9 November 2017
Attention: Adv. TD Rudman
Dear Adv. Rudman
Draft Basic Education Laws Amendment Bill:
(hereafter referred to as “the BELA Bill” or “the Bill”
Introduction and background
I am a parent, home education curriculum author and home education consultant, who has been successfully home educating my 6 children, plus the children of two close relatives, for over 20 years, since 1997.
My eldest child graduated from home with an international school leaving certificate in 2015, started her own businesses at ages 13 and 16 respectively, sold them, then worked overseas in 2017 and was been accepted to study at Stellenbosch University in 2018, but chose to continue working abroad for another year.
My other children are aged 7-17 and are still being home educated.
Three of my children have won national championships in gymnastics and two have represented SA at international competitions. Three of them have or are running home-based businesses. One is coaching at a robotics club run by an NGO and another one coaches gymnastics part time at a local gymnastics club.
Home education enables our family to enjoy healthy relationships and to give each of our children a customised education, with the goal of allowing them to develop their talents and interests, to reach their full potential and to equip them to function in society as self-supporting individuals. They will be able to and are already benefiting their community, rather than being a burden on society.
Although I attended meetings about home education with the DBE in 2015 in Pretoria, as a representative for the Pestalozzi Trust, it was disappointing to hear about the draft bill via social media, rather than via direct communication from the DBE as my details are on their list of homeschool stakeholders.
Even more disturbing was the DBE’s unwillingness to extend the due date for submissions as I have not had adequate time to fully study the implications of the proposed laws, to have time to research other laws that are also applicable to education in South Africa. This letter is written under duress to get it submitted in time for the legal deadline on 10 November.
I am objecting specifically to Section 25, the portion of the Bill that pertains to home education and which is intended to replace Article 51 of the SA Schools Act. I have not yet had time to study other portions of the Bill and therefore I may make further submissions hereafter.
I object to the following:
- Requirement to apply for registration to receive home education
The Bill says:
- (1) A parent of a learner who is of compulsory school going age may apply to the Head of Department for the registration of a learner to receive home education.
I believe the above is in direct conflict with Article 26 (3) of the Universal Declaration of Human Rights, which states:
“Parents have a prior right to choose the kind of education that shall be given to their children.”
Section 28 (2) of the South African Constitution (hereafter referred to as “the Constitution”) states:
A child’s best interests are of paramount importance in every matter concerning the child.
If parents are the primary educators of children, it therefore a parent’s right to choose the form of education that is in the best interests of her children. If she has to apply for permission to exercise this right, then her right to choose home education has been violated.
The limits of the role of the state
Article 5 of the United Nations Convention on the Rights of the Child (hereafter referred to as “UNCRC”) declares:
States Parties shall respect the responsibilities, rights and duties of parents or, where applicable, the members of the extended family or community as provided for by local custom, legal guardians or other persons legally responsible for the child, to provide, in a manner consistent with the evolving capacities of the child, appropriate direction and guidance in the exercise by the child of the rights recognized in the present Convention.
Therefore, the state should respect that parents are the primary educators of children and the state should only step in to provide education or any other social services for children when the parents fail to do so.
The Bill demonstrates the state exceeding the limits of its authority and responsibility and potentially usurping the role of responsible parents.
In Section 28 of the Constitution confirms that children have the right to education, and imposes the responsibility of ensuring that children’s rights are realised, on parents. It also places the responsibility for the child’s right to shelter, basic health care and nutrition upon parents.
Parents are responsible for basic health care and they may choose private health care or use state health care services if they choose. Parents are also primarily responsible for providing adequate shelter and nutrition and the state may only be called upon to ensure that these rights of children are realised, when parents are unable to fulfill these obligations.
Following the same logic, parents have the right to choose to use private educational services and home education, and as such, the right to choose which educational services to use, if they do.
Since the state does not require parents to apply for permission to exercise other parental duties, it is unconstitutional for the state to require parents to apply to register a learner to receive home education.
It could be argued that home education is the default form of education and public schooling should be provided for those children whose parents choose not to take up this responsibility!
Indeed, historically, public schooling for the masses is a relatively recent phenomenon!
I would like to propose that to assist the DBE in their task of ensuring that all children’s rights to receive education are fulfilled, that parents should rather be requested to NOTIFY the DBE that they are home educating their children and following educational programmes and/or activities that are in the best interests of the children, rather than be required to apply for approval to register their children for home education.
- The Head of Department is given powers to be satisfied or not, based on limited information in an application
The Bill states:
51 (2) The Head of Department must approve the application and register the learner as contemplated in subsection (1) if he or she is satisfied that
(a) education at home and registration as such is in the interests of the learner;
(b) the parent understands, accepts and is equipped to fulfil the responsibility of home education for the learner;
And
51 (7) The Head of Department must cancel a learner’s registration for home education if after enquiry, the Head of Department is satisfied that home education is no longer in the educational interest of the learner.
With regard to paragraph 51 (2) (a): Since the Head of Department is not at all acquainted with the child, how it is possible for him or her to know what is in the best interests of the learner? The Head of Department has no knowledge of the personality, history, health, abilities, disabilities, talents, gifts, goals or any other unique information relating to a child and his or her education and it is impossible to convey that depth of knowledge that a parent has about her own child, in an application form. It is therefore impossible for the Head of Department to decide what is in the best interest of the child. It is a violation to allow an official of the DBE to usurp this role of the parent.
With regard to paragraph 51 (2) (b): Since the Head of Department has no knowledge of the parent and his or her personality, ability, education, training, knowledge, life experience, talents, profession or any other unique information about that person, it is impossible for him to know in advance, whether or not the parent is equipped to fulfil the responsibility of home education for the learner or not.
In all other areas of responsibility and duty, such as shelter, nutrition, basic health care, personal safety etc. parents are assumed to be equipped to provide for the needs and best interests of their children and there is no evidence to suggest that the same should not be applicable with respect to the responsibility of providing for their children’s education at home.
In all other areas of responsibility, parents do not have to satisfy anyone that they are equipped to fulfill their obligations. They are assumed to be competent unless proven otherwise, in which case the state will step in to ensure the rights of the child are realised and protected.
Since the Head of Department will have no in-depth knowledge of the both the child and the parent, the requirement for him or her to be satisfied based on a mere application, will not be possible. The decision s/he makes with regards to these criteria is unlikely to be based on sufficient evidence and could easily be said to be based on a whim.
Section 51 (2)(a) and (b) of the Bill should therefore be removed.
Section 51 (7) suggests that if the Head of Department concludes that home education is not in the best interests of the learner that he can cancel the registration. This means that the child may be forced to attend a school which for various reasons may also not be in his or her best interests.
Conditions in many schools in South Africa are currently not in the best interests of any learners and there is no guarantee that the child’s right to education will be fulfilled in a system that is already failing to adequately educate many learners, according to international standards.
Children in South Africa may be going to school, but they are certainly not being educated the way they should be! Every survey testifies to this.[i]
3. The requirement that the proposed education programme must be comparable to the national curriculum
The Bill states:
“51(2)(c) the proposed home education programme is suitable for the learner’s age, grade level, ability and covers the acquisition of content and skills at least comparable to the relevant national curriculum determined by the Minister; and”
The national curriculum has never been tested and proved to be in the best interests of any children. It is a programme that divides information into graded levels for uniform delivery en masse to children that are grouped according to age in school classrooms.
The United Nations Convention on the Rights of the Child (UNCRC) Article 29 1. States Parties agree that the education of the child shall be directed to: (a) The development of the child’s personality, talents and mental and physical abilities to their fullest potential;
Since every child is unique and every child’s personality, talents, mental, physical abilities and potential varies, limiting curriculum choices to only those that match the content and skills of the national curriculum is a violation of a child’s right to receive a customised education and a violation of a parents right to choose the form of education in the child’s best interests.
It also seems very contrary to the spirit of the Constitution to give the Head of Department of the DBE the power to prevent children and their parents from accessing, at their own cost, educational systems and services which they believe to be preferable and beneficial for their own needs and their children’s best interests.
Again, I quote Section 28 (2) of the Constitution – A child’s best interests are of paramount importance in every matter concerning the child.
The best interests of the child are of paramount importance, not the desires of the DBE to use a system that is familiar to them to monitor and control the education of home learners.
Since the Head of Department has no knowledge of the individual child for whom the parent is applying for registration for home education, he is not able to decide whether the proposed educational programme is suitable for that child. He has insufficient grounds on which to decide what is the best interests of any child that he does not know intimately in the manner that a parent does!
In addition, this paragraph of the BELA Bill seems to imply that only approved curriculums which follow the CAPS system of the DBE are likely to get approved.
Favouring CAPs as the only curriculum option, in order to more easily fit homeschoolers neatly into the DBE’s administrative system, also goes against fair business practice. This would potentially create a monopoly for government approved providers which is against fair trade and competition and will limit choices and opportunities for home educated learners.
According to the Constitution, Section 16 (1), Everyone has the right to freedom of expression, which includes— (a) freedom of the press and other media; (b) freedom to receive or impart information or ideas; (c) freedom of artistic creativity; and (d) academic freedom and freedom of scientific research.
The requirement that the content of the educational programme must match the content of the national curriculum is a violation of academic freedom and the freedom to receive information and ideas which differ from those contained in the national curriculum.
No curriculum is value neutral and by promoting limited options, such as only CAPS-aligned curriculums, the constitutional freedoms of families would also be unreasonably limited.
Parents therefore should have the right to choose other educational programmes, which they believe to be most suitable for their children’s education. Their constitutionally-protected freedom of choice, according to their philosophies about learning, their values and religion, must be respected and protected.
This paragraph 51(2)(c) should be removed as it violates the rights of parents to choose what is in the best interests of their children and the right to freedom of expression enshrined in the Constitution.
4. A “competent assessor” must assess the child every year at the parents’ cost
The Bill states:
“51(2)(d)(iii) arrange for the learner’s educational attainment to be assessed annually by a competent assessor, approved by the Head of Department, at the parent ‘s own expense who will apply a standard that is not inferior to the standard expected in a public school according to the learner’s age, grade level and ability; and”
Since home educated children should have the right to pursue alternative educational programmes and not only the national curriculum, any form of standardised testing or assessment would not be in the best interests of a child, who is not following the national curriculum.
Standardised testing and assessment may also not be in the best interests of a child who IS following the national curriculum!
There is a growing body of research which shows that testing places unnecessary stress on young children which hinders learning. It also places a burden on parents to teach for the test.
The BELA Bill does not explain the purpose or possible consequences of these assessments. What would happen if a home educated learner were to fail the assessment test?
In the school system, learners may only fail once per phase and must then be progressed each year, regardless of whether they pass or not, until they fail again in the next phase. Is this the standard to be applied to home learners too or would they be discriminated against and forced to place the child in the school system if the child fails?
Does the already cash-strapped DBE have the funds required to pay the salaries and office space of the staff that would be required to process all these assessments?
This requirement also places an unnecessary burden of cost on families, who are already bearing the full cost of their children’s education and thereby saving the state the R12 000 per annum[ii] that it costs the state to have a child attend a public school.
51(2)(d)(iii) should be removed as it violates the rights of parents to choose what is in the best interests of their children and places unnecessary costs on families, which cannot be justified.
5. Requirement to register for the Senior Certificate Examination
The Bill says:
“51(6) A parent of a learner who wishes to continue with home education after the learner has completed grade 9, must make use of the services of a private or independent service provider accredited by Umalusi, established in terms of section 4 of the General and Further Education and Training Quality Assurance Act. 2001 (Act No. 58 of 2001), to register for the Senior Certificate Examination through an independent or private assessment body.”
The wording of this paragraph is ambiguous in multiple ways and could easily be misinterpreted to the detriment of home educated learners who choose NOT to write the National Senior Certificate examination.
Once again I refer to the following:
Section 28 of the South African Constitution (hereafter referred to as “the Constitution”) deals with children’s rights. Of importance is section 28 (2), which states:
(2) A child’s best interests are of paramount importance in every matter concerning the child.
and
Article 26 (3) of the Universal Declaration of Human Rights, which South Africa has ratified, states:
“Parents have a prior right to choose the kind of education that shall be given to their children.”
At face value, section 25 (6) of the BELA Bill appears to violate the right of parents to choose the form of education that may be in their children’s best interests as it seems to limit the options to only one, namely, the National Senior Certificate.
Parents have the right to choose the education that is in the best interests of their child. Therefore, it should be clear that the right to choose international qualifications as an alternative to a South African matric should be possible and welcomed.
Since schooling is not compulsory after grade 9 or from age 16 onwards, there should be no restrictions placed on the educational options of children beyond this age and grade.
The cost of using independent service providers accredited by Umalusi is prohibitive to many families who choose home education.
Further, giving such service providers a monopoly, does not encourage a fair trade or fair market price for their products and services, instead it facilitates collusion and price setting.
If parents have the right to choose home education and self-study for children in grades 1-9, which is their right, then likewise, they should continue to have this same freedom in grades 10-12. Self-study at home should be allowed.
This requirement violates the right to freedom of choice and access to information and academic freedom
According to the Constitution, Section 16 (1), Everyone has the right to freedom of expression, which includes— (a) freedom of the press and other media; (b) freedom to receive or impart information or ideas; (c) freedom of artistic creativity; and (d) academic freedom and freedom of scientific research.
The Constitution of South Africa protects the freedom of individuals with respect to belief and opinion, freedom of movement, professional choice and access to information etc.
Any proposed law that would limit any of the above choices, must be found to be just and reasonable, and there seems to be no just reason to limit an individual’s choice of grade 12 qualification to only the option of the National Senior Certificate. International qualifications may facilitate freedom of movement of individuals seeking opportunities in other countries.
Requiring families who choose home education for grades 10 to 12 to use only the National Senior Certificate as their school leaving qualification is a violation of the right to access other information and ideas and academic freedom.
It is also a violation of the right to equality enshrined in section 9 of the Constitution. If children at schools have the option to pursue international qualifications, then home educated learners should have equal opportunity.
For the above reasons, this paragraph should be removed.
- Appeal processes may be detrimental to children’s education
51 (8) The Head of Department may not cancel the registration of a learner for home education before- (a) informing the parent of his or her intention so to act and the reasons therefor; (b)granting the parent a reasonable opportunity to make representations to him or her relating to such intention; and (c) giving due consideration to any such representations received.
(9) A learner or the parent of a learner may appeal to the Member of the Executive Council, within 14 days of receiving notice, if a Head of Department- (a) declines the application to register for home education; or cancels a learner’s registration for home education
The legal procedures described above could be lengthy and administratively intensive and could jeopardise the best interests of a child. If a child is experiencing trauma of any kind in a school situation, for example, emotional, psychological trauma, labelling, bullying or prejudice of any kind, it could be harmful to leave a child in that situation while these processes are being followed.
A parent also may not have had time to research options such as the educational programme that will be followed and this could jeopardise the requirements to be met in order to get approval.
There are possibly many other impractical consequences of the ‘red tape’ and legal processes which might not be in the child’s best interests and may cause stress and trauma to both parents and children alike.
The time constraint for meeting the deadline for the submission of this letter does not allow me to fully consider all the possible scenarios that there could be, but I would like to make mention that there are issues here regarding the length of time for applications, cancellations and appeals in Sections 51 (1), (8) and (9) that need to be reconsidered.
7. Prosecution
In addition, Clause 2 (a) of the Bill, which deals with the amendment to Section 3 (6) of SASA (p.50) states that a home educating parent may now be jailed for 6 years.
“3(6)(a) any parent who without just cause and after a written notice from the Head of Department, fails to comply with subsection (1), is guilty of an offence and liable on conviction to a fine or to imprisonment for a period not exceeding six [months] years, or to both such fine and such imprisonment; or”
In blunt language, this paragraph is complete “overkill”.
6 years is the jail sentence that Oscar Pistorius received when he was convicted of murder!
For the reasons set out in this letter above, it is highly likely that many home educating parents will find that it is not in the best interests of their children to hand over their responsibility to choose the form of education for their children to the Head of Department, by applying to register for home education.
Given the current state of education in South Africa, parents have very little confidence in the DBE to act in their children’s best interests. Evidence of this is the growing number of private schools and the huge growth in civil education (i.e. cottage schools and private learning centres) as well as the growth in the home education movement.
For more than 20 years, families in South Africa have been successfully home educating their children with very little state interference or oversight. Parents who choose home education are generally responsible, proactive, caring, involved parents who have their children’s best interests at heart and are willing to make sacrifices to pursue home education.
The threat of harsh punishment and the fear of the trauma of prosecution and the potential consequences, is not going to improve the quality of home education. On the contrary, there is a greater risk that this will result in parents making choices which they believe are more likely to earn the approval of the Head of Department, rather than choosing what is in the best interests of their children, which is what the Constitution dictates is paramount!
This paragraph needs to be removed. The Children’s Act already provides mechanisms for dealing with educational and other forms of neglect or abuse of children. There is no need for the SA Schools act to impose further laws or punishments to deal with this.
Except in cases of severe neglect, keeping families together is usually always in the best interests of children! Jail time for parents should not even be mentioned.
This paragraph needs serious revision.
Conclusion
Since home education representatives and stake-holders were not consulted in the drafting of this Bill, I believe that the sections pertaining to home education do not respect or protect the constitutional rights of parents and the freedom that the Constitution affords them.
The Bill violates my right as a parent to choose the form of education that is in my children’s best interests. At birth, and when I registered my children with the department of home affairs and declared that I am their parent, I undertook to fulfil my duty to provide my children with shelter, nutrition, basic health care and education, which are among their Constitutional rights. It is not in their best interests for me or other home educating parents to give this responsibility to any other person, while we are capable of and willing to fulfil this responsibility.
The requirements for registration for home education set out by the Bill are impractical given the vast range of values, philosophies, beliefs and practices of home educating families. They are unreasonably restrictive and potentially harmful to the best interests of the majority of children whose parents choose home education. They violate the rights and the freedoms that the Constitution and other international bodies of law such as the UNCRC and Universal Declaration of Human Rights protects:
- Section 28 (2) of the South African Constitution states:
A child’s best interests are of paramount importance in every matter concerning the child.
- Article 26 (3) of the Universal Declaration of Human Rights, which South Africa has ratified, states:
“Parents have a prior right to choose the kind of education that shall be given to their children.”
- Article 5 of the United Nations Convention on the Rights of the Child (UNCRC) declares:
States Parties shall respect the responsibilities, rights and duties of parents
The Constitution declares that the best interests of my children are paramount and the UNCRC confirms that it is my prior right to choose the kind of education that my children shall be given and that state parties shall respect the responsibilities and duties of parents and not attempt to usurp them.
As it stands, Section 25 of the BELA Bill which deals with the Substitution of section 51 of the SA Schools Act 84 of 1996, pertaining to home education, violates all the above provisions and should therefore be scrapped in its entirety until the DBE consults properly with home educators and can formulate provisions which accommodate and respect the rights and responsibilities of all parents and the freedoms of all citizens provided for in the Constitution.
Thank you for your attention to this matter.
Yours sincerely
Shirley Erwee
References
[i] Nic Spaull, Education in SA: A tale of two systems, 31 August 2012, http://www.politicsweb.co.za/politicsweb/view/politicsweb/en/page71619?oid=323272&sn=Detail, accessed 9 November 2017
[ii] Ibid
On 30 July 2018 the Department of Basic Education (DBE) published a press release announcing that the amended draft policy on home education had been approved for promulgation by the Minister.
Co-incidentally, on the same day, the Pestalozzi Trust published a press release at the link below:
On 31 July, the ACDP published the following statement on their Facebook page in support of the home education movement’s cause:
30 July – The Sowetan – 
Adv Megan Puchert made some very clear comments about the policy. She highlighted that she was being asked to respond to a policy that she had not yet seen as it had not yet been published or promulgated yet. She discussed many of the concerns that home educators have with the guidelines for monitoring and controlling home educating families.
DRAFT POLICY ON HOME EDUCATION – Comment on the Policy
