South African Laws affecting Home Education
Introduction
The Bill of Rights states the right to basic education in clause “29. (1) Everyone has the right— (a) to a basic education…”,
The Universal Declaration of Human Rights, Article 26, 1 states that, “Everyone has the right to education” (UDHR, Art. 26, 1).
Freedom of education is the right for parents to have their children educated in accordance with their religious and other views, allowing groups to be able to educate children without being impeded by the nation state.
Respect for freedom of education requires that the state may not prefer a particular educational method or approach, including compulsory attendance at a government operated institution. One should therefore distinguish between compulsory education and compulsory schooling.
The English liberal philosopher John Stuart Mill was a strong advocate of education without the state. He makes some interesting comments in his essay On Liberty published in 1859:
- There are no libertarian objections to the state making the education of children compulsory. However, there are to the state providing and directing education. I go as far as anyone in deprecating that the whole or any large part of education should be in the hands of government.
- Individual freedom and diversity in people’s characters, opinions, and modes of conduct require freedom and diversity in education – and any general system of state education would be a contrivance for casting people into the same mould and shape. Education would aim to suit the governing power – whether a monarch, a priesthood, an aristocracy, or a majority of the existing generation. The more efficient and successful state education was, the greater the despotism the state could establish over the minds and bodies of the people. If societies allow state-schools and universities to operate at all, these institutions should be just one among many competing forms and experiments in education. The government might establish them simply to provide models or examples of how to achieve certain standards of educational excellence.
John Stuart Mill, On Liberty: A Translation into Modern English, ISR/Google Books, 2013, page 123. Ebook ISBN 9780906321638 - [Isn't it interesting that he wrote that government could establish state schools and universities as examples of how to achieve certain standards. Perhaps this was because mass education did not yet exist at the time when he wrote the above in 1859.]
Web Articles about Legal Aspects of Registering with the DBE
The following are articles that discuss the possibility of registering for home education with the DBE or not.
These reflect the situation as at December 2017. In due course, if at a later stage the BELA Bill in its final form is passed as law and the final version of the draft Policy on Home Education is implemented, then the situation may change. Therefore home educating parents are always advised to get up to date legal advice for their situation. This can be obtained from the Pestalozzi Trust, the homeschool legal defence association or a legal advisor of your own choosing.
Unfortunately, there are very few people in the legal profession who study educational law and understand home education well enough to be able to offer sound advice to the public. The Pestalozzi Trust is therefore recommended in this regard.
Should I Register? - article by the Pestalozzi Trust
Is Home Education Legal? - by the Pestalozzi Trust
Registering for Home Education - discusses some of the 'problems' with registering
Be Properly Informed on the Legalities of Home Education
This is the page on Home Education on the website of the DBE
Parents need to note that the requirements currently on this page (December 2017) are not supported by the law as stated in the South African Schools Act (1996). This highlights the conflicted situation that parents may find themselves in. If they register they may be agreeing to comply with unlawful requirements which limit their freedom and impose unpleasant restrictions on their time (e.g. administrative requirements) and educational choices.
The comments below were posted by Karin van Oostrum of the Pestalozzi Trust on a Facebook thread on the topic of registering or not with the DBE:
To Register or Not to Register
By Karin van Oostrum, Pestalozzi Trust – published on BELA Bill Facebook group on 11 December 2017
“To register or not” is a dilemma for homeschoolers, and has been ever since 1996. It will remain a dilemma if the BELA Bill and the Draft Policy 2017 are passed as law. That means there is not an easy answer. That is also why it is difficult to find someone willing to enter a public debate on these issues.
The Pestalozzi Trust in the person of my late husband Leendert and myself have been offering seminars on this topic for the past decade or so, and for the past year my children and I have been offering seminars, as advertised on our website and facebook. We discuss the matter at length, and helps parents understand their specific situations. To explain it, one has to distill a large amount of info into short, manageable chunks, which will be easy to digest and to understand.
Before giving you a short explanation, remember that joining the Trust is not an alternative to registering with the DBE. Some of our members are registered, and some are not.
*Why join the Trust if you are registered? Because if you apply for registration, you might find yourself in a situation where you have to defend your rights (eg your application could be turned down, or you will have to fight unlawful intrusion in your privacy). Then you will need legal counsel.
*Why join the Trust if you are not registered? Because if you don’t register, you might also find yourself in a situation where you have to defend your rights, and therefore you will also need legal counsel.
We find ourselves in a dilemma, because we find ourselves in the middle of a battle between on the one hand our rights (as parents and our children’s right to education) and on the other hand the law that we have to obey.
*We have various RIGHTS, which entitle us to homeschool. Government then makes LAWS in terms of these rights, which we have to obey.
*According to the constitution, rights MAY however be limited, but should be limited in a LAWFUL way (sec 36).
*95% of homeschoolers in South Africa experience the laws applicable to home education as an unlawful limitation of their rights.
*To be specific: Sec 3 of SASA requires compulsory school attendance. If your child is not registered (in a state/public/independent school or ito sec 51 of SASA as a home learner) he/she is regarded as not attending school. You can therefore be prosecuted if not registered, unless you have “just cause” for not complying with the law. To find “just cause” you have to inspect the laws and the registration requirements to see whether your rights are unlawfully being limited.
*What you have to do: (1) Know your rights. (2) Study the law (SASA, BELA Bill, Policy 1999 and Draft Policy 2017, and the registration form for home education in your province). Decide whether it will be possible for you to comply with these, without forfeiting your child’s best interests. You may discuss this with the Pestalozzi Trust when you join us. (3) Whether you register or not, join the Pestalozzi Trust, or obtain a legal team who is knowledgeable about homeschooling in South Africa to defend you.
The Pestalozzi Trust is planning to guide its members about the issue of registration or not in the coming months and years, and to explore the matter of “just cause”. So keep in contact, and we’ll update you from our side as well!”