What Could Happen if You Don’t Register?

Disclaimer: The information provided on this website does not, and is not intended to, constitute legal advice; instead, all information, content, and materials available on this site are for general informational purposes only.

When it comes to home education, many parents find themselves in the ‘registration-hesitant’ group as there are still so many uncertainties about the new legislation contained in the BELA Act, as well as the application and other processes.

It’s important to understand what the law says and not to make any decision out of fear.

What might happen if you delay or avoid registration for home education?

The process is guided by Section 3 (5-6) of the SA Schools Act. The information below is from the amended SA School Act.

Note  – Legal experts expect that the BELA Act, which amends the SA Schools Act as below, is likely to only be in force, in about mid-December 2024, after the commencement date is gazetted by the president. Until then, the current version of the SA Schools Act applies. Learn more at BELA, Then, Now or Never

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 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.”

Don’t panic! If anything happens at all, you are more likely to be INVESTIGATED, rather than PROSECUTED.

The process to remedy the situation where parents fail to register requires significant administrative capabilities. It must also be noted that the Head of Department (HOD) is not obligated to enforce it. 

Section 3 of the SA Schools Act states: “(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 …”. 

The word “may” gives the Head of Department (HOD) the discretion to enforce compulsory school attendance (or registration for home education) or not. If there is no evidence of significant educational neglect in the home education sector, the HOD has the discretion not to allocate resources to enforce registration. Such a decision is a reasonable decision, especially in times of budgetary constraints. It has been the case since 1996 that no significant resources have been allocated to enforce school attendance and there is no record of successful prosecution in terms of Section 3.

If however, the HOD does decide to take action to remedy the situation, the following is most likely to be the procedure, as prescribed by Section 3 (5).

1. Firstly, education officials have to find the parents that failed to register. 

2. Secondly, they are obliged to investigate with the intention to remedy situations that cause parents not to register. 

3. Thirdly, if parents, after the situation was remedied, still refuse to register, a written notice must be issued. Only if parents ignore the written notice are they potentially guilty of an offense. The SA Schools Act makes provision for people that do not register if they have a “just cause.” It is not clear what a valid “just cause” is, but there could be many possibilities.

In an article titled, Registration, Who will Have the Final Word?, the Pestalozzi Trust published the following explanation:

“Therefore, during this period of investigation parents would set out the reasons for their child’s non-attendance and the reasons why they cannot comply with the registration requirements. Parents would then argue that one of the appropriate steps that should be taken is for the department to register the child for home education on the conditions agreed with the parents (assuming those are in the best interests of the child). The actions of departmental officials would have to be: • Lawful (and that includes that these decisions will have to be in the best interest of the child because that is a key Constitutional provision), • Reasonable, • Procedurally fair (this includes you having the chance to fully state your case and that the provincial education department [PED] must be unbiased in their decisions), and that the PED will need to give reasons for their decision. Once you have their decision and the reasons for their decision you could appeal against that decision, first using the internal processes of the department and then through the courts. It is an open question if the provincial home education departments have ever launched an investigation into why a home educator was not attending school or was not registered. To date there have been no reports of this happening. The Director-General of the Department of Basic Education recently stated that while he would like to see parents whose children do not attend school prosecuted, the SAPS does not have resources to pursue parents. So one must ask what is the point of a law that the state can’t enforce.”

The SA Schools Act requires that the Criminal Procedures Act must be followed in the situation where a parent refuses to remedy the situation by applying for registration:

1.  Education officials can file a complaint with the police. 

2. The police must appoint an investigator to compile a docket with all the evidence needed to prosecute. 

3. This docket must be submitted to the prosecution authorities. 

4. Only when a prosecutor decides to prosecute, will an application be submitted to the court, and parents can be subpoenaed to appear in court. 

5. Even when parents are found guilty, it would be difficult for judges to justify a jail sentence for administrative neglect as that would negatively affect the interests of children. 

During the entire process described, the parents can engage with inspectors and prosecutors to find a mutually beneficial solution to comply with the law.

The Pestalozzi Trust has confirmed they will support all members, regardless of their decision to register or not.

The Pestalozzi Trust stated the following in communication to its members in October 2024:

The Trust will support you in the following way: “1) Support you through the Section 3(5) process or any other process i.e social worker enquiry or other legal process. The Trust’s approach will always be to seek ways that minimise conflict and keep you and your family out of court. If necessary the Trust will provide support through a legal practitioner/s during this process.” You should always have the Trust’s emergency number at hand and call it as soon as any contact with any official occurs. The Trust needs this early notice to achieve a positive outcome.

The Purpose of Enforcement is Compliance

The view of other legalwise home educators is that the purpose of enforcement is to ensure compliance. If parents at any step in the process described above decide that they are now happy to submit an application form, then the enforcement actions will have been successful and it is highly unlikely that the DBE officials would launch a full investigation into all factors. This would serve no rational purpose.

Furthermore, the department does not have the power to investigate all factors. Education officials are neither empowered nor capable to administrate the Children’s Act. Their powers are limited to education matters.

Moreover, the department of education does not have the duty to investigate all factors. The law gives them the discretion to choose not to enforce compulsory school attendance and, as stated previously, to date, they have never prosecuted anyone.

As a parent, you need to weigh up the pros and cons, the risks and benefits of any decision you make. It is not a simple matter. You need to make an informed choice.

Last updated: 17 October 2024