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For now, it seems the only certainty in SA education is uncertainty itself, the writer says. Picture: 123RF
For now, it seems the only certainty in SA education is uncertainty itself, the writer says. Picture: 123RF

On September 13, President Cyril Ramaphosa signed the Basic Education Laws Amendment (Bela) Act (32 of 2024) into law, which is hailed as bringing transformative changes to the SA education landscape. 

In summary, the act aims to address identified shortcomings in the basic education dispensation by amending the primary legal framework regulating the schooling systems. More specifically, its stated intentions are “to align with developments in the education landscape and to ensure that systems of learning and excellence in education are put in place in a manner which respects, protects, promotes and fulfils the right to basic education enshrined in section 29(1) of the constitution of the Republic of SA, 1996”. 

So why the controversy? 

It’s got some fresh ideas and intentions — such as making grade R compulsory to enhance early cognitive development — and takes a stab at getting a handle on the murky pool of homeschooling.

But not everyone is thrilled with the proposed amendments — the language and admissions policies (sections 4 and 5) being two cases in point. As a result, Ramaphosa, in a move that some might call politically savvy and others might see as kicking the can down the road, decided to delay the implementation of these two particularly contentious clauses for three months.

The proposed changes to sections 4 and 5 have caused considerable controversy, particularly when it comes to the powers of school governing bodies (SGBs), with many arguing that the proposed changes are unconstitutional.

Relevant legal provisions affecting these questions include: 

  • Section 29(2) of the constitution, which states: “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.” To give effect to this right, the state must consider “reasonable educational alternatives”, considering “equity, practicability and redress”.
  • Section 18 of the constitution, which guarantees everyone the right to freedom of association. 
  • Section 6 of the Schools Act of 1996, which provides that “(2) The governing body of a public school may determine the language policy of the school subject to the constitution, this act and any applicable provincial law.” 

Section 5 of the Bela Act now seeks to make an amendment by subjecting the section 6(2) to the condition that: “The head of department may, where it is practicable to do so and subject to subsection (5), direct a public school to adopt more than one language of instruction”.

In deciding to exercise this power, factors such as classroom resources, the best interests of the child and changing language needs of the community need to be considered. An extensive engagement process with the school and parents will also be required. 

So, while there is no easy answer at this point whether the proposed changes to the Bela Act, particularly the language policy, are constitutional or not, extensive argument on what may be considered “practical” and “reasonable” will undoubtedly be ventilated on it, and whether the powers provided to the head of department may be deemed governmental overreach or not.

Leading the charge to protect the unbridled powers of the SGBs are organisations such as AfriForum and the Federation of Governing Bodies of SA Schools (Fedsas), which are concerned that this could lead to a centralisation of power and potentially threaten the autonomy of schools, particularly when it comes to language policies. 

Concerned that the preservation of linguistic and cultural diversity is under threat, AfriForum, the Trust for Afrikaans Education and other organisations have already threatened legal action if sections 4 and 5 are implemented. Factors driving this concern appear to be that certain language groups are on the decline and may cease to exist if not protected. The freedom of parents, learners and communities to associate with a particular school’s linguistic policies may be compromised if this is up to the government to redirect. However, the government also has a mandate to consider other constitutional considerations mentioned above and balance the respective interested parties’ concerns. 

Relevant to considering the rights of minority interest groups, in turn, include:

  • Section 29(3): enshrining the right to establish and maintain independent educational institutions;
  • Section 31: providing for rights of cultural, religious and linguistic communities; and
  • Section 235: providing for the right of self-determination of communities sharing a common cultural and language heritage. 

A representative for the department of basic education stated, however, that all judgments were considered when drafting the Bela Act to ensure it is constitutional, so while there may be arguments on both sides, the court will ultimately be guided by section 36 of the constitution, which allows for the limitation of certain rights, which must be reasonable and justifiable in an open and democratic society. 

If the court does not dismiss a challenge to its constitutionality completely, it may conclude that certain subsections of section 5 are not compliant with the constitution and, rather than setting the whole section aside, direct that certain changes be made based on all the factors set out above. 

So, where does this leave us? 

As with many laws (which are required to be guided by the constitution) the Bela Act has admirable goals. One of these is creating a more inclusive and equitable education system — essentially trying to ensure that no child is left behind, regardless of their background or documentation status. It’s got some good chapters on inclusion and equity, but it may be seen to fall short on areas to improve educational outcomes.

As it stands, the act is in a sort of educational limbo. Parts of it are law, but not in effect. Other parts are on a three-month timeout. And everyone — from politicians to parents, teachers to students — is watching and waiting to see how this story unfolds. For now, it seems the only certainty in SA education is uncertainty itself. This uncertainty is likely to be settled by a court action, driven by civil rights groups, before it becomes settled. We will see soon enough, no doubt. 

• Van Tonder is a director at Thomson Wilks Attorneys, where he specialises in dispute resolution and corporate, property, family and administrative law. 

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