New laws for schools in South Africa get the green light – despite objections

 ·18 Apr 2024

Parliament’s Legal Service says that the Basic Education Laws Amendment (BELA) Bill is fine and likely to pass constitutional muster – challenging declarations of “overwhelming rejection” of the bill.

The National Council of Provinces (NCOP) recently completed its public consultation process on the controversial BELA Bill across all nine provinces after being passed by the National Assembly at the tail end of 2023.

The Bill would significantly change the South African Schools Act of 1996 and the Educators Employment Act of 1998.

Some of the major amendments include:

  • The department has the final say in admission and language policies;
  • Regulation on school governing bodies;
  • Making Grade R the new compulsory school-starting age;
  • Criminalising parents who do not ensure their children are in school;
  • Regulation of home education;
  • Confirms the ban on corporal punishment.

Objections to the Bill

The NCOP tasked the Parliamentary Legal Services to investigate various concerns and objections that were raised during the public submissions.

The NCOP recorded a total of 38,170 submissions during consultations, where a large number of clauses were contested. Response from the public was mixed, ranging from partial support to the outright rejection of the Bill.

However, during a presentation to the NCOP’s select committee on Education on April 17, Parliamentary legal advisor Phumelele Ngema said that it was difficult to identify the reasons behind the rejections, as many objections did not relate to specific clauses but rather the Bill in its entirety.

This gives the impression that the Bill was rejected by the public, but it is not certain why, on what basis, or what could be done to fix it.

She said that committee members should consider how the assessment was done, what criteria were used, and to interrogate the justification and substance of the rejections.

These rejections where also characterised as being “malicious” objections by the Director of Education Management and Governance Development, James Ndlebe, challenging the public response.

“There was a narrative that if one attended the public participation in numbers and flooded the Committee with written objections, the Bill would be stopped – as if it were a referendum,” he said.

“It could not be appropriate to reject the entire Bill based on one clause that one did not support unless it was a malicious objection—if one counted the number of people who rejected [a clause], did one also count how many people supported the Bill?”

Despite this, Ngema noted that some specific clauses in the bill were determined to have faced “overwhelming rejection” in public consultations. These relate to:

  • Clause 2 – compulsory school attendance starting at Grade R
  • Clause 4 – admission policies
  • Clause 5 – language policies
  • Clause 35 – home education
  • Clause 39 – minister powers

The fight against these clauses has been well documented across both the National Assembly and NCOP processes, with many organisations, political parties and members of the public arguing that the government is centralising power and removing choice from parents, schools and communities.

Despite this, Ngema and the Legal Service concluded that “the BELA B Bill version is perfectly fine and likely to pass constitutional muster.”

According to Ngema, the primary concern that now needs answering is how the views of much of the public in the consultation process suggest that the Department of Basic Education, the legislature, the National Council of Provinces (NCOP), the select committee as an extension of the NCOP, and the first house assembly allegedly failed to comply with constitutional obligations and the law while processing the Bill.

“How have these structures of government failed, or the provincial legislatures failed to comply with the constitutional obligations and the law?” said Ngema.

Bill can still forge ahead

The positive response from the Legal Service opens the path for the BELA Bill to proceed despite objections.

While Ngema recommended some amendments—and acknowledged concessions by the Department of Basic Education—a stand-out theme in the presentation was that public consultations are not a referendum.

Public consultations are more of an “advisory” period to gauge public opinion on legislation. Referendums, on the other hand, allow for decisions to be made directly through the public through voting.

“The public is not required or expected to vote on draft laws processing, but to engage by presenting their views, and their views being heard and considered by the legislatures.

“Nowhere under s76 of the Constitution do we find a stipulation that during public facilitated engagement the public must vote.”

The powers to hold a referendum are exclusive to the president, the service said, not legislatures.


Read: New laws for schools in South Africa an ‘overreach by the state’: governing bodies

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