Mr E M Nchabeleng MP
Chairperson: Select Committee Education and Technology, Sports, Arts and Culture (NationalCouncil of Provinces)
For attention: MsNoluthando Skaka
Per email: [email protected]
Dear Mr E M Nchabeleng MP
Comments on the Basic Education Laws Amendment Bill [B 2B-2022] (S76)
1.We refer to the invitation for written submissions on the Basic Education Laws Amendment Bill hereinafter (“the Bill”).
2.Umphakathi Okhathazekile (CYPSA) is a national non-profit and public benefit organization, focused primarily on youth upliftment and work amongst grassroots communities nationally. We have to date motivated over one million learners nationwide via our awareness campaigns, in addition to many other activities conducted on a national scale and represent grassroots communities in all nine provinces.
3.We have grave reservations about the Bill itself, as well as specific provisions of the Bill. Our organization previously attended opportunities for public participation in several provinces during 2023. We remain apprehensive about the effects that the adoption of this Bill will have on our education system, South African youth, and the future of our nation, as very few amendments were made to this Bill, despite a public outcry in all nine provinces surrounding several problematic provisions contained in the Bill.
4.CYPSA requests the opportunity to appear before the Select Committee on Select Committee Education and Technology, Sports, Arts and Culture (National Council of Provinces) to make an oral presentation to the Committee. Our representatives may include the Executive Committee Members listed below, or alternative representatives of the organization as determined by our Executive Committee Members’ possible commitments elsewhere:
5.While CYPSA supports the intention of compulsory grade R via amendment of s3 of the South African Schools Act,[1] it is estimated that the Department of Basic Education (DBE) would need to expend R12 billion to implement this provision. It is unclear where the already struggling education system, where basic provisions such as sufficient classrooms in good repair, the provision of textbooks, stationery and safe ablution facilities and ailing National School Nutrition and learner transport programmes are yet to be addressed, will source the required funding to make these changes. CYPSA feels that these already existing challenges to the Constitutional [2] right to a quality basic education should first be adequately addressed, prior to any new burdens being placed on the shoulders of an already struggling system.
6.Sanctions in the form of 12-monthprison sentences and fines (or both) for parents and caregivers whose children do not attend school, allow no room for parents or caregivers who conscientiously object to their children attending classes which contain sexual content or content which violates their religious beliefs and moral values, such as the sexually explicit CSE curriculum. Parents who wish to protect their children from such inappropriate curriculums and sexually graphic learning material may be arrested and imprisoned, because they kept their children out of these classes, where such classes are mandatory for all learners.
7.A clause must be inserted to make explicit provision for an exemption from criminal sanctions for learner non-attendance in such circumstances, and provisions should be incorporated into the sections of the Bill dealing with mandatory attendance to allow for conscientious objectors.
8.The Bill seeks to disempower school governing bodies (SGBs) from determining their schools’ admission policies and to centralize this competency with the Heads of Provincial Departments (HODs). The administrative burden on the HOD to approve every admission policy in the province would be immense and impractical and can lead to abuse of power. We believe that such centralization of power could in practice bypass the system of checks and balances on government power, and these provisions run the risk of arousing suspicions of a threat to Constitutionality.
9.Furthermore, the Bill provides that admission policies must be in line with the Constitution.[3] This gives the impression of an attempt to bring all admission policies at all schools in line with a single, centrally dictated and enforced “constitution” which is to be adhered to by all, which is strikingly similar to the aims of the recently proposed PEPUDA[4] Amendment Bill yet couched in another form.
10.CYPSA believes that appropriate mechanisms already exist for dealing with rare cases where a school might discriminate against a learner, which can be applied whilst at the same time taking into consideration the provisions of the Constitution.[5] However, it is certain that provincial HODs cannot preside over both the appeals and implementation authority as allowed for in the Bill, as these processes would then lack independence.
11.The HOD may ultimately reject an admissions policy and has the final say on the admission of any learner, the result being that the SGB lacks any real power to make decisions concerning the admissions policy of their school as this power will now vest in the HOD in practice. It is also left to the SGB to appeal any decision made by the HOD, which will likely be a time consuming and costly exercise.
12.CYPSA opposes disempowering SGBs from determining schools’ language policies. We worry that this clause could be exploited to target single language and mother tongue education schools (such as Afrikaans medium schools), to change their language policies. It is also impractical for the HOD to approve the language policies of all the schools in the province within the required timeframe.
13.The Bill provides that where it is determined by the Department that a school must adopt an additional language, adequate resources for the successful adoption and implementation of the additional language must be provided. It is unclear where these additional resources will be acquired within an educational system that already suffers from a chronic lack of financial and material resources.
14.Further, such measures could border on a potential violation of the rights of individuals to use the language and to participate in the cultural life of their choice, as enshrined in s30 of the Constitution,[6] and may run the risk of appearing as a veiled attack on certain language and cultural groups.
15.The concerns raised in relation to assigning final authorization of a school’s admissions policy to the HOD are equally applicable in relation to the language policy of a school. The HOD may direct a school to adopt an additional language because of a unilateral determination, provided the correct procedure is adhered to and the onus then rests on the SGB to appeal this decision.
16.The Bill provides that codes of conduct adopted by schools must be in line with the Constitution,[7] and must consider diverse cultural beliefs and religious observance. This gives the impression of an attempt to bring all codes of conduct in line with a single, centrally dictated and enforced “constitution” which is to be adhered to by all and seems strikingly similar to the provisions of the recently proposed PEPUDA[8] Amendment Bill in another form.
17.As a result of these new code of conduct requirements, it is possible that a Christian school, for example, may no longer be able to determine and adopt its own code of conduct based on Christian and biblical values and request that learners, and parents of learners, wishing to attend the school concerned accept and submit themselves to such a code of conduct.
18.Further, the Bill allows for the requirement of an exemption clause for learners to be exempted from requirements of a code of conduct based on just cause shown. This may allow for a scenario where, for example, a learner wishes to attend a Christian school but wishes to adhere to a lifestyle or religion not in line with a Christian ethos and biblical values, and where the school may be compelled to allow them to do so.
19.The Bill creates a significant withdrawal of the functions of governing bodies and ultimately places these functions and decision-making powers in the hands of provincial Heads of Department. However, school SGBs are usually made up of parents, traditional leaders, local leaders and businessmen and community members with knowledge of the community, its members and the learners attending their school themselves and who are therefore best equipped to make decisions in relation to the running of the school and the well-being of their learners.
20.Under the Bill a central committee will be established to decide on curriculum matters and the Bill allows for “centralized procurement of identified learning and teaching support material for schools.” One wonders who will sit on this committee and what their values, beliefs and worldviews are, and how this will influence the identification of suitable materials which will then be disseminated centrally to all learners within the education system. One thinks of the new CSE curriculum which has been imported from overseas and which contains sexually explicit themes and content foreign to South African cultural norms.
21.Certain provisions in the Bill relating to homeschooling learning materials, give the impression that there may be a move towards enforcing the adoption of such centrally prescribed learning materials by home schooling parents. However, it is parents who should determine the values, norms and beliefs that are to be taught to their children and not the state.
22.Determinations to merge and close smaller schools by the Department are provided for in the Bill. The Department may decide to close or merge primary schools with less than 135 learners and secondary schools with less than 200 learners. This will likely result in an increase in the distance that many leaners must travel to reach school, will result in an increase in the cost of transport for parents sending their children to schools further away from home, and may even result in children not attending school at all due to the distance they are required to travel as a result of having a school in their area closed.
23.Such smaller schools and home and private schools are normally better run, better disciplined and produce better results. The best interest of the learner (child) principle will be violated by forcing leaners from smaller schools and home schools who learn in a safer environment which is conducive to success into a failing education system characterized by, an overall lack of resources, rampant drug and alcohol abuse, poor teacher-to-learner ratios, violence and intimidation, teenage pregnancy, theft, and sexual assault perpetrated by learners and even teachers, high failure and dropout rates, as well as exposure to the sexually explicit CSE curriculum.
24.Home schools now face additional registration requirements and increased financial burdens as parents must now source and fund assessors. It was indicated at public participation events that this focus on homeschooling is to ensure that no homeschooled learner “slips through the cracks.” However, it is not clear why there is such a focus on home schooling when the education system itself is currently failing and a large proportion of learners who enter grade 8 fail to progress through to matric and where many schools are unsafe for learners and teachers alike.
25.An official should not be able to override a parent’s decision to homeschool and it should not be necessary for a parent to apply for permission from the state to homeschool their child should they wish to do so. The Department cannot determine whether homeschooling is in the best interests of the child as provided for in the Bill, and it is the parent who knows their child best that must make this determination. It is a fundamental principle of international education law that the parent has a prior right to choose the kind of education a child receives, and the Bill makes significant inroads into that right and seeks to undermine parental authority. As has been said, “a government has never given birth to a child.”
26.Should a parent be unable to comply with the requirements for homeschooling their child, their child will be forced to enter the mainstream education system which is currently characterized by an overall lack of resources, rampant drug and alcohol abuse, poor teacher-to-learner ratios, violence and intimidation, teenage pregnancy, theft, and sexual assault perpetrated by learners and even teachers, high failure and dropout rates, as well as exposure to an imported sexually explicit CSE curriculum. It is unclear how it can be alleged that to remove a learner from one-on-one tuition, in a safe environment, and under the supervision of a child’s parent or caregiver and to subject them to these conditions can be said to be in the best interest of any child.
27.The Minister should not have such a broad scope in making regulations on home education and should at a minimum only be able to make regulations “in consultation with” homeschoolers. However, it has been brought to CYPSA’s attention that the Minister acknowledged during a PCBE meeting that the DBE has to date neither conducted, nor does it possess, any research on home education within the South African context, whilst the need for research on home education was already acknowledged in the Department’s internal documents in 2015.
28.CYPSA is also aware that accurate and adequate research is a fundamental prerequisite for a credible Socio-Economic Impact Assessment; without which, a credible Socio-Economic Impact Assessment cannot be done; and therefore, the SEIA developed by the DBE alongside this Bill is fundamentally flawed.
29.It is CYPSA’s understanding that research was in fact provided to the DBE by the Pestalozzi Trust, yet this research was not considered and did not subsequently reflect in the final SEIA. CYPSA believes it would be irresponsible for the Bill to proceed with no proper evaluation of the potential impact and possible unintended consequences of this Bill having been conducted.
30.Further, CYPSA is aware that the SEIA was not distributed to the public along with the draft Bill for public comment as is required by SEIA Guidelines when the DBE published the Bill for public comment in 2017. When Parliament called for public comment in May 2022 the SEIA was again not shared on Parliament’s website. This means that members of the public could not have properly evaluated the Bill and participated meaningfully in the process, and this means that procedural flaws exist in the handling of this Bill to date.
31.This Bill could be challenged on these grounds and the National Council of Provinces would be wise to avoid a situation where they maybe called upon to substantiate having passed a Bill, after it was brought to the NCOP’s attention that SEIA guidelines were not adhered to prior to the Bill having been passed at Parliamentary level.
32.CYPSA therefore believes that the Department has failed to meaningfully engage with the homeschooling sector regarding the most reasonable and appropriate ways to assess learners. Nor has the Department satisfactorily addressed parents’ concerns regarding registration of homeschooling learners and inspection of premises, amongst several other concerns raised at public participation sessions across South Africa.
33.The Bill also fails to consider and address blended and online learning, despite the COVID pandemic having highlighted the importance of these forms of education.
34.In summary, the Bill’s focus of centralizing power holds too much risk of abuse and appears to erode Constitutional and parental rights. Its failure to address the systemic issues that already plague basic education in the country is problematic and CYPSA therefore strongly encourages the National Council of Provinces to reject the Bill and that the Department of Education be encouraged redirect resources and time towards addressing existing challenges before attempting to introduce new legislation and amendments to education law.
35.We encourage the National Council of Provinces to request that adequate research be conducted and given due consideration, that amendments be made to the Bill taking into consideration the problematic provisions outlined above and those raised by hundreds of teachers and parents nationally, that the Bill be reintroduced in its new form along with an adequate SEIA based on sound local research which should then be published alongside the amended Bill, and that the Bill then be subjected to a new round of informed public participation processes, prior to again reaching the National Council of Provinces at a future date.
[1] South African Schools Act 84 of 1996.
[2] Section 29 of the Constitution of theRepublic of South Africa, 1996.
[3] The Constitution of the Republic ofSouth Africa, 1996.
[4] Promotion of Equality and Preventionof Unfair Discrimination Act 4 of 2000.
[5] TheConstitution of the Republic of South Africa, 1996.
[6] Section 30 of the Constitution of theRepublic of South Africa, 1996.
[7] The Constitution of the Republic ofSouth Africa, 1996.
[8] Promotion of Equality and Preventionof Unfair Discrimination Act 4 of 2000.
