Rentia Muller, a Legal Aid South Africa civil legal practitioner based in Aliwal North, sits with the daunting task of finalising about 75 matters of undocumented children from Aliwal North, Sterkspruit and surrounding areas. These children, born in South Africa to Lesotho mothers and South African fathers and vice versa, hold birth registration documents from neither country. This phenomenon is known as statelessness. The Office of the United Nations High Commissioner for Refugees estimates that at least 10 million people around the world are denied a nationality and, as a result, have difficulty accessing basic rights such as education, healthcare, employment and freedom of movement. When they grow up they face endless troubles including detention and deportation.
Legal Aid SA has dealt with a number of cases dealing with the infringement of children’s human rights due to statelessness. Most recently, a court order was granted by the Port Elizabeth High Court for the Department of Home Affairs to grant citizenship to a four year old girl born to a Lesotho rape victim who had fled the country and gave birth to the child in Gauteng in 2013. The Department of Home Affairs, however, is not complying with the order and Legal Aid SA has instituted an application for contempt of court that will be heard towards the end of May this year.
Apart from not being registered at Home Affairs, stateless children face a further hurdle of being turned away from public schools on the basis of not having birth certificates. According to the Policy on Admissions to Ordinary Public Schools, schools may only admit children who do not have birth certificates on condition that the parents will provide the certificates (or proof of application for such) within three months. “It is so sad that most of the children are not schooling at this stage as the principals fear the heavy fines imposed on them should they not comply with the policy,” laments Ms Muller.
The UN Committee on the Rights of the Child recently made recommendations on South Africa’s compliance with the UN Convention on the Rights of the Child. It was emphasised that South Africa should ensure that the lack of birth registration does not hinder access to child protection and basic social services while it is enhancing its efforts for universal birth registration. The increasing number of children turned away from schools for not having birth documentation goes against this recommendation, as well as the rights enshrined in the Constitution of South Africa.
In addressing this growing phenomenon, Legal Aid SA sent its litigators for intensive training at the end of last year. The training focused on the various legislations dealing with this matter, including the South African Citizenship Act of 1995, the Births and Deaths Registration Act of 1992, the Identification Act of 1997, the Refugees Act of 1998 and the Immigration Act of 2002. The Aliwal North Justice Centre was further aided by Lawyers for Human Rights and the Centre for Child Law in holding workshops on statelessness in March 2017. Key stakeholders including the Departments of Social Development, Home Affairs and Education as well as members of the public participated in coming up with strategies to resolve these issues.
A High Court class action against Home Affairs instituted by the Centre for Child Law, which could set legal precedent, is to be heard at the Grahamstown High Court this year. The outcome is expected to give a clear way forward for similar matters.
As the nation commemorates Child Protection Week from 29 May – 5 June 2017, Legal Aid SA reiterates its commitment to educating the public about the rights of children as required by the latest amendment to the Legal Aid South Africa Act of 2014. In fact, the months of May and June in the Legal Aid SA calendar are dedicated to outreach events dealing with children and youth matters. We remain committed to protecting children’s rights.
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