Basic Education Laws Amendment (BELA) Bill: public hearings

Meeting report

The Committee considered and adopted the agenda for the meeting.

The Chairperson said that this meeting was a continuation of the organisations and stakeholders that requested to submit input to the Committee on the Basic Education Laws Amendment Bill [B2B-2022] (BELA Bill). He introduced the organisations and stakeholders which included the FW de Klerk Foundation, Solidarity, Equal Education and Equal Education Law Centre (EELC), Centre for Child Law, South African Institute of Race Relations (IRR), Fathers 4 Justice, Association for Homeschooling, Gauteng Association for Homeschooling, Pestalozzi Trust, Skoleondersteuningsentrum (SOS), Hoër Landsbouskool Jacobsdal, and the Christian View Network. All presenters had 30 minutes to make their presentations. Members would be allowed to ask for points of clarity.

He noted that the BELA Bill had been introduced to the Committee on 08 November 2023. The Department of Basic Education (DBE) had taken the Committee through the clause-by-clause amendments, including the amendments by the National Assembly (NA). With this background, the National Council of Provinces (NCOP) decided to conduct its own public participation process to get input from all stakeholders on the amendments of the BELA Bill.

The BELA Bill was a section 76 bill and was referred to the provincial legislatures to also embark on a public participation process in the provinces. This was what Members had to embark on in their respective provinces. However, due to the demand and high participation rate, the Committee had requested written submissions from the public. Upon receiving the written submissions, it was important to listen to the inputs and concerns of the stakeholders who had requested oral submissions.

He thanked all the organisations for availing themselves for the future of basic education in South Africa. The Committee hoped the oral hearing would be fruitful and provide meaningful engagement for all participants.

FW de Klerk Foundation submission

Ms Ismail Joosub, Legal Officer: Constitutional Programmes, FW de Klerk Foundation, took the Committee through the presentation.

The FW de Klerk Foundation expressed that the BELA Bill targeted amendments to the South African Schools Act (SASA) 84 of 1996 and the Employment of Educators Act (EEA) 76 of 1998 but that the BELA Bill deviated from the Constitution’s framework, values, and democratic intentions. There was an infringement on the right to education in an official language of choice, a threat to the right of individuals and communications to use language and to participate in cultural life of choice. The state had to uphold constitutional rights and had to respect, protect, and promote constitutional rights.

There was a concern with the definition of public schools because it provided provincial education heads the authority to override the school governing bodies (SGBs) on admission and language policies which diminished parental power. This would undermine democratic school governance principles, centralise decision-making, risk inefficiency and abuse of authority, and would result in potential chaos and conflict due to arbitrary admissions decisions.

There were particular socio-economic concerns for the amendments to section 3, where penalties for non-compliance may violate parental and learner rights. There was a potential violation of the freedom from arbitrary arrest or detention, the right to education, the right to equality, and the right to human dignity. Punitive measures would disproportionately affect disadvantaged families. The FW de Klerk Foundation proposed amending or omitting the provisions concerning SGB’s authority and considering the provisions for undocumented learners.

The White Paper on Education should also be considered because it emphasises the parent's primary responsibility and their right to be consulted. The BELA Bill created additional barriers to basic education access. The forcing of single-medium Afrikaans schools to provide dual education imposed unnecessary burdens. Historical data indicated that dual-medium education often eroded Afrikaans language prominence. Mandating dual-language education may violate the constitutional right to education, language and culture, cultural, religious and linguistic communities. The non-compliance with section 36 of the Constitution rendered it unconstitutional. Fundamental rights could only be limited by laws of general application which had to be reasonable and justifiable in an open and democratic society based on freedom and equality. The BELA Bill’s implementation and failure to adhere to the Use of Official Languages Act 12 of 2012 may erode language rights. This erosion may amount to unjustifiable and unreasonable limitations of fundamental human rights. Therefore, the language provisions in the BELA Bill were deemed unconstitutional and unjustifiable.

The definition of ‘required documents’ imposed stricter standards for basic education access, which deviated from the current admission policies. This had a discriminatory impact on undocumented learners and also contradicted the Phakamisa judgment, which emphasised undocumented learners' right to basic education.

The imposition of arbitrary requirements and criminal sanctions lacked legitimate purpose. It neglected the practical obstacles in obtaining documents from the Department of Home Affairs (DHA). It disproportionately infringed upon the rights to dignity, equality, education, and freedom from arbitrary arrest or detention.

The BELA Bill may infringe upon the right to education in chosen official languages. There was a risk of unconstitutionality and a failing of the section 36 justification analysis. There was a potential for illegality, considering the protection of fundamental rights under international conventions ratified by South Africa. There was a risk of impracticality due to limited financial, structural, and human resources in the DBE.

The FW de Klerk Foundation recommended that the provisions limiting the SGB's powers be deleted, including the decentralised decision-making from provincial departments to SGBs. The BELA Bill should include provisions for provincial oversight and SGB consultation on language and admission matters. The final decision authority should rest with the SGBs, with fair dispute resolution processes. Key concepts such as ‘equality’ and ‘equity’ should be defined. The definition of ‘required documents’ should be reviewed and clarified. Documents should serve legitimate purposes and be accessible through the DHA. SGBs should be empowered to address admission and language issues in public schools.

(See attached submission for further information)

Solidarity submission

Ms Johnell Prinsloo, Policy Analyst and Researcher, Solidarity, and Mr Connie Mulder, Head: Solidarity Research Institute, Solidarity, made the presentation to the Committee. 

Solidarity placed emphasis on the partnership between the parent or SGB, the teacher and the state, the role of the state within the educational system, and the role of the SGB within the educational system. Solidarity’s view was that emphasis should be placed on the building of more schools, the development of mother tongue education and the implementation thereof, as well as working towards a more decentralised system.

It was Solidarity’s opinion that the BELA Bill, in its current form, would not serve the best interest of learners and educators, and especially not the broader South African community, but would rather prejudice them.

(See attached submission for further information)

Equal Education and Equal Education Law Centre submission

Ms Katherine Sutherland, Legal Researcher, EELC, and Ms Tatiana Kazim, Senior Legal Researcher, EELC, took the Committee through the presentation.

The EELC believed that the introduction of compulsory grade R was welcomed. However, a phased approach was recommended in the context of limited resources, school overcrowding and the potential introduction of criminal sanctions. The relationship between ‘school going age’ and ‘age of admission’ should be clarified.

The definition of ‘serious misconduct’ was too broad and unclear. This could lead to children being excluded disproportionately and unfairly, thereby undermining their right to basic education. The definition gave schools broad powers to sanction learners for conduct unrelated to the school or school community, which fell outside the school’s proper jurisdiction.

Several of the amendments either increased or introduced criminal sanctions for parents/caregivers. Clause 2(b) criminalised parents who prevented a child from attending school without a good reason. Clause 38 created a criminal offence against parents/caregivers who knowingly submitted forged or misleading information when applying for admission or fee exemption. This would negatively impact women, did not solve underlying problems, would leave children without caregivers and was archaic, overly punitive, and not in the best interests of the child.

The state did not always act with benevolent intent and might not be striving toward equity and the best interests of learners. In several cases relating to language and admissions, provincial education departments acted in a manner that was procedurally unfair, and their decisions were overturned. SGBs had a crucial role to play, as they understand the particular context of a school better than most government officials, and they brought the voices of parents, communities, and learners into decision-making processes. SGBs also frequently had to step in to fulfil roles and duties where provincial education departments had failed. SGBs should continue to have the power to formulate admissions and language policies, but they must also serve the public good and not only the interests of the individuals in their schools. The state played an important oversight role and had to use its powers to ensure resources were equitably distributed and cater to the needs of learners.

(See attached submission for further information)

Centre for Child Law submission

Ms Moyahabo Thoka, Researcher, Centre for Child Law, made the presentation to the Committee.

The Centre for Child Law recommended that the definition of corporal punishment be expanded to include psychological harm. All children had to be admitted to attending school, but where ‘required documents’ are unavailable, a copy of the proof of birth, clinic card or affidavit would suffice in line with the Phakamisa judgement. The maximum 12-month imprisonment period cap should be removed, as this would be outside the scope and functions of the SASA and ran contrary to the existing criminal justice system. This provision undermined the ability of a judicial officer to objectively consider all the facts of the assault case and to impose an appropriate sanction that would be in the interests of justice. There should be the development and adoption of procedures to facilitate child participation for child victims and witnesses when such children testify in cases where non-teaching/auxiliary staff was involved in a disciplinary inquiry.

(See attached submission for further information)

South African Institute of Race Relations submission

Dr Anthea Jeffery, Head: Policy Research, South African IRR, took the Committee through the presentation.

The South African IRR was of the view that there was no need to change the powers of the SGBs. The current powers of the SGBs and the heads of departments were clear. Centralised procurement, withdrawal of functions from SGBs, dissolution of SGBs, additional conditions for public funding of independent schools, changes to homeschooling, and new dispute resolution requirements were unnecessary changes. Complex issues should be decided by Parliament and not the head of departments. The South African IRR believed that the BELA Bill distracted attention from vital needs. There was a need for more public schools where the demand was high.

(See attached submission for further information)

Fathers 4 Justice submission

Mr Gary Da Silva, Chairperson, Fathers 4 Justice, made the presentation to the Committee.

Fathers 4 Justice firmly opposed the following issues and demanded immediate action:

• Gender identity confusion: The DBE had to adhere to well-established scientific, biological, and medical facts that recognised only two genders – male and female. The promotion of woke gender theories and LGBTQ concepts in textbooks was causing psychological, emotional, and physical harm to children. There should be an immediate cessation of such practices.
• Preservation of traditional facilities: All sports, toilet ablutions, and shower or change rooms had to remain specific to the gender of the child. No child of the opposite gender should be allowed in these spaces to avoid confusion.
• Parental authority on school choice: The decision on which school and the type of education a child received had to be left to the sole discretion of the parents. No interference from the DBE should infringe upon this fundamental parental right and responsibility.
• Transparency in policy changes: Any proposed policy changes by the Minister had to be made public, allowing parents the opportunity to provide input through appropriate legislative channels. Transparency and adherence to proper protocols were non-negotiable.
• Non-victimisation based on vaccination status: No child should be victimised by the DBE based on their vaccination status. The DBE had no authority over how parents chose to raise their children in this regard.
• Teachers and the DBE usurping and interfering in the medical procedures of pregnant girls: The only responsibility that teachers, the Minister, and DBE had regarding pregnant schoolgirls was that, should the teacher/school/DBE become aware that a girl was pregnant, they immediately inform the parents.
• Language choice: The language choice of the school must be determined by the parents and the governing parent body. The DBE must not interfere in this matter.
• Religious, cultural, and traditional rights: The right to religious, cultural, or traditional, freedom of choice and observance as enshrined in the Constitution within schools had to be protected and guided by the parents and the governing parent body.
• No oversight of parents or governing body: The DBE should have no oversight over parents or governing bodies. Disputes should be resolved through the court system.
• Curriculum choice: The curriculum choice of the school had to be left to the discretion of the parents and the governing parent body. One-size-fits-all policies were inappropriate and did not address the multitude of ways children assimilated and learnt various subjects. The DBE should not dictate curriculum choices.
• Minimum pass rate and focus on science, technology, engineering and mathematics subjects: The minimum pass rate should be raised to 70%, with an immediate and specific focus on science, technology, engineering, mathematics, and advanced technologies like nanotechnology and artificial intelligence technology. A focus on literacy in business, economics, banking, and financial wherewithal of the highest standards must immediately be implemented.
• Teacher qualifications and training: Teachers had to hold a doctorate in their chosen subject field with a minimum pass rate of 90%. Current teachers should be given a five-year grace period to obtain a doctorate, and new teachers should automatically be trained at this level.

With these factors in mind, Fathers 4 Justice had the following inputs regarding the BELA Bill:

• Section 41: It strongly condemned the broad additional unsupervised powers given to the Minister of Education without oversight. The collapse of the education system under the ANC government demanded a focus on genuine improvements rather than granting unchecked authority to the Minister. The proposed changes, including the potential power to enforce medical decisions, were unacceptable and had to be cancelled immediately.
• Section 37: It categorically rejected section 37 in its entirety due to its association with the failed Marxist ANC education system. The attempt to force private and home schools to adopt the woke socialist Curriculum and Assessment Policy Statement (CAPS) system was deeply troubling. These changes risked overtly sexualising and grooming children and imposing unscientific, age-inappropriate content on them. This went against cultural, religious, personal, and traditional beliefs, and was unconstitutional.
• Section 27: Similar concerns were raised regarding section 27, particularly the proposed closures and amalgamations of small private schools into larger ones. The potential closure of over 1 000 schools in KwaZulu-Natal exacerbated the already failing education system, leaving students and their future economic potential in jeopardy. Fathers 4 Justice urged the government to reconsider these detrimental changes.

 

• Gender-based rejections: The rejection of 50% of parents based solely on gender was discriminatory and unacceptable. Fathers 4 Justice had made numerous attempts to engage with the Minister on these matters, but its concerns had been consistently ignored. It demanded immediate and meaningful engagement on these issues.

The changes proposed in the BELA Bill were misguided, based on a woke agenda, and failed to address the genuine needs, wants, and desires of the public, more specifically those of the parents and children. It lacked a foundation in the scientific, biological, or logical fact that forced discrimination against parents and children’s, religious, cultural, and traditional practices. Fathers 4 Justice roundly and wholeheartedly rejected these changes and insisted that the Minister cease and desist from implementing them immediately.

Fathers 4 Justice urged the DBE to concentrate on genuine improvements to the education system, address the high dropout rates, and elevate the quality of education provided to children. Fathers 4 Justice insisted that the Minister of Education take immediate and decisive action to transform the education system into a world-class model that stood as a beacon of excellence globally. It was not merely an expectation but a demand that the education system become the epitome of quality, surpassing all others, and serving as an inspiration for education systems worldwide. Anything short of this ambitious goal was deemed unacceptable. The future progress and prosperity of the South African children and nation hinged crucially on achieving this transformation.

(See attached submission for further information)

Association for Homeschooling submission

Ms Jennifer Hanekom, Member, Association for Homeschooling, took the Committee through the presentation.

The key clauses the Association for Homeschooling objected to were registration, basic education, home education, competent assessor, curriculum choice, assessment, and regulatory powers. The Association for Homeschooling provided suggestions for these clauses.

(See attached submission for further information)

Gauteng Association for Homeschooling submission

Ms Lalie Moraba, Secretary, Gauteng Association for Homeschooling, made the presentation to the Committee.

The Gauteng Association for Homeschooling rejected the current version of the BELA Bill.

Home education was often misunderstood as a replication of traditional schooling within one’s home. People assumed that whatever a teacher did at school, a parent did the same at home with one child, and that was then called home education. In reality, home education was the opposite. It was not school extending into the home. Rather, it was the extension of parental care into the education sphere. In home education, parental involvement, responsibility, and rights were more pronounced. In school, education took place primarily in the sphere of the Minister, the DBE, and the public. Whereas home education took place primarily in the sphere of the family, and only secondarily in the sphere of the Minister, the DBE, and the public. Generally, teachers and DBE officials were not trained in home education and their knowledge of this kind of education was very superficial. It was in this context that the Gauteng Association for Homeschooling submitted that the DBE’s lack of research, together with its lack of knowledge of home education, had resulted in a bill that did not reflect reality on the ground at all.

In 2022, the DBE admitted to not having any research on home education. Despite this, the DBE had pushed ahead with the BELA Bill without any regard for its lack of research. Without this research, the clauses on assessment requirements and administration of registration applications, consultations and the processing of assessment results could not be considered. This was significant, as there were already significant backlogs with registrations in many provinces without the additional burden the BELA Bill would place on them. It raised a serious concern whether the provincial education departments had the necessary capacity to shoulder the additional BELA Bill burden.

Without research, the DBE was legislating something it did not understand. The fact that the BELA Bill was unanimously rejected by homeschoolers during the Portfolio Committee on Basic Education’s public hearings, showed that this lack of understanding created serious problems in the legislation. These problems occurred because the BELA Bill did not reflect reality on the ground. The first evidence of this was the unrealistic administrative burden placed on the provincial education departments. The definition of home education was at odds/misaligned with how the home education community understood it. For example, the definition did not make room for parent-led education that took place wholly away from home, as was the case with families who were travelling, or even some families who learnt from different venues. The definition also did not make provision for full-time tutoring at home. There was also reliance on the CAPS system in its administrative structure.

The BELA Bill also did not acknowledge the various learning modalities that had started to become mainstream since 2020. It only recognised public schools, independent schools, and a school-type kind of home education. It did not make room for home education philosophies, such as child-led learning and unit studies. It did not recognise modalities, such as micro-independent schools, online learning, distance learning, full-time private tutoring, satellite online learning, and hybrid learning. This meant that the BELA Bill did not fit reality and was trying to force new ways of learning into a narrow, outdated paradigm that would only stifle the education of South African children. If the BELA Bill was passed as is, conflict and litigation were a real and serious concern.

Given the challenges, the Gauteng Association for Homeschooling had two main recommendations. Any contentious issues, such as assessment, curriculum, and competent assessors, should be removed from the BELA Bill and placed in regulations. This would have the following positive effects, amongst other things: homeschoolers would be less resistant towards the BELA Bill, and time could be given for some preliminary research and an opportunity for meaningful consultation on contentious issues. It was also recommended that the definition of competent assessor be removed along with clauses 35(2)(b)(i), 35(2)(b)(iii) and 35(2)(b)(iv).

(See attached submission for further information)

Pestalozzi Trust submission

Mr Bouwe van der Eems, Chairman and Treasurer, Pestalozzi Trust, and Ms Toni Palmer, External Legal Counsel, Pestalozzi Trust, took the Committee through the presentation.

The Pestalozzi Trust rejected the notion that parents needed to be vetted by the government before they could teach their own children. Parents were the God-ordained stewards of their own children, and the family was a private sphere. Government had no right to control families and regulate how parents provided for the basic needs of their children. Government interference in families through the court should be restricted to where there were clear signs of neglect or abuse. The basis for freedom in education was that God made parents responsible for their own children. Families had the God-given freedom and duty to pass on their beliefs to the next generation through education. These same rights should be protected for all homeschoolers irrespective of faith, belief, or persuasion.

The Pestalozzi Trust had a proposal for an amended version of clause 35 of the BELA Bill. There should be a balance between the state’s duty to ensure educational standards and the constitutional rights of parents to decide on the education of their children. The right and duty of parents to choose was a foundational principle in international human rights education law.

International law requires minimum standards for curriculum and assessment to respect educational freedom. International conventions affirmed parental authority in choosing an education that aligned with their values. South African law recognised home education as an independent education institution.

Throughout the BELA Bill process, the DBE stated that homeschoolers would enjoy freedom of curriculum and assessment and that the BELA Bill would in no way infringe on that. The Office of the Chief State Law Adviser had, however, in a legal opinion, described the use of alternative curricula by independent educational institutions as “fraudulent”. Therefore, changes to the BELA Bill were required to address and formalise the DBE’s position.

(See attached submission for further information)

Skoleondersteuningsentrum submission

Mr Leon Fourie, Executive Director, SOS, made the presentation to the Committee.

The presentation highlighted the decrease in the number of Afrikaans schools compared to the increase in the number of Afrikaans learners. The SOS proposed that the current version of the BELA Bill be withdrawn, that the role of community representatives be strengthened, and that SGBs be enabled to determine school policies and make decisions which were in the best interest of their learners and the community which they served, to provide protection and support to all language and cultural communities and to delegate power to schools with proven management ability.

Ms Melanie Buys, Head: Development, SOS, thanked the Committee for the opportunity to present. She hoped that the BELA Bill would be referred back to the stakeholders and that the input would serve to improve future amendments to democratise education.

(See attached submission for further information)

Hoër Landsbou Skool Jacobsdal submission

Dr Eduard Potgieter, Principal, Hoër Landsbou Skool Jacobsdal, took the Committee through the presentation. He supported the proposed amendments for the definitions of ‘corporal punishment’ and ‘loan’, and that supplying false information to schools was a criminal offence. He did not support the proposed amendments to the admission and language policy, central procurement, and submissions of quarterly reporting.

(See attached submission for further information)

The Chairperson thanked the organisations and stakeholders for the oral submissions and wanted to close the meeting.

Mr Philip Rosenthal, Director, Christian View Network, informed the Committee that he still had to make his presentation.

Christian View Network submission

Mr Rosenthal made the presentation for the Christian View Network.

The Christian View Network was of the view that the BELA Bill proposed to substantially reduce the powers of the SGBs and choice from homeschooling families. It would increase taxes, raise school fees, and increase costs and administration of home education. Depending on provincial education policy, weakened control of admissions affecting the financial viability of quality fee-paying public schools may lead to an exodus, retrenchment of teachers, and thus loss of quality. The state could overrule governing bodies' language policy, especially threatening the remaining one out of 20 single-medium Afrikaans schools. It would be more difficult for schools to rent facilities to churches and independent schools. Implementation powers were in the hands of provinces, likely making education a key issue in provincial elections and educational refugees moving province. The DBE consultation process seemed unequal, with some stakeholders getting preferential treatment. The BELA Bill was the most radical change in education law since the SASA and would shift education toward state control, as it was in the apartheid era.

The Christian View Network believed that while the new proposal to the BELA Bill was less damaging than the previous versions, it would still greatly weaken parents’ rights. The BELA Bill still threatened parents’ rights to determine school admissions, procurement, and language policy, and unreasonably limited the applicability of the school code of conduct.

The current BELA Bill did not allow exceptions to the rule of no alcohol in schools, which would benefit communities with this as a problem. It still did not accommodate ‘cottage schools’, which were growing in response to a need to accommodate children with disabilities and particular religious ethos.

(See attached submission for further information)

Closing remarks by the Chairperson

The Chairperson noted that Members had no clarity-seeking questions. The Chairperson informed the organisations and stakeholders that further deliberations would be available in the public domain.

He apologised for almost skipping the Christian View Network oral submission. He also noted that stakeholders and organisations that presented the previous day were also present in this meeting. This showed the commitment of stakeholders.

The meeting was adjourned.