An Open Letter: Educator Engagement around the BELA Bill

Insertion of section 4A in Act 84 of 1996

3. The following section is hereby inserted in the South African Schools Act, 1996, after section 4: ‘‘Monitoring learner attendance 4A. (1) The educator, principal and governing body are responsible.

Amendment of Section 6 of Act 84 of 1996

5. Section 6 of the South African Schools Act, 1996, is hereby amended — (a) by the substitution for subsection (2) of the following subsection: ‘‘(2) The governing body of a public school may, subject to subsection (13), determine the language policy of the school subject to the Constitution, this Act and any applicable provincial law: Provided that the language policy of a public school must be limited to one or more of the official languages of the Republic as provided in section 6(1) of the Constitution.’’

Amendment of Section 5 of Act 84 of 1996, as amended by section 2 of Act 50 of 2002

4. Section 5 of the South African Schools Act, 1996, the Head of Department, after consultation with the governing body of the school, has the final authority, subject to subsection (9), to admit a learner to a public school; (b) the governing body must submit the admission policy of a public school and any amendment thereof to the Head of Department for approval; © the Head of Department may approve the admission policy of a public school or any amendment thereof, or may return it to the governing body with such recommendations as may be necessary in the circumstances, together with reasons for such recommendations.

Amendment of section 33 of the South African Schools Act, 1996 by Section 27

(4)(a) The Member of the Executive Council may, by notice in the Provincial Gazette, close a public school if, in the case of a primary school, 135 or fewer than 135 learners are registered at that school, and, in the case of a secondary school, 200 or fewer than 200 learners are registered at that school: Provided that the provisions of this subsection do not apply where the Member of the Executive Council has, before the commencement of the Basic Education Laws Amendment Act, 2022, acted in terms of subsection (2).

This is also outlined in the Schools Rationalisation and Rehabilitation Programme (SRRP) where is deals with the closure and merging of schools.

At the KZN Hearings the DBE announced their intention to close over 900 ‘non-viable’ schools in KZN by 2028 – citing the DBE’s constitutional responsibility to provide quality education to learners. The figure is apparently close 3,000 school nation-wide.

The intention is for the learners of those schools to be merged with so-called ‘viable’ schools.

It is alleged that educators will be redeployed to other schools. Uncertainty, however, exists around the jobs of support staff.

The DBE claims that the affected communities have already been engaged. Furthermore, the DBE says learners will be accommodated in so called viable schools which in turn, according to them, will be upgraded to increase their capacity.

Members of the public have raised concerns around the safety of young children having to rely on public transport to attend school. Questions have also been asked as to whether a strategic impact analysis study (SIAS) has been conducted around this.

The BELA Bill does not make any alternative suggestion as to how educators may deal with learners who exhibit challenging behaviour. One SADTU member suggested many teachers lacked sufficient knowledge to understand how learners with special needs (LSN) and neurodivergent learners needed a more lenient framework with which to assist both educators and learners with extreme behaviours and that they felt that the BELA Bill didn’t fully take into account the context in which educators needed to manage learner behaviour.

Teachers need additional training and professional development in order to acquire more effective strategies for classroom management. Teachers are not adequately empowered to handle more challenging behaviours.

Should the BELA Bill be passed in its current format, educators will be at risk of facing disciplinary action, including fines and/​or being imprisoned for up to six months.

Amendment of Section 8 of Act 84 of 1996, as amended by Section 4 of Act 50 of 2002, and Section 6 of Act 31 of 2007

7. Section 8 of the South African Schools Act, 1996, is hereby amended— (a) by the substitution for subsection (1) of the following subsection: ‘‘(1) Subject to the Constitution, this Act and any applicable provincial law, a governing body of a public school must adopt a code of conduct for the learners after consultation with the learners, parents and educators of the school.’’

Amendment of Section 9 of Act 84 of 1996, as amended by Section 7 of Act 48 of 1999, Section 2 of Act 24 of 2005 and Section 7 of Act 15 of 2011.

9. Section 9 of the South African Schools Act, 1996, is hereby amended by the substitution for subsection (1) of the following subsection:
   
   ‘‘(1) (a) The governing body may, on reasonable grounds and as a precautionary measure, suspend a learner who is suspected of serious misconduct from attending school, but may [only] enforce such suspension only after the learner has been granted a reasonable opportunity to make representations to it in relation to such suspension.
   (b) Serious misconduct by a learner is defined as—
   (i) physical assault of a learner, employee, or other person related to the school, with the intention to cause grievous bodily harm, or the imminent threat to commit such an act, while on school premises or during any school activity, or in any circumstance that could reasonably be connected to the school;
   (ii) any form of harassment, including sexual harrassment of a learner, employee or other person related to the school, including via electronic and social media;
   (iii) repeated offences related to bullying, or the imminent threat to commit such an act;
   (iv) the illegal possession of a drug or liquor;
   (v) the repeated disruption of the school programme, or the imminent threat to commit such an act;
   (vi) serious transgressions relating to any test, examination or examination paper;
   (vii) fraud;
   (viii) theft or any other dishonest act to the prejudice of another person;
   (ix) the possession of a dangerous object while on school premises, or during any school activity, or in any circumstance that could reasonably be connected to the school;
   (x) the possession or distribution of pornographic material;
   (xi) engaging in sexual activity on school premises or committing an act of sexual assault, or the imminent threat to commit such an act; and
   (xii) any other serious act contemplated in Schedule 1 to the Criminal Procedure Act, 1977 (Act No. 51 of 1977), that prejudices the constitutional rights of learners, employees or other persons related to the school.’’.

Amendment of Section 10 of Act 84 of 1996

10. Section 10 of the South African Schools Act, 1996, is hereby amended by the substitution for subsections (1) and (2) of the following subsections: ‘‘(1) [No] Corporal punishment is abolished and no person may [administer] inflict or impose corporal punishment [at a school] to a learner at a school, during a school activity, or in a hostel accommodating learners of a school. (2) Any person who contravenes subsection (1) is guilty of an offence and liable on conviction to a [sentence which could be imposed for assault] fine or to imprisonment for a period not exceeding 12 months, or to both a fine and such imprisonment.’’

Amendment of Section 8A of Act 84 of 1996, as inserted by Section 7 of Act 31 of 2007

8. Section 8A of the South African Schools Act, 1996, is hereby amended— (a) by the substitution for subsection (1) of the following subsection: ‘‘(1) (a) Unless authorised by the principal for legitimate educational purposes, no person may bring a dangerous object or [illegal] a drug onto school premises or have such dangerous object or drug in his or her possession on school premises or during any school activity. (b) No person may bring liquor onto public school premises, or have liquor in his or her possession, or consume or sell liquor on public school premises, or during any public school activity. © Notwithstanding the prohibition contemplated in paragraph (b)— (i) the Head of Department may, upon application from the governing body to supplement the resources of the school, permit the possession, consumption or sale of liquor during any school activity, whether it is held on or away from the school’s premises.

Amendment of Section 61 of Act 84 of 1996, as amended by Section 5 of Act 53 of 2000 and Section 9 of Act 50 of 2002

According to section 41: Section 61 of the South African Schools Act, 1996, is hereby amended by the insertion after paragraph (a) of the following: 

(aA) on the management of learner pregnancy; 

(b) by the addition of the following subsection, the existing section becoming subsection (1): ‘‘(2) The regulations contemplated in subsection (1) may provide that any person who contravenes a provision thereof or fails to comply therewith 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.’’.

If one reads the BELA Bill alongside the Bill of Health and the Policy on the Prevention and Management of Learner Pregnancy in Schools, it then implies that educators should refer learners to clinics for Sexual Reproductive Health (SRH) services, which include the prescription of contraceptives and referrals for abortions for learners from the age of 12, without parental consent.

As it currently stands, educators are compelled to advise learners according to the following protocols outlined in the policy on learner pregnancy management, educators must –

• treat learners with absolute confidentiality

• refer learners for medical treatment, and

• treat learners according to these protocols or face penalties which include being fined and/​or being imprisoned for up until six months

This policy places learners who have been impregnated by educators at risk, because the other educators would effectively be silenced and be unable to report the sexual misconduct of their colleague.

Many of the SADTU members at the public hearings said that “educators are not nurses and are ill-equipped to provide medical advice to learners… we don’t have time to perform the role of a social worker… we don’t want our schools to be a maternity wing… It is very difficult to accommodate pregnant learners with the rest of the class – it is hard for them to keep up with their peers…”

Other speakers noted with irony, the vague language of the BELA Bill which provides that children of the age of 12 and up, who could not legally purchase a packet of cigarettes, nor alcohol, until after the age of 18, would be able to obtain abortions without their parents’ consent.

Several speakers at the public hearings enquired about the importance of a concrete commitment from the DBE regarding the expansion and development of LSN education, especially in light of the fact that sign language is an official language, and that the DBE must therefore ensure that resources would be developed towards addressing this need.

There is no reference at all in the proposed Bill regarding learners with special needs, LSN education, or such-like, apart from a passing reference to sign language in Section 5 (b) (4), stating that South African Sign Language has the status of an official language for purposes of learning at a public school.

The national curriculum compels educators to teach scripted CSE lessons that are based on secular human rights-based policy that has been developed by international agencies such as the WHO, UN and UNICEF, amongst others.

CSE is also a stipulated requirement of the Policy on the Prevention and Management of Learner Pregnancy in Schools, and clause 41 stipulates that the Minister will regulate learner pregnancy. This then links the BELA Bill to this learner pregnancy policy which, thus, implies compliance with the requirement of the instruction of CSE. 

The DBE has made several claims that allude to the fact that funding of learning and teaching support materials (LTSM), Grade R Educators, Schools Nutrition Programmes, etc., as being dependent on BELA Bill compliance with the policies of these agencies. 

This is also consistent with media statements and introductory speeches made at the BELA Bill Public Hearings. 

The trend internationally, is that the CSE programme has an all-pervading reach in terms of multiple LTSM relating to many different subjects over and above the currently required Life Orientation (LO).

CSE normalises the LBGTQIA+ lifestyle in the hope that this will reduce discrimination and bullying in the school community and beyond. The advocacy of gender-neutral bathrooms to accommodate students wishing to express non-binary identity during the process of gender transitioning will naturally flow from the above is also being promoted.