"Should I stay or should I go" is what is on a lot of home schoolers' minds today. Must I send in my registration forms now (by midnight on the 16 October) or wait until the BELA Act is in force? Or even, is the BELA Act in force?
More than any other group, home schoolers need to know if the BELA Act, with its 30-day registration window, is in force. General consensus is now that the Act is not in force. While it is now as certain as the law gets that the Act is not in force, many are still in doubt and concerned.
The uncertainty stems from the fact that while President Ramaphosa signed the BELA Bill into law on 13 September, it has not yet become enforceable due to the absence of a commencement date being set in the Government Gazette. The Act was published in the Gazette, but for it to be legally binding, an official date of implementation must still be announced.
With this delay, home schoolers are unsure whether to proceed under the current South African Schools Act or wait for the new BELA Act. Although there is reassurance from legal experts, such as the Pestalozzi Trust, that the Act is not yet in force, many parents are anxious as they are not sure if the 30-day registration window is open and if it is not when will it be open and how best to handle the timing of their submissions.
Signed and sealed, but not delivered
President Ramaphosa signed the BELA Bill on 13 September, turning it into an Act. For the Act to become a law that is in force, two further steps had to be taken. The Act had to be published in the Government Gazette, and a commencement date set for the Act to come into operation. The Act was published in the Gazette on 16 September, but no commencement date was set.
Section 81 of the Constitution states that a bill signed by the President becomes effective either when it is published or on a date determined by the Act. However, Section 54 of the BELA Act specifies that: "This Act is called the Basic Education Laws Amendment Act 2024 and comes into operation on a date fixed by the President by proclamation in the Gazette."
This date was not set, and the Act is therefore not in force yet. To make the Act legally enforceable will require another notice in the Gazette setting a date on which the Act commences.
Everyone who has looked at the matter agrees that the Act is not in force, There are even reports that government officials are explaining that the Act is not in force. Home schoolers can, therefore, act with confidence that the Bill is not in force.
Members of the Pestalozzi Trust enjoy an extra level of security as the Trust wrote to the President and the Minister of Basic Education last week, setting out reasons why the Act is not in force and asking him to respond by 14 October, if he believed the BELA Act was in force. The Trust stated in its letter that if it did not receive a response from the President, it would take the position that the Act is not in force and advise its members accordingly. That date has passed, and the Trust has advised members that they can treat the Act as not being in force and will be supporting their members if any conflict arises.
Waiting for “Then”
Home schoolers waiting for the BELA Act to come into force can then wait until the commencement date of the Act is formally promulgated in the Gazette, and they will have 30 days to submit their applications[i]. If those applications are not processed within 60 days, they will be “deemed” registered. Home schoolers must keep proof of submission. In addition, to prove that you emailed, make sure you get a “read receipt” if you can. If couriering, keep your proof of delivery. Use registered post if posting, and get an official to stamp and sign a receipt for you if you are handing in your documents physically at an education department or district office. Check with your province where you can hand in. It is advisable to print a receipt yourself before you go in and ask the official to sign that. You may also want to make a copy of your forms and documents and get the official to sign your copy.
The 15 days before Christmas
If you are waiting for the Act to come into effect, one thing you should note is that sometime between the 13 and 16 December is a likely date for the Act to commence. This is in effect what the President promised when he allowed three-months for negotiations around Clauses 4 and 5 (language and admissions policy in public schools – now Sections 5 and 6). This could mean a Christmastide submission of your application. On the one hand, this could be inconvenient; on the other, by 16 January, at least 30 days of the 60 days required for deemed registration will have elapsed, meaning that by sometime around mid-February 2025, you could be sure that you are registered.
Now is the time
A number of people are either convinced that the Act is in force or would just like to have what is an annoying and stressful process over. These people want to seize the day and apply now.
If you are applying now, you will be applying in terms of the current South African Schools Act. Officials may also try and impose the conditions of the current Policy on Home Education on you. Most concerning, although by no means the only concern with the Policy, is the pre-registration home visit. The BELA Act, when it comes into force, does not require a home visit. At least one positive of the BELA Act. Please note that a complex legal situation exists in KZN and the North-West, where regulations allow for a visit or even visits. If you are in one of those provinces, please seek legal advice before submitting to ensure you fully understand the legal situation.
Gauteng Province has made it clear that the visit is voluntary. The Western Cape has stated they are not going to do home visits, but it is not 100% clear if that relates to when the BELA Bill comes into force or if they have currently suspended their home visits programme, which it must be said they have always been very keen on.
You can refuse a home visit as it is not required in law, policy is not law and must be applied flexibly. It is, however, necessary to have access to justice either through an organisation like the Trust or your own legal support to enforce your rights.
Another issue that has arisen is that most, if not all, provincial education departments are not processing any applications for 2024. They are only accepting applications for 2025. This is the position in Gauteng and the Western Cape, and more than 50% of home schoolers reside in those provinces. It appears that those provinces, and most provinces, already have a significant backlog of applications. The number of home schoolers registering has been increasing steadily for at least the last two years, and departments don’t appear able to process these applications timeously, despite many officials working very long hours. Home schoolers warned throughout the BELA Bill process that this would happen, asked for a much simpler system like notification, but were ignored. Unfortunately, officials are going to experience the consequences of the refusal to listen. Hopefully, this will lead to changes in the future.
Most departments have acknowledged that you can homeschool while your application is being processed.
The Pestalozzi Trust has taken the position that only applying for 2025 and homeschooling while that application is prepared is a common-sense approach that should apply in all provinces. They have undertaken to support their members if they encounter problems in any other provinces. Those who are not members of the Trust should get independent legal advice on how to approach their registration in the current legal minefield.
Make sure of your legal position
It is very important to get legal advice because while the BELA Act is not in force, the prima facie legal requirement to register under the South African Schools Act Section 51 still stands. While the likelihood of prosecution remains very low, especially in this transitional period, the severity, or impact, of a prosecution on a family is high. This is like fatal plane crashes—they happen very rarely, and in recent years, since improvements to plane safety procedures have been made, they almost never occur due to mechanical reasons and even pilot error—but if they do occur, they are serious for those on board. Making sure you are fully and comprehensively informed on all aspects of the law is therefore vital.
Never Register
Home schoolers who are in principle opposed to registration are likely not impacted by these considerations. Their position remains what it has been all these years. Although they may have to dust off their reasons for not registering. From the 1990s until the early 2010s home schoolers set out in writing why they were opposed to registration and had that document ready should an official approach them. The relatively easy period from the 2010s up until the BELA Act was signed has meant that many have not really considered those documents again and newer home schoolers haven’t seen a need to develop them. That period may be ending and if you have no intention of registering you may need to review your documents to consider your reasons and ensure they are legally defensible. In addition, out of an excess of caution, you should ensure that you have access, and ideally emergency access, to legal support.
LearnFree will be conducting academic research both into why a significant number of home schoolers refuse to register, as well as to what legal defences there may be to the registration requirement. We would greatly appreciate all readers' assistance in this research.
Conclusion
As home schoolers await the formal commencement of the BELA Act, it is essential to remain vigilant and well-informed. Whether registering now under existing legislation or preparing to comply when the Act is enforced, understanding the legal framework is key. Organizations like the Pestalozzi Trust continue to offer support and guidance, helping the homeschooling community navigate this period of uncertainty with confidence. By staying informed, home schoolers can ensure they are prepared for whatever may happen in the coming months.
Join the Pestalozzi Trust here.
[i] Technically, the prima facie legal requirement to register is still in force in terms of the unamended South African Schools Act Section 51 and Section 3.
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