Objections to the BELA Bill Part 2

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.

In Part 1, we looked at some conceptual problems concerning the right to education, the best interest of the child, and the relationship between the family and the state, as enshrined in our constitution.

Here in Part 2, we will take a look at some of the problems the BELA Bill entrenches, with regard to South Africa’s constitutional commitment to democracy and social justice. We will take a look at the contents of the BELA Bill, as well as the process by which is has so far been tabled, since both are cause for deep concern.

Reversing Out of Democracy, Towards Totalitarianism.

The South African constitution, the supreme law of our country, provides for

“ a society based on democratic values, social justice and fundamental human rights;

…(an) open society in which government is based on the will of the people

and aims to “improve the quality of life of all citizens and free the potential of each person.”

The Constitution of South Africa, 1996

Democratising a country takes time, but South Africa has committed to progressively developing her policies and administrative procedures to align with the constitution that holds our vision in place.

Therefore, any amendments to existing legislation, should seek to increase democratic participation by the people, improve alignment with human rights (including children’s rights), and improve rather than worsen quality of life for all citizens including children.

The BELA Bill claims that its aim is to align education legislation “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 fulfills the right to basic education enshrined in section 29(1) of the Constitution of the Republic of South Africa.” Staatskoerant 13 October 2017.

Therefore, the BELA Bill should increase democratic participation, embody social justice and human rights, and improve the quality of life of educators and learners. Why then, does it seek to do the opposite?

There are a number of worrying ways in which the BELA Bill, in both content and process, constitute a significant move away from democracy and social justice, back towards the kind of authoritarian pseudo-democratic totalitarianism practised by the government during the Apartheid years.

1. Authoritarian Problem Solving Strategies

Let’s take a quick look at just three examples of problem solving strategies applied by the BELA Bill that embody the opposite of social justice and improvement of the quality of life.

Example 1: Instead of addressing, or even making provision for proper exploration of the underlying problems that lead to non-compliance with current legislation, (problems that include bullying in schools, lack of provision for children’s educational needs by government schools, abuse of learners by teachers, and more) the BELA Bill seeks to raise the penalty for keeping children ‘out of school’ from 6 months to 6 years. Plain, simple, punitive authoritarianism.

Example 2: It’s really no surprise that alcohol and ‘performance enhancing’ substance abuse are on the rise in our schools. Our learners are under immense pressure to perform within systems that actively do not cater for their needs. Youth find current educational services alienating, and often suffer immense stress as a result of the curriculum itself, even before the horrific level of bullying and abuse by staff that are becoming increasingly common. Yet, instead of constructive measures to reduce school stress and provide learners with effective channels for conflict resolution, the suggested remedy is… to control learners through invasion of their privacy and make legal provision for searching them.

Example 3: In spite of growing public awareness that many teachers still illegally use corporal punishment, and the media has, even recently, publicly covered cases that even resulted in the death of learners, it was apparently not considered important for the BELA Bill to tackle this in any way at all… However, refer back to example 1, and example 2. Let us consider that a learner playing truant with a parent’s permission or being searched for prohibited substances may be trying to drown the memory of watching their best friend beaten to death in class… Or raped… or may have been pressured into having sex with a teacher ‘for marks’.

And then there are other matters such as seeking to centralise control of school boards and home-educating families, flying right in the face of all the international research showing that the child’s educational best interest is served by de-centralised control that allows for more personalised learning…

Let us read all of this together, and consider… does the BELA Bill constitute a progressive fulfillment of human rights, social justice, democracy, and quality of life for all citizens, including children?

Or is it herding us back to the dark ages of oppression and punitive government megalomania?

2. Active Prevention of Public Comment

The BELA Bill was posted for public comment on the 13th of October 2017, and the deadline for submission is 10th November 2017.

This is less than a month.

This is the month when almost everyone affected by the BELA Bill is at their absolute busiest time of year.

So many emails were received by Adv. Rudman, begging for an extension so that the public would have sufficient time to submit properly considered comments, that his office actively asked people to stop sending emails. We could have sent far more…

The government is effectively forcing education staff and learners to choose between pursuing their appropriate educational activities at this time of year, and commenting in an informed and reasoned way, on the BELA Bill.

In other words, if the government actively wants citizens to comment, as it must do (?), then it is implicitly instructing everyone to neglect children’s education in order to do so. This could mean that those who denied the requested extension, are guilty of interfering with children’s education, and should really be put on trial and possibly given a six month sentence, (or their trial can be delayed until after the bill is passed, for a more satisfying penalty…)

It is beyond plausibility that the education department, being inter alia responsible for setting exam dates, can have tabled the bill and limited the comment period and denied an extension, by error. Unless they are grossly unfit to be involved in anything to do with education.

In other words, public comment is not wanted. Opportunity for public comment is being actively sabotaged.

It cannot be more clear, that the government would prefer to make decisions without public participation – a move away from democracy, toward totalitarianism.

3. The Child’s Right to Participate and be Heard

South Africa has ratified the United Nations Convention on the Rights of the Child.

One of the items that any Basic Education Laws ammendment Bill should absolutely obviously prioritise, is operationalising children’s rights in the educational arena.

Where are all the obviously needed amendments that make increasing provision for children in government schools to participate in all decisions that affect them, including decisions about curriculum, assessment, conduct codes, school hours, homework load?

Where are the obviously necessary amendments that protect the child’s right to play, in the face of the current fad that results in reduced play time?

Where are the obviously necessary amendments about freedom of expression, thought and belief, in the face of ever more restrictive and prescriptive curricula?


Why are NPO’s and private individuals rushing to use their own resources to give at least a handful of children the opportunity to quickly rush out comments?

Any education department that does not consider direct experience in democratic participation to be part of the core curriculum, cannot begin to claim that it aims to fulfill the child’s right to education. Period.

It cannot claim that it aims 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 fulfills the right to basic education enshrined in section 29(1) of the Constitution of the Republic of South Africa.”

To claim this at the same time as completely failing to make any provision whatsoever for learner participation in the public comment process, is to de facto declare oneself unfit to serve in this sector.

Why is comment on the BELA Bill not the main activity in government school classrooms this week?

Because neither the BELA Bill nor the education department is particularly concerned about actual… education. The concern is with state convenience and control. This has got to change, and change as soon as possible.


It is time for the education services in South Africa to start serving… instead of just counting on citizens to meekly accept what’s dished out.

We simply don’t live in a time when people stay ignorant and accept what is handed to them. We are able to share information. We are able to share insight. We are able to organise and mobilise like never before.

This is a very, very bad time for the government to resort to threat and control – people are fed up and getting increasingly angry and contemptuous.

Citizens – of all ages – are gearing up to demand that the education department concern itself with upgrading its capacity to support actual education, rather than focusing on controlling for the sake of control.

Alternative education is on the rise all over the world, and it is working. The future we face demands a different approach.

It’s time for the government to use the best of everything to develop effective education services in South Africa, instead of trying to shoot at the holes that are currently sinking their ship.

It is hard for this author to unpack and understand the implications of the BELA Bill amendments around language of instruction, but given the importance of this issue in South Africa, and the tone and intent of the rest of the bill, this is also potentially problematic. Some problems simply can’t be solved by renovating inefficient structures, and home-language education is one of these. It’s really, really hard to provide a first-language medium of instruction for each and every learner in government-style schools, but relatively easy to do this with alternative education.

The enormous and growing number of families in South Africa with educational treasure to offer is currently being ignored. The government has not yet realised that instead of treating alternative education as a plague to control, it needs to draw on this resource for input and advice.

We are here. We are willing. We have a lot to offer. Children know what they need, and we can help the government tap into that wisdom. Free our potential and we will free yours!

Knock on our doors to include us (instead of ‘regulate’ us). We’ll be home!

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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.

Copyright: This Article may be shared, copied, and distributed in any and all mediums in its entirety, and extracts may be quoted. No word may be changed. It is to be attributed to DemocraticEducationSA and the URL leading to this entire original article is to be clearly displayed with each and every use.