By Daniela Ellerbeck, Legal Advisor to FOR SA

On Tuesday, 28 November 2017, Freedom of Religion South Africa (FOR SA) attended a briefing by the Department of Basic Education on the controversial draft Basic Education Laws Amendment Bill (the so-called “BELA Bill”) at Parliament. The purpose of the briefing was to inform, and engage with, the Parliamentary Portfolio Committee on Basic Education regarding the proposed amendments even before the Bill makes its way to Parliament, so as to give Members of Parliament insight into a Bill that has attracted (and continues to attract) a great deal of media attention. The outcome of the briefing was that the deadline for submissions on the Bill, was extended by the Deputy Minister of Basic Education to 10 January 2018. (A copy of the Bill, and details of the contact person / address to whom comments can be made, are available at https://www.education.gov.za/Portals/0/Documents/Legislation/Gov%20Not/BELA%2013Oct20172.pdf?ver=2017-10-20-111357-920)

At the outset of the briefing, the Department stated that they have received an “avalanche” of responses to the Bill. They are now processing the responses and will be meeting with important stakeholders. There will also be a process of public input next year, whereafter they intend putting the Bill through Parliament (also in 2018 still). Once the Bill reaches Parliament, the Parliamentary Portfolio Committee will call for comments on the Bill again and the process starts anew. The Bill is therefore in the early stages, and it could take at least a year before it becomes law. (Although these hearings are just the first step in the legislative process, it is vital for parents and interested persons to engage at every step of the process!)

The Department then ran the Portfolio Committee through the 46 clauses in the Bill, the majority of which (according to the Department) is uncontentious. According to the Department, the most controversial clause in the Bill is clause 10, which limits the power of a school governing body (SGB) in regard to the appointment of educators. In terms of the amendment, a SGB may recommend to the (provincial) Head of Department (HoD) the appointment of only post level 1 educators (being ordinary teachers). This means that the selection and appointment of educators on post levels 2, 3 and 4 (i.e. senior posts such as department heads, deputy principals and principals) will be the sole responsibility of the HoD. According to the Department, another controversial clause is clause 4, in terms of which the SGB must submit the language policy of a public school, and any amendment thereof, to the HOD for approval; and the HOD may direct a school to adopt more than one language of learning/teaching.

While the Department made reference to clause 25 relating to the registration of home-school learners, it did not elaborate on this at all – which is surprising, given that the proposed provisions relating to home-schooling are probably some of the most controversial in the Bill and have given rise to a great deal of upset / concern by the increasing number of parents who home-school in South Africa.

A number of Members of Parliament (including particularly the DA, ACDP and a member of the ANC), were critical of various aspects of the Bill and the extent to which it “tampers” with the democratic rights of parents. It was suggested that, instead of following a broad-brush approach that takes away the rights of all SGBs (and therefore, parents), the Department should target those individual schools or SGBs that are giving problems. A concern was also raised as to whether the Department is taking the public’s views seriously, or engaged in an exercise to “educate” the public out of their rights.

FOR SA’s comments on the Bill:
FOR SA, along with many other organisations and individuals, submitted comments on the Bill which we believe to directly infringe upon the goals for education set out in the White Paper on Education and Training. This White Paper explicitly states that parents have the primary responsibility for educating their children as well as an inalienable right to choose the form of education that is best for their children (including choice of the language, cultural and/or religious foundation of their child/ren’s education). It also recognises the rights of families to religious freedom. (Click here to view a copy of the White Paper).

Our democratic society envisages that parents, having the primary responsibility for the education of their children, also have the right to be consulted by State authorities with respect to the form that education should take. This largely happens when parents take part in school governance through School Governing Bodies (SGBs). SGBs are comprised of parents who have children in that school since post-1994, they have always been seen as the major stakeholders in the education environment. It is therefore evident that any limitation of the powers of SGBs will directly limit the rights of parents to decide how their children should be educated.

1. The powers of School Governing Bodies will be transferred to the State
In an attempt to address some of the education challenges in our country, the BELA Bill gives the State wide ranging powers to regulate and control education. FOR SA is concerned that, in its endeavour to strengthen the public schooling system, the Bill overrides the rights and responsibilities of parents to bring their children up according to their convictions and beliefs, thereby eroding the authority of the family as the cornerstone of society. It is also concerning that these powers are reminiscent of those given to the State under the previous Apartheid dispensation.

In our submission to the Department, FOR SA objected to the expansion of the State’s powers and functions because the Bill significantly limits the powers of SGBs and transfers them to the State, thereby eroding parental rights. Undermining and limiting the role and powers of SGBs directly infringes upon the rights of parents to raise their children as they choose. Instead, it centralises these decision-making powers within the provincial Education Departments.

The Bill also requires SGBs to obtain permission from the Member of the (provincial) Executive Council (MEC) for Education before they can lease out a school hall, even for a single meeting. This will not only inhibit the opportunity of schools to gain additional revenue from this source, but it will potentially curtail religious freedom since numerous churches use school facilities for their Sunday meetings.

2. Home-schooling will become financially burdensome and restrictive
The Bill also imposes additional burdens on home-schooling. Many families in South Africa choose to home-school their children for (amongst other things) religious reasons. These new provisions make home-schooling both procedurally and financially burdensome. This makes home-schooling much more difficult for parents and directly infringes on the families’ (parents’ and children’s) religious freedom.

One example is that “home education” is narrowly defined in the Bill. This means that that cottage schools, tutor centres, home school centres, tutorial centres and learning centres are no longer considered to be places of home education. (Indeed, according to the Draft Policy on Home Education currently open for public comment these institutions are all explicitly declared illegal.) Apart from being impractical and unworkable, removing these educational options severely infringes upon parents’ rights.

Another provision forces home-schoolers to comply with the CAPS curriculum, thereby limiting the freedom of parents to choose (from the wide variety of curricula available) how they wish to educate their children. It also means that they will not be allowed to decline certain content contained in CAPS on religious grounds, which is a further erosion and infringement of their freedom of religion rights.

The Bill further requires an assessment of home-schooled children’s progress by the State and at the expense of parents. The practical and financial impact of this may well make it impossible for parents to continue to home-school their children and be forced to send them to public schools instead. This will place an additional burden and drain on the State’s already limited resources through the increased number of pupils who will then attend public schools.

A deeply concerning element of the Bill is the proposed six (6) year prison sentence for any person who without just cause prevents a learner from attending school. This potentially puts those parents who choose to home-school their children at risk.

In the circumstances, FOR SA recommended that the presumably unintended, but nonetheless unconstitutional, consequences of the current Bill can be avoided by altering and/or altogether deleting certain provisions in the Bill relating to the contracting of parents’ decision-making powers pertaining to their children’s education, and the parallel provisions which expand the State’s powers in this regard. (To view a copy of FOR SA’s submissions on the Bill, click on the “EDUCATION” folder at http://forsa.org.za/document-library/)

 


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Daniela is a duly qualified Attorney of the High Court of South Africa. She obtained a BCom LLB degree from Rhodes University. Daniela first worked for Médecins sans Frontières before completing her articles of clerkship at G van Zyl Attorneys, where she stayed on after being admitted as an attorney and practised, specialising in litigation. Daniela has loved Jesus since she was young and is a member of a local church in Cape Town where she is actively involved. With a heart for justice and using her skill-set to advance the Kingdom, Daniela is a delighted new member to the FOR SA team.