Education Amendment Bill Analysis: Constitution, Rights, and Obligations

BASIC EDUCATION AMENDMENT BILL RESPONSE TO SUBMISSIONS @SELECT COMMITTEE 17 April 2024

STRUCTURE FOR PRESENTATION STRUCTURE FOR PRESENTATION • SOVEREIGNTY OF OUR COUNTRY- the supreme power and authority lies with the Constitution for the government or state to govern • IMPACTED CONSTITUTIONAL PROVISIONS • RELEVANT AND APPLICABLE CASE LAW • SUPREMACY OF OUR CONSTITUTION & APPLICABILITY OF INTERNATIONAL LAW • HIERACHY OF LAWS & HOW CONSTITUTIONAL OBLIGATED LEGISLATION IS TO BE prepared, passed, implemented and applied to other legislation promoting section 9=equality in law & action by state • Procedural concerns raised regarding facilitating public engagement

INTRODUCTION • Members of the Committee have read, heard and studied with serious consideration all views uttered by the public. Committee reports out of those engagements are prepared and ready for adoption. • To say the least, the engagement was very emotive. • It has been robust engagement that was informative, at times emotional to prove how interested and involved stakeholders and parents are in this issue. • One presentation asked amongst others “Who decides language medium your child learns? Parents or State?

CONSTITUTIONAL PROVISIONS EXPLAINED IN LIGHT OF BELA BILL • Quite an interesting mouthful question, with many others that submitters posed. The Constitution does guide us and give answers. However, some interpretations of the relevant constitutional provisions do appear to a degree to have been twisted to fit a specific narrative. • Section 1(a)&(c) stipulates SA is one sovereign, democratic state founded amongst others, values of human dignity, achievement of equality and the advancement of human rights and freedoms, supremacy of the Constitution and the rule of law. S2 tells that our Constitution is the supreme law of the Republic, law or conduct inconsistent with our Constitution is invalid.

SUPREMACY OF OUR CONSTITUTION • Apparently even the processing of legislation by virtue of s2 of the Constitution -a law or conduct that is inconsistent with the Constitution is already invalid and obligations imposed by the Constitution must be fulfilled. Courts validate and confirm the invalidation by orders according to s172 of the Constitution. • In respect of Bill of Rights (BOR) section 7 stipulates three important principles and obligations: namely • BOR is a cornerstone of our democracy. (1)

Section 7 Iro all Rights • (2) state must respect, protect, promote and fulfill the rights in the BOR= all rights under Chapter 2 of the Constitution • (3) rights in the BOR are subject to limitation in line with section 36. • Also crucial is s8 (1) and (2) stipulating that • (1) BOR applies to all law similarly as in the supremacy of the Constitution with a consequence that invalidates whatever is done contrary to the BOR & Constitution

Section 8(1) &(2) • BOR applies to all, it binds the state- legislature, the executive, even the courts and all organs of state • 8(2) even natural persons (being parents and learners and educators, SGBs, HODs etc. in the context of BELA Bill) or juristic persons where there are collectives as we saw in the submissions that the Committee received are bound by the BOR. • So how did it come about that the views on the Bill appear to suggest that DBE and the legislature as NA and NCOP through its Select Committee/ Provincial Legislatures failed to comply with constitutional obligations and the law?

Right in s29 of Constitution • (1) Everyone has the right to basic education= which is inclusive in all forms of needs and age. • (2) Everyone has the right to receive education in the official language or languages of their choice in public educational institutions. WHO MUST GIVE EFFECT TO THIS RIGHT? Rhetorical but obvious at public educational institutions this becomes an obligation on the state to ensure that everyone receives this right. It is respected, enjoyed by all, protected, promoted, respected and fulfilled by the state (DBE in this instance)-is seeking compliance with obligation under s 7(2) of the Constitution. As well as parents.

3 rights OFFERED under s29 of Constitution • Right to basic education • Right to receive education in the official language or languages of everyone’s choice in public educational institutions where that education is reasonably practicable. • Right to everyone to establish and maintain, at their own expense, independent educational institutions • Home schooling as one option amongst forms of independent education institution is a privilege in choice but also a right, that anyone who exercises it to educate or use independent institutions to educate enjoys both as a right and a privilege that they pay for but must also register for. With the state.

29(2) goes further to clarify • “In order to ensure the effective access to, and implementation of, giving basic education in the choice language at public educational institutions to all/ everyone, the state must consider all reasonable educational alternatives- • Does the Schools Act and its proposed amendment Bill – BELA not seek to achieve exactly that obligation under s29(2) in respect of the proposals to clause 4 and 5 on admissions policy and language policy in public schools?

S29(3) enable private or independent educational institutions • 29(3) stipulates crucially as follows: (1) a right to Everyone to establish and maintain, at own expense, independent educational institutions that – • 29(3)(b) are registered with the state and • 29(3)(c) maintain standards that are not inferior to standards at comparable public educational institutions. • This is a right conferred by the Constitution under the BOR, which stands to be protected, promoted and maintained. • What are “public educational institutions”? SASA defines them as public schools. Whilst s29(3) speaks to independent educational institutions and SASA defines independent school.

Sasa, nepa and paja • How does SASA in promoting fair and just administration enable the state to ensure section 29 rights are respected, protected and maintained? • A clearly defined distinction as already depicted and dictated by s29 of the Constitution is brought to clarity in the Schools Act • Public schools are defined as “school" contemplated in chapter 3 of SASA- as the principal Act already in place. • Independent school/independent educational institutions at the expense of whoever establishes one are defined and regulated under chapter 5 of SASA.

INDEPENDENT EDUCATIONAL INSTITUTIONS • As far as we interpret the Constitution and SASA- the terms used during hearings like independent micro schools, cottage schools, home schools are all, by virtue of being established independently, maintained exclusively at the expense of those who choose to run them at their own expense, are independent educational institutions, which SASA defines as an “independent school” defined as a school registered or deemed to be registered in terms of section 46 of SASA. What does s 46 state and where is it located? Under chapter 5 of principal Act entitled registration of independent schools.

Interphase of procedural concerns & substance • Having outlined the sovereignty and supremacy of our country and its laws respectively, with the principle of legality under the umbrella of the rule of law-let me address the legal questions raised in respect of procedural aspects related to public participation or the facilitation of public engagement. • Our courts have on numerous occasions confirmed that public engagement which must be facilitated by legislatures is a right and constitutional obligation by virtue of sections 59(1) in respect of NA, 72(1) for NCOP & ss118(1) for provincial legislatures

Public engagement • Public is not required nor expected to vote on draft laws processing but to engage by presenting their views and their views being heard and considered by the legislatures. • Even the recent referred to Mogale judgment has not changed that landscape from all other previous judgments that have outlined the extent of the right and obligation to facilitate public involvement by elected public representatives of the electorate and that all legislatures own a prerogative to choose and determine method of engaging. • Parliament’s public participation framework model as a guide on elements of the “public facilitated engagement” and “involvement” include public education-what is the substance of the draft law, a stage of informing, consult to hear what the public have to say which amounts to engagement and collaboration whenever possible. Educate, consult and engage.

Facilitated public engagement vs referendum • Facilitated engagement is not a referendum process where the public is asked to vote on the support or rejection of a matter. • However, facilitated engagement is where legislatures seek to be informed, influenced by the views of the public that they will consider when deliberating during the preparation & passing of any draft law in line with their constitutional mandate through a legislature making means for the public and them to sit together and talk. The talking may yield some form of influence towards the end-product=a passed piece of legislation as opposed to introduced either Cabinet Bill or Parliament’s initiated Bill. • Constitution, Mandating Procedures Act, Rules of Parliament mandate and guide Parliament and provincial legislatures how to pass legislation. Referendum is a prerogative conferred on the President through Act 108 of 1983 and not legislatures’ prerogative.

REFERENDUM • Oxford Concise English Dictionary define “referendum” as the process of referring a political question to the electorate for a direct decision by general vote. • Act 108 of 1983 stipulates its purpose as to provide for the holding of referendums in order to ascertain the views of voters in the Republic or any part thereof of any matter. • When taking these two together we thus conclude that in an instance of a referendum every eligible voter as the electorate should be given an opportunity to vote.

SECTION 76 BILL @ NCOP • Right to participate in the legislative process dictate that citizens are given sufficient opportunity to have their say. Nowhere under s76 of the Constitution do we find a stipulation that during public facilitated engagement the public must vote. If it is a mechanism chosen and used anywhere by the Legislature it must be thorough and capable of yielding the sought results which ensure what is been captured as facilitated public engagement and involvement right and obligation • In line with Mandating Procedures Act, once the Committee has received negotiating mandates, that report and mandate may present details on the issues to be addressed, of concern and parameters to which each representative of the provincial legislature as delegated will give parameters for negotiation during deliberation on clause by cluse for the BELA Bill. Authority is conferred on provincial delegates of the provincial legislatures not party individuals nor individual party.

S76 & concurrent legislative competence • Members are cautioned not to put form over substance & preempt the processes before they unfold- however method chosen to conduct and facilitate public involvement must be thorough, respected and reasonable. • Substance must also be understood within its context. • Section 76 deal with how to handle Bills that fall within concurrent legislative competence on functional subjects- education falls into those functional areas of concurrent legislative competence shared between national and provincial legislatures because it is located under schedule 4 Part A of the Constitution=meaning that national legislature or provincial legislature can legislate on this area but require consistency for the country as a whole normally set out in national legislation.

What does overwhelming rejection of bela bill statement mean? • How is such a statement derived at? What does it mean? Who did the assessment, using what criteria and why? When has bills been ever processed through rejection by public instead of listening and considering the submissions? What if there are no justifiable reasons or substance that couple with the rejection but mere rejection? • These are some questions necessary to interrogate for the Committee to be guided what this means and how to tackle the statement, find its veracity towards addressing it. • If substantial changes are made from the deliberations, influenced by the submissions and DBE responses what then become of the “overwhelming rejection” statement and power to pass laws conferred on the legislatures?

List of clauses contested • Clause 1= definitions: competent assessor, corporal punishment, home education and required documents • Clause 2 – compulsory attendance penalties & link to home educate • Clause 4 and clause 5 admission and language policy determination power and final authority for actual admission at public schools • Clause 35 on home education registrations and making of necessary regulations • Clause 39 on delegated power to make regulations generally needed to make Act implementable.

DID clauses 2,4,5,35&39 Create CONCLUSION OF OVEWHELMING REJECTION? • Changes proposed to clauses 2 on compulsory attendance, 4-admission policy and 5 language policy are necessary considering the interpretations that different courts took. • So, after the deliberations of the Committee taking into consideration all submissions, views heard to date, the responses that DBE as the sponsor of the Bill and given the courts’ decisions, at least there should be clarity on roles, responsibilities and an expression where final authority lies. • Another way to look at the overwhelming rejection statement-were the clauses objected to by specific stakeholders in a specific sector or the “Electorate at large”: were to be removed or altered to their liking what would become of such a statement? • Home education, central procurement concerns raised, if addressed with possible options arising out of submissions together with whether financial reports and audit changes pass the scrutiny and issues canvassed on admission or language policy provisions were to stay or leave the Bill, that process are still to be guided by Committee deliberations and views on mandates from provinces.

Independent school & chapter Independent school & chapter 5 of 5 of sasa sasa- -HOME EDUCATE HOME EDUCATE • S46 is about registration of independent schools • S51 falls under chapter 5 of SASA and has a title that aid interpretation. Hence, originally stipulates on registration of learner for education at home. BELA Bill seeks to alter the heading of 51 and suggests new one with an attempt to address “homeschooling” or home education- where such occurs outside the known and mainstream environment to educate learners. BELA Bill is an amending bill which seeks to clarify or amplify what is already within existing legislation. • The question is why there was a need to strangle the Constitution to advance certain perspectives and demands in respect of some submissions? To the extent of allegations that the partnership envisaged earlier on is now eroded? To the extent of litigation threatened and that which has taken place against DBE and now Parliament should it pass BELA Bill in its B Bill version form?

SASA CHAPTER 5 & DEFINITIONS • Principal Act (SASA) defines school as a public school or an independent school which enrolls learners in one or more grades from grade R to grade twelve. • Independent school means a school registered or deemed to be registered in terms of section 46. So how does the submitters proposed definition differ and bring better than what is in the Act already? when the principle of drafting laws is that no substantial regulation or detail must be found in the definition other than a defining statement. • Parent is already defined to capture the concerns other submitters raised. That definition is more precise and inclusively thorough.

S46 sasa compliance • One of the submissions make a proposal for defining independent micro schooling where details are made in the definition section. The question is why seek a definition instead of complying with s46 which many submitters in respect of home schooling, micro schools and any other form of offering education in a private setting are objecting to? What forces compliance to be difficult herein? Various suggestions or perceptions have been presented. But the answer to all lies with S29(3) OF THE CONSTITUTION • Some submitted views appear contradictory to the Constitution, the SASAct and that which they are required by law to do either as a parental privilege, parental right or what international law stipulates to that which is preferred. If that be the case, then what is the point of regulation power being conferred on legislatures, sovereignty of the Country, supremacy of our Constitution and the dictates of sections 39 of the Constitution read with s 233 of the Constitution?

Slightly on dbe response • As DBE has responded it was alluded to the intricacies brought by exercising and balance needed when the rights in the BOR collide, like right to freedom of movement which demands then that s29 and section 21(freedom of movement & residence) of the Constitution as available rights to everyone, the state must watch, promote, protect and maintain thus ensuring there is no collision in the enjoyment of those rights by every citizen in the country and anyone who has lawfully gained residence here. • It is in respect of balancing the freedom of residence and s29 basic education right that a learner is afforded at the assistance of the state an enabling environment to learn by clause 5(c)(13) enabling HOD to give a directive that a public school must adopt more than one language to instruct learning and offering of education.

INTENTIONS OF BELA GLEANED FROM LONG TITLE • Following statements explain that BELA is an amendment or seeks to amend existing legislation, which means some kind of regulation has taken place prior. Therefore, DBE and Minister are not re-inventing how to legislate but seek to bring clarity where there has been confusion and conflict. • To amend SASA, HOD empowered with discretionary power by use of “may” direct a public school to adopt more than one language of instruction- we have 12 official language entrenched by s6 and 30 of the Constitution. This and its provision aligns with s29(2) of the Constitution.

Long title statements to clarify end intent • “If the HOD issues such a directive (for a public school) s/he must take all necessary steps to ensure that the public school receives the necessary resources to enable it to provide the adequate tuition in the additional language of instruction” thus aligning s3,5,5A,6 and definitions in SASA together with setting out criteria that is PAJA compliant. • What are the consequences where the HOD fails to satisfy this statutory obligation? That is not expressed in Bill but s34 of Constitution & oversight mechanisms are available. • “to provide for centralized procurement of identified learning and teaching support material for public schools”. What prompted need to centralise this function? Why is it so contested out of submissions? DBE gave a thorough background. • What are possible options that account to opposing views shared by the public and DBE responses to address the ascertained & determined challenges? Possible amendment should Committee so guide.

FURTHER LONG TITLE STATEMENTS OF INTENT • “To extend the powers of HOD to conduct investigation into financial affairs of a public school and to provide that SGBs must submit quarterly reports on all income and expenditure to HOD; to increase the penalty provision in case where a person establishes or maintains an independent school and fails to register it; to further regulate home education”…to extend the power of the Minister to make regulations and to provide for offences to be created in regulations made by the Minister”. • Committee shall guide upon deliberations if any amendment is necessary.

LONG TITLE as purpose of act • Since SASA at s2 only captures the application of the Act, the Long Title comes next as the primary aid and guide to the intention of any legislation by setting out the intended objects of the education sector Acts namely SASA and National Education Policy Act read with the Employment of Educators Act which is also intended for amendment by the BELA Bill • Are these intents as found in the BELA Bill Long Title unconstitutional in any way including the contextual reading of their relevant provisions? Submissions received orally appear to suggest that way hence there are even statements about looming litigation if the Bill is not changed by the Legislatures.

RELEVANT CASE LAW & WHY? • If the law was clear on powers and obligations why then did the litigants litigate on most case law that submissions referred to and responses from the DBE? • Ermelo 2010 judgment, Rivonia 2012 are the best to indicate the serious tension between the partners to the collaborative partnership in the education sector just as the submissions pointed and Minister indicating that this work has been seven years in the making. Case law points to various troubling issues within the partnership compact and its application and implementability. Parents who should be represented by the SGB were seen to be rejected and ignored by the SGB which apparently seem to have represented the minority few, the school, and the Principal found himself at loggerheads with parents, his employer (HOD) and to a degree felt pinned to side with the SGB which clearly was against a certain portion of the parents. • An almost fatal conflict detrimental to the system and partnership itself but courts coming to rescue though apparently more confusion and instability of the education system and aspirations is created.

ERMELO\RIVONIA JUDGMENT • Can we still argue that the status quo is clear, considering disputes taken to courts and the Legislature should not intervene to clarify the law and legal position? • The current state in education sector and the position of SGBs does demand some clarity and rectification where confusion still subsist as some courts judgments interpreted existing provisions in 3,4 and 5 of SASA differently. Which may mean intention of the legislature is not sufficiently clear. • Glenister judgment 2011(7) BCLR and 2009(2) is best placed to guide on separation of powers, Brooks v Minister of Safety and Security 2008, Centre for Child Law v Minister of Basic Education and DBE, Juma Masjid Primary school 2011(8)BCLR and FEDSA 2016(8) judgments & 2016(4) and other issues raised in respect of procedure and where the power of final authority lies.

RIVONIA JUDGMENT WENT TO ALL 3 COURTS OF THE LAND • Just as many other judgments which impact on the education sector have generously been litigated. Why? What did each court say and why they held differing views that eventually required the apex court, our Constitutional Court to clarify the law? This exercise to assist the Select Committee can be done at a separate stage and place then this of processing and passing BELA Bill. • Why is the national legislature hamstrung by views preferred and owned by a single sector which is clearly affected by or under chapter 5 of SASA? • Where do SGBs and those preferring to establish private or independent institutions to school learners derive that power from? What is the source? How far can that enabled restricted enjoyment go?

Clause by clause response • Definition clause 1 • Basic education as is defined is sufficiently clear and extending to words like “pre-tertiary education” as a word may include other unintended inclusions as there are various other training and educational means in between the life of a growing person. • Home education vs school attendance vs compulsory age and the space where such learning or education is offered- perhaps the best option should not be to define now in the Bill or remove reference to the “learner’s environment” because it is not like it is unclear what this references for all concerned.

PT proposed & supported draft • Members must recall that Pestalozzi Trust made a draft provision to which most submissions said they favor and support it. What did it suggest that is different from what the DBE introduced Bill and the B version passed by NA? • Members need look at clause 37=introduced Bill and clause 35 NA passed B Bill. Most concerns raised were accommodated- no longer are issues raised related to right to privacy. What is suggested is problematic in that legislature is informed to legislate on belief of individuals.

PESTALOZZI TRUST SUGGESTION SET OUT • Education of a learner in any other environment can done anywhere so long as the learner is registered with the state-that is what the amendment seeks to clarify. • PT 51(2) proposes that HOD must approve the application & register the learner as contemplated in their suggested 51(1)- if the parent undertakes to- (i) To ensure that home education is in the best interest of the child (ii) that standards to be maintained will not be inferior to public schools’ standards. How does this differ from what the Bill indicates? How does enforcement enforce an undertaking when not ensured?

Pt suggestion cont… PESTALOZZI TRUST • (iii) parent undertakes to provide evidence of learning or arrange appropriate assessments for submission to the Department, if there is reason to believe that education being received by the learner is of an inferior std to that of public schools. • Suggestion is riddled with many drafting concerns and may make it difficult to enforce or achieve what the Constitution envisaged. B BILL PROVISION • The visits which earlier submissions suggested were an intrusion was removed. • Bill now requires registration in line with the Constitution as stipulated in s29(3) and sets out the criteria what and how HOD will achieve this exercise without subjecting to anyone’s subjective belief and undertakings that cannot be enforced. • Satisfied vs reasonable belief ?

GRADE R FINANCING &ESTABLISHMENT • Members should be informed that the policy determination stage is long past as ECD Policy was determined and issued in 2005 already. Some schools have already established grade Rs and are running them. Some are yet to do so. • Perhaps the oversight question to tackle further is answer and deal with DBE why that has not been the case to ensure that they implement Policies of the State that are already in place. Legislation give a greater status to any Policy lawfully determined by a governing state once passed by a constitutionally mandated legislature.

Micro schools, home schools, cottage schools • What makes all these types of schooling methods not fall under chapter 5 of SASA as surprisingly appears to be the notion and understanding of most submitters? • Any law must be read in its entirety without abstract and piecemeal reading or interpretation since the consequence of that could be duplication in laws and creation of incongruent laws that do not speak to one another. • Section 46 of SASA and current definitions suffice to clarify position.

Clauses on compulsory age/attendance, home school requirements & penalties • Clause 2= S 3 – compulsory attendance, s4- exemption from compulsory attendance- is not being amended by BELA Bill and need not to. Is compulsory attendance defined anywhere? No as such a definition is not necessary since related provisions speak in complete clarity for themselves. • “compulsory school attendance”- s 3(1) as argued by most submitters that parents have a responsibility and duty to better their children through ensuring they are educated is in alignment with the dictates of this provision and the submitters’ views. Every parent is required (must) cause every learner at the stipulated age to attend school. That is where compulsory attendance comes in.

Home school attendance vs compulsory school attendance • Section 46(registration of independent school) read with 51(registration of learner for education at home- BELA Bill proposes a change in sub-title to Home education) and section 3- (compulsory attendance) • Wherein lies concerns with these three provisions and the changes that BELA Bill seeks to bring? • When you choose to educate your child at home outside the school setting, that child, because state has an obligation to ensure that everyone gets basic education is still under compulsory attendance obligations and statutory requirements. This all comes from s29 being part of the BOR and Constitution. But see clause 35 @51(2)(ii) read with 51(7). • We must read the two provisions and understand what they convey.

S29 of the constitution • Proposed 51(7) exempts a registered home education learner from s3 on compulsory attendance • Now S29 dictates obligations on both state and parents • Dictates requirements for both public school and independent school • Is under chapter 2 thus a Bill of Right and demands that it be respected, promoted and maintained by state and all persons-juristic or natural • It can only be restricted in terms of s36 of the Constitution • These three provisions (clauses 3, 35 and 39- making of regulations) meet constitutional muster in as much as the entire Bill was certified by both Parliamentary Legal Services and Office of the Chief State Law Adviser.

CLAUSE 35 AS AMENDED BY na • 51(2) as proposed makes no room for the HOD to deny discretionary the application to home school one’s child. It stipulates that the HOD must approve the application and register such a learner. It sets out a duty and responsibility aligned with s29 of the Constitution. It adheres to the legal principles including the application of Promotion of Justice Act (PAJA). • The provision further sets out a clear criteria for the state (HOD) and parents in respect of that which is required of both to ensure they know their obligations and duties that the law requires be met and made aware in advance.

CLAUSE 35 CONT… • Perhaps 51(6) without explanation from DBE could be potential for concerns. Why is there a need for a deeming provision as though incompetency and ineffective administration should be applauded? This, amongst other matters is a matter for Parliamentary oversight and querying without indicating that there is anything unlawful or unconstitutional about such deeming provisions. • 51(7) is an added layer of protection amplifying the criteria to have home learners registered with the DBE and how it will be done together with this legislated exemption. See also 51(13 and14) as more layers of protection and proving a just legislated process for the home school environment.

REGULATIONS & IMPLEMENTATION DETAILS • Normally in law details are not always necessarily expected or to couple with the enabling legislative framework simultaneously. Hence the ability to delegate the making of regulations. • It is our considered legal view that the insertion of 51(16) which is a provision enabling the Minister to make regulations related to “home education” is a sufficient and lawful delegation that eventually as a legal process sub- delegated also dictates that the Minister must follow all procedures required when enacting regulations as that which is done when preparing and passing a national or provincial legislation.

Possible amendments considering engagement • Having heard public submissions, considered negotiating mandates’ pointers or parameters and the DBE responses: Committee could generally consider: • Capacity of DBE and ensuring that within specified stipulated timeframe will DBE be able to approve validly all policies for public schools as currently suggested under clause 4 and 5. If not why not amend by removing the foreseen capacity challenges prior to their occurrence and the unnecessary deeming provisions? • Accept suggested extended definitions that expand meaning of corporal punishment.

Possible amendments cont… • Expand clause 14 amending s21 that enables central procurement by HOD of the learning and teaching material at public schools. Perhaps options can be set out considering the justifications that submissions gave. • Only an explanation is required in respect of the outcomes of amending s22- withdrawal of SGB functions against already unchanged section 19 (that speaks to training SGBs) of SASA • Making of regulations under 51(16) and section 61 of SASA- rather put all regulations under a single provision and provide expressly which may come to Parliament to allay the public fears.

S51 & CONSTITUTION • Pestalozzi- “The legislative arrangements pose a major problem for the majority of home educators, who claim (or their representatives claim on their behalf) an original right, duty, under the Constitution and the Children’s Act, 2005, international law and treaty law, to provide their child’s education in the family home rather than in a school. They insist that a child’s parents are better judges of a child’s best educational interests than a provincial HOD.”… They deny that “attending school” has the same meaning as “education” and resent the legal requirement that they must apply to register their child for education at home or risk being charged with the offence of not enrolling their child in a school

S51 Amendment vs constitution • Constitution- s29(3) already explained- a right to establish & maintain at your own expense an independent educational institution- register that institution with the state-maintain in that institution standards @ comparable public educational institutions. • In light of the PT statement captured in the previous slide, their proposal and all submissions on s51, how does the BELA proposed amendment disrespect the Constitution and all other prescripts mentioned? • Whereas strong statements indicative of expressed resentment towards legal prescripts is a concern and should worry considered against enforcement and unwilling compliance professed.

All said • It may be good drafting to have all delegated legislation under s61, the general section on Regulations. Hence, we suggest the moving of 51(16) to an amendment under clause 39 with an expression in line with s101 of the Constitution that such regulations must be tabled with Parliament prior to them becoming effective. • Criminalising not taking children to school or not educating them where draconian punishment is suggested, we can make proposals to leave the penalty at the hands of the courts or where suitable to ensure compliance and how serious this offence- suggest that courts consider performance of community service as one mandate so suggested.

Education Amendment Bill Analysis: Constitution, Rights, and Obligations