Warning for private schools in South Africa

Legal experts have warned that private schools in South Africa are not exempt from the new Basic Education Laws Amendments (BELA) Act and should ensure they review their own policies to align with the changes.

President Cyril Ramaphosa signed the BELA Act into law in September 2024, while placing a three-month suspension on two of the most controversial aspects of the laws: language and admission policies.

Once the three-month period elapsed, the president promulgated the held sections—without any changes—in December 2024.

Under the BELA Act, language and admission policies are still determined by School Governing Bodies, but the final authority is given to the National Department of Basic Education to approve or override them.

Previously, school boards had the highest authority on languages and admissions.

Notably, the wording of the Act specifically directs these controversial policies at public schools. However, the laws brought in many changes beyond the language and admission policies that took centre stage.

These include:

• 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.

According to Aadil Patel, National Practice Head and Director of the Employment practice at Cliffe Dekker Hofmeyr (CDH), while the Act primarily targets public education reform, private schools are not exempt from the laws.

South Africa is home to 22,589 public schools and 2,282 private schools.

While the total number of schools has declined in recent years, private schooling has shown significant growth.

In 2000, private schools made up just 3.5% of all schools; today, they account for over 10%.

Patel said that private institutions are in high demand and cater to a diverse range of socio-economic groups, including low-fee, middle-income, and elite learners—but their private nature does not exempt them from constitutional obligations and policy requirements that uphold learner rights.

The way forward

Patel said that, despite the Act’s more public school-leaning policy changes, it is important for private schools to be involved with consultation processes on the future direction of the laws and also to start preparing their own policies to be in line with the laws, where applicable.

Basic Education Minister Siviwe Gwarube will issue norms, standards, and regulations to govern the implementation of the Act and has already shown a willingness to consult with stakeholders.

“In addition to participating in public consultations, private schools would be wise to review their policies and codes to ensure they are both constitutionally compliant and litigation-proof,” Patel said.

The legal expert said many court cases already show that private schools are beholden to ostensibly ‘public’ education laws and need to adhere to minimum standards contained in public school regulations, particularly in matters of discipline and expulsion.

This is consistent with international frameworks, which stress that private education should complement public systems rather than replace them.

“(These) also emphasise that a learner’s right to education should not be compromised by financial issues such as unpaid fees, nor should disciplinary procedures undermine the child’s welfare,” Patel said.

He said that the legal and policy shifts mean that private schools have to operate in a ‘dual obligation’ framework.

This includes being afforded operational independence, but also being required to uphold constitutional and procedural standards established by the government.

“This includes ensuring that codes of conduct and disciplinary policies meet constitutional requirements and that fair processes are followed when decisions impact a learner’s access to education,” Patel said.