and funding in line with actual numbers of learners in schools, regardless of their registration status.
However, Eastern Cape Education Department spokesperson, Mali Mtima, said the directive came from the National Department of Education to close loopholes created by so-called ghost learners.
"For starters it is a Department policy that when learners are registered they must be registered with their legal documents, so that when we dispense our resources to schools we can be accountable for them because we know that a certain amount of money was spent on each child," he said.
Mtima said in this regard they are trying to account for every cent spent because the auditor general had been taking us to task in previous years because they are saying we cannot account for some of the money we disburse to the schools because we "ghost learners", they are learners that cannot be accounted for.
He said however that there is a mechanism in place to ensure that no one is left out of the system. "After registration, we are saying that in a space of five days, parents or the guardian of the learner must approach the Department of Home Affairs so that they can come and register those learners who do not have legitimate documents.
"At the end of the day you are able to legitimise the learner. You are also able to ensure that the Department does not get an adverse audit opinion base on the fact that we are unable to account for the learners that are there," said Mtima.
