The President will sign the BELA Bill on Friday. Minister Siviwe Gwarube has committed in an article in the Mail & Guardian to implement the Bill. The President signing the BELA Bill will only increase the sea of troubles facing his Minister and her Department. Perhaps in the cruel world of party politics this is a motivation for signing but many innocent children will suffer.
The problem for the President and the Minister is that the BELA Bill scores a perfect 10 in procedural flaws that will see the Bill challenged in court and in all likelihood sent back to parliament.
In signing the Bill the President will turn a blind eye to the huge number of procedural flaws that occurred during the processing of the Bill.
5 Fatal “Mogale” Flaws
He will be ignoring flaws of the exact type that the Constitutional Court relied on in the "Mogale and Others v Speaker of the National Assembly and Others" case to strike down the Traditional and Khoi-San Leadership Act for a failure to facilitate meaningful public participation.
1. Failure to pre-educate the public
During the PCBE hearings in the Free State members of the public claimed they were seeing the Bill for the first time. Only one pre-education meeting that was open to the general public, and, that was advertised as such, was held during the NCOP hearings. This was held in Gauteng. Many of those attending were government contractors who to the best of our knowledge did not later attend the actual public hearings. It is not clear that other meetings held with schools were really pre-education meetings, but these were not advertised to the general public.
2. Inadequate notice of meetings
Public hearings were inadequately advertised, with notices often being published too close to the date of the hearings. For example, during the NCOP public hearings in Mpumalanga, notice for the first round of hearings was published in only one newspaper with limited circulation just one day before the hearing. Additionally, venues were changed at the last minute in several provinces, leading to confusion and missed participation opportunities
3. Accessibility of hearings
During the NCOP process hearings in most provinces, other than the Western Cape, were held in remote locations. These could have been supplemented by hybrid meetings in the capitals and this was requested throughout the hearings. A public petition with over 12000 signatures called for this. This was only done, once, in the Western Cape.
4. Lack of copies of the Bill
Members of the public at a meeting in Gauteng were told that they had to print out the Bill. Complaints were made across a number of provinces that either not enough copies of the Bill were available, copies were incomplete and memoranda or summaries of the Bill were inadequate.
5. Inability to contribute meaningfully
Many complained that they did not have enough time to consider the Bill and that the Bill was not available in a language that they were familiar enough with to be able to form an opinion of the content and provide comment. The need for translations of the Bill had been discussed in the Portfolio Committee on Basic Education as far back as 2017. A promise was made by the then Deputy Minister to have the Bill translated into the main indigenous African language and made available to constituency offices to provide communities with copies of the Bill. This was never done.
On top of these flaws BELA hit new lows in the preparation of the Bill by the DBE, during NCOP hearings and in processing the Bill through parliament.
5 more reasons signing BELA is a mistake.
Added to the 5 “Mogale” flaws there are five more flaws, each one by itself would be likely to see BELA Bill struck down.
1. Exclusion of Children’s Voices in Gauteng
One of the most glaring flaws occurred during public hearings in Gauteng, where children under 18 were explicitly barred from making submissions. This exclusion is particularly troubling given that the Bill directly impacts children. South Africa’s Constitution and the Children’s Act emphasize the importance of considering the voices of children in matters that affect them. The decision to silence these voices in Gauteng was a significant procedural misstep.
2. Flawed Socio-Economic Impact Assessment (SEIA)
The Socio-Economic Impact Assessment (SEIA) for the BELA Bill was deeply flawed from the outset. The Department of Basic Education (DBE) failed to conduct adequate research on key issues, including homeschooling and school admissions policies. The South African Human Rights Commission (SAHRC) pointed out that no research had been conducted to determine whether admissions and language policies were being used to exclude learners based on race—a critical oversight. The Minister of Basic Education admitted in a Portfolio Committee on Basic Education meeting that the DBE had no research on homeschooling.
Moreover, the SEIA was not shared with the public in 2017 as required by the Socio-Economic Impact Assessment System (SEIAS) Guidelines, a cabinet instruction. The guidelines state: "Departments should publish the SEIA Report alongside the draft legislation or regulation when inviting public comments. This ensures transparency and allows the public to engage with the socio-economic implications of the proposed legislation."
The SEIA shared during parliament’s call for public comment was also inadequate. The SEIA was incomplete: Annexure C, concerning home education appears never to have been publicly submitted to the PCBE.
The failure to publish the SEIA, in full, with annexures, not only violates procedural norms but also deprives the public of the opportunity to fully understand the Bill’s potential impact. It is difficult under those circumstances to see how the public could make informed comment and how parliament could consider it.
3) Lack of Matrix and detailed reports
The majority of submissions rejected the Bill. Member in the PCBE, Baxolile Nodada (DA), requested the PCBE provide a detailed qualitative and quantitative report on the public’s submissions, a suitably detailed report was never provided. Details of the public’s rejection of the Bill were hidden. The BELA Bill process was not a “referendum” or petition, and parliament can pass legislation even if the majority of the public are opposed to that legislation, but, ascertaining the levels of support for the Bill was not irrelevant. Once again much legal attention in the PCBE and NCOP was directed to making the trite point that parliament is sovereign. What was really at question was that high and increasing levels of rejection, as was evidenced in the BELA Bill process should alert MPs, if they are aware of the scale, to the need for close and careful scrutiny of the public’s concerns. In the Northern Cape, a rare example where figures were reported, an initial 50/50 split in the public’s view during the PCBE process gave way to an 80% rejection during the NCOP process [1]. The obscuring or hiding of this scale of rejection hid from MPs the increasing rejection of the Bill, that should have been inquired into but without the requisite information parliamentarians could not do so.
More important than knowing what the public sentiment is, is parliamentarians having high quality matrices that set out what the public’s written submissions are. During the clause-by-clause deliberations the Portfolio Committee on Basic Education no such matrix was made available. This meant that parliamentarians had to rely on their recollection and notes made while listening to oral submissions. A number of members were observed during the public hearings looking at their phones, sleeping and regularly leaving the public hearings, the first question is how accurate was their recall? Even if they were attentive at all times and took copious notes the fact that the public oral submissions were limited to 3 minutes meant that substantive details could only be provided in written submissions. An inadequate matrix was presented at the very end of the National Assembly process, but that was a case of closing the barn door after the horse had bolted.
4 ) Procedural flaws in the NCOP
The Select Committee clause-by-clause meetings were marred by procedural irregularities, including members attending remotely with cameras off, making it unclear who was present and voting. This led to confusion over quorum and doubts about whether members were fully engaged, undermining the transparency and integrity of the process. Some members can even be heard engaging in other business. This is confirmed by the Chair repeatedly complaining that members were inattentive because members made comments and voted on the incorrect clauses. He is, however not without blame.
On the date of the second clause-by-clause deliberation session, the Chair himself allowed the meeting to proceed while he relocated due to a weak signal [2]. It was not clear that he formally excused himself and that a new chair was appointed. Plainly all of the above precluded a proper consideration of the Bill members. These flaws were among those bought to the attention of the Chair of the Select Committee and Chairperson of the NCOP, but were ignored.
5) Flawed Final PCBE Meeting
The final PCBE meeting was also marred by procedural irregularities. The then ACDP MP Marie Sukers pointed out that the version of the Bill adopted by the NCOP contained a flaw. She asked for a written opinion on the correct way to address this problem, but this was not agreed to. A request to write to the Chair of the Select Committee in the National Council of Provinces to obtain a report on the 1500 letters sent to the NCOP asking how the flaws in their process were being dealt with was dismissed out of hand.
The PCBE successfully moved to adopt the final version of the Bill prior to hearing members inputs on the clause-by-clause changes. This over the objection of members.
A two-paragraph committee report was written and adopted in the meeting. The Speaker of the National Assembly had the option to either place the Bill directly on the order paper or refer it to the committee. By choosing the latter, the committee was then required to produce a substantive report and recommendation, to inform the members of the house for better decision-making. This task could not then be reduced to a mere formality but the time should have been taken to produce a proper report. There was no reason this could not be done other than the undue haste that marked the whole process. In failing to produce a detailed report the PCBE failed in is constitutional duty. This meeting, intended to be a thorough review, instead became a rubber-stamp session, with critical voices silenced or ignored.
This rush to finalize the Bill without adequate deliberation is indicative of the overall haste and lack of due diligence that has characterized the entire process.
Each of the above flaws are in themselves grounds for the president to refer the Bill back to parliament. Failing to do so means that they will become the basis for the slew of promised court actions. In all likelihood the Bill will be struck down in court and returned to Parliament in any event.
These “Perfect 10” flop flaws are however, not exhaustive, but rather representative of a larger set of flaws. A reading of the Pestalozzi and Voice to Parliament letters sent to the President to make him aware of these flaws provides further detail.
Get Back, BELA
The BELA Bill is deeply flawed both in substance and in the way it has been handled. The procedural issues outlined above are not mere technicalities—they strike at the heart of the democratic process. For a Bill that will have such a profound impact on South Africa’s education system, it is essential that it be handled with the utmost care and transparency.
The BELA Bill should have been sent back to Parliament for further review and correction. That would have given another opportunity to ensure educational reforms are truly in the best interests of all South Africans, particularly the children whose futures are at stake.
Find the parody song here.
Footnotes:
[1] 322 of 398 (81%) oral submissions in Northern Cape opposed. Source: Northern Cape Report – Calculations: Pestalozzi Trust Statement “BELA Bill Clears Next Hurdle” 28 March 2024.
[2] The Chair appears to have not been in the chair for a substantial period and no acting Chair was appointed. This is a formal process. The meeting, therefore, appears to have not been properly conducted. “My signal is so poor I will have to end up moving to the constituency office to somewhere else” @28:00 and “I have been having a problem with the network so I have moved from the constituency office to the police station, its bad, now I am at the municipal offices” @1:15:45.
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