versus A Child’s Best Interests
Should you Register for Home Education in South Africa?
According to Section 51 of the SA Schools Act, amended by the BELA Act in September 2024:
(2) The Head of Department must approve the application and register the learner as contemplated in subsection (1) if he or she is satisfied that—
(a) education at home and registration as such is in the interests of the learner;
(b) The parent understands, accepts and is equipped to fulfil the responsibility of home education for the learner;
(c) the proposed home education programme is suitable for the learner’s age, grade level, ability and covers the acquisition of content and skills at least comparable to the relevant national curriculum determined by the Minister; and
(d)the parent undertakes to-
(i) make suitable educational resources available to support the learner’s learning;
(ii) monitor the learner’s learning;
(iii)arrange for the learner’s educational attainment to be assessed annually by a competent assessor, approved by the Head of Department, at the parent’s own expense who will apply a standard that is not inferior to the standard expected in a public school according to the learner’s age, grade level and ability. and
(iv) provide the Head of Department with the learner’s assessment report signed by the competent assessor.
Problems with Registering for Homeschooling
Despite this, legal experts on home education in South Africa have stated the following:
“Although homeschooling is legal in South Africa, the law regarding homeschooling is seriously restrictive, compared to that of other countries like the UK, the US, Canada and New Zealand, where homeschooling has a long and successful history as an inherent element of the educational system.
The restrictive nature of the law is for instance apparent in the registration process for homeschooling. There are various problems with the registration process in South Africa, which the Pestalozzi Trust and homeschooling leaders have repeatedly pointed out to the DBE.
Consequently many parents regard registration as not being in the best interest of their children. They regard it as both an infringement of their right to direct their child’s education and of a child’s right to receive the best kind of education. These rights should be protected in the education laws in South Africa, since a parent’s right to choose the best kind of education for his child is protected in amongst others the Constitution, the Children’s Act and in many international treaties, and there is no reason why it should not equally be protected in South African education law.
Problems that parents see with the registration process:
(1) The state removes the parents’ ability to choose the kind of education that would develop their child’s personality in all respects.
(2) The home visit [now abolished in the law, but not in practice – September 2024] to inspect a parent’s home prior to registration is regarded as a violation of the right to privacy. No criteria for the parent’s home are made known to the family beforehand, leaving the parents in the unenviable position of not knowing what the officials will be looking for in their home. [Read our article, Are Home Visits Legal?]
(3) Another complicating factor is the fact that the South African homeschooling law is being changed. The BELA Bill which was [updated starts] promulgated in September 2024, intends changing the homeschooling scene to delivery of state education at home. Parents are reluctant to register.
(4) It is also a problem that the registration process is a slow, cumbersome and erratic process. Parents should therefore study the documents they are required to read when submitting the registration form very carefully to make sure that registration would really be in their child’s best interest, before submitting the registration form.
Parents are encouraged to join the Pestalozzi Trust, which is an organisation established to help them defend their right to home education. Members receive an emergency number to call should they land in conflict with the DBE, Welfare or Police regarding their home education, and members are kept up to date with legal developments.”
You should contact the Pestalozzi Trust to get updated information for your specific circumstances, as each family and their reasons for choosing homeschooling is unique.
Make an Informed Choice in the Best Interests of your Child
The law and its interpretation and application is never simple – that’s why lawyers have jobs!
However, government officials frequently give the impression that laws are straightforward and they even set unlawful requirements. In so doing they overstep the limitations of the law and the boundaries of their authority.
The SA Schools Act is not the only law to consider with regard to the responsibilities of parents and registration of home learners.
Section 28 (2) of the SA Constitution states that: “A child’s best interests are of paramount importance in every matter concerning the child.”
The Children’s Act is also applicable as is the Promotion of Administrative Justice Act, the Promotion of Access to Information Act and the Protection of Personal Information Act, among others.
Article 26 (3) of the Universal Declaration of Human Rights states: “Parents have a prior right to choose the kind of education that shall be given to their children.”
Government officials should not!
A White Paper on Education and Training (Notice 196 of 1995, Department of Education) explains the principles on which the SA Schools Act is based. One of these principles that is applicable to homeschooling is the following:
“Parents or guardians have the primary responsibility for the education of their children, …Parents have an inalienable right to choose the form of education which is best for their children, particularly in the early years of schooling, whether provided by the state or not, subject to reasonable safeguards which may be required by law.” [our emphasis in bold]
According to the Constitution everything relating to a child, should be in that child’s best interests. This is the highest priority, stated by the highest law of the land.
Homeschooling mother, Joy Leavesley, pointed out that there have been rulings in the Constitutional Court where existing laws were ruled as unlawful on the grounds that they did not honour this “best interests” principle. (Isn’t it interesting to learn that laws can be unlawful?) The laws regarding home education have never yet been tested in a court of law in this manner.
The late Leendert van Oostrum of the Pestalozzi Trust explained the potential inconsistencies of the various applicable laws listed above as simply as possible below:
- If a homeschooling parent fails, without just cause, (good enough reason) to register a home learner for education at home, the parent can be prosecuted and, if found guilty, can be sentenced to up to six months in jail OR a fine. (SA Schools Act).
- If a parent fails to protect and fulfill a child’s right to education or any of the child’s other rights, including the right to privacy, in a manner that is in the child’s best interests, the parent can be prosecuted and can, if found guilty, be sentenced to up to ten years in jail AND a fine. (Children’s Act).
- Therefore, parents must be very sure that education officials do not infringe the rights of their children in the manner in which they perform the registration of home learners. If the processes and procedures for registering home learners, or the officials implementing them, infringe the rights of the children, the parents can plead that they have “just cause” for not registering.
- Up to now, about 98% of all homeschooling parents have concluded that the processes and procedures by which home learners are registered will infringe the rights of their children and that they must not, therefore, subject their children to those processes and procedures without the risk of being guilty of a far greater crime (child neglect), than the crime of failing to register.
(At the same time, if they have to protect their children against unlawful infringement of their rights by registration officials, they are by definition not guilty of failing to register without just cause. Because they have just cause.)
Yes, the above does not constitute simple terms. However, if one reads it carefully a few times, it might become clearer. (Tuisonderwys egroup, 17 March 2015)
Update: Even at April 2024, recent government reports indicate extremely low numbers of parents have applied to register their children for home education.
A parent asked Leendert van Oostrum, about the pros and cons of registration on a social media platform (tuisonderwys egroup) on 21/01/2013:
“With regards to the law on homeschooling that is applicable in Gauteng, I would like to know if there is a law that stipulates that we must register our children with the department or not?
From your experience with homeschooling, what are the advantages and disadvantages of this?
Many homeschool curriculum suppliers expect homeschooling parents to register their children as a pre-requisite to using their curriculum, therefore I want to brush up my knowledge on this topic.”
Read this question and answer in Afrikaans at Inskrywing by Department
Answer
Below is an edited translation of the answer that was originally given in Afrikaans:
“The law in Gauteng does not differ much from the other provinces…There is a national law that says that you must register your child, unless you have good reason not to do so.
The provinces use this law and then set all sorts of unreasonable and even unlawful requirements for registration. In other words, they use an otherwise lawful registration requirement to force people to comply with a battery of requirements, which they otherwise could not force upon you.
The result is that about 95% of all homeschoolers have come to the conclusion that they are legally justified in not registering, as a result of the unlawful requirements of the department, and because many of the unlawful requirements, in their judgment, are in conflict with their children’s best interests.
Leendert’s answer is edited from here on as the wording of the legislation has changed since his answer was given.
One example of a general requirement is that home education must cover “the acquisition of content and skills at least comparable to the relevant national curriculum.” The wording is vague. Good laws should not be vague, they must be clear.
Some world class home education curricula cover comparable skills, but not the same content as the national curriculum. If this phrase is strictly enforced, this may been that the choice of curricula is prescribed and restricted. Any limitations on freedom should be reasonable and justifiable and in the best interests of the child.
“Regarding Curriculum Suppliers
There is no law that demands that curriculum suppliers require that their clients must be registered. Just like there is no law that a car dealership is required to only sell cars to people with driver’s licences. (A child of four can own a car, he may just not drive it! Therefore the control of driver’s licences is the function of the traffic department and not of the car dealer.)
Being private undertakings, curriculum suppliers can set any requirements for the use of their products that they wish. If they want to refuse to sell the product to you unless you sing “Jan Pierewit” on the steps of the town hall, they can do it.
I personally, would shy away from products sold by organisations that require that I must sing “Jan Pierewiet” on the town hall steps or any other place. I also think it’s not very wise to do business with enterprises that interfere with things that they have no right to, and which gives them the power to set requirements that they legally have no right to set.” [end quote]
At Footprints, we always advise parents to make an informed choice. Do not make any decision based on fear. If you are unsure about an important decision, first get more information and get legal advice for your specific family situation. For example, if you have foster children, who are wards of the state, the advice you get may differ vastly from a family who only has biological children. If you are in the process of a divorce, then it might be in the children’s best interest to register for home education as the court may prefer this. We are not legal advisors. We recommend that you join the Pestalozzi Trust as there are very few legal advisors in South Africa who fully understand the intricacies of home education and the law. They do!
Last updated 1 October 2024
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