Objections to the BELA Bill, Part 1

There is an urgent and important need for amendment to the Basic Education laws of South Africa.

The problem with the current proposal, is that it is almost exactly the opposite of what is needed.

Instead of remedying the current problems, it is likely to escalate them, leading to the possible collapse of our basic education system due to civil disobedience, rather than supporting sustainable change that can lead us out of the current national educational disaster, towards educational success.

There are a several logical and conceptual problems right at the foundation of current policy, which need to be addressed. Instead of addressing these problems, the BELA Bill entrenches and compounds them.


  • Problem 1: The Child’s Right to Education. Not the Government’s Right To Educate.


Fact: The child has the right to education. The parents and the government have the obligation to support the child in fulfilling their right to education.

The current law has this fact exactly backwards, and the BELA Bill entrenches and compounds this confusion instead of correcting it. The current law and the BELA Bill are founded on the mistaken belief that the government has the right to control the child’s education even when this control undermines instead of supports the child’s right to education.

Fact: The government does not have either the automatic or the exclusive right to educate the child. The child and family do not have any constitutional obligation to make use of any government educational services at all.

Our current education policy and laws conflate the individual child’s right to education and the state’s obligation to provide basic education resources to all children, with an obligation for children and families to make use of government education services and comply with a national curriculum and assessment process.

Traditionally, the government has behaved as if the right to education is the government’s right and not the child’s right. This is a leftover of Apartheid and part of South Africa’s long legacy of authoritarian colonial control.

Fascist, colonial and totalitarian states and religious authorities developed ‘schooling’ in order to indoctrinate the populace and train it to be submissive and economically manipulable. State-controlled schooling is a tool designed for cultural homogenisation and the obliteration of diversity, and has no justifiable place in educational policy of the post-Apartheid democracy of South Africa.

In the past, the government traditionally, conveniently, conflated ‘education’ with ‘state-controlled schooling and curriculum.’ In previous generations this was easy to get away with, since there simply were not many alternatives for children to access, and in many places the only way to become educated was to go to school.

In 2017 there are a plethora of ways for children to meet their educational needs, and given the unique needs of every child, they need to be free to access what is in their individual best interest. Around the globe a vast number of children have self-educated completely without any of the trappings of conventional schooling such as curricula and assessments, and an even greater number are currently doing so. The increase in these numbers is not only in South Africa, it’s a global phenomenon, a natural and appropriate response to evolving culture and technology.

“Education” and “school” are no longer synonymous (if they ever were).

The right of the child to education, is the right of the child to access what they personally need in order master sufficient literacy and numeracy that they have the ability to learn and explore their options, and have real choice about their role in life. Nothing about this right has any necessary or automatic relationship to government schooling services.

To say that because the child absolutely must have the opportunity to become numerate and literate, therefore they can by default be forced to attend a government-approved school, or by default be forced to follow specific curricula or pedagogical methods, is a politically opportunistic conflation that has no grounds in the constitution.

Forcing compliance with state-controlled education through threat and punishment is a shameful legacy, not a proud innovation. It is time to change the laws the government has historically used to leverage education as a tool of oppression.

Remedy needed: reword all legislation to clarify that the child has the right to educational support from the government, but no obligation to use this support if their educational needs are sufficiently met without it.


  • Problem 2: The Implicit, Unproven Assertion That Government Schooling and a National Curriculum are in the Child’s Best Interest.

    Given that “A child’s best interests are of paramount importance in every matter concerning the child” (South African Constitution 28.2) state convenience is not sufficient grounds for forcing school attendance and/or compliance with a state-sanctioned curriculum.


It must be shown beyond reasonable doubt that such attendance and compliance is in the individual child’s best interests before such attendance and/or compliance can be recommended, let alone prescribed.

Fact: If making use of government schools and curricula are not in the child’s best interest, and sabotage the optimal fulfillment of the child’s right to education, the family has the obligation to not use these services.

There is no constitutional or human rights grounds for imprisoning anyone for choosing not to make use of government education services, whether that imprisonment be for 6 weeks, for 6 months, or for any term at all.

There is certainly constitutional and human rights grounds to prosecute anyone who prevents a child from fulfilling their educational needs according to the best interests and specific needs and choices of that individual child.

The initial results of an informal internet poll hosted on this site, freely available to all members of the public, show that an overwhelming majority of respondents do not agree that government schooling and the CAPS curriculum are in the best interests of the child.

In response to the question –

The Education Department apparently believes that the current version of South African government schooling and the CAPS curriculum: 1) are in the child’s best interests; 2) affirm the child’s dignity, equality and freedom; 3) improve the child’s and family’s quality of life; 4) and free the potential of the child; Are they right? Is this true?

– so far only 5 voters have voted ‘yes’, while 242 voters have voted ‘no’.

This means that the vast majority, approximately 98% of respondents, do not agree that current educational services provided by the South African government fulfill the vision of our constitution.

This poll is by no means a comprehensive research tool, but it does give a strong initial indication that significant research is necessary to substantiate the government’s unexplored assumption that current government educational services are in the child’s best interest.

The onus must be on the government to plausibly demonstrate (not just claim) that government schooling and the CAPS curriculum do indeed serve the best interests of children in general and the individual child in particular, rather than only serving the convenience of the state. If the state cannot show this, then the state is not fulfilling its obligation to provide educational services.

It does indeed appear that for a vast number of individual South African children, attending a government school, and/or complying with the national curriculum, is not in their best interests and actively interferes with their optimal education.

This means that there is actually constitutional grounds for charging education department officials with violating the child’s right to education if that child’s family is pressured or forced into compliance with current educational policies.

The law (and the BELA Bill) and the constitution are incompatible, and this needs to be rectified as a matter of urgency.

The state cannot morally or constitutionally justify prosecuting those who actively support the child’s right to education, while allowing those who violate the child’s right to education, to make laws to protect their own political agendas.

If our laws and policies continue to do this, this will be cause for civil disobedience against an unjust and inhumane regime that supports it’s own interests at the expense of its citizens, and South Africa will once again need to initiate the kind of political change that we achieved with the end of Apartheid.

Remedy needed: amend the wording of all laws that deal with the child’s right to education, to clarify that it is a crime to prevent or interfere with a child fulfilling their right to education according to the individual best interests of the child.


  • Problem 3: Home Education is the Constitutionally Supported Default for Education, Not School.


Basic Education is officially part of the South African Social Services cluster.

The Constitution makes clear that children’s needs for social services are in the first instance, met through the family. Where the family cannot manage to meet the child’s needs, the state steps in – and then, only to provide support. Only where there is outright neglect or abuse, does the state step in more actively.

For example, children by default, live at home with their family.  Where the family cannot afford a roof over their heads, the state provides child support funds and government housing. Further, the family may decide to board the child apart from the family, without asking state permission. Only where there is actual significant abuse or neglect demonstrable in a court of law, is the child removed into state care.

The idea that children should in the first instance live in a government orphanage, and that parents should specially apply for the state to actively supervise them in order for them to care for their child at home, would be ridiculed in our country. The idea that a family may not choose for the child to stay over or even live with friends or relatives, at their discretion, without government permission, would also be laughable.

Likewise, with healthcare, there is no obligation to use state services if home care is sufficient, and families are free to choose private care without reservation. Government health services are for use by families at their discretion, as needed.

Similarly, the child in the first instance meets their educational needs through the family.  The family is free to choose resources and people to meet the child’s educational needs. Where the family is not able to meet the child’s educational needs, the state must provide support. This could be through schools and curricula. It could also (possibly more effectively and affordably) be through toy libraries and reading clubs, or other provisions.

Families have the right to choose whether or not to use outside educational services, and as such, the right to choose which educational services to use, if they do.

Only where there is significant abuse or neglect demonstrable in a court of law, can the constitution support that the child be ordered into attendance at a government education facility, or forced to comply with state-prescribed curricula and assessments.

Our current law and common practice is unconstitutional.

How did we get here?

Our current practice and law is a leftover of the previous, oppressive Apartheid regime.

Under Apartheid, the main purpose of education was to indoctrinate children with state propaganda. It was necessary to suppress alternative educational influences, so that brainwashing would be as complete as possible.

Unless the current government has the same aim, then it is high time our Basic Education Law gets updated to align with our new constitution. And if our current government does have the same aim, then it is time for the people of South Africa to wake up and do what needs to be done.

Remedy needed: amend all legislation to clarify that the child has the right to choose their own educational resources, supported by the family and the state. Remove all wording that implies that government schooling and compliance with national curricula and assessments is obligatory.


  • Conclusion


There is a popular story that takes various forms, about a woman who always cut off the bottom part of her ham before cooking it. When her daughter asked why, she said that was what her own mother had done. When the daughter asked the grandmother why, it turned out that the grandmother’s pan was simply too short to fit a whole ham. The mother, with a larger pan, was trimming her ham for no reason at all.

The fact that we used to do things in a certain way is no reason to keep doing them that way once circumstances change and a new approach is needed. We no longer live in a world where only the teacher or pastor can read, and only the school has books and pencils. We live in a world where we can access world class lessons and teachers at the click of a link, no desk, pencil or textbook necessary.

The fact that we have made mistakes in the past is no reason to continue making them once we know better. Doing as the previous government did, simply because ‘that’s the way we do things’ is not the way to run a country.

Governance is a matter for best practice, not habit or convenience.

We have our constitution for good reason. It was forged through the blood, sweat and tears of our heroes and our people.

It is not to be contemptuously ignored.

The stated aim of our constitution is, inter alia, to “Heal the divisions of the past and establish a society based on democratic values, social justice and fundamental human rights; Lay the foundations for a democratic and open society in which government is based on the will of the people and every citizen is equally protected by law; (and) Improve the quality of life of all citizens and free the potential of each person.” The Constitution of the Republic of South Africa, 1996

It is time our Basic Education Laws were amended to fulfill that intent.

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3 thoughts on “Objections to the BELA Bill, Part 1”

  1. Brilliant! Absolutely brilliant. Thank you for your succinct and well thought through analysis and reasoned argument, minus all the emotion. Truly inspired.

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