Home Education is Perfectly Legal
A parent recently asked for updated advice in February 2024:
“I have been homeschooling my two kiddos for the last 4 years, using Little Footprints and other curricula in an eclectic manner. I haven’t registered with the department because if I remember correctly it was recommended not to necessarily do so….Now there’s ALL this banter, advice and fear-filled talk doing the rounds….What is the current situation and your recommendation?“
The reply – Updated in September 2024, after the passing of the BELA Act which amended the SA Schools Act
“From a legal perspective, not much has improved (yet). The highly disputed BELA Bill was passed into law as the BELA Act and it is very likely to be challenged in the Constitutional Court. A number of civil organisations are preparing for that possibility. In November 2023, the Pestalozzi Trust announced that R2.35 million is committed to fight the BELA Bill.
Our advice remains the same as always: Do what you believe is in the best interests of your children. If the requirements for registration do not seem to be in their best interests, then carry on as you are now. Continue to educate yourself about home education and the complexities of the law (see our video on that topic below) so that you can make an informed choice.
We would recommend that you join the Pestalozzi Trust, if you haven’t yet, so that no matter what you decide, that you have legal backing if you ever need it. That alone will give you greater peace of mind.
Ignore all the fear-mongering. The DBE is not out to get home educators. They have stated in meetings with us (home education representatives) and in emails to parents that home educators are free to use ANY curricula of their choice. (See the text we’ve highlighted in a yellow outline box in the screenshot lower down on this page.) Your approach and your choice of home education curricula are not illegal.
In press release issued on 11 March 2024, the Department of Basic Education stated: “The Department has no intention of taking away the freedom of curriculum choice from the parents.”
The DBE is not eager to prosecute anyone as that costs time, money and resources, which they don’t readily have available. They simply believe that they are the custodians of the nation’s children and that they need laws to regulate home education in case parents are neglectful and so that they can be accountable for this sector.
Should anyone ever need to check on you, you could easily show that you are giving your children a rich education that meets and exceeds the minimum requirements of the national curriculum policy statement i.e. CAPS.”
If and when the law changes, we will update this information again.
Registering for homeschooling is not a simple matter
In 2020, in her address on the reopening of schools, Basic Education Minister, Angie Motshekga said that no one would be forced to return to school after the Covid-19 pandemic. Parents could keep their children at home if they registered for home education. Unfortunately, registration is not a simple legal matter or an easy process.
Home education is always an excellent choice, not just during a crisis. However, parents need to be well-informed of the legal aspects of this decision. They should not start a process of registration without being aware of the consequences. They need to understand the complexity of laws pertaining to parents, children, education and their rights and responsibilities.
Section 51 of the SA Schools Act of 1996, which has been replaced by the Clause 25 of the BELA Act (which you can read here – Homeschooling Laws in South Africa) allows for parents to APPLY for the registration of a learner to receive education at home.
This process is not as simple as registering the birth of your child or the act of a marriage, as it requires approval from the Head of Department, dependent on his or her view 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.
The SA Schools Act and the BELA Act are not the only laws that apply. The Constitution of South Africa, The Children’s Act and other laws also applicable.
In addition, various aspects of the Policy on Home Education may be in conflict with these laws. The policy describes how the law is to be implemented, but it is not law.
Below is a letter sent to a parent who applied for registration in the Western Cape.
Section 28 (2) of the SA Constitution states that: “A child’s best interests are of paramount importance in every matter concerning the child.”
Our advice is always to never make a decision based on fear. Parents in the Western Cape do not have to rush to register. Make an informed choice. See the articles below.
An estimated 95% of home educating parents choose not to register for home education because they believe that the requirements to register violate other legally prescribed rights and responsibilities, such as:
- their right to choose the kind of education their children receive
- their responsibility to act in their children’s best interests
- their legal responsibility to protect their children’s right to privacy, which is protected by the Children’s Act.
Article 26 (3) of the Universal Declaration of Human Rights, which is referenced in the Policy on Home Education, states: “Parents have a prior right to choose the kind of education that shall be given to their children.”
Many parents believe that if this is a prior right, they should not have to apply for permission to exercise it. They question an official’s ability to decide what is in the best interest of their child. Some parents object to some of the content prescribed in the national curriculum statement. Others wish to protect their children from pre-approval home visits by state officials, as they view this as a violation of their right to privacy. These are just some reasons parents believe that their choices are reasonable and justifiable.
Home educating parents need not fear re-admitting their children to the school system. Although the Minister made it clear that there can be ‘no guarantees’, a public school that is not full, may not refuse to admit a child of compulsory school age (7-15 years), after a period of home education, whether they were registered or not:
Children have a constitutionally protected right to receive basic education and the state must provide it for children whose parents opt out of home education. The Admission Policy for Ordinary Public Schools* says that children must be placed in the age-appropriate grade. Also read Removing and Returning a Child to School
Parents who apply for registration, should keep copies of all documents and communication with the Department of Basic Education in case of delays or complications with their application. This is because the SA Schools Act also allows for the investigation and prosecution of anyone who prevents a child from receiving education.
Also read: What Could Happen if You Don’t Register?
Families should get professional legal advice for their specific circumstances.
The Pestalozzi Trust is a national homeschool legal defence association, which parents can join for protection of their rights as homeschoolers. The Trust can also advise parents about the legalities of their particular situation.
With the correct advice, a family can make an informed choice. They can enjoy peace of mind, knowing that they have legal assistance, if it’s ever needed, while home educating, if they choose to register, or if they choose to return a child to public school.
Shirley Erwee is an independent home education consultant and advocate for educational freedom. She has been home educating her six children since 1997. Please note that the information in this article does not constitute legal advice, and is the personal opinion of the author.
Last updated on 18 October 2024
*NOTICE NO. 2432 OF 1998 GG 19377 (19 October 1998) DEPARTMENT OF EDUCATION NATIONAL EDUCATION POLICY ACT, 1996 (ACT NO. 27 OF 1996), ADMISSION POLICY FOR ORDINARY PUBLIC SCHOOLS, Paragraphs 26-29 in that document refer to the age-grade norm. Paragraph 31 says: “In principle, learners should progress with their age cohort.”
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