Basic Education Laws Amendment Bill: public hearings

Meeting report

The Chairperson asked the Members and the presenters to introduce themselves.

The Committee Secretariat, Mr Llewellyn Brown, read the apologies into the record.

The Chairperson said that the Committee would be receiving presentations from six organisations. The presenters were Gauteng Association for Homeschooling, National Association for School Governing Bodies, Legal Resource Centre, Association for Homeschooling, Mr Wandile Gxabuza and then the Universal Association of School Governing Bodies. After that the Committee would consider the minutes of 8, 15, and 22 November. The Chairperson handed over to the Gauteng Association for Homeschooling to make its presentation. After the presentation, the Members would be allowed to interact with the presentation. Then the Gauteng Association for Homeschooling would be allowed to respond. This was the Committee listening to the stakeholders and taking note of what they were saying. This was the second phase of the process. The Committee would still embark on a public hearing process next year. That would be the third phase of the process. After that the Committee would come to Parliament with a report. The BELA Bill would then either be adopted or not. The Committee was allowing the stakeholders to present their views.

Gauteng Association for Homeschooling (GAHS) Submission

Ms Lalie Moraba, Secretary, GAHS, made the presentation to the Committee. The presentation noted that the current provisions in the BELA Bill directly contradicts accepted best practice in home education. The provisions were not based on consultation or research with the stakeholders. The Bill likely failed to sufficiently uphold the child’s right to have their best interest of paramount concern. The GAHS made a number of submissions on the Bill. It stated that the registration process should be removed and a simple notification process should be instituted. Home education should not be monitored unless there is reason to believe there may be educational neglect. Then an investigation must be launched. The investigation must consider the specific curriculum, approach or methodology. It also made a number of additional submissions. The Bill should allow home learners to make use of the library and extramural activities at schools. The Bill should allow for co-operative home education, where one or more families work together. The Bill should also allow for private tutoring, where a person may teach six or less children at their home without having to register as an institution.

(See Presentation)

Discussion

Mr P Moroatshehla (ANC) said that the beauty of South Africa was that it promulgated democracy. It went even further. South Africa had a participatory democracy. He noted that when Parliament legislated, it could not legislate for the chosen few. When Parliament legislated, it took everyone on board. Everyone needed to be taken into consideration when legislating. When the presentation was being made it reminded him of CODESA 1 and CODESA 2. He recalled that there was a member leading the negotiations on behalf of the IFP. In every debate, he would rise up and ask the question, ‘what form of State were we propagating?’. Was it a federal state or a unitary state? In the end, the decision was that South Africa was a unitary state, taking into consideration all those who lived in it. South Africa continued to live under the shadow of those agreements, good and bad. When the agreement was supposed to be reached on the Sunset Clause, it was hard and bitter for almost everyone. It was a compromise and it was necessary in order to build a unitary South Africa from different angles. He had said last week that education was dynamic. Education would continue evolving and changing with time. He noted that change was pain. Change was inevitable. Change to some was unacceptable. Change was unavoidable. In order to move in the right direction, it was necessary to accept some of these unpalatable decisions that were coming. When legislation was made, everyone was taken on board so that everybody stood to benefit. The situation in the country was that not all parents were literate to offer formal education in respect of homeschooling or home education. Most disadvantaged families were child-headed. They were child headed for a number of reasons. They were child headed because their parents were victims of migrant labour. The parents would commute. The parent would go home once a month or once during Christmas. How would the Bill cater for such parents? His question needed to be taken in the context that one could not legislate out of exclusion.

Mr T Letsie (ANC) said that the exercise that the Committee was doing here was not windowing dressing. The Committee was genuinely looking to get different views from different role players in the education sector. The Committee would at the end present a report to Parliament. It would present an honest observation of what it had heard from all role-players. He asked the presenters to not attack the Members of Parliament unprovoked, as if the Members had taken a posture already. That there was a view they were supporting or not supporting. He thought it was unnecessary for the GAHS at the beginning of their presentation, to say that they were not politicians, not legislators and that they were just parents. That might have painted a picture that the Members were not parents. The Members were on everybody’s side. The Committee was just trying to get all the views. The questions of the Members would show that they honestly wanted to understand how the stakeholders saw the Bill and how the Bill could improve the education in this country to suit the stakeholders. The presenters needed to look at it from that angle. The presentation said that homeschooling should not be monitored unless there was reason to believe that there may have been educational neglect. He agreed with what Mr Moroatshehla had said. Different homes would have different literacy levels. How would it be ensured that the education that was given from a home-schooling point of view was in line? How would it be ensured that certain children would not be left behind unintentionally? The presentation said that the GAHS believed in accountability. He asked for their understanding of accountability to be explained. How would they be accountable when they said their teachers should not be registered? He wanted their understanding of accountability to be explained so that everyone was on the same page. The Bill proposed a certain format of accountability. It said registered teachers to do assessments. The presentation did not agree with that. What was the GAHS’ counterproposal to that? He wanted to know how many members were in its organisation. He asked this because the presentation said that even when there was an allegation of neglect that the HOD should not enter there. It suggested that the person who needed to enter there should be the Children’s Court. How many members did the organisation have? Was it honestly feasible? If there were too many cases would the Children’s Court be able to listen to all the cases, resolve them on time and make sure that the children did not miss out on education during that period while they were waiting for the court?

Ms D Van Der Walt (DA) said that if one read correctly and listened carefully, the GAHS actually did not want any regulation at all. This was based on two assumptions in the presentation. The first was that all parents make good quality educators. Secondly, that all parents prioritised their children and their children’s education. Unfortunately, it was known that that was not always the case. An example of this was reported on Sunday in the newspapers. Many parents were actually taking their children to public school. The children had to start a grade lower because their points were so bad. Unless these cases were reported then many children would definitely fall through the cracks, because of the situation in the country. She assumed that monitoring of some sort was a necessity. Which measures would the GAHS then suggest?

Ms N Adoons (ANC) discussed monitoring. In the country, there was the issue of gender-based violence, especially at home. It increased a lot during Covid, where children were not attending school and were with their parents. There were many cases that were reported of gender-based violence. There were high rates of teenage pregnancies when the children were at home and not going anywhere. Homeschooling gave parents more responsibility for their children. It had its disadvantages for those children who were facing gender-based violence and abuse in their families. Was the organisation in all provinces? Where was the organisation based? Was it only in Gauteng? Was the organisation in many areas in Gauteng, even in townships? She discussed the research done by the organisation. Which country did not regulate homeschooling? How were they being monitored by their government or education department? Had the organisation ever experienced the unfortunate situation where a parent who had been homeschooling passed away? What would happen to that child? What would the process be to ensure that the child continued to receive an education?

The Chairperson asked what were the advantages and disadvantages of homeschooling? It must have its own disadvantages. What were those disadvantages? The organisation was formed in 2013. What was the reason behind forming the organisation? The presentation discussed the research that the Department had conducted and said that it was minimal. Where was the research that the organisation had on homeschooling? Where could it be found? Where was it published? She asked this so that the Committee could go through it. What methodology was used? How did it come to the research objectives and the research outcomes? Who conducted its surveys? Where was it conducted? Was it only based in Gauteng? Who were the main participants? The organisation was advocating for the registration process to be removed. Why should homeschooling not be regulated? The presentation referred to clause 51. In the Bill, clause 51 referred to the amendment of the Employment of Educators Act. How was this clause related to home education? Or was the organisation actually referring to clause 37, section 51? The Committee had to make sure which clause the organisation was referring to. She discussed the curriculum. What curriculum did learners follow in home education? The presentation said that the parents were able to determine the child’s abilities. How did they do that when the presentation said that the children did not go through standardised assessment? How were the parents able to determine their child’s ability? She was raising this in relation to what Ms Van Der Walt and Ms Adoons had raised. Not everyone was an educator. In her view, an educator was someone who went through rigorous theory and studied education for a period of time. She could not compare herself to Mr Moroatshehla for instance, who was in the education sector for 38 years. An educator should be a professional who would be able to facilitate the lessons. Not everyone could be home educators. How were the home educators quality assuring themselves? The presentation made a point that monitoring by the Department would be time consuming. In the event of educational neglect, how would a child going through home education be protected?

Ms Moraba said that she would sincerely like to apologise to Mr Letsie. The irony was that they used that expression of not being politicians because they wanted to highlight that they were humble parents who did not want to portray themselves as superior in any way. It was not meant as an attack. She apologised for that. She clarified that the presentation was speaking of clause 37, section 51.

Ms Charlene Chauvet-Swart, Chairperson, GAHS, said that she, like most present, attended school. She enjoyed school until standard 3. She noted that this was the time that her eyesight started to deteriorate. She was labelled as a child who did not pay attention in class. She scraped through the rest of her school career. Her mother took her out of school in standard 7 because she was not doing well. She did her matric through distance learning. She failed terribly as she had already built up a resistance to learning. She had no love for learning and had no interest in learning. In her early twenties, her mother encouraged her to complete grade 12 through distance learning. When she became a mother, she realised that she needed to show her child that she was something in life more than just a mother. She was completing her bachelor’s degree in Holistic Health Sciences. She was a mother of a child who was doing exceptionally well academically. Her child was the opposite of what she was in school. When her daughter was one-year-old, she discovered that her daughter wanted to learn. Her daughter had a desperate need to learn. She noticed that her daughter was not happy with the age-appropriate toys. She detailed the story of how her child learned numbers one to ten within a month of using flashcards. At the age of two, her child could count objects from one to ten. At the age of three, she was doing grade 1 maths. She noted that she only believed in buying educational toys for her child. She detailed that at the age of three her child knew the alphabet and was building two-letter words. By the age of four, she was reading and writing. She was no qualified teacher. However, she was the product of a school system that had neglected and failed her, and other children as well. As a mother, she had taken her experiences as a gift. Parents wanted for their children what they did not have and the opportunities that they did not get as children. She decided to give her child that opportunity in life. She had gone to school when her child was three years old. What was taught at school at that age, she had already learned through play and through experience at home. She knew that as her child grew frustrated with the age-appropriate toys at the time that she would be frustrated with the content that was being taught at her age or the grades that she would have to be enrolled in. Not everyone was a teacher. However, a parent was fully capable of teaching or facilitating the learning process of their child.

Ms Tehillah Green, Member, GAHS, said that as parents they did not always get to see the Members’ side of the story and the decisions that needed to be made. The parents wanted to share with the Committee their practical experience. She responded to the question that not all parents could home-educate. She noted that not all parents could intentionally parent. There were parents with school- going children who said that they would never be able to home educate. She noted that she was a parent who sent her child to school and then ended up as a home school parent. When it came to education, people were very aware of their strong suits and shortcomings, especially in specific subject areas. That was why parents sought to find education and learning environments that best fit their list of requirements to suit the needs of the individual children in order for them to learn. The tutor centres were not new concepts. The option of schooling going children to use tutor centres was not something that had not been questioned before. Prior to Covid, many home schoolers had made use of tutor centres, private tutors, apps, online programmes, YouTube channels, and many more resources for homeschooling their children as they deemed fit. After Covid, the need for such support increased much more, especially for those who had two working parents, single parents, or people from disadvantaged areas. Some parents started homeschooling because of the overcrowded classrooms in conventional schools. These parents found more comfort in homeschooling tutor centres where qualified tutors could assist them in giving the child more individual assistance with regard to their school work as opposed to teachers in conventional schools who struggled to keep up with the need of children in large classrooms. She provided an example of how her son. When he was in grade 1, he was given a report card of a different learner because their names were similar. This was because the teacher was so overwhelmed by the number of children in the classroom. This opened up her understanding of what teachers went through when they had so many children that they needed to try and assist. In this specific situation, the teacher had 35 children with no assistance. It made it difficult as the parent to feel that they could trust the teacher with their children’s education. Other parents required the assistance of tutor centres due to the fact that they could not be at home to teach their children, due to career responsibilities and financial constraints on the home. An option to assist would be tutor centres to give the parent peace of mind that the child would not be lost in an overcrowded system and that the child would receive quality education that the parent was willing to pay for. She understood that not all families could afford to pay for that kind of assistance. She noted that she was a home school alumnus. Homeschooling parents took the responsibility to parent very seriously. This was derived from a need to provide for their children a better education than the parents had themselves. Homeschooling was not mere educating but parenting. The parents would love the support of the State to raise good citizens who could contribute to society in a respectful and well-educated manner. She discussed her first experience of homeschooling where she was advised to ‘de-school’. ‘De-schooling’ allowed the parent to get to know the child within the area of education. She noted how when her family started homeschooling her children did not know how to play. That was when she realised that her children had been so conditioned in being told what to do. ‘De-schooling’ was an entry into homeschooling where the children were allowed to explore their interests. Thereafter, the parents would explore what type of curriculum would work for their child’s type of learning style. She had to learn how to be a parent. The process was the same for those parents in home education. Parents did use curriculums and different structures that they found was suitable for their children.

The Chairperson said that she needed to intervene. She asked for the GAHS to focus their responses to the questions asked by the Members. She felt that what the organisation was doing now should have been included in the presentation. The organisation was presenting again. She was sorry to interrupt, but she did not want the responses to continue in that manner. It was time for the organisation to answer the Members. She wanted the organisation to respond to the questions of the Members.  

Ms Moraba said that the organisation spent a lot of time preparing responses to the questions that they thought the Members would ask. They had taken time to write down responses so that it could be clear in their responses. Hence, that was why it was coming across like another presentation.

The Chairperson said that the organisation did not know the questions the Members would ask. The organisation could not sit down and discuss the Members questions without the Members being there. She asked that they respond to the crux of the questions that the Members asked.

Ms Moraba said that the GAHS was formed in response to the Minister of Education. The homeschooling sector in Gauteng came together to have some sort of formal organisation. There was the opportunity for members from other provinces, but as associate members. It was a small association. It had less than 1000 members. The organisation was quite diverse and had all types of income classes

Ms Green said that it was difficult to give specific numbers on the amount of members because the organisation was growing. Not all of the homeschooling parents in Gauteng were part of the association yet.

Ms Moraba discussed the GAHS’ research. She noted that the term research had a technical, scientific definition to it. Theirs could not be called research in a technical manner. It was an internet survey that they used. One of the surveys was on Google Forms. It did not follow a certain methodology. They were just trying to get certain information because they had been having engagements with the Department in Gauteng. They had been having monthly meetings with the Department. The Department had sought certain information and that was why the organisation held the survey. It did not meet any standards of formal research. She noted that the parents and members in the organisation was quite diverse. It did not want to be speaking for everybody.

Ms Janet Kieswetter, Member, GAHS, discussed the advantages and disadvantages of homeschooling. The advantages of homeschooling were so many. She noted the knowledge of their children. Parents lived with their children. Parents knew what their children liked, their learning styles, and how they learned best. Parents knew about their child’s special interests and what they wanted to learn about. That could be used and incorporated into the learning and curriculum. Parents could design the curriculum that they made for their children around their children’s special interests. The children would have a tailor-made curriculum so that they did not have the certain specific curriculum that had to be followed. They had the advantage of being able to follow their child’s interests. She noted a study that said the most important motivation for learners was interest. Parents also had choice and lots of resources. Parents did not just read and stick to one textbook. They could select from a plethora of books available online and in bookshops. Children could choose any books to read and not just the setwork given to them. In the post-Covid tech world, parents had so much information at their fingertips online. Homeschooling parents had more resources now than ever before. Parents also had time to give their children emotional support. They were giving their children a holistic education and not just an academic one. They could see if their children were struggling emotionally in certain areas. They could give their children extra time if they needed to catch up or they could provide new challenges for their children if they showed that they were ready. Parents could focus on their children gaining confidence. Parents supported their children emotionally so that they were confident in their schoolwork. So, that their children did not have that anxiety and so that they could tackle any challenges that they might have. The parents had the advantage of context. Anything that happened in their children’s lives could be brought back to academics and could be a teaching moment. Parents also had an intimate knowledge of their family’s history and medical history. State monitoring did not have this inside information that parents had. The State would not be able to monitor their children as well as they could, because of all of the advantages that parents had. The disadvantage was that it took a lot of commitment from the parents. She responded to the question of the Member who asked if parents all made the best quality parents or educators. There could not be a blanket statement that said all parents could home educate, but those who decided to take this road understood the responsibility. They took it very seriously. It was a big commitment that the parents had to dedicate themselves to. It took a lot of time and energy to find out what was in the best interest of their children. She discussed the article mentioned by Ms Van Der Walt that had been in the newspaper. They had seen that article. That article was focusing more on online education. It paid specific attention to online schooling. It was the experience of two or three principals in Cape Town who gave a report. It was subjective to their experience. It was not exactly what had been across South Africa in homeschooling homes. Children excelled and were years ahead of their age group who had gone to university early. Children have done well in many facilities. Covid caused many families to get into homeschooling when they would not have chosen that route. Then suddenly they used online platforms to receive help. There was a very big difference between home education and schooling at home. That difference was prominent during the Covid pandemic, where parents across the country were forced to take the curriculum and make their children study at home. Suddenly the parents were out of their depth and were not prepared for this at all. Many parents had been homeschooling before the pandemic. She noted that the pandemic changed the way education looks. Home education parents had found the balance of being parents first. She responded to the question about assessments. One of the things they focused on was mastery. They wanted their children to master that which they produced. They did not carry on because a syllabus forced them to cover all of that work in that year. Home education parents wanted their children to exceed and excel as far as possible. They wanted to push them to their highest potential. That would cause the learning to stand still sometimes and to wait for their children to grasp a concept. Assessments looked different in each family and each home because at times they would be waiting for their child to understand a concept and at other times they would be ahead of their age group. Assessments were so subjective that they could not take an assessment that was given by the Department. It would not work for everyone as a group.

Ms Moraba responded to the question of whether there were countries that did not regulate home education. They did not know. They did know that there were different levels of regulation, especially in the United States. They deferred that question to Mr Michael Donnelly when he gave his presentation. He had more information about regulation in different states.

Mr Sikhumbuzo Dlomo, Member, GAHS, discussed monitoring. He noted that home education did not work like school. The people that the article mentioned were trying to do schooling at home. He discussed how the BELA Bill was currently being legislated. It was creating a situation where home education was becoming unworkable. He proposed that home education be monitored as a new subsector of education so that people could start to see the modalities of education. Then people could approach legislation from that point of view. He considered home education to be an innovative process. It was something different. He noted there were many ways to learn. Parents invested the time to try and find different ways of teaching. The way the BELA Bill was structured at the moment stifled parents from home educating their children. The organisation’s suggestion was that there should be no monitoring. It should be more observational. He saw this as innovation. With innovation, there were many unknowns, but it should not be approached with fear because of the unknown. There were offshoots of good things happening. The focus should be on the outcomes that home education produced. The organisation enjoyed the engagement with the Gauteng Department of Education. He asked that a new approach not be forced into what was currently known. People should be open to trying new things so that those new things could add different facets to learning in the country. That could not be done if legislation stifled home education. He noted that if this came into law it would stop their freedoms. There would be a lot more things that were not for learning. He noted that as parents they had seen progress with their children. Home education could add other solutions to the problems that were in the country. There was high youth unemployment. The purpose of education was to equip the youth for employment or for economic activity and the skills needed to do that. If different patterns of learning were allowed, then more information and data would be created. It could then be seen what worked better. He noted that not every method could help everyone. The legislation should also not be approached in a way that said if not everyone could be catered for then it should not happen. That was not how innovation happened. Everything that started with innovation started almost exclusively. As it grew then one could think of ways it could be proliferated across society. An offshoot of societal progress was to start small. Criticising innovative movements early stifled creativity. Creativity is what helped society to progress, to do different things and find new solutions.

Ms Moraba discussed South Africa being a unitary state and that legislation could not be made for just a few. In their opinion, the BELA Bill was quite narrow. She discussed the policy on home education. It required things such as a home school room and a desk. The BELA Bill became quite a Eurocentric, suburban type of idea. That homeschooling could only happen in families of a certain income because those were the only families that would have a dedicated room and would have a table for a child to study. Yet, she had homeschooling friends that were quite successful homeschooling in the middle of the Northern Cape where there was nothing. Schools were far apart. Therefore, the community gathered under trees. She knew of home-schooling friends in Soweto that had a ton of free resources. They got together as a family in order to make it work. If they were required to do what was in the BELA Bill it would not work for them. It would exclude them completely. The diversity that the organisation was standing for here would then be limited by the BELA Bill.   

Ms Green said that her children were kinesthetic learners. They needed to repeat the words in order to process them. It would be an advantage to have a few homeschooling friends in order to talk to them. Some of the groups or co-ops that they held were held at homes or at the park or at the library. It depended on the venue for the occasion. Home education adapted to different locations and venues for learning, which would help the children to learn best. She noted that in home education schooling was not from eight until one. Schooling happened on the go and everywhere. She provided an example of a learning experience that happened at their church with a grasshopper. Homeschooling was on the go, and it was constant.

Ms Chauvet-Swart responded to the question of what curriculum homeschooling followed. All home-schooling parents followed different curriculums. Most were not curriculums, but approaches, modalities, and methodologies. It was compiled on the child’s interests. Languages, like English and Afrikaans, were taught. They needed to be able to count. The parents looked at what interested the child and took that. The parents did not teach then. The parents facilitated their learning on that basis. It was not that a specific curriculum was followed. However, she initially taught her children English and Afrikaans through CAPS textbooks. As her daughter grew older, she bought books from different suppliers. She could not say that she used a particular curriculum. Parents used whatever resources worked best for their children. They used different methodologies rather than curricula. However, there were parents that used CAPS curriculum and Cambridge curriculum. Some parents combined curriculums to suit the children’s educational needs.  

Ms Moraba discussed whether the organisation wanted to remove the registration. The issue with registration was that it was effectively asking parents to ask for permission to educate their children. They believed that that was unfairly discriminatory and it limited the child’s best interests. It affected the child’s rights, for an HOD who did not know the child to be the one who had the ultimate power to make the decision on the child’s learning. Its proposal was that there should be a notification process. It wanted the Department to take down the names of homeschooling families and their basic information. The current process of requiring parents to submit annual reports on their child’s learning was just not workable. The parents wanted to work together with the Provincial Departments to help it know that they existed. It should not be required for parents to submit reports. That was going to overwork the Department and overwhelm parents as well. The parents might as well just put their children in schools then.

The Chairperson thanked the Gauteng Association for Homeschooling for its submission. The Committee noted the submission.

National Association for School Governing Bodies (NASGB) Submission

Mr Matakanye Matakanya, General-Secretary, NASGB, made the presentation to the Committee. The NASGB made submissions on alcohol, admission and language offerings, terms of office for SGB, homeschooling and remuneration. The NASGB considered the school community contexts and distances itself from promoting the use of alcohol on school premises for a purpose including fundraising activities. Alcohol had a devastating impact on many communities, especially the poorer communities. The presentation noted that the language offering in schools must consider the learner population and their home language needs. The NASGB supported the view that the learner population should influence language offerings in a school. The NASGB noted with concern that elected SGB members must abruptly leave their SGB roles once they no longer have a child at the school. This created a leadership vacuum where proper handover is compromised. To resolve the issue, the NASGB seeks advice on retaining the elected member in their role until the handover takes place without compromising the SGB leadership in the school. The NASGB opposed homeschooling and noted the advantages of placing learners in communities of peers. Only in exceptional circumstances should learners be home schooled if there is adequate contact and engagement with others in a similar age group.

(See Presentation)

Discussion

Mr Moroatshehla asked how many schools the NASGB represented. He noted that the NASGB operated in the whole country. That meant that within its members there were diversified SGBs. Within the SGBs, there would be those who would continue to propagate the exclusion of learners based on the language policy. How was the NASGB addressing this? What was the NASGB’s agenda to root out that discrimination once and for all?

Mr Letsie discussed the issue of alcohol. What was the view of NASGB on a school hiring out its facilities during the holidays, like now in December, and the people hiring out the venue wanted to have alcohol? There were taverns where alcohol was being sold that were not far from the gates of the school, especially in townships. He was shocked in his constituency. A programme had been organised to help matriculants apply to NSFAS. The children would regularly go to those people to get something. They were selling drugs there in broad daylight. He understood an SGB to be a parents’ organisation and that parents were in the community. If the issue of drugs and alcohol being brought into schools was to be defeated, then parents had a serious role to play. Parents needed to organise themselves outside of the elected structure of eight or nine people who were in the SGB. The whole community needed to be brought in to protect learners in that school and the school itself. What was the NASGB doing to try and deal with these ills in schools? He discussed the role of the HOD in approving school policies from the SGBs. What was the NASGB’s view on that proposed Bill change? He discussed instances of instability and poor functioning of SGBs, what interventions should the BELA Bill consider to strengthen SGBs in schools? What was the view of the South African Learners’ Command in a situation where SGBs’ admissions policies discriminate against other children based on the teaching language, religion, and fees? How should the Department intervene in such cases? In the previous one, the response would be that there should not be an intervention of the HOD in the BELA Bill. How should the Department intervene? How did the exclusion of children from different ethnic backgrounds manifest in reality? What type of school polices acted as a barrier? What was the view of the NASGB on views from other sections of society on having Government play a minimum role in homeschooling? What was the view of the NASGB on Government playing a minimal role in homeschooling?  

Ms Adoons discussed the functional SGBs. Was there any programme that the organisation ran that sought to assist SGBs that were struggling to function in different schools? She discussed the transformation of South Africa into a country that is for all to live in and strive in. She wanted the NASGB’s opinion on that.

Ms Van Der Walt said that she wanted clarity on the SGBs. The BELA Bill spoke about some powers of the SGBs. The presentation brought in a new dimension about the terms of office. Currently, the term of office for SGBs, according to the DBE, was three years. The term of office for the learner component was one year. The presentation spoke about when someone left and there was a vacancy, and that they should stay on for the term. Prior to that, the presentation said that the ticket onto the SGB was that the member had a child attending that school. The current provision stated that if a vacancy is created due to the departure of an elected member, a co-opted member with voting rights could be nominated and appointed to serve on the SGB for a period not exceeding 90 days. During these 90 days, a formally elected member who had been elected by way of by-election must fill the vacancy. That was the current prescription as per the DBE. If the ticket was the child and the child left the school, then there was the option to fill the vacancy. It did not mean that everyone left. There was a continuation of experience.

The Chairperson asked how long Mr Matakanya had been in his current position. What was the succession plan of the NASGB? The Committee was interested in knowing that. She discussed the issue of clause 8. The NASGB vehemently disagreed with the issue of alcohol. Was his view shared by all the SGBs in the country? If that was the case, then why would the Department place this provision in the Bill? What were the learners and educators doing? Did the NASGB consult them? What were their views with regard to the alcohol in schools? She discussed the retainment of elected members until the handover took place. What form of training would NASGB recommend for newly elected governing bodies for the issue of effective governance? NASGB opposed homeschooling. It was very clear on the matter. Why did the NASGB oppose homeschooling when it was currently the policy of the Department? Clause 38 of the Bill required that the duty of schools was to provide information as it was required. In the presentation, it suggested that this clause should be reviewed. Why did the NASGB think it was necessary that the clause should be reviewed? The Committee had noted some of the public comments that SGB powers were being eroded by the BELA Bill. Did the NASGB think that the BELA Bill was eroding the powers of the SGBs? The Bill alluded to the disclosure of financial interest. The Committee had heard submissions on this clause. The people who spoke on this clause were of the view that the disclosure would constitute an unreasonable invasion of privacy of both the SGB member and their families. What was the NASGB’s view of the disclosure of financial interests? Some of the SGBs had used the language policy to discriminate against other language groups. How best had the NASGB addressed this as a constitutional issue? She wanted the NASGB’s view on the language and admission policy.   

Mr Matakanya said that the NASGB had around 9000 member schools in the country. He noted that the constitution said that there was one South Africa. That it was non-sexist. South Africa was a democratic country. He noted that there were members who did not agree with parts of the Act. Once a school accepted to be a member they accepted the constitution of the organisation. How it addressed its constituencies was through workshops and trainings. He noted that the NASGB was a poor organisation. There were many projects it wanted to do but could not because it did not have enough resources. He likened the NASGB to a church. The church may use wine for Holy Communion. The policy was very clear that there should be no alcohol in the school. He noted that if learners raised funds in schools then alcohol would be involved. If the NASGB saw this, then it would stop it. Symbolically school must be seen as a centre of learning and nothing else. He noted that some learners or teachers may come to the school on Monday feelings hungover. This was recruiting the school community into a bigger problem. The NASGB had debated with liquor boards because a tavern was within a close distance of the school. If a tavern was close to the school, then those people were undermining the law. It was no longer in the power of the school and the SGB. It was in the power of the Government. The liquor boards needed to approach that tavern opposite the school. The law stated that the tavern needed to be at least 500 metres away from the school. All those schools that had taverns one metre away from the school needed to be closed. The schools did not have the power. It must be the Government that should implement the policies. He noted that schools were a second home for children. He noted the stabbings that happened in the schools. Teachers were being killed by their own learners. He did not know how to deal with the question of safety. There were some children who killed one another over a test. The organisation had a programme travelling around the country called ‘Power of Parents’. It highlighted parental involvement. There could not be education if parents were not on board. He noted that in rural areas and townships, parents just handed over their children to schools. If anything went through then the parents would say, ‘what were the teachers doing?’. The parents had outsourced their power to the school. Nothing would ever work if parents did not come on board, support, and parent. He discussed the issue of discipline. Teachers would not be successful if they did not start disciplining their children. It was only parents who could do that. NASGB was trying hard to awaken parents to the fact that there was no future without education. Parents needed to be involved in the education of their children. The child needed to know that the parent had an interest in their education. Parents needed to be conscientised that they were important in education. Education was three-legged. It was constituted of parents, teachers, and learners. The governing bodies were somewhere in the three. The parent component was lacking. He discussed the role of HODs. NASGB did not oppose that. The HOD needed to offer support. Through the HOD, the SGB would be able to account to the Department, and the SGB would be able to account to the country. The NASGB had no problems with that. He discussed the instability of the SGBs. The law allowed for co-option. How many co-options were allowed in three years? There may be six or seven co-options because children came and went. Co-option created instability. The reason that NASGB raised this recommendation was because there was no stability. Research needed to be done in schools where there was no stability. There was no stability in schools because the SGB was fighting the principal. The principal was fighting the chairperson. The Committee needed to go to those schools. If the entry point was the child, then the SGB member needed to show what they had been doing for three years. That SGB member needed to be held accountable. It became the norm that in certain schools they did not account. It was the child who suffered. If there was instability with governance in schools, then one could forget about quality education in schools. People would take their children to the former model C schools. The parents in the former model C schools were leaving for private schools. NASGB wanted to support public schools and to instill public confidence in public schooling. Public schooling was for the poorest of the poor. Confidence needed to be instilled in those schools so that parents did not go to expensive schools. That was why NASGB was proposing to the Committee that it should look into that. NASGB had a problem if people were using language to discriminate. People should not use language to discriminate. They wanted all the public schools to be equal so that the issue of oversubscription is avoided. He noted that in Gauteng there was a problem with schools being oversubscribed. He discussed the issue of religion. The Constitution addressed it correctly. The Bill said that you had to consider the situation of the people. He noted that there were some religions which he did not agree with. In some religions, they survived by blood. They drank blood. The Constitution put it very clearly. Religion needed to be looked at very critically as to how it should be harmonised without harming the schools because schools would be harmed. Children liked to copy. Then one would find that all of the children in the school are blood drinkers. He discussed the issue of minimal role. The current law regulated it better. The fear was that it would not go in line with what had been created. Schools needed to be used to build a nation. Child development was linked to school and cultural experience. Social interaction was a critical force in development. There was a problem of social cohesion in the country. If everyone was not careful then they might not get it correct. If children were brought together they would learn better. Did the country want to go to a future where there were just South Africans where one did not see people according to their colour or their culture? That could only be addressed through schooling. He discussed section 38 (a). He noted that the governing body was going to apply to the employer. If the employer was interested in unifying the workforce, then the employer may not accept that. If the Bill was going to change that then those rich schools were going to determine how much. There was going to be instability. Particularly among the employees and teachers. The poor schools, which NASGB represented, were going to suffer the most because all the teachers would be going to the rich schools. In the rich schools, there was money there. The Committee needed to use its wisdom. He discussed the question of disclosure. The Committee knew what was happening in South Africa and it was becoming popular. He noted the three boys who had been kidnapped. The reason for the boys being kidnapped was because their father was rich. The kidnappers had wanted a ransom. Parents exposed themselves in schools by detailing how much money they had. Parents did now want their children to be kidnapped. Rather than disclosing, parents would decide to not be a member of the SGB. By doing that, the school would be losing good parents. These were parents who would not think of stealing any money in the school because they had money. There would be a problem with that. Those parents would not want to be part of the SGB because there was a condition for them to accept a nomination. One had to disclose how much money they had and what type of house they stayed in. It was going to disadvantage schools from getting good parents. It really needed to be looked into. He noted that there were dysfunctional schools. Training needed money. He did not know how the Committee would help. At times, the organisations fought with the Department about the tab. He discussed section 19 and the enhancement of the capacity of governing bodies. The HOD must establish a programme to provide introductory training for newly elected governing bodies to enable them to perform their functions and to provide continuing training to governing bodies to promote the effective performance of their function, or to enable them to assume additional functions. Organisations needed money to go and train. That was what the law said. He noted that the training that was provided was not addressing the problem. The NASGB was trying to train SGBs in line with the vision. He thought that the answer was the law. If there was money, then the SGBs would be trained in line with the objectives. The NASGB had five programmes. The key programme was capacity building of SGBs. The way NASGB wanted to train SGBs was not the same way that the Department wanted to train SGBs. There was confusion with that, and it was a problem. The NASGB trained where it was possible. It had workshops and held training. Sometimes it held seminars and spoke to SGBs. He noted that he had to travel to talk and train SGBs. Sometimes it was not a question of training but a question of talking to them. He responded to the question of how long he had been the General-Secretary. It was a long time. He had been the General-Secretary for 18 years. He noted that as long as his people wanted him he was not going to go. It was voluntary work. He volunteered to ensure that his people were free. The NASGB was busy with succession planning. It just launched in some provinces to have its own leadership there. It had some leadership in the Western Cape. Next year June it was going to have a national congress. It would then elect new leadership. It wanted new young members and women to come in. A statement needed to be supported by actions. The young people needed to be seen in the branches, regions, and provinces. The schools in the townships would never have young people because the young people would go to Midrand. He noted that when a school called a meeting of SGBs, generally it was old people who came, specifically old women. The young parents left their children with the old people in the townships. He noted that most of the older people went to church and brought that thinking into the school. Old people had the old philosophy of the church mentality. Prior to 1994 prayer was allowed in schools. As an organisation it knew the context of the schools. He noted that in the Bible there were two villages called Sodom and Gomorrah. He did not want to bring those two villages into South African schools. Having alcohol in schools would be the end of schools. The school would start with fundraising and then the school would end up becoming a tavern. He discussed NASGB’s opposition to homeschooling. He noted how children were home-taught during Covid. The presentation stated that only in exceptional circumstances should learners be homeschooled if there was adequate contact and engagement with others. He noted that the current cohort who would be writing exams had suffered a lot. During 2020, they had only gone to school one or two days of the week. NASGB had fought with the Department. There was a professor whose opinion had become law in the country. He had said that the schools should be closed and opened the following year. He highlighted the challenges of load shedding. It was a national matter.

The Chairperson thanked NASGB for its submission. The Committee had noted the concerns and it would be incorporated on the Committee’s report.

Legal Resource Centre Submission

Mr Muyenga Mugerwa-Sekawabe, Candidate Attorney, LRC, made the presentation to the Committee. The presentation discussed three topics. These were the admissions, the code of conduct, and the amendments to the Employment of Educators Act. The presentation discussed the definition of ‘required documents’. The list of documents created a barrier to accessing education. The list of ‘required documents’ did not speak to other education laws, regulations, policies, and court judgements. The BELA Bill proposed an amendment to the definition of ‘educator’. The LRC submitted that this definition was too narrow. The Employment of Educators Act did not apply to staff members beyond educators who are employed at school and have access to authority over learners. Sexual misconduct posed a considerable risk to the well-being of learners. Considering the risk of harm to learners in the school environment, it was recommended that the definition of ‘educator’ be expanded to ensure that all persons who have access to learners at school are managed under the Employment of Educators Act.

(See Presentation)

Discussion

Mr Moroatshehla said that the submissions were part of the process whereby South Africans constructed and reconstructed the education system. Asked for the LRC to provide the Committee with a scope of its operation. Was it operating only in one province or was it operating in the whole of South Africa or was it operating internationally? What was the scope of its operation? He heard that the LRC was making a substantial proposal relating to misconduct. What role was it playing, or would it play when it was faced with this kind of situation of sexual misconduct? There were many teachers who engaged in sexual activities with a learner and the teacher would get away with it. He provided an example of how cases just vanished. Then the teacher would get away with it. He noted that as a teacher he had seen many of these cases. He noted that those cases could not be followed because there was no evidence. Evidence would be destroyed. He noted that the LRC needed to provide some guidance on how to pursue such cases. If one teacher got away with it then another teacher would do the same, and it would become a practice. What could be done?  

Mr Letsie said that when he went through the presentation he had been confused as to the mandate of the LRC. He noted that with the GAHS and the NASGB, one knew where they stood after reading the presentation. The LRC’s presentation was a bit confusing. He wanted to know where the LRC stood on these matters. The LRC was submitting on certain parts of the Bill, but it was not coming out clearly. If the principal did not report a matter of conduct then someone else should take the matter forward, but that was not said in the presentation. He noted that the criticism made in the presentation was not wrong. It could not be denied that even in a schooling environment that there could be a principal with their own cabal in the school. If one of the teachers were part of the cabal, then the principal might say that the case was not strong enough and the principal would then do the investigation. The principal would deal with the case and protect their friend who was accused. That was the reality unfortunately. He advised that what the LRC should do in the future is to be clear on what it was proposing, or counter-proposing on the Bill. He noted a new law that when an underage girl fell pregnant in a school that it was the responsibility of teachers and principals, everybody in the school environment, to open a criminal case. A criminal case should be opened. If not, then then the teacher and the principal should be charged. He proposed that it should not just be the responsibility of the principal but that it should also become the responsibility of teachers. Whatever happened, a case needed to be opened. If the LRC came out clearly on this matter, then the Members would have supported such a proposal. However, the LRC was not clear. He discussed admissions. In the LRC’s experience, what were the prevalent reasons for learners not having identity documents? How should this be addressed to protect children? He discussed the LRC’s criticism of the National Intergovernmental Committee (NIC) and the Provincial Intergovernmental Committee (PIC). How could these two committees assist schools in obtaining the required documentation for learners when they had been admitted without identity documents? He discussed the amendment to the employment of educators. How was a teacher-learner relationship established? If a teacher was at one school and a learner was at another. How could it be established that there was a relationship, especially if the learner was of legal age? He agreed that there needed to be a way of making sure that the teachers who slept with children did not find space within the education system. Those teachers needed to be found. When they were found then they needed to be locked up.  

The Chairperson said that the presentation noted that the nature of the NIC and PIC was problematic because it involved numerous Departments. She referred the LRC to clause 4, amendment of section 5. It said that the NIC and PIC’s purpose was to monitor and evaluate the progress of the Intergovernmental Committee in providing documents to learners and providing assistance where necessary. What was problematic about these two Departments working together? She noted the importance of intergovernmental cooperation between Departments. It was a strategic objective of the Sixth Parliament. For too long, the system has been fragmented. She did not think it was the intention of the Bill to exclude undocumented learners. In terms of international best practice, which countries admitted learners who did not have documents? She noted that the submission only identified the Department of Home Affairs that needed to comply with the issue of undocumented learners. What programmes did the LRC roll out that assisted parents with acquiring documentation for children? She noted that in terms of bilateral cooperation, each country had a consulate or an embassy in South Africa. What was stopping these offices from assisting in acquiring documentation for undocumented persons? Why in the LRC’s presentation had it not mentioned the responsibilities of the embassies to assist Home Affairs in getting documentation? She noted that the LRC was not the first organisation that was raising the issue of undocumented learners. The Committee accepted that the country needed to provide education. With regard to the issue of undocumented learners, who were these people? Where were they coming from? Why was the LRC and other organisations advocating for them this much? South Africa was a member of the United Nations and had ratified some of the UN treaties. South Africa was also a member of SADC. What was the SADC protocol on the issue of undocumented learners? How did this protocol best assist the children who were undocumented and migrant workers? She discussed the amendment to the Employment of Educators Act. The presentation mentioned that the proposals did not go far to address sexual misconduct and that the Act was narrow. She read clause 49 of the Bill that stated: ‘the new phrase is worded in a manner which will ensure any acts of misconduct that may be identified in future legislation will be covered. One of the recommendations that the LRC was making was that the definition of ‘educator’ be expanded to include all people who had access to learners and were employed by the school. She noted that an educator was someone who went through rigorous theory and training. The word ‘teacher’ referred to someone who could facilitate learning. The LRC needed to justify why anyone who was involved with learners should be classified as an educator under the Act. She discussed the legislative framework with regard to teachers who were under investigation. She asked if the LRC had consulted with other stakeholders who had made submissions to find out what they had submitted?

Mr B Yabo (ANC) said that he wanted to understand the issues raised with the NIC and PIC. The presentation discussed the access to information by various Departments of the learner and the parents. The submission noted that this was a contravention of the POPI Act when Government Departments shared this information. He was confused why the Government would be restricted to have the information of persons. Why would that be in contravention of an Act that Government was supposed to oversee in any case? The suggestion that the transferring of personal information between Government Departments was a contravention of the POPI Act was confusing to him. Government should be able to account for each and every person, including their personal and private details. He thought that this submission was misplaced; that Government Departments sharing information of learners and their parents in order to ensure seamless processing of information of their persons for purposes of the BELA Bill was a contravention of the POPI Act. It was seriously misplaced. He discussed the issue of unconditional admission and doing away completely with the need to provide any documentation. This was akin to saying that a learner could walk up to the gate of the school, walk in, not talk to anyone, get into class, and get taught. That meant that the education system was opening itself up to ghosts. The learner could walk out of the classroom and do the same at another school without any documents because of unconditional admission. It did not make sense to him. It did not provide for prudential access management to the admissions process. The presentation spoke about the BELA Bill being unfair and unconstitutional with the requirement of documents, which were not in the privy of the Department of Basic Education. There should be identification. There should be a process. It was proper to have a proper administrative justice executed on any process that one could go back to should anything arise. To say that the Department prejudices these learners by saying that they should produce documents and that learners should not produce documents meant that there was an unconditional access to learning. He was not sure if it was a play on words or if he was missing something from the presentation. What was it that the LRC was trying to communicate to the Committee with that particular input? He discussed the code of conduct. Section 9 subsection 4 was being replaced by the BELA Bill. The point the presenter made was that in the case of a transgender learner not complying with the code of conduct where it related to uniform, then the transgender learner would have to apply for just cause with the SGB. The presentation noted that it was prejudicial for the BELA Bill to say that just cause had to be shown by a learner like that. The Committee had shown that it took gender-mainstreaming very seriously. The Committee believed that there was a fine line between the maintenance of personal rights as far as staying in the closet and being comfortable in a space where there were multiple genders without feeling prejudiced. It needed to start somewhere. Keeping things taboo continuously reinforced the stereotypes that certain genders were wrong to be. To say that just cause needed to be shown that codes of conduct on the basis that it wanted to prejudice this person who wanted to keep their gender private, was a conversation that needed to be confronted with an openness and frankness that is required. How did the LRC envision that this aspect needed to be treated? He noted that a certain preference versus complying with a code of conduct were two different things. The code of conduct would set out what was acceptable and what was not. He did not think codes of conduct should venture to try and curtail what people should be. A code of conduct should not curtail what gender one should be. A code of conduct should not say that a learner should not be openly homosexual. That would not be a code of conduct. It would be something else. With regards to this particular clause, what was it that the LRC would have noted that spoke to just cause being shown to the SGB was problematic insofar as the code of conduct was concerned? Were there codes of conduct, in various schools, that had wording that was problematic, especially with regard to gender? If there were such instances then the LRC should bring it to the Committee, because the Committee wanted to deal with that specific occurrence and take it out of the purview of codes of conduct. Codes of conduct could not speak to the gender one chose to be. Codes of conduct needed to speak to general conduct that spoke to each and every one regardless of their race, creed, gender, and belief systems. Codes of conduct should be gender-neutral, race-neutral, and class-neutral. It should be a base guide on what was acceptable behaviour and what was not. He asked for the LRC to mention if it had picked up instances where there were schools where the code of conduct was prejudicial in its requirements, across the various classifications he had mentioned. He agreed with the LRC on the issues of sexual misconduct. He noted that consideration should be made for a situation where the learners were of legal age. Once a learner reached a legal age which precluded a sexual offence if there was consent, how would one then coin that in the Bill when it was precluded from that legal requirement? How would it be sexual misconduct if the teacher was engaged in a relationship with a legal adult that gave consent? How would it be called misconduct? He noted that a generalisation would be dangerous to pursue. Sexual predator status should not be given to teachers who were merely philanderers. How should that type of teacher be dealt with? That was now a moral question. It was not a legal or criminal question. The criminal needed to be separate from the moral issues. What would the LRC advise should happen in the context of accusations thrown wantonly against a teacher by a learner? He noted that this was a country where learners had become very vindictive against teachers. Learners shot their teachers. Learners stabbed them. What stopped a learner from saying that a teacher had raped them? What should be the process in order to satisfy the law that both sides are heard without ruining the reputation of the teacher that was accused? The unintended consequence of throwing an umbrella approach on a matter that spoke to sexual misconduct is that it created a process that was devoid of prudence. Problems might be created for others who were innocent who might find themselves on the wrong side of the law because of ‘he said, she said’. How should provisions be coined that spoke to that specific possibility? It was a possibility. In this country rape was a serious criminal offence. He noted that because of the indignation the country had now against sexual offenses, those who were accused of it ran the risk of being attacked and treated violently. What needed to be said and what needed to be put into the Bill in terms of protecting the integrity of those involved, the victim and the perpetrator alike?

Mr Mugerwa-Sekawabe responded to the questions asked by Members. The LRC currently had two focus areas. The one being land. The LRC was dealing with housing evictions and environmental issues. The other focus area it had was education. It used its legal skills to try and get recognition of constitutional rights. It did litigation and advocacy as well. The LRC had quite a decent reach throughout the country. It did not operate internationally. He discussed the LRC’s role in cases of misconduct in schools. It had a programme that looked at educator sexual misconduct. It was not the police, so it was not involved in investigating. It did collect data from different education departments about what they were doing in relation to cases that had been reported to them, and how they were managing those cases. It had a free legal clinic. If a client were ever to come to the LRC saying that an instance of educator conduct occurred at the school, then it would assist in representing the learner. It would ensure that the proper procedures were followed. However, it did not go out soliciting help. Generally, school principals were not excited to see the LRC when it came to the school doors, and they said they were lawyers. These were mostly children under the age of 18 and therefore there was a lot of permission and red tape that was needed to represent them. Generally, the LRC did not go to schools and ask learners if they had had those experiences. The LRC was more than willing to assist learners if reported instances of that nature. As part of the LRC’s advocacy efforts, it also distributed pamphlets around schools. It did podcasts and other types of social media campaigns. These would inform learners what an instance of rape was, what an instance of sexual misconduct was, what was inappropriate conduct on behalf of a teacher and what was appropriate conduct. Through those advocacy efforts, it hoped to empower learners so that if an incident were to come up that they would know what their rights were in that situation, and they would know to contact the LRC for advice if they needed it. He responded to the question of principals who did not report instances of educator misconduct. He acknowledged that power dynamics at schools could be difficult to navigate and that because of that these instances did not come out to the general public or to SAPS. There was often the practice of protecting friends or colleagues in relation to these incidents. A provision should be included that said that the principal had a responsibility to report once the issue had been raised with them. He discussed the consequences of a failure to report or a failure to comply with that obligation. That was something it was still doing research on in terms of best practices. At the bare minimum, if the provision said that the principal did have this duty then that would result in some pressure and would result in at least an extra two or three cases a year being reported to authorities. Such a provision would constitute a step in the right direction. He responded to the question of why learners did not have IDs and birth certificates. There were probably around five to ten children in this position coming to its offices each week, the majority of whom were South African citizens who did not have birth certificates. It was an important matter to raise. Usually when people thought of undocumented persons they thought of foreigners. That was his impression before starting legal practice. However, most of the undocumented children or people they dealt with were South African citizens. The majority of them did not have documentation due to obstacles which they encountered at the Department of Home Affairs. Two years ago, the LRC litigated on an issue where Home Affairs was not allowing unmarried fathers to register the birth of their children. There were still some issues that were present in that regard where Home Affairs made lots of obstacles relating to paternity tests, social worker requirements and kept on adding new requirements. It would reach a point where a father just gave up because the birth of their child could not be registered. A lot of the time the parents were alive but were not in the picture. Home Affairs would say that a death certificate needed to be accompanied for the birth to be registered. Failing which the parents themselves needed to come to the office, but parents refused to do so. There were a lot of issues which arrived at Home Affairs, especially in relation to unmarried fathers. Unmarried fathers seemed to have the biggest hurdle due to Home Affairs having fears around child trafficking and people claiming children who were not theirs. That resulted in many, many South African children not having birth certificates. The procedures at Home Affairs frustrated the process and resulted in children not having birth certificates and IDs. The LRC was currently litigating a number of those issues to make it easier for South Africans without birth certificates to get them. He discussed undocumented asylum seekers fleeing their country due to war. They generally did not have any documentation with them when they arrived at the border. That was another subgroup of people that the LRC assisted. He responded to the questions relating to the teacher-learner relationship if they were at different schools and how that could be established for the purposes of triggering the Employment of Educators Act. The LRC’s primary concern was that educators would not face the penalties and sanctions that were present under section 17 of the Employment of Educators Act if the learner was at another school. The LRC felt that the same sanctions should apply to them. Whether that relationship between an educator and a learner of another school could actually be established was a factual question. It was acknowledged that it would be easier to establish such a relationship if the educator and learner were at the same school. The LRC’s submission was that in cases where it could be established and in cases where it was clear, the provisions of the Employment of Educators Act should kick in so that the educator was not allowed to freely move in between schools and perpetuate inappropriate relations and inappropriate behaviour with students. He discussed questions relating to the National Intergovernmental Committee and the Provincial Intergovernmental Committee. It was aware that the Constitution encouraged and facilitated intergovernmental cooperation between different Government Departments. However, the LRC’s primary concern was the privacy considerations that arose. For example, in section 34 of POPIA it was said that a responsible party may not process personal information concerning a child subject to certain exceptions contained in section 35. It was the LRC’s submission that none of those exceptions would apply for the private information of these children to be processed by these different Government Departments. It would constitute a violation of section 34 of POPIA. If this were to go ahead then perhaps an amendment to POPIA would be necessary. As things stood, there was a clear conflict. He responded to the question about which programmes the LRC had to help parents obtain documents. The LRC often wrote letters to the Department of Home Affairs’ officials. The LRC had a working relationship with a number of office managers in the Department of Home Affairs’ offices in the Western Cape and other provinces that it operated in. Sometimes Home Affairs officials were unclear as to how a legal provision should be interpreted. It was through that kind of engagement that the LRC assisted parents and obtained documents. He responded to the questions of the Chairperson about undocumented children. He discussed why embassies were not referred to in the LRC’s submissions about different bodies and organisations which could assist undocumented children. The majority of the undocumented children that the LRC had encountered were South Africans so going to an embassy would not help. Secondly, in terms of the Refugees Act in South Africa, an asylum seeker or refugee was not allowed to go to the embassy that their country had in South Africa for any kind of assistance because if they were to do so then their asylum seeker status or refugee status would be withdrawn. It was for that reason that the LRC did not mention embassies or consulates as a potential option for foreign undocumented children to go to in order to obtain documentation. He discussed the LRC’s motivation for advocating for undocumented children. The LRC had seen throughout the years of its work that not having documents as a child could affect a host of rights. It could frustrate getting access to SASSA grants. It could frustrate getting admission into university. They had some South African clients in their 20s who did not have documents so they could not open bank accounts because they did not have an ID. The LRC tried its best to ensure that individuals who were entitled to documents received them. It was currently litigating to ensure that the process was facilitated. Often a reason why a child was undocumented had nothing to do with their own behaviour but either their parents’ behaviour or Home Affairs’ behaviour. He discussed the definition of ‘educator’ in the Employment of Educators Act. It was true that the terms ‘teacher’ and ‘educator’ were clearly defined in the Act. The way that they were currently defined speaks to educators who had been trained to teach children. The submissions that the LRC had made with respect to regulating non-teaching staff in schools did not smoothly sit within the ambit of the Employment of Educators Act. Anecdotally it had come to the LRC’s attention that rugby coaches, water polo coaches, gardeners, and cleaners had been involved in cases of serious misconduct involving learners and therefore there needed to be somewhere in the law which addressed this issue. It could be that the Committee decided that a new piece of legislation should be promulgated to deal with this subset of employees. However, due to the fact that the Employment of Educators Act already dealt with undefined instances of misconduct and serious misconduct, it may be most convenient for this Committee. The quickest way to address this problem would be to include in the definition that the term ‘educator’ applied to non-teaching staff at least in respect of sections 17 and 18 of the Employment of Educators Act. He discussed whether the LRC communicated with the South African Council of Educators in relation to the recommendations that it had made before the Committee today. The LRC had not done so. The LRC was primarily in consultation with schools themselves in the existing network that it had. He discussed unconditional admission and the hypothetical scenario of a child going from one school to the next without any form of identification and would be entitled to be educated. The unconditional admission that the LRC was referring to is in relation to the absence of documentation. There can be a number of instances where a school can decide not to admit a learner. For example, if a school was overcrowded, if a learner had a criminal record or if there were other kinds of compelling reasons why a learner should not be admitted to the school. When it came to the issue of documentation it should never be a reason why a child was rejected from a school. This was because of the Constitutional provisions that stated that everyone in South Africa was entitled to basic education. This had been affirmed by the courts a number of times and especially in relation to documentation. It was the LRC’s submission that leaving ambiguity around the requirement of documents would be in conflict with the Centre for Child Law’s case of 2019. He responded to a question concerning relationships between educators and learners who were above the age of 18 and how that dynamic could be navigated and addressed by the BELA Bill. In a situation of consensual sex between an educator and a learner above the age of 18, that conduct did not constitute a crime in terms of the criminal laws of South Africa. However, the conduct could still be regulated in terms of the Bill. The Bill did not have to render or deem such conduct to be a crime. However, the BELA Bill could impose certain consequences on the educator for engaging in such conduct. Why the BELA Bill should impose sanctions in such situations because even though a learner may be above the age of 18, there was still a power imbalance that would exist between the learner and the educator concerned. Anecdotally there were instances where learners were exchanging sex for marks. Even though the learner may be above the age of 18, some kind of sanction needed to be imposed by the BELA Bill to say that a crime had not been committed but that there would be an investigation to see if there was any kind of quid pro quo going on in terms of this relationship. If so, whether any further sanction would be necessary. He discussed the codes of conduct and transgender learners. He agreed that issues related to race, and gender did not have a place within the code of conduct and should be addressed in another kind of document governing school rules. In the LRC’s experience, these issues often cropped up in codes of conduct. Perhaps in a more indirect or subtle way. For example, a code of conduct would say that during summer boys must wear blue shorts and white t-shirts and girls must wear blue skirts and white t-shirts. On the face of it, that was not anything dealing with transgender learners. What often happened was that these provisions were interpreted by schools that every learner who had an ‘F’ on their birth certificate must wear a skirt and a shirt and that everybody who had an ‘M’ on their birth certificate must wear shorts and shirts. It was these kinds of provisions within codes of conduct, that transgender learners would need to apply for an exemption under the proviso that they could illustrate just cause. Generally, the LRC did not have an issue with the just cause provision provided that more substance was provided for it. As things stand, the just cause requirement for exemption was so broad that it could provide unfettered discretion to the SGB or to the principle concerned. If more substance was given to it, perhaps saying that one of the factors that must be considered is gender diversity or racial diversity of the school or constitutional values, that would provide greater guidance to ensure that the term ‘just cause’ was not abused by SGBs or principles to marginalise transgender learners. A certain ideology or perspective could be given to the meaning of just cause which would be anti-transformation or exclusionary. He discussed the issue of the false accusation of rape. The example that was provided was when a learner who was vindictive for some reason accused an educator of rape. He did not think that such a hypothetical example was outside the realm of possibility. This was a tricky issue. The LRC was not sure whether the BELA Bill would be the best place to address it. As had been happening recently within the university space, to accuse somebody of rape falsely could lead to reputational harm or financial damages. There was already a legal remedy for instances like that in the law. The legal remedy would be a course of action called defamation. In instances where an educator thought that they had been falsely accused and they had suffered reputational harm or financial harm in any way then they could use those laws of defamation. They could approach the courts in that fashion. Educators’ organisation could educate educators about the rights they had in those kinds of circumstances. The LRC felt that with regard to the BELA Bill, such issues were adequately covered in other areas of the law.

The Chairperson thanked the LRC for its submission. The process was ongoing. The Committee had noted its submission.

Association for Homeschooling (AHS) Submission   

Ms Marietjie Ueckermann, Member, AHS, and Mr Michael Donnelly, Senior Counsel, Home School Legal Defense Association, made the presentation to the Committee. The presentation discussed international and foreign law, the current state of international law and treaty obligations and best foreign law practices from the USA. The keys clauses objected to registration, home visits, limitation on curriculum choice, and the CAPS-based monitoring. The presented submitted that registration should be changed to a notification. The ‘home invasion’ clause 51(3) be removed from the Bill. There should be no requirement to follow a CAPS curriculum. There should be no requirement to be assessed against CAPS. Monitoring should be on a contingency basis.

(See Presentation)

Discussion

Mr Moroatshehla said that this was the beauty of living in South Africa. This was the beauty of living in a participatory democracy. The Committee heard what was being said. He was of the conviction that in the main it was the responsibility, without undermining the role of parents in the education of their children, of the State to educate their children. He raised this subject to be corrected by the AHS. It was the responsibility of the State to educate children. He provided an example. If there was a child under the age of 18 years and the parents and family decided to not take it up, then the State would pursue the case regardless. That child was a subject of the State. That was his understanding of living in a democratic South Africa. What role was the Government supposed to play in education? Parliament was making an amendment to a Bill that was dealing with education. He saw a recommendation in the presentation. Why should the curriculum not be standardised? It took a community to raise a child. He was not quoting the Bible or the Constitution. He was quoting life. He asked if he could get a response on that. What could that mean? At no point in his life had he undermined the role of parents in the education of their children. That was why when children were at the primary school level the teachers were called surrogate parents. As a principle, the teachers needed to build on the foundations that the parents had made. If a child had a baseless form of education, then the teacher would struggle to teach that child. He discussed the principle of multiple borrowing in the education of children. It was a principle that was promulgated by UNESCO. He noted that when he was a teacher in the 70s he did a module called ‘comparative education’. What did the organisation think about comparative education in the name of UNESCO on the principle of multiple borrowing? Two parties that were good at different things could make use of multiple borrowing in order to make sure that the education for children was well maintained. This was done so that quality persons were produced both locally and internationally. How did the organisation integrate the principle of multiple borrowing? He may be wrong that homeschooling may only be confined to the home when in principle the opposite may be the case. He needed to understand what the organisation was trying to propagate.

Ms Van Der Walt said that she was thinking of a system where accreditation could become an issue. Some people would want nothing from the Department. They did not want to follow the Department’s curriculum. They did not want to be certified. If one received a grade 12 certificate from the Department, what would one get from homeschooling? In South Africa, there had been many so-called accredited training facilities but when learners used that to go out and try and find a job or further their studies then that was not acknowledged. What would be a solution to that?

Ms Adoons said that the presentation indicated that there was a bright future for homeschooling and homeschoolers. The research showed that there was a lot of work that had already been done. There was a lot of work that needed to be done in South Africa, because the country was a little behind compared to the United States. She noted that there was one question that was not answered or not responded to. The organisation was of the view that the BELA Bill deprived the duties of the parent. Which clause was detrimental to homeschooling? How was it hindering homeschooling from progressing? What were the negative implications of the Government making home visits to ensure that adequate support for a child existed, as education was compulsory from grade R to grade 9? The best interest of the child needed to be taken into account.

Mr Letsie said that he aligned himself with the contribution by Ms Adoons. The presentation gave the Committee insight into what these organisations went through every day. As lawmakers, they might not have the same experiences that the AHS went through. He appreciated the presentation as it highlighted the challenges the organisation had and the solutions it was bringing. That was the purpose of having this discussion. The AHS’ view was that parents had the best interests of their children at heart. He agreed with that. However, the democratic government also had the best interest of the children at heart. The organisation might not think so. A lot of people did not seem to think that Government had the best interests of their children at heart. From a Government point of view, they believed that these children were going to strengthen the eco-system of education in the country. All laws and regulations were developed to advance the rights of children in this country. In the AHS’ view, what was the role of the State in the education of a child? How does the State ensure it played that role, given the context of what had been presented? How many members across the country did the organisation have? Did the organisation have members directly affiliated to it? Or were members affiliated to provinces?

The Chairperson asked how would homeschooling fit into the context of multicultural education. How was homeschooling different from independent schools? For learners with special education needs, how were they assisted when it came to homeschooling? For example, with a child that was blind they would need to read braille. How was that accommodated in homeschooling? She noted that there was a scenario case in the Eastern Cape where the parents took their children to public schools for grade 1 and 2. After that they, decided to opt for homeschooling. This year, the parents took their children back to public schools in order for them to get into grade 7. Those parents struggled at home. She noted that they were black parents. The parents took their children back to public school because they could not deal with homeschooling anymore. They realised that they needed people who could specialise in certain subjects. The perception was that if it worked then it worked for richer communities and richer people. The presentation noted that home education had been developed by experience and had been done like that for decades. There were concepts in South Africa of progress education policies. Why were home educators not allowing themselves to be regulated under the compliance of the South African National Education Committee? The presentation said that this was a concept from the United States. When would South Africa experience and develop its own models of education? Why should South Africa follow the American way when there were African solutions to African challenges? She noted that South Africa was a diverse country. Here in South Africa some people woke up and drank Black Label. That was South Africa. That was diversity. That also related to the different views on how to raise children. She asked a question directly to Mr Donnelly. In America some states were still practicing capital punishment whereby states had the ability to execute death sentences. Some states did that via lethal injections. Why had the USA agreed to international human rights and allowed for capital punishment? Yet, the country agreed to the Universal Declaration of Human Rights. The issue of human rights came out very clearly in the presentation. The presentation made reference to homeschooling from the perspective of the USA. The presentation also mentioned East and West Africa. Surely the experiences and historical context of the countries could not be the same as the USA? From East and West Africa, in which specific countries was homeschooling implemented? How was it working? Was it successful?

Mr Donnelly said that he came to share different and separate pieces of information. He was American. He home-schooled his children. He was familiar with the American law and context. He was an expert on that. He was familiar with research from an American context and some international research. He wanted to share the American experience with the Committee from a comparative perspective. He was not linking his human rights discussions to the American context. He taught international human rights law, international criminal law and comparative international law. He noted that human rights were universal, interdependent, interrelated and intervisible. He had written journal articles written on that topic. If someone said they understood what human rights were, they did not understand what human rights were. There were dozens of treaties. He was separating his comments about the United States and their experience from the issue of human rights. He was offering his expertise in human rights to explain how he had seen human rights work and what a human rights framework said about education. He had thought about it in the context of home education. He was offering that experience to the Committee. He did not have to explain to the Committee that the United States was not a signatory to the dozens of human rights treaties that South Africa had. The US had not signed the United Nations Convention on the Rights of the Child. He was not trying to put those two things together. He could explain the legal reasons why capital punishment was still permitted. The US’s political system was a federal republic. The states were sovereign entities. There was a shared sovereignty. It was not a unitary state. The states were clearly sovereign entities that retained sovereignty over things that had not been expressly delegated to the federal government or things that were not expressly in the Constitution assigned as their own. The Supreme Court of the United States had interpreted the Eighth Amendment of the US Constitution, which prohibited cruel punishment, from an originalist perspective. Although many people argue that an evolutionary approach to interpreting and defining rights should be taken. The Supreme Court of the United States had not done that. They looked at what the Eighth Amendment meant at the time it was ratified in 1789 and the Bill of Rights in 1791. At the time, capital punishment was universally considered normal. The Supreme Court had said that this was not a federal issue, it was a state issue. It was a decision that the states had to decide themselves. Everyone had seen what happened with the Roe v. Wade decision. The Supreme Court said that it was not going to deal with it anymore. The states needed to figure it out. That was the nature of their federal system. It was different from other countries. Around 18 states had prohibited capital punishment. As a country, their system of government and the Supreme Court allowed states to have their sovereignty. He responded to the question of which countries in East and West Africa practiced homeschooling. In East Africa, Kenya was the country that had a robust home education movement. From a regulatory perspective, it was a bit of a grey area. The legislature was talking about that right now. They changed their law in 2012. Before that homeschooling fell under a kind of exemption. Then they changed their law, and that exemption went away but homeschooling continued. There was a bit of a grey area. Kenyan legislatures were grappling with that and trying to figure it out. The homeschoolers were saying that they would like to be recognised. In Uganda, there was a growing movement. In West Africa, he had only been in Ghana and he had some contacts in Nigeria. It was very small there. It was not explicitly recognised in the law. In a lot of countries that was the case. There were countries where people do it and they were allowed to do it, and it was not explicitly recognised in the law. Some constitutions would say that the family was responsible for education. Some constitutions would say that the state was responsible for education, usually that was the case.

Ms Ueckermann said that a Member had said that it was the responsibility of the State to educate the children. She believed that children only became a ward of the State if parents failed and families failed. She responded to the question of what role the Government should play. Government should set up sufficient structures to deal with accusations of educational neglect. The same with other parental issues. She responded to the question of why a curriculum should not be standardised. The definition of ‘education’ in the United Nation’s Convention on the Rights of the Child and the African Charter on the Rights and Welfare of the Child and the Children’s Act, stated a clear obligation on parents on what the education of their children should be necessitated. This constituted a matter of curriculum. No further direction to parents for the education of their children was needed. Consideration should be given to include this definition in the South African Schools Act. According to the Universal Declaration of Human Rights, education shall be directed to the full development of the human personality. Therefore, it was most important that the education of a child should be determined through the unique knowledge of a child and not by external ideological ideas. Since parents knew their children best, they were in the best position to make decisions regarding the curriculum and the approach that a child needed. The preamble of the Constitution read that ‘we, the people of South Africa believe that South Africa belongs to all who live in it, united in our diversity’. The Association for Homeschooling believed that this diversity needed to allow for more than a single curriculum. Home education was particularly well suited to accommodate a customised curriculum for each child.

Ms Lizelle Rademeyer, Member, AHS, said that the diversity of the country was what made South Africa unique and beautiful. South Africa had so many rich cultures. If people and their children were secure in their own values and their own identities, they were able to respect others with different opinions. That was often seen in the home-schooling community. The home-schooling community even accepted children with special needs. To them, a special needs child who struggled to speak was no different from one that could. They found ways in which to interact. Their needs were catered for. She noted that some parents followed CAPS. Some parents followed curriculum from America. It was easier for homeschooling children to accept other because they knew that they were different. Her children interacted with other people of different beliefs.

Ms Jennifer Hanekom, Member, AHS, responded to the questions on assessments. She was a home schooler who followed a classical model of education. It was a different approach than what the modern model followed. In the modern model they spoke about grades and phases. In the classical model of education, there were also phases but their phases of learning were the grammar stage, the dialectic stage, and the rhetoric stage. There was a different way of assessing that. To have a uniform assessment, a blanket assessment, that would assess every homeschooler in the same way did not work because the approaches to education were very different. She responded to the question of why a curriculum should not be standardised. Her family had not started with a classical model. They had started with an eclectic approach. What she found worked for her family was the classical model. The reason why they changed was because it worked better for her family. A lot of families had the same experience. That was why they did not want a standardised curriculum and it was against a blanket accreditation as well.

Ms Ueckermann discussed the mutual borrowing of the education of children. She noted that the educational landscape changed fundamentally due to Covid-19. It also brought a new opportunity for change. The traditional school system had been exposed to be fragile and unable to realise the rights to basic education. Parents had to change their approaches to education of their children. Home education had a flexible curriculum and could weather the storm. It continued to provide learners with a basic education. It was the innovation of distance learning and home education that was shown to be anti-fragile and provided solutions during uncertain times. Therefore, home education as an incubator for innovation and improvement should not be restricted to try and fit in the traditional school system merely for the convenience of administrators. Formal consultation bodies ought to draft regulation that consider how to regulate home education and emerging educational modalities so that more learners could be benefited. The criteria needed to be defined and distinguished for the different modalities. Diversity, equity, and inclusion in education needed to be defined. As well as dealing with budget constraints. The pandemic changed the education landscape drastically, but the BELA Bill should adapt to this. She noted that when the traditional school system was not able to realise the right to basic education during the pandemic home education, online schools, and emerging education modalities were able to continue with little to no disruption. It was vital that the system needed to be adapted to support learners in a changing world.

The meeting was adjourned.