Hon. Chair, Hon. Members, Staff of the Portfolio Committee and parliament, officials from the Department, fellow stakeholders, observers and members of the press. It is an honour for me to address you today on behalf of LearnFree and the delegation who are joining us.
I am the founder of LearnFree, we are what you call in advertising speak a boutique organization, but what that really means is very small. We have a very simple mission and focus doing all we can to make education available to as many as possible, for as low a cost as possible and wherever possible.
Let me say at the outset that as we have that as a goal our submission is going to be slightly out of the ordinary as one of our focus points is going to be not so much on what is in the Bill as what needs to be in the Bill. This is I admit rather unconventional.
To assist me in this rather unconventional task is a delegation of unconventional educators. This delegation does not represent LearnFree directly, but rather, our networking approach as we have brought together people and organizations that may not otherwise have an opportunity to address the Committee on BELA Bill. We would also have been joined virtually by academics in our network but that has not proved possible due to the technical constraints of the venue.
Three of the five members of our delegation are representatives of what can be called the Micro-School sector, for convenience I am going to say that these are independent schools of a size that the DBE would consider non-viable and in general because of that size incapable of delivering quality education. They are most probably going to disagree with the way I have used size to define them, but I can assure you that all these institutions are delivering quality education. I will leave it you to question them on how they define themselves and how they deliver quality education and what accommodations they need in law.
I am therefore pleased to introduce: Siraj Ghoor from Open Minds Academy – Open Minds is a Gauteng-based institution that follows a self-directed or learner-led approach to education. Siraj is one those crazy people who homeschooled his own four children and liked it so much that he decided to dedicate himself to creating that experience for learners whose parents can’t home educate. Bronwyn Murray of Thrive Academy runs an academy that provides education for a cross section of learners. Whenever I see Bronwyn interact with her learners and the respectful but firm way her and her staff deal with learner behaviour I am humbled and encouraged to be a better parent and person. Kath Kenyon, is without a doubt one of our countries leading remedial educators. Her very-micro, should I say boutique, school, despite its small size has immense impact on the lives of the learners with disabilities that she works with and the courses she delivers focus on empowerment, dignity, and independent living where possible.
We are also joined by Anelle Burger who is a home schooling mother and her son Francois who follows an eclectic classical education approach. So, for his benefit I have included a Latin quote in my presentation. Francois is 13 and I am very grateful that he has joined us today and he would welcome the committee asking him any questions about home education.
In our submission we are going to set out three broad weaknesses of the BELA Bill as it stands. These weaknesses are:
1) That important areas that urgently need new law are neglected i.e., rural education, education for learners with disabilities, the ECD sector, on-line education and micro-schools.
2) Areas where the BELA Bill provisions are going to have negative unintended consequences and lead to legal conflict such as Home Education. I am going to cover in a very brief case study, and
3) That BELA Bill does not address procedural rights.
I do not want to suggest that BELA is all bad, the Bill has several positives and a number of steps in the right direction. As you will see from the paper I shared with the committee the purpose of this submission is not to condemn BELA but to make BELA better.
As experienced legislators the committee is aware of the characteristics of effective education law making so I will not comment on this slide and only use it if required when questions are asked.
We have five key submissions:
• New architecture of education law is needed
• Education law needs to be made fundamental rights based and child-centric
• Learners with disabilities (LSEN), rural education & ECD should be included in BELA Bill
• New education modalities need to be accommodated.
• Reform of “how, what and how quickly” policy and education law are developed.
The fundamental problem with BELA Bill is that is not what it says it is.
BELA Bill claims to be a Basic Education Laws Amendment Bill. It is not that it is a School’s Bill. The Constitution talks about a right to education and SASA interprets that as meaning compulsory schooling. But the Constitution is intentionally broad – Education is the end and schooling one of the means, one of the ways of getting there.
If we are going to provide for modalities like home education, ECD and Online education in our education law we either need multiple laws or SASA needs to change. Currently we are trying to crowd too much law under one roof. We need a new architecture that accommodates, education, not just schooling, in all its diversity.
The second fundamental problem relates to content but not just a clause or two that is problematic but the fact that BELA Bill is not Child and Fundamental rights centric.
SASA was drafted in 1996, ten years later the Children’s Act and the Child Justice Act were promulgated. The Children’s Act is a piece of umbrella legislation and SASA and BELA should fall under its protection. But SASA has never been reviewed and reformed to incorporate the Children’s Act & the Child Justice Act.
In this regard, I would like to quote Dr. Mariette Reynecke, a leading expert on Discipline in Schools
“In contrast to th[e] explicit child-centred requirement of the Constitution, the Schools Act does not have an explicit child focus.”
I will offer a slightly blunter assessment the BELA Bill is focused on School administration and Employer/Employee relations. There is relatively little focus on the Child and the Child’s rights.
Previous presenters have highlighted this repeatedly by raising the issue of “victims” rights when it comes to the school setting. This is addressed in the Child Justice Act and valuable principles from that Act should be applied to school discipline.
This honorable committee is deeply concerned with school bullying and the safety of teachers, but we cannot address that issue successfully unless we have the right policy and law as a bedrock.
While a focus on safety is very important, we shouldn’t think that safety exhaust the human rights universe of the learner. As far as possible the learner should have their voice heard, be allowed to choose what they learn and how they learn. The educators with me here today can explain how that is possible.
The final fundamental problem with BELA is that the Bill does not address procedural rights. These are the class of fundamental human rights that look not at the content of the right but how these rights can be protected procedurally.
In this respect Clause 39 (Section 59A) is a step in the right direction. Hon. Boshoff has for example mentioned creating an education ombud.
Learnfree, therefore, calls on the Committee to consider how to structure the education law and investigate how BELA can be made child-centric and include procedural rights in the Bill.
BELA Bill as it stands fails to put sufficient attention to the rights of the child who is at the periphery. Children who are:
• Learners with disabilities
• In Early Childhood Education
• Attend Rural schools
• Learn through Emerging Educational Modalities – which are the new ways of educating that are emerging as part of the Digital and Fourth Industrial Revolutions
• Home education
• Collaborative & Community-based home education
• Micro-schools
• On-line Schooling
All these need to find a dedicated space in our education law architecture. I am going to leave it to the Committee to ask the delegation questions on these aspects especially micro-schools and home education.
Many of these issues are problematic because our policy making processes suffer from a democratic deficit. Poor policy leads to the kind of critique that we are forced to make to-day because, and here is the Latin quote - “PARVUS ERROR IN PRINCIPIO MAGNUS EST IN FINE” - A small mistake in the beginning is a big one in the end.
In our constitutional law it is acknowledged that while our Constitution requires active public engagement in all spheres of government the open question is how to ensure public engagement in the executive or administrative sphere is unclear. We see little public engagement in policy development other than at the terminal phase when the policy, regulation or law is largely set in stone. To avoid this, we need new constitutionally compliant and democratic ways to develop policy.
We also need to consider using “soft law” - until we understand a new educational approach and only then implement “hard law”.
These flaws of can vividly demonstrated by looking at the home education sections (Clause 37, Section 51) as a case study.
Limited consideration is given to international law and best practice. The rights of parents and learners to follow a curriculum of their choice is for example being undermined.
No one can tell us even how many home educators there are. Although LearnFree’s research suggests that that number is between 35000 and 50 000 and therefore a disproportionate amount of attention is being paid to home education while the micro-schooling sector, which receives no attention, is likely much larger.
The DBE has no recent research into home education and therefore the law doesn’t relate to the practice of home education as it is practiced.
The Socio-economic impact assessment doesn’t consider if it is feasible to conduct home visits, process applications and conduct monitoring. If the Bill is passed as it stands officials will have to conduct as many as 30 000 to 35 000 home visits. This is simply not feasible.
It is nowhere mentioned in the SEIA, or in the commentary on s51(16) of the Bill that there is already regulation in two provinces. If the BELA Bill is passed we will have national law, national regulations and provincial regulations. The KZN and NW regulations differ substantially from each other and from the Bill. Parents will have to manage the conflict and harmonise these varying requirements. This will make the law unclear and unstable.
In addition, we would argue that home education and independent education are being treated in a substantially different fashion and that as forms of independent education they should not be. The setting of the registration conditions for independent schools is left to the provincial ministers in s46(2) of SASA but in the case of home education it is the national government that is seizing that function from the provinces. We submit that this is irrational and that it is the provincial MEC who should set the registration conditions as they do for independent schools.
A further problem is that monitoring should not be a function of the DBE or PEDS. In our educational law architecture this is properly a function of Umalusi. It is Umlausi that oversees and monitors the quality of independent schooling and the same should be the case with home education. S51(2)(b)(iii)&(iv) and all related definitions should be changed to reflect this.
S51 of BELA Bill doesn’t work in practice. It may seem strange to say this as BELA Bill is only being discussed in the house now but because the BELA Bill was substantially delayed the Department implemented the Policy on Home Education in 2019 which is BELA Bill in practice. Virtually the only provisions that is not in the Policy that is in the Bill is Section 51(6) that allows for registration after 60 days. The PEDs are overwhelmed with the requirements of the Policy, over 65% of home educators received no response to an application and 70% of those had been waiting longer than a year, this is not the fault of the officials but rather the complexity of the registration requirements and the lack of appropriate tools. Many official’s mailboxes are too small for the large number of documents required for each registration and these become overwhelmed and applications go missing.
s51 is out of date. One reason there are so many problems with s51 is that it is substantially the same as the Policy on Home Education developed by the Western Cape Education Department in 2014 and hastily withdraw when many of the criticisms now being made were made. Section 51 is nearly ten years old and out of date.
Needless to say, all of the above means that there is a high likelihood of a legal challenge to the Bill by home schoolers. This risk could be mitigated if formal engagement structures existed but there are no legally binding consultative structures and NEPA is not geared to parent to government engagement. It works primarily through representative structures.
In respect of s51 our submission is that s51 should remain unchanged as it is in the current SASA although we believe s51(2)(b) which prescribes curriculum is, depending on interpretation, of questionable constitutionality and that the required research should take place, formal engagement structures be put in place and “soft law” instruments be used to further regulate home education until regulation can take place based on fact.
We therefore have seven key submissions
Make SASA a true Education Act by including principles like Chapter 2 of the Children’s Act and Principles from the Child Justice Act.
To allow for “soft law” approaches to cater to emerging educational modalities.
Support the call of SAHRC that online should be included in the Bill.
Incorporate the ECD sections from the Second Children’s Amendment Bill into BELA Bill.
Incorporate dedicated sections dealing with learners with disabilities and rural schooling.
Include procedural rights, possibly in NEPA and,
Reform NEPA to accelerate, democratize and improve the quality of policy development.
Thank You.
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