New laws for schools in South Africa hit a possible roadblock

With a new minister at the helm of the Basic Education Department, the contentious Basic Education Laws Amendment (BELA) Bill passed by Parliament in the previous administration may still have its way to go before becoming law.

In an interview with News24, Basic Education minister Siviwe Gwarube revealed her intention of “advis[ing]” President Cyril Ramaphosa to refer the BELA Bill back to the National Assembly “to fix those parts which the education sector has rejected.”

The provinces raised several key issues in processing the bill, particularly around language and admission policies, which led to further amendments.

The BELA Bill was passed in the National Assembly on 16 May 2024, mere days before the end of the sixth administration, with 223 votes in favour and 78 votes against.

“This is a major achievement for the 6^th Administration and for the transformation of the South African Basic Education Sector after almost a decade of deliberation – the next step is for the President to sign it into law,” said previous Basic Education minister Angie Motshekga after the bill was passed.

Broadly, the provisions in the revised Bill include:

• Allowing schools to determine and develop their own language and admission policies but giving the Department of Basic Education the final say;
• Regulating various aspects of school governing bodies;
• Making Grade R the new compulsory school-starting age;
• Criminalising parents who do not ensure their children are in school;
• Regulating home education;
• Confirming the ban on corporal punishment.

Looking at the contentious issue around School Governing Bodies [SGBs], changes now allow schools and SGBs to determine their own admission and language policies – but these still have to be submitted to the provincial heads of department (HODs) for approval.

Wording in the bill also lays out that HODs will have to make any changes in consultation with the schools and communities affected. However, they have the final authority to disapprove and change these policies.

While numerous provisions in the bill have been welcomed, including expanding the definition of corporal punishment to protect children and criminalising some parental conduct – many, including those to do with SGBs, have been met with fierce resistance.

Those against the Bill’s amendments include the Democratic Alliance (DA), which is now part of the government in the seventh administration and whose high-ranking member is now the minister of the department which the bill impacts.

“While minor adjustments have been made to the bill in response to committee deliberations, they fail to address the core concerns raised by stakeholders,” said DA MPs Baxolile Nodada and  Delmaine Christians.

While the DA say that the amendments slightly improve contentious admission and language policies, “they still fall short of adequately addressing and resolving existing difficulties.”

Generally, opponents of the bill have posited that the legislation “disempowers schools, parents, and communities”, fails to address systemic challenges (like overcrowding, poor literacy, dropouts and a lack of resources), instead opting to centralise power within government.

“In centralising power in the hands of unelected bureaucrats, undermining the critical role of parents, educators, and local governing bodies in shaping the educational landscape of their communities,” said the DA.

The department said this is a “common misconception” and that the bill “aspires to harmonise the powers of the SGB with the directives of the relevant provincial Head of Department”.

Basic Education Deputy Minister Dr Reginah Mhaule previously said that the bill reflects South Africa’s aspiration for a more inclusive, equitable and efficient basic education system.

“Whilst the SGB is initially tasked with setting a school’s language policy, the Bill emphasises that this authority is not unequivocal… it ascertains that such policies are adaptable, inclusive and congruent with the constitutional right to basic education,” said Mhaule.

CEO of the Federation of Governing Bodies of South African Schools (Fedsas), Dr Jaco Deacon, disagrees, previously telling BusinessTech that provisions in the bill “will discourage school communities from taking ownership of public schools [which] will take us back to a state school model where the state will have ultimate control over everything.”

He said South Africa “stepped away from that model in 1994.”

Supporters of the bill have argued that it removes a “loophole” that allowed SGBs to exclude learners from admission based on race—but again, Deacon contested this position.

“If there is “blatant unfair discrimination, the SA Schools Act already allows for a remedy where SGB functions can be withdrawn where there is an appeal process,” he said.

Given the pushback, Gwarube told News24 that “one of the things I would like to engage the president on while he is applying his mind to the bill is to say there is a neat way around this.”

“One can send the bill back to the National Assembly to fix those parts which the sector has rejected and then simply bring it back for assent.”

“The last thing I would like is for this bill to be locked up in litigation and prevent the department from being able to do things that need to be done. I’m saying it is important not to throw out the entire bill with the bathwater,” added the minister.

Gwarube declined to specify her specific issues with the bill, citing the complete public hearing process by Parliament.

She suggested that since all the sector’s submissions are with Parliament, it should address any raised concerns and added that it would be inappropriate for her to criticise the bill at this stage in her role as minister.

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