Bye Bye BELA Bill – Vote NO, this Bill must GO!

The BELA Bill is the Basic Education Laws Amendment Bill, and is an attempt to make amendments to the South African Schools Act (SASA) of 1996.

The Department of Basic Education (DBE) claims that the BELA Bill seeks to align the SASA to the other existing laws of South Africa, and that they will ensure that the BELA Bill is transformative and promotes social cohesion.

However, although these sound like noble ideals, the BELA Bill does not, in its current form, address the inherent challenges in education, and all it really seems to achieve is to strengthen the administrative capacity of the Minister of Basic Education to make broad policy decisions.

The Bill has been in the spotlight since October 2017, when the DBE first published the amendments for public comment.

On Sunday, 1 October 2023, the DBE held a press briefing in which Minister Angie Motshekga announced that the BELA Bill, S‑List had been adopted, and that after ten years of working on it and consulting with all the stakeholders it would imminently become law.

Many who participated in the Public Participation Process including written submissions and attending the Public Participation Hearings feel that the views of the public are not adequately reflected in the current version.

It is important to note that the BELA Bill is not yet written into law.

The Bill must still be deliberated at the National Assembly as well as in The Council of Provinces. During this process, there might be another possibility for public participation.

It is the right of every single parent to be able to decide what is the most suitable and ideal educational route for their child. Nobody understands the educational needs of children better than their own parents. This is a principle that must be steadfastly defended and respected, yet the government seems unwilling or unprepared to accept this, and thinks they have a monopoly on how our children are educated.

In the home education community, the contentious problem of the BELA Bill is not a new one. Families new to home education that have entered the playing field due to the COVID-19 pandemic over the past few years have come to see that home education legislation is not supportive, and if the BELA Bill is passed as law in its current form, thousands of home educating families’ choices will be severely impacted.

This proposed Bill is the first major revision of the post-Apartheid education landscape and will likely shape that landscape for the next 10 to 15 years.

If you have a child in school or who will be starting school in that period, the BELA Bill will impact you. South Africa’s public basic education system is one of the most dysfunctional in the world. Taking more power away from parents and placing that power in this system is misguided, irresponsible and quite frankly, a disservice to our country’s youth.

Sadly, given what the vast majority of South Africans currently experience on a daily basis, there is no reason why parents or guardians would allow any legislation that would extend control of their children’s education and limit their alternatives and options. Government needs to earn our trust and justify any measures or legislation they put in place.

The rights and well-being of children must be protected. However, parents and guardians of South African children need proper information pertaining to the legal framework of any proposed legislation.

One of the major concerns with regard to the BELA Bill is that it grants open-ended powers to government without proper definitions, references and detail describing the method in which the proposed regulations will be enforced.

What protocol would permit a school inspector to demand access to a private home in order to inspect how a child is being educated there? What parameters would be used to assess and oversee that home-school? Taking into account that an inspector visiting such a home may not even be able to discern whether education is taking place there. This stipulation in the Bill proposes that a private home is an extension of the formal school system where an inspector would have a mandate to inspect it.

So this is just one example why home education, for example, cannot be covered by a simple clause added to the South African Schools Act. Yet, that is exactly what the BELA Bill proposes. Clause 37 35, on home education, seeks to restrict curriculum choice for home schoolers and subject them to much closer monitoring and regulation. Home schoolers are, therefore, opposing this vigorously and have been the most vocal and organized opponents of the Bill. It is most probably testament to their political acumen that much of the coverage that the Bill has received has been about home-education. It is also the reason that many parents in the general school community think of the Bill as a home-education bill.

The Bill will, however, significantly reshape the education landscape, not just for the roughly 50,000 home- schoolers, but also for the more than 12-million learners in public schools across the country.

Some of the other key areas of concern are regulations that will affect school governing bodies, admissions and language policy, provision for the sale of alcohol (clause has been removed), no provisions for alternative curricula, legislation of Grade R as the starting age and much more (more details about this in the sections that follow).

All in all, the BELA Bill should be discarded, and two separate Bills drafted: one to cover the changes to the South African Schools Act, and another to address Home Education as well as all other modalities of education that have sprung up over the past three years and which have not been brought into consideration by the BELA Bill.

The purpose of the referendum is to pressure the government into rejecting the BELA Bill in its entirety.

Due to the fact that it hasn’t been properly researched, contains controversial proposals (such as the fact that one language of education could be prescribed for all schools) provides open-ended power to the minister to create regulations without any supporting information as to what the procedure and scope of the regulations will be, and fails to take into proper consideration the variety of educational options that are currently in use and the reasons that they have come about (e.g. home-education).

Instead, government should revise the BELA Bill, and adopt a fair, transparent, and thorough approach that includes systematic public engagement.

There is clearly insufficient research on the impact of this Bill. 

A socio-economic study should be done, together with studies on how children learn best, on how to address skills requirements for the current working world in education today, and so forth.

To add insult to injury, the Minster of Basic Education has admitted to the Portfolio Committee that the Department of Basic Education (DBE) has no research on Home Education.

The Socio-Economic Impact Assessment (SEIA) that was done, for example, does not meaningfully and comprehensively describe the impact of the Bill on the home education sector.

This means that the public is required to comment on a Bill with incomplete information.

The rights and well-being of children must be protected. However, parents and guardians of South African children need proper information pertaining to the legal framework of any proposed legislation.

One of the major concerns with regard to the BELA Bill is that it grants open-ended powers to government without proper definitions, references and detail describing the method in which the proposed regulations will be enforced.

In respect to Clause 37 35 (3), what protocol would permit a school inspector to demand access to a private home in order to inspect a home school? What parameters would be used to assess and oversee that homeschool?

Amendments must be in line with Freedom Charter, Constitution and every other existing law.

Comprehensive Sexuality Education (CSE) is not specifically mentioned in the BELA Bill.

Our concern, however, is that Clause 41 39 of the Bill allows for the Minister to regulate learner Pregnancy. Ministers usually make regulations that align with promulgated policy.

CSE, as part of the national curriculum, is already being taught via Life Orientation, and is included in The Policy on the Prevention and Management of Learner Pregnancy in Schools.

There is, therefore, a strong possibility that CSE could be included in the regulations drafted under 41 39, as CSE is stipulated within The Policy on the Prevention and Management of Learner Pregnancy in Schools. 

In addition, the BELA Bill states that curriculums need to be comparable to the national curriculum in standard which then implies all education facilities must, at minimum, cover the same content.

That is why we say that the BELA Bill could mean that all schools (and parents who have opted for home education) will have to follow the same curriculum, which may include “Comprehensive Sexuality Education.”

Would you like to have someone make rules that impact your family and your children’s future without your having any say in it?

The public must be assured of their right of participation in making any future amendments to the BELA Bill as per the Freedom Charter and other relevant legislation and regulations.

After the Public Participation Hearings and comments deadlines have passed, our referendum is a way for South Africans, some of whom may have been unable to attend the hearings or not known they had a right to comment, to continue to give voice to their feelings and opinions on a matter, and a way for that opinion to be counted!

If the BELA Bill is enacted, a single CAPS curriculum is on the cards for ALL schools and home schools, with a one-size-fits-all scenario, effectively setting up a centralized system of education.

Curricula such as the Cambridge syllabus or other approaches such as Waldorf, Montessori, or self-directed learning are not catered for, and the right to use these curricula will not be protected.

This is in line with the United Nation’s 2030 sustainable development goals, which the South African government has signed, that all must be equal.

The Bill will restrict families to the national curriculum only, undermining the choice of different curriculums and making it difficult to adapt home education to the needs of individual children, especially children with special needs.

Parents could face fines, or twelve months in prison, for minor transgressions.

The BELA Bill uses inappropriate penalties to enforce stringent registration conditions designed to make home education, for example, impossible, with no basis in research.

Home education and other non-school education modalities must be regulated outside the South African Schools Act (SASA) with a fair framework based on research and collaboration.

According to Section 2 (b), if parents don’t comply with government regulations (regulations that aren’t even defined in the Bill) they could be fined and/​or jailed.

The Department must undertake to improve equality in education. Parents should not be criminalised but rather be engaged with, when problems arise with attendance, choice of curriculum or method of assessment.

Criminalising the right to choose through the addition of Clause 41 39 starts looking like the apartheid-era education. Parents were jailed then, and their children sent to orphanages. Are we going to allow that again?

How can imprisonment of parents be in the best interests of a child? Surely, this violates the rights of a child?

The BELA Bill proposals provide for the Minister of Education to make regulations on home education, which have to be obeyed according to Section 51(16) of the Home Education Clause (37 35).

Thus, Home Education is being regulated, whereas insufficient research has been considered, nor meaningful engagement has occurred with the home-education community.

Home-educators will have to cover content and skills comparable to CAPS when educating at home, according to Section 51 (2aiii) of Clause 37 35 thus no other curricula is acceptable.

Assessments will also be required to be done annually after each phase by a registered South African Council for Educators (SACE) assessors and parents are required to pay for these assessors according to Section 51 (2biii) of Clause 37 35, which could make Home Education unaffordable for some parents. The costs are not even known as they did not form part of the Socio-Economic Impact Assessment (SEIA), but some estimates work out to around R600 per month per subject.

These assessments have been drafted so that Home Education is required to meet a standard that government schools are not even meeting, by CAPS certified teachers, trained in a classroom environment – instead of assessors who are familiar with home-education.

The public’s right to privacy will be breached as parents will not be able to refuse a home visit from the Department of Education, according to Section 51 (3) of Clause 37 35. The issue is not that home schools should not be inspected, but rather that there should be regulations in place that govern these inspections such that our constitutional and human rights are respected.

Furthermore, the Bill makes no provision for cottage schools, micro-schools, collaborative home education, and shared workspaces, which means these would be illegal, should the BELA Bill be enacted.

Home Education, learners with special education needs (LSEN), rural education, and new education modalities should be accommodated in a new education architecture, in line with the Children’s Act, Child Justice Act, international law, and best practices.

The United States experience shows that more regulation does not improve education outcomes.

The South African Schools Act is not suitable for regulating home education which is, by definition, completely different in structure.

And at the end of the day, Clause 37 35 is actually just a rehash of the failed 2013 Home Education policy of the Western Cape Education Department (WCED), so how is it that we are even being presented with it once more?

In the last years of the apartheid régime, and into the first years post-1994, the School Governing Body (SGB) went from a group of people raising money through cake sales for the U‑12 hockey team to a company-like board of directors charged with running almost every aspect of the school.

According to Section 5c, the BELA Bill now seeks to limit some of those powers, especially in the setting of the language and admission policies of the school and, instead place this power in the hands of provincial heads of education, thus centralising the power which currently rests in the hands of democratically elected school governing bodies, not with the state.

This could mean forcing schools that are already at capacity to admit more children – considering we do not have enough schools as it is, plus the department is closing hundreds of schools in rural communities. It could mean schools being forced to change the language of instruction entirely, depending on the DBE’s decision. And, it could also mean that, instead of those schools who have the means of procuring their own textbooks doing so, as they have done up to now, this will be done through a centralised procurement system. Not only does that mean that teachers have no more flexibility in the literature learners are exposed to, but it could also lead to shortages and delays. Recall the 2012 Limpopo textbook debacle – it would be that, on a nationwide scale.

SGB’s that are running schools efficiently, according to their good conscience, in line with their constitutional obligation and ability, should not be treated punitively and hindered in performing their roles though interference by the HoD’s. The DBE should rather focus on training and equipping schools that are not performing adequately and provide resources to upgrade schools where necessary.

Abortion is not mentioned in the BELA Bill.

Our concern, however, is that Clause 41 39 of the BELA Bill allows for the Minister to regulate learner Pregnancy. Ministers usually make regulations that align with promulgated policy.

The Policy on The Prevention and Management of Learner Pregnancy in Schools (2021) states that its goal is to provide, “as necessary”, the ability to “obtain abortions”. 

According to the Children’s Act 38 of 2005, children are entitled to obtain abortions without parental consent, from age 12. 

The Policy on The Prevention and Management of Learner Pregnancy in Schools states that all pregnant learners have the right to access, or be referred, to the Sexual Reproductive Health (SRH) services as set out in the Children’s Act of 2005.

The same policy document states that no person within the basic education system will disclose information relating to a pregnant learner without their written consent if they are older than 12 years old.

Clause 41 39 of the BELA Bill also states that anyone who fails to comply with any regulations created by the Minister is guilty of an offence and liable, on conviction, to a fine or to imprisonment for a period not exceeding six months, or to both a fine and such imprisonment.

That is why we say that the BELA Bill provides for the forcing of teachers/​educators to facilitate the provision of abortions to children 12 years and older without their parents’ consent.

The below is an open letter sent from educators to educators, surrounding the implications of the Basic Education Laws Amendment Bill, highlighting specific professional concerns.

In the past, it was required that the Minister’s powers to create regulations be “prescribed”. 

The proposed BELA Bill, however, now “prescribes” in such an open-ended way as to make the word “prescribed” meaningless. Please refer to Clause 41 39 of the BELA Bill, which amends Clause 61 of the SA Schools Act and would allow unprescribed regulation of the minimum norms and standards for provincial teacher development institutes and district teacher development centres, as well as of the organisation, roles and responsibilities of education districts.

In addition, ministerial powers are significantly enlarged throughout the Bill as follows:

Admissions Policy

The governing body of a public school must submit the admission and language policies of the public school to the Minister for approval.

The Minister will have final authority with regard to the admission of any learner to a public school. 

Language of Instruction

The Minister may direct a public school to adopt more than one language of instruction.

The governing body must review language policy at the request of the Minister.

Curriculum

The Minister must have the authority to appoint a person, an organisation or a group of persons to advise on curriculum and assessment-related matters. 

Ambit of Education — Schools of Special Interest

The Minister may designate that public schools focus on a specific talent and also, determine the norms and standards with which those schools must comply.

Mergers and Consolidations

The Minister must regulate the merging of public schools. 

Procurement

The Minister must provide for centralised procurement of identified learning and teaching support materials for public schools and regulate the withdrawal of this function from school governing bodies. 

School Governing Bodies

The Minister will be entitled to dissolve a governing body that has ceased “to perform its function”. 

The Minister, and not the Member of the Executive Council, will determine the election of members of governing bodies of public schools. 

Financial Control And Administration

The Minister may regulate and refine matters relating to the budget and financial management of a public school. 

The Minister may conduct an investigation into the financial affairs of a public school. 

The governing body of a public school must submit quarterly reports on all income and expenditure to the Minister. 

The Minister must empower the Member (sic) of the Executive Council to determine conditions when granting a subsidy to an independent school and to provide for financial reporting, by such subsidised independent schools. 

The Minister will decide on any exemptions from the payment of school fees.

Penalties

The Minister may increase the penalty provision in the case where a person establishes or maintains an independent school and fails to register it. 

The Minister may create an offence where a parent supplies a public school with false or misleading information or forged documents when applying for the admission of a learner.

The Minister may penalize any parent or any such person that are responsible for children not being enrolled for Grade R at age seven (7) and not remaining in school until fifteen (15) years of age. 

Individuals who fail to comply with a written notice from the Minister with regard to the above will be deemed guilty of an offence and liable, on conviction, to a fine or to imprisonment for a period not exceeding twelve (12) months, or to both a fine and such imprisonment.

Home Education

The Minister may regulate home education. 

Dispute Resolution

The Minister will provide for a dispute resolution mechanism in the event of a dispute between the Head of Department or the Member of the Executive Council and a governing body. 

Governance

The Minister will regulate the liability of the State for delictual or contractual damages.

The power of the Minister to make regulations, and to provide for offences will be extended.

Although the above summary is comprehensive, but not not exhaustive, it is offered to provide an insight as to how all pervading and wide reaching the ministerial powers will be if this Bill is allowed to pass in its current format.

Updates are sorted latest-first:

26 October 2023

The Bill has now been debated and adopted by the National Assembly (NA). It must now be served before the National Council of Provinces (NCOP).

Here, opposition parties will hopefully put up more of a fight. 

The NCOP can adopt the Bill without amendments, adopt an amended Bill, or reject it in its entirety. 

• If it is adopted without amendments, it will be submitted to the President for approval. 

• If the NCOP rejects the Bill or if the NA refuses to accept the NCOP’s amended version, the case will be referred to the Mediation Committee (MC).

• If mediation fails, the Bill will be referred to the NA within 30 days, where a two-thirds majority is required for adoption. The Bill will then be referred to the President for his signature before it takes effect. The President can also determine a date from which the stipulations will take effect. 

Should the President have concerns over the constitutionality, he may refer the bill back to the NA and the NCOP for reconsideration. If a reconsidered BELA Bill accommodates concerns raised, he may sign and approve it. If it does not accommodate his concerns, he may refer it to the Constitutional Court for a ruling on constitutionality. 

In short, it is safe to say that BELA Bill is still far from becoming a law.

Our thanks to Dr Jaco Deacon and FEDSAS for this informative summary.

The first set of public hearings has been scheduled for Mpumulanga as follows: 

Thursday 23 November 2023, 10am – 1pm
Nkangala District, Mpumalanga
Mmametlhake Community Hall
Dr J.S. Moroka Local Municipality

Wednesday, 29 November 2023, 10am – 1pm
Gert Sibande District, Mpumalanga
Vukuzakhe Community Hall (Mavuso St, Vukuzakhe, Volksrust, 2470)
Dr. Pixley Ka Isaka Seme Local Municipality

Thursday, 30 November 2023, 10am – 1pm
eHlanzeni District, Mpumalanga
Jeppes Reef Community Hall
Nkomazi Local Municipality

Written Submissions

The public may now send written submissions by email to [email protected] for Mpumulanga. The deadline for this opportunity is 31 January 2024. 

30 August 2023

The next phase of the process will be another round of public comment in the National Council of Provinces (NCOP). Here, you will have the chance to put forward your concerns. Please consider making your voice heard at this round of public participation hearings around the BELA Bill in order to allow for more thorough consultation with schools, educators and parents.

Of huge concern is the recent approval of a draft report concerning public submission, wherein 9,501 submissions were uncounted.

Based on statistical analysis of the counted submissions, between 87.3% and 94.82% of the uncounted submissions are likely to be against the BELA Bill.

Political parties and organisations have published their intention of pursuing every possible recourse that they may have, in order to prevent the BELA Bill from being passed in its entirety.

Yesterday, on 29 August – after seeking legal advice – the Portfolio Committee on Basic Education (PCBE) decided that these submissions must be processed. Proceeding with deliberations before taking the content of the unprocessed public submissions into account may be unconstitutional, according to the legal advice they received. A big task lies ahead if these 9,501 submissions are to be analysed before next week, when the PCBE reconvenes.

7 August 2023

An update on the BELA Bill timeline from Councillor Marie Sukers of the ACDP:

Draft reports for the Northern and Eastern Cape were tabled on Tuesday, 1 August 2023 before the Portfolio Committee For Basic Education for adoption. 

The clause-by-clause deliberations will take place from 15 to 18 August 2023, when the committee will meet in person to deliberate on all 56 clauses, and prepare a report for tabling to the House, where the Bill will be voted on. 

Please keep the proceedings in prayer, and continue to apply pressure on members of the committee to be aware of your concerns and recommendations on the current Bill before deliberations start!

The Portfolio Committee for Basic Education (PCBE) approved the BELA Bill, even though their public participation campaign proved people don’t want the BELA Bill at all.

But don’t stress guys.

The Bill still has to pass through the National Assembly and the National Council of Provinces (NCOP).

And, the PCBE is actually snookered (in a very tight spot). Either they’re forced to back down due to pressure from the court of public opinion, finding against them, or, they end up in the “real” courts, because legal action has been threatened by Solidariteit, SAOU, and FEDSAS (see below).