Home education is legal in South Africa and legislation pertaining to homeschooling is included in the SA Schools Act, 84 of 1996 in Sections 3 and 51 respectively, both of which were amended in September 2024 by the passing of the BELA Act. However, understanding how it affects your child and how to respond is not always straightforward. At the bottom of this page we have a list of supporting articles to help you grapple with this controversial subject.
Homeschool Laws in South Africa
Be prepared. Be informed. Be empowered.
Home education was legalised as an alternative to compulsory schooling in South Africa in 1996 and written into the SA Schools Act, 84 of 1996. However, before we get to that, read these words in the green block below and always keep them in mind.
The highest law of the land is the South African Constitution. Other laws may potentially be in conflict with the Constitution. This is why we have lawyers and advocates and a Constitutional Court – to settle matters where laws might be in conflict with one another or if they are vague, violate human rights protected in the Constitution or have been passed without following the required democratic process.
The highest law of the land instructs you and anybody else to prioritise each individual child’s best interests in all decisions pertaining to that child. As a parent, you are deemed to be the best judge of that, unless proven otherwise in a court of law. It is your responsibility.
Section 28 (2) of the SA Constitution states that: “A child’s best interests are of paramount importance in every matter concerning the child.”
Never forget that as you have to decide what will be in your child’s best interests!
Now read the law, as it now stands after being amended in September 2024 by the highly controversial Basic Education Laws Amendment Act (BELA Act). This act is very likely to be challenged in the Constitutional Court.
SA Schools Act, 84 of 1996:
Section 3. Compulsory attendance.
(1) Subject to this Act and any applicable provincial law, every parent must cause every learner for whom he or she is responsible to attend a school from the first school day of the year in which such learner reaches the age of seven years until the last school day of the year in which such learner reaches the age of fifteen years or the ninth grade, whichever occurs first….
(5) If a learner who is subject to compulsory attendance in terms of subsection (1) is not enrolled at or fails to attend a school, the Head of Department may—
(a) investigate the circumstances of the learner’s absence from school;
(b) take appropriate measures to remedy the situation; and
(c) failing such a remedy, issue a written notice to the parent of the learner requiring compliance with subsection (1).
(6) Subject to this Act and any other applicable law—
(a) any parent who, without just cause and after a written notice from the Head of Department, fails to comply with subsection (1), is guilty of an offence and liable on conviction to a fine or to imprisonment for a period not exceeding six months; or
(b) any other person who, without just cause, prevents a learner who is subject to compulsory attendance from attending a school, is guilty of an offence and liable on conviction to a fine or to imprisonment for a period not exceeding six months.
In September 2024, the Basic Education Laws Amendment Act (BELA Act) was promulgated and paragraph (6) above was replaced by the following in Clause 2 of the BELA Act:
Amendment of section 3 of Act 84 of 1996, as amended by Act 100 of 1997
2. Section 3 of the South African Schools Act, 1996, is hereby amended –
(a) by the substitution for subsection (6) of the following subsection:
“(6) Subject, to this Act and any other applicable law –
(a) any parent who, without just cause and after a written notice from the Head of Department, fails to comply with subsection (1), is guilty of an offence and liable on conviction to a fine or to imprisonment for a period not exceeding six months, or to both such fine and such imprisonment; or
(b) any other person who, without just cause, prevents a learner who is subject to compulsory attendance from attending a school, is guilty of an offence and liable on conviction to a fine or to imprisonment for a period not exceeding six months, or to both such fine and such imprisonment.”; and
Parents could potentially be prosecuted if they prevent their children from attending school, if they are between the ages set for compulsory school attendance, namely from age 7-15 or the end of grade 9, whichever is soonest. Don’t let that put fear in your boots! Home education is a legal alternative to compulsory school attendance.
A child may be exempted from compulsory schooling if the parent applies for registration of a learner for education at home. Note that homeschooling must take place at the learner’s own home. This is prescribed by the law.
The BELA Act, promulgated in September 2024, made the following amendments to the SA Schools Act 84 of 1996. Section 51 deals with the Registration of a learner for education at home.
Substitution of section 51 of Act 84 of 1996
25. The following section is hereby substituted for section 51 of the South African Schools Act, 1996:
“Home education
51. (1) If the parent of a learner who is subject to compulsory attendance as contemplated in section 3(1) chooses to educate the learner at home, such parent must apply to the Head of Department for the registration of the learner to receive home education.
(2) The Head of Department must approve the application and register the learner as contemplated in subsection
(a) if he or she is satisfied that—
(i) education at home, as provided for in this Act, is in the best interests of the learner;
(ii) the parent understands what home education entails and accepts full responsibility for the implementation of home education for the learner; and
(iii) the proposed home education programme is suitable for the learner’s age, grade level and ability and predominantly covers the acquisition of content and skills at least comparable to the relevant national curriculum determined by the Minister; and
(b) if the parent undertakes to—
(i) make suitable educational resources available to support the learner’s learning;
(ii) monitor the learner’s academic progress;
(iii) arrange for the learner’s educational attainment to be assessed by a competent assessor—
(aa) at the end of each phase, up to the end of the year in which the learner reaches the age of 15 years or completes grade 9, which ever occurs first; and
(bb) against a standard that is not inferior to the standard determined in the National Curriculum Statement; and
(iv) submit to the Head of Department, at the end of each phase and as evidence of the learner’s educational attainment, the learner’s assessment report, signed by the competent assessor.
(3) In considering the application, the Head of Department may, on just cause shown and after notification to the parent, require a delegated official to conduct a pre-registration consultation with the parents and learner to verify the information supplied in the application documentation and to provide support, where necessary, with the application process
(4) If the Head of Department is satisfied that the parent does not meet the requirements set out in subsection (2), or if the outcome of the process set out in subsection (3) fails to satisfy the Head of Department that home education is in the best interests of the learner, the Head of Department must decline to register a learner to receive home education.
(5) If a parent educates a learner at home, and that learner has, at the time of the commencement of this section, not been registered as contemplated in this section, the parent must, within 30 days after the commencement of this section, apply to the Head of Department for the registration of the learner to receive home education.
(6) If the Head of Department does not respond within 60 days of receipt of an application for home education as contemplated in subsections (1) and(5), the application shall be deemed to have been approved, on condition that the applicant must be able, on request, to produce proof that an application for registration to receive home education was submitted.
(7) A learner who is registered to receive home education is exempted from school attendance as contemplated in section 3.
(8) The parent of a learner who has been registered as contemplated in subsection (1) or (5) must notify the Head of Department at the end of the—
(a) Foundation Phase (grades R to 3);
(b) Intermediate Phase (grades 4 to 6); and
(c) Senior Phase (grades 7 to 9),
of his or her intention to continue educating the learner at home.
(9) A parent who wishes to continue educating a learner at home after the learner has reached the age of 15 years or has completed grade 9, whichever occurs first, or who wishes to start educating such learner at home at such time, is not required to apply for registration, as contemplated in subsections (1) and (5), or to notify the Head of Department, as contemplated in subsection (8).
(10) After a home-educated learner has completed grade 9 or has reached the age of 15 years, whichever occurs first, the parent may enrol the learner at a public school or an independent school for the completion of grades 10 to 12.
(11) If the parent of a learner contemplated in subsection (9) desires the learner to eventually write the National Senior Certificate examination, such parent must, before the learner embarks on any studies following grade 9, ensure that the learner complies with the requirements stipulated in regulation 7(4A) of the Regulations pertaining to the conduct, administration and management of the National Senior Certificate examination (published under R872 in Gazette No. 31337 of 29 August 2008), for a learner receiving home education.
(12) The Head of Department must cancel a learner’s registration to receive home education if, after investigation, the Head of Department is satisfied that home education is no longer in the best interests of the learner.
(13) The Head of Department may not decline to register a learner, as contemplated in subsection (4), or cancel the registration of a learner, as contemplated in subsection (12), before—
(a) informing the parent, in writing, of his or her intention so to act and the reasons therefor;
(b) granting the parent a reasonable opportunity to make representations to him or her, which opportunity must include discussions relating to such intention;
(c) giving due consideration to any such representations received; and
(d) providing the parent with written reasons for his or her decision.
(14)(a) The parent of a learner may appeal to the Member of the Executive Council, within 30 days of receiving notice—
(i) that the Head of Department has declined the application to register the learner to receive home education; or
(ii) that the Head of Department has cancelled the learner’s registration to receive home education.
(b) If the parent of a learner is of the opinion that any decision of the Head of Department in relation to the home education of the learner in question is unreasonable, such parent may appeal to the Member of the Executive Council within 30 days of receiving notice of such decision.
(15) If an appeal contemplated in subsection (14) is received, the Member of the Executive Council must, within 30 days of receiving such appeal, consider and decide on the matter and, in writing, inform the parent of the outcome of the appeal.
(16) The Minister may make regulations relating to registration for, and the administration of, home education.’’
More Laws about Education
The Bill of Rights states the right to basic education in clause “29. (1) Everyone has the right— (a) to a basic education…”,
The Universal Declaration of Human Rights, Article 26, 1 states that, “Everyone has the right to education” (UDHR, Art. 26, 1).
Freedom of education is the right for parents to have their children educated in accordance with their religious and other views, allowing groups to be able to educate children without being impeded by the nation state.
Respect for freedom of education requires that the state may not prefer a particular educational method or approach, including compulsory attendance at a government operated institution. One should therefore distinguish between compulsory education and compulsory schooling.
The English liberal philosopher John Stuart Mill was a strong advocate of education without the state. He made some interesting comments in his essay On Liberty published in 1859:
“There are no libertarian objections to the state making the education of children compulsory. However, there are to the state providing and directing education. I go as far as anyone in deprecating that the whole or any large part of education should be in the hands of government.
Individual freedom and diversity in people’s characters, opinions, and modes of conduct require freedom and diversity in education – and any general system of state education would be a contrivance for casting people into the same mould and shape. Education would aim to suit the governing power – whether a monarch, a priesthood, an aristocracy, or a majority of the existing generation. The more efficient and successful state education was, the greater the despotism the state could establish over the minds and bodies of the people. If societies allow state-schools and universities to operate at all, these institutions should be just one among many competing forms and experiments in education. The government might establish them simply to provide models or examples of how to achieve certain standards of educational excellence.“
John Stuart Mill, On Liberty: A Translation into Modern English, ISR/Google Books, 2013, page 123. Ebook ISBN 9780906321638
Isn’t it interesting that he wrote that government could establish state schools and universities as examples of how to achieve certain standards. Perhaps this was because mass education did not yet exist at the time when he wrote the above, in 1859.
The South African Constitution states the following in the Bill of Rights in Section 29:
29. Education
1. Everyone has the right
a. to a basic education, including adult basic education; and
b. to further education, which the state, through reasonable measures, must make progressively available and accessible.
2. Everyone has the right to receive education in the official language or languages of their choice in public educational institutions where that education is reasonably practicable. In order to ensure the effective access to, and implementation of, this right, the state must consider all reasonable educational alternatives, including single medium institutions, taking into account
a. equity;
b. practicability; and
c. the need to redress the results of past racially discriminatory laws and practices.
3. Everyone has the right to establish and maintain, at their own expense, independent educational institutions that
a. do not discriminate on the basis of race;
b. are registered with the state; and
c. maintain standards that are not inferior to standards at comparable public educational institutions.
4. Subsection (3) does not preclude state subsidies for independent educational institutions.
Must You Register for Home Education?
To register or not for home education is a dilemma for homeschoolers that they have had to wrestle with since home education was legalised in 1996. It remains a dilemma, now that the controversial BELA Bill has been passed as law, namely the BELA Act. That means there is not an easy answer. Ultimately, this question will mostly likely need to be settled in the Constitutional Court, which is likely to be a lengthy and expensive process.
Until then, we advise home educators to always make a very well informed choice and to always act in the best interests of your child, which the highest law of the land, namely the South African Constitution requires as a priority in all decisions pertaining to your child.
Know the law and how it affects your family so that you can make the best possible decisions. Don’t make any decisions based on fear. Watch the video that follows, where the former chairman of the Pestalozzi Trust, (the home education legal defence association) who is also a home education expert and activist, namely Bouwe van der Eems, discusses many of the complexities of the decision about whether or not to register for home education.
Homeschooling and the Law in South Africa
Be prepared. Be informed. Be empowered.
Read our other articles relating to Homeschool Laws in South Africa.
- Read this first – Disclaimer
- Pros and Cons of Registration for Home Education
- Must You Register for Homeschooling?
- What Could Happen if You Don’t Register?
- Be Properly Informed of the Legalities of Homeschooling
- Registering with the Department vs A Child’s Best Interests
- Are Home Visits Legal?
- Removing or Returning a Child to School
- Cottage Schools
Homeschool Assessments, Reports and Compliance
Part 1 – Homeschool Assessments
Part 2 – Homeschool Reports
Part 3 – Should You Submit Homeschool Reports?
Curriculum Compliance
School at Home versus Eclectic Homeschooling
Footprints and CAPS
Footprints Language Arts and CAPS
Barefoot Days and CAPS