Education First Research Group Independent Micro Schools Submission

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Jan 23, 202418 min read

Updated: Feb 1, 2024

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SUBMISSION Independent Micro-Schools

The Education First Research Group welcomes the opportunity to make comments on the Basic Education Laws Amendment Bill 2022 (BELA Bill).

Our submission is informed by the best interests of the child, including but not limited to the educational interests of the child, which our Bill of Rights deems paramount.

Unfortunately, we have to reject the BELA Bill in its current form and request that substantial changes be made to the Bill.

We trust that this submission will contribute positively to your deliberations and will make legislative reform for independent micro-schools a reality.

A. Executive Summary

1. Background: Since the 1990s, there has been a rise in alternative forms of basic education in South Africa, including home schooling, online schooling, hybrid education, and independent micro-schools. Micro-schools are defined as educational institutions with 135 or fewer learners, operating outside traditional legal frameworks. These schools often cater to students with special educational needs or those who have not thrived in conventional settings, offering multi-grade environments and tailored learning approaches.

2. Development and Growth: Independent micro-schools emerged following misinterpretations of the Policy on the Registration of Learner’s for Home Education. Their growth was fueled by the digital revolution and the COVID-19 pandemic, with a notable increase in Gauteng and the Cape Town metropole. These schools have become a significant sector, possibly outnumbering conventional independent schools.

3. Legal Status and Challenges: The 2018 Policy on Home Education labelled these institutions as “illegal independent educational institutions”. In recent years, almost 70 micro-schools were shut down in Gauteng alone. Nearly 80% of micro-schools seek legal registration, but face prohibitive costs and regulatory requirements designed for larger schools. The Department of Basic Education (DBE) has been aware of these issues but has not yet established a legal framework for these schools.

4. Lack of Engagement: There are serious concerns about the increased penalty for operating unregistered independent schools proposed in Clause 33 of the BELA Bill in view of the Department of Basic Education's lack of engagement with and research into micro-schools and the inadequacy of the Socio-Economic Impact Assessment in addressing this issue.

5. Proposals by Education First: Education First suggests amendments to the BELA Bill for the registration of independent micro-schools, protection of the right to use alternative curricula, and inclusion of Children’s Act principles in the South African Schools Act. We also propose a rebate on Umalusi fees, streamlining and removal of duplication in the registration process, and representation of micro-schools in educational structures.

6. Conclusion: Independent micro-schools in South Africa play a vital role in providing tailored education to learners outside the mainstream system. However, their legal and regulatory challenges necessitate urgent attention and reform to ensure their sustainable operation and the protection of the interests of learners and educators.

B. Background of the Education First Research Group.

The Education First Research Group (“Education First”) is a recently formed coalition of researchers, educators, owners of educational institutions, learners and concerned citizens who have as a foundational principle that the right to education is a fundamental human right that makes it possible to enjoy other human rights and that education must be put first.

We work closely with researchers, educational law and policy associations, and the non-governmental sector both locally and internationally.

C. Overview

Since the 1990s new forms of providing basic education have been developing, these emerging educational modalities include, home schooling, online schooling, hybrid education, and, independent micro-schools.

Education First defines, for legal purposes, an independent micro-school as a school with 135 learners or less.

Independent micro-schools are institutions that currently are not able to operate within the confines of the law. These schools usually function as a substitute for public and conventional independent schools, but often work closely with them.

The characteristics of independent micro-schools differ from conventional independent schools in the following ways:

● Many are multi-grade environments,

● Learning is tailored to the individual needs of the learner, this is done by using alternative curricula or approaches and even where the National Curriculum Statement/CAPS and supporting curricula is used this is adapted.

● The National Senior Certificate is not exclusively used and alternative school leaving qualifications are used.

● The pupil-to-educator ratio is low, in a number of cases, 10:1.

● A high percentage of these schools cater to learners with special educational needs.

● Even where learners do not have formally diagnosed special needs a high percentage of learners have not thrived in the conventional school setting and have experienced barriers to learning when using NCS/CAPS compliant curricula and related assessment modalities. Mastery-based learning is practiced in some environments and especially where learners have struggled with high stakes summative assessment.

● Independent micro-schools are often located nearby registered public, and independent schools and cooperate with them accepting and enrolling learners whose needs cannot be accommodated in the larger environment of the public and independent schools, and

● The most obvious characteristic of these schools i.e. they are small, with limited physical space and staff – making it difficult to meet large school based criteria when registering.

D. Development of independent micro-schools.

Independent micro-schools began to develop in South Africa following the release of the Policy on the Registration of Learner’s for Home Education. The wording of the policy was incorrectly interpreted as allowing for “(b) a legal, independent form of education, alternative to attendance at a public or an independent school.”. As “Home Education” had already been defined in the “(a)” part of the definition as “a programme of education that a parent of a learner(s) may provide to his/her own child at their own home. In addition the parent may, if necessary, enlist the specific services of a tutor for specific areas of the curriculum;” and the (b) subsection was preceded by “or” it appears that many thought that what was contemplated in this subsection was a so-called home school, cottage school, tutor centre, home school centre or micro school.

These educational institutions were a natural development from home schooling. Home schoolers were approached by friends, family and even strangers to “home school” their children. Therefore, the number of these schools grew as parents who couldn’t home school themselves sought them out to provide homeschool like education in a small school setting.

After 2010, several new schools were founded to meet the growing demand from the public for small-scale tailored education.

The digital revolution, especially the roll-out of high-speed fibre broadband led to the rapid growth of this sub-sector. Anecdotal evidence suggests that independent micro-schools grew very rapidly during and after the COVID-19 pandemic as parents sought small safer environments for their children or more personalised learning approaches to assist their children in catching-up following the re-opening of schools.

Growth of independent micro-schools has been particularly strong in areas where there are not sufficient places in existing schools. While this occurs across South Africa it is most notable in Gauteng and the Cape Town metropole.

The rapid growth of the sub-sector has meant that it is conservatively estimated that albeit that they are a fraction of the size of a conventional school there may be easily as many independent micro-schools as independent schools. Anecdotal evidence suggests that the number of learners in independent micro-schools may now exceed the number of home schoolers.

The existence and growth of independent micro-schools has been known to the DBE and the education departments for many years.

In 2018, the Policy on Home Education described these institutions as “illegal independent educational institution[s]” …. such as a cottage school, tutor centre, home school centre and micro schools operating like an independent school whilst unregistered in terms of the Act”. Home schoolers were warned that to “associate herself or himself or cause the child to be associated with any illegal independent educational institution in respect of the home education provision” was not in the best interests of the learner and a violation of the School’s Act.

In recent years, in Gauteng alone, almost 70 independent micro-schools were shut down. Without doubt some of these were fly-by nights. Parents are desperate to secure their children’s education, especially were the conventional large CAPS school isn’t an environment in which their child thrives and in desperation they turn to any institution that promises to help. The state is failing these parents and learners by not providing an appropriate regulatory framework.

E. Legal Status and Challenges

Nearly 80% of independent micro-schools would like to be able to register. However, the provincial registration requirements for independent schools have been designed with large conventional schools in mind.

Registration is unaffordable

Some schools (a literal handful) have been able to register as independent schools but the high costs of registration (including Umalusi fees) makes registration unaffordable. The cost of registration for a micro-school could amount to as much as R170 000 (i.e., the registration costs for a conventional low-fee independent school) and this is beyond the affordability for these schools and micro-schools cannot meet the financial burden of registration in the way in which conventional schools can.

The costs of registration cannot realistically be absorbed by the small number of learners in such an institution. The situation is analogous to the registration of independent ECDs. The DBE has recognised this and in the case of ECDs is assisting with registration drives.

Responsible actors in the sector are actively seeking registration and appeared before the PCBE during the oral submissions in Parliament to request an appropriate regulatory framework.

The need to address the issue of independent micro-schools has been recognised in the Final Report of the PCBE on the BELA Bill and was mentioned in recent provincial public hearings in Mpumalanga.

Independent micro-schools are not just small schools

Many independent micro-schools use alternative curricula, educational approaches and assessment processes and procedures that are not catered for in the current registration procedures.

The current lack of a legal framework exposes the learners, parents, owners and both the DBE and the PEDS to a number of legal risks. The DBE has been aware of the existence of independent micro-schools for decades and specifically mentioned them in the 2018 Policy on Home Education and has therefore had at least five years to close this gap.

Recent coverage in the press has highlighted the existence of fly-by-night operators seeking to take financial advantage of parents and learners and this is a consequence of the lack of a proper legal framework.

This places learners, parents, owners and even the national and provincial education departments in a position of serious legal risk. In respect to the latter for the failure to facilitate the right to basic education by creating appropriate legal frameworks

F. Lack of Engagement, Research and Inadequacy of the SEIA

In light of the above, Education First is deeply concerned that Clause 33 of the BELA Bill amending Section 46 of the South African Schools Act proposes increasing the penalty for establishing and operating an unregistered independent school from three to twelve months.

33. Section 46 of the South African Schools Act, 1996, is hereby amended by the substitution for subsection (4) of the following subsection:

‘‘(4) Any person who contravenes subsection (1) is guilty of an offence and liable, upon conviction, [liable] to a fine or to imprisonment for a period [of three] 3 not exceeding 12 months, or to both a fine and such imprisonment.’’.

Despite the DBE being aware of the existence of independent micro schools for decades, and requests during submissions on both the BELA Bill and Policy on Home Education for amendments to the law, the DBE has not engaged with independent micro-schools prior to the tabling of the BELA Bill in parliament.

The DBE has not undertaken any research into micro-schools. This lack of research means that the Socio-Economic Impact Assessment is inadequate.

Independent micro schools are not mentioned in the SEIA. No comment is made on the increase of the penalty and no criminological research is presented on the advisability of this increase and its impacts, intended or unintended.

G: Proposals by Education First

Education First therefore makes the following proposals:

1) That specific provisions be added to the BELA Bill that instruct the MECs to issue instructions for the registration of independent micro schools.

2) The right to use alternative curricula, educational approaches and assessment processes and procedures is protected

3) The best interests of learners are protected by including key principles of the Children’s Act in Chapter 5 of the South African Schools Act.

4) The increase in the penalty to twelve months be removed from the Bill.

5) That unregistered independent institutions are included in dispute resolution processes.

These proposals are reflected in the clause-by-clause section below.

We also request that in addition the Select Committee takes the following under consideration that:

1) Micro-schools receive a full rebate on Umalusi fees.

2) Duplications between the provisional registration processes of the PEDS and Umalusi should be eliminated.

3) Micro-schools are invited to present to the Select Committee wide of the BELA Bill process.

4) Special note be taken of the role that micro-schools play in providing education to learners with special needs and those who struggle in the CAPS environment and research be conducted into how independent micro-schools can assist on a national level in addressing the special needs crisis.

5) Micro-schools are included in the representative structures established by the Minister of Basic Education, at national level and the MECs in their respective provinces.

H: Conclusion

The emergence and evolution of independent micro-schools highlights the need for diverse and adaptable learning environments. These institutions, catering to a segment of learners who seek personalized education outside the conventional school framework, have shown remarkable resilience and innovation. However, the legal ambiguity of their position and operational challenges underscore the urgent need for a comprehensive regulatory framework. It's imperative for policymakers and educational authorities to recognize and integrate these micro-schools into the national education system, ensuring their contributions are harnessed and their existence is legitimized. By doing so, South Africa can embrace a more inclusive and flexible educational landscape that aligns with the evolving needs of its learners, while also safeguarding the quality and integrity of education across all forms. The proposals by Education First provide a constructive pathway, that cannot be delayed any longer, towards this goal, aiming to secure a balanced and equitable education system that values and nurtures every type of learner. We, therefore, ask the Select Committee to adopt our proposals now and not delay independent micro-school’s desire for registration to be put off for a number of years while another amendment act is prepared.

I: Clause-by-Clause

The following amendments are proposed:

Definitions

Section 1 of the South African Schools Act, 1996, is hereby amended—

● by the insertion in subsection (1) after the definition of ‘‘home education’’ of the

following definition:

“ ‘Independent micro-school’ means an independent school of 135 learners or less registered or deemed to be registered in terms of section 46;”

● by the insertion in subsection (1) after the definition of ‘‘Minister’’ of the

following definition:

“ ‘National Curriculum Statement Grades R – 12’ means a policy statement for learning and teaching in South African schools that implements this policy statement and comprises the following:

• curriculum and assessment policy statement/s for each approved school subject.

• national policy statement/s pertaining to the programme and promotion requirements of the National Curriculum Statement Grades R – 12, and,

• national policy statement/s pertaining to the protocols for assessment of grades R – 12”;

• by the substitution in subsection (1) of the definition of ‘‘school’’ with the following: “school” means a public school or an independent school or an independent micro school which:

(a) enrols learners in one or more grades from grade R (Reception) to grade twelve; or,

(b) enrols learners to obtain pre-tertiary school level education using forms of structuring learning other than grades.

Section 6A Curriculum and assessment

Section 6A of the South African Schools Act, 1996, is hereby amended by:

• the substitution of subsection (2) with the following subsection:

“(2) The curriculum and the process for the assessment of learner achievement contemplated in subsection (1) must be applicable to public, independent schools and independent micro-schools that implement the National Curriculum Statement.”

• by the insertion after subsection (3) of the following subsection:

“(4) Independent schools and independent micro-schools, that do not follow the National Curriculum Statement, shall have their autonomy respected and are permitted to use alternative curricula, educational approaches and assessment processes and procedures, that meet the minimum standards to be determined by the Minister.

(a) In respect of the curriculum and/or educational approach used these minimum standards shall:

(i) prescribe desired educational objectives and shall not prescribe skills and content;

(ii) be relevant to the objectives in (i) above;

(iii) be in general proportionate and specifically allow sufficient time for the chosen programme to be followed;

(iv) be determined by phase and not by grade;

(v) respect the autonomy of the educator and/or, where appropriate learner to teach and/or learn in a manner that serves the best interest of the learner;

(v) be of such a nature that they do not directly or indirectly infringe on the freedom of learners, educators and/or the independent institution, to use alternative curricula, educational approaches and assessment processes and procedures that give effect to their philosophical, religious or moral convictions”

Chapter 5

Chapter 5 of the South African Schools Act, 1996, is hereby amended by:

• By the substitution of the chapter heading, with the following chapter heading:

“INDEPENDENT & INDEPENDENT MICRO-SCHOOLS”

• Section 45 of the South African Schools Act, 1996, is hereby amended by the substitution of Section 45 with the following section:

“Establishment of independent schools and independent micro-schools.—Subject to this Act and any applicable provincial law, any person may, at his or her own cost, establish and maintain an independent school or an independent micro-school.”

• Section 45A of the South African Schools Act, 1996, is hereby amended by the substitution of Section 45A, and subsections (a), (b), and (c) with the following section:

“Admission age to independent schools and independent micro-schools.—(a) The admission age of a learner to an independent school or an independent micro-school to—

(i) grade R is age four turning five by 30 June in the year of admission;

(ii) grade 1 is age five turning six by 30 June in the year of admission.

(b) An independent school or an independent micro-school may admit a learner who— (i) is under the age contemplated in paragraph (a) if good cause is shown; and

(ii) complies with the criteria contemplated in paragraph (c).

(i) Criteria for the admission to an independent school or an independent micro-school at an age lower than the admission age of an underage learner who complies with the criteria;

(ii) age requirements for different grades at an independent school or an independent micro-school.

• Section 46 of the South African Schools Act, 1996, is hereby amended by the substitution of the sections (1),(2) and (3) with the following sections:

“Registration of independent school and independent micro-school.—

(1) No person may establish or maintain an independent school or independent micro-school unless it is registered by the Head of Department.

(2) The Member of the Executive Council must, by notice in the Provincial Gazette, determine the grounds on which the registration of an independent school or an independent micro-school may be granted or withdrawn by the Head of Department. This notice must set out a reasonable time within which the application must be processed, which period may not exceed 120 days.

(3) A Head of Department must register an independent school or an independent micro-school if he or she is satisfied that—

(a) the standards to be maintained by such school will not be inferior to the standards in comparable public schools;

(b) the admission policy of the school does not discriminate on the grounds of race; and

• Clause 33 of the Basic Education Laws Amendment Bill (2022) is hereby amended by the substitution for subsection (4) of the following subsection:

‘‘(4) Any person who contravenes subsection (1) is guilty of an offence and

liable, upon conviction, [liable] to a fine or to imprisonment for a period [of three]

not exceeding [12 months,] three months or to both a fine and such imprisonment.’’.

• Section 47 of the South African Schools Act, 1996, is hereby amended by the substitution of the sections with the following section:

“Withdrawal of registration of independent school and independent micro-school.—(1) No withdrawal of the registration of an independent school or an independent micro-school is valid unless— (a) the owner of such independent school or independent micro-school has been furnished by the Head of Department with a notice of intention to withdraw the registration, stating the reasons why such withdrawal is contemplated;

(b) the owner of such independent school or independent micro-school has been granted an opportunity to make written representations to the Head of Department as to why the registration of the independent school or an independent micro-school should not be withdrawn; and

(2) The owner of an independent school or an independent micro-school may appeal to the Member of the Executive Council against the withdrawal of the registration of such independent school or independent micro-school.”

• The South African Schools Act, 1996, is hereby amended by the insertion after Section 47 of the section with the following section:

“Section 47(A) Best interests of the learner: Closure of an independent school or of an independent micro-school.

When closing an independent school or an independent micro-school, whether registered or unregistered, or withdrawing registration of such school the best interests of the learners at the school are paramount.

1) A learner, having regard to his or her age, maturity and stage of development, and a person who has parental responsibilities and rights in respect of that child must be informed by the Head of Department of the intended withdrawal of registration or closure of the independent school or independent micro-school.

2) A learner having regard to his or her age, maturity and stage of development, and a person who has parental responsibilities and rights in respect of that child must be given the opportunity to express their views on the intended withdrawal of registration or closure of the independent school or independent micro-school.

3) A learner that is of such an age, maturity and stage of development as to be able to make representations concerning the intended withdrawal of registration or closure of the independent school or independent micro-school has the right to participate in an appropriate way in the deliberations over withdrawal of registration or closure and the views expressed by the learner must be given due consideration.

4) The approach adopted by the HOD must be conducive to conciliation and problem-solving and a confrontational approach should be avoided.

5) Delay in any action or decision to be taken must be avoided as far as possible.”

• Section 48 of the South African Schools Act, 1996, is hereby amended by the substitution of the section with the following section:

“Subsidies to registered independent schools and independent micro-schools—(1) The Minister may, by notice in the Government Gazette, determine norms and minimum standards for the granting of subsidies to independent schools and independent micro-schools after consultation with the Council of Education Ministers and the Financial and Fiscal Commission and with the concurrence of the Minister of Finance.

(2) The Member of the Executive Council may, out of funds appropriated by the provincial legislature for that purpose, grant a subsidy to an independent school or an independent micro-school.

(3) If a condition subject to which a subsidy was granted has not been complied with, the Head of Department may terminate or reduce the subsidy from a date determined by him or her.

(4) The Head of Department may not terminate or reduce a subsidy under subsection (3) unless— (a) the owner, and learners, having regard to their age, maturity and stage of development, and persons who have parental responsibilities and rights in respect of the learner, of such independent school and independent micro-school has been furnished with a notice of intention to terminate or reduce the subsidy and the reasons therefor;

(b) such owner and learners, having regard to their age, maturity and stage of development, and persons who have parental responsibilities and rights in respect of the learner, have been granted an opportunity to make written representations as to why the subsidy should not be terminated or reduced; and

(5) The owner of an independent school or independent micro-school may appeal to the Member of the Executive Council against the termination or reduction of a subsidy to such independent school or independent micro-school.

• Section 49 of the South African Schools Act, 1996, is hereby amended by the substitution of the section with the following section:

“Declaration of independent school or independent micro-school as public school.—(1) The Member of the Executive Council may, with the concurrence of the Member of the Executive Council responsible for finance, enter into an agreement with the owner of an independent or an independent micro-school in terms whereof such independent school or an independent micro-school is declared to be a public school.

(2) Notice of the change of status contemplated in subsection (1) must be published in the Provincial Gazette.”

• Section 50 of the South African Schools Act, 1996, is hereby amended by the substitution of the section with the following section:

“Duties of Member of Executive Council relating to independent schools and independent micro-schools.—(1) The Member of the Executive Council must, by notice in the Provincial Gazette, determine requirements for—(a) the admission of learners of an independent school and an independent micro-school to examinations conducted by or under the supervision of the education department;

(b) the keeping of registers and other documents by an independent school and independent micro-school;

(c) criteria of eligibility, conditions and manner of payment of any subsidy to an independent school and independent micro-school ; and

(d) any other matter relating to an independent school or an independent micro-school which must or may be prescribed in terms of this Act.

(2) Different requirements may be made under subsection (1) in respect of different independent schools or independent micro-schools.

(3) The Member of the Executive Council must allow the affected parties a reasonable period to comment on any requirement he or she intends to determine under subsection (1).”

• The South African Schools Act, 1996, is hereby amended by the insertion after Section 50 of the the following section:

“Dispute resolution 50 (A)(1) If a dispute arises between the Head of Department and the owner of an independent school or independent micro-school, the following procedure must be followed:

(a) All attempts must be made by the parties to resolve the dispute

informally.

(b) If the parties are unable to resolve the dispute informally as referred

to in paragraph (a), the following steps must be taken:

(i) The aggrieved party must give the other party written notice

of the dispute; and

(ii) such notice must include a description of the issues involved

in the dispute and a proposed resolution thereof.

of the written notice contemplated in paragraph (b), each party must

nominate a representative within seven days, and those representatives

must meet within 14 days after their nomination in order to

resolve the dispute.

(d) If the parties cannot resolve the dispute as contemplated in

paragraphs (a), (b) and (c), the owner may appeal to the

Member of the Executive Council against the decision that gave rise

to the dispute.

(e) If an appeal contemplated in paragraph (d) has been received, the

Member of the Executive Council must, within 30 days after

receiving such appeal, consider and decide on the matter and, in

writing, inform the governing body of the outcome of the appeal.

(2) If a dispute arises between the Member of the Executive Council

and the owner of an independent school or independent micro-school, the following procedure must be followed: