At the end of last year the Portfolio Committee on Basic Education issued its annual report. The report notes that one of the major goals that the PCBE failed to achieve was debating and passing the BELA Bill.
It states that the reason for the delay was the large volume of public comment received. Home educators, though they constitute less than 1% of the schooling population, contributed around a 1000 submissions on the Bill. Just under 20% of the 5500 submissions received. A case of punching above your weight if there ever was one and a sign of how active home educators are and how important the BELA Bill is.
Home educators also filled the committee room when the public outcry around the Bill led to parliament taking the extra-ordinary step of calling the DBE to come in and explain why the Bill was causing such an outcry. In explaining why the PCBE called the DBE in, the Chair mentioned that the huge outcry in the press and the general debate around the Bill is what had promoted them to call the meeting. An extra-ordinary step because parliament doesn’t usually concern itself with a Bill until it is approved by Cabinet and submitted to Parliament. That has not yet happened with the BELA Bill. This shows how important public participation is, at least to parliament. Sadly, the bureaucrats at the DBE tend not to listen to the public.
Since then we haven’t heard much about BELA Bill. It is lying quietly like a crocodile in the river waiting for the elections to be over and the next parliament seated.
During the Carte Blanche episode of the 3rd February Elijah Mhlanga, spokesperson for the DBE, seemed to indicate that the working group reviewing submissions still had 1900 submissions to review. At that rate that should finish in the second half of 2019. They will then make amendments - frankly, we do not think these will be many (see my comment about the DBE and public comment above) - and then present the Bill to cabinet and from there to parliament so we can expect the Bill to be presented in parliament late in 2019 early 2020.
Home educators are very concerned about BELAbill in general but one issue to be specifically worried about is s.51(10) "The Minister may make regulations relating to the registration and administration of home education." The is very broad and basically delegates parliament's authority to the minister.
To see why that is a problem we have to go back to the famous “Harris” case i.e. Minister of Education v Harris. In that case Tyla Harris's parents (Home eductors owe the Harris's a lot) wanted her to begin Grade one a year early. That is early in terms of the then Minister of Education’s Policy on when a child should start school. The case was appealed all the way up to the Constitutional Court and in a famous dicta that has gladdened the hearts of home educators ever since Justice Albie Sachs said “Policy made by the Minister in terms of the National Policy Act does not create obligations of law that bind provinces, or for that matter parents or independent schools.”
Simply put if the Minister wants to bind parents he or she needs to have a law passed to that effect or ask parliament to give him or her power to make regulations.
Part of the Harris case that we don’t generally hear about is what happened later. In 2004, three years after the case, the South African Schools Act was changed (through a Basic Education Laws Amendment Bill - a BELA Bill) to set a minimum age for school entrance for private schools. Even so the Harris case had an effect as the amendment recognised that exceptions where possible under certain circumstances and the minister was given power to make regulations governing that. This is a pattern that has occurred in other matters the Minister is checked in court and then turns to parliament.
The big benefit to home educators was that this case established that “policy is not law”. This has been an argument the home education movement has relied on for many years and that the DBE is well aware of.
However, with BELA Bill we are now seeing the same approach as in Harris. Lacking a firm basis in law the minister is going to parliament to try and get new laws passed and to get the power to make any regulation she wants to make. Unlike policy, regulations clearly have the force law.
In order to ensure fair and just laws home educators need to ensure their voice is heard in parliament.
This means that home educators should take some steps now:
Meet with your constituency heads and inform them about home education. You can see some examples here and here and here . The feedback from all these meetings was very positive. Most MPs had never heard about home education or if they had they only had the vaguest notions.
Attend election meetings and ask about your party’s views on home education.
Ask the representative to put you in touch with the party’s education desk/command or shadow minister and speak to them about home education.
Use social media channels to question and debate party leaders and representatives.
Form or join groups like associations or special interest groups now, long before the Bill even gets to parliament and public hearings are scheduled. These bodies can be your voice during public hearings.
Taking these steps now will help build momentum towards the public hearing phase of the Bill.
While many people are cynical I believe our democracy can work and work well when informed citizens engage in our democratic processes.
The future of home education in South Africa for a generation will be determined over the next few years.
The BELA Bill is the next phase of that struggle.
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