10 minute read

10 November 2017

Dear Adv. Rudman,

Please find my comments on the Basic Education Laws Amendment Bill. I am an advocate for the recognition of the full human rights of children, for respectful and nonviolent parenting and for the freedom of education choices for all people. To this end, I was the co-convenor of South Africa’s first of its kind conference on Self Directed Education and Building Learning Communities, held in February 2017, Learning Reimagined.

The South African Schools Act (SASA) is of concern in its entirety, as it speaks to a philosophy and approach to education that is opposed to the freedom of education, educational innovation, knowledge diversity and variety of pedagogy – all components which should be fundamental in any democratic society.


A bill that is so wide-reaching and so drastic in its changes should be widely distributed with plenty of time provided for consultation. Instead, it has slipped in at a bad time, with a short deadline. Very few children, people who are directly affected by it, know about it. Teachers seem to be unaware of it, and yet they are impacted. In terms of procedure, you have therefore failed to meet the requirement for reasonable time for ponderance and mobilization, awareness and consultation.


The South African education system battles with the compounding problems of inheriting an inherently skewed schooling system designed by the architects of apartheid, continuing economic inequality, the problems of malnutrition and hunger faced by many of its participants and an inherently broken social society still recovering from the effects of apartheid and mining. Then there are groups with means, money and know how, who know exactly how to play the ‘system’ and create rules and policies that effectively exclude young people of the wrong economic bracket or skin colour from accessing government supported schools and closing possibilities for teachers or Principals who don’t fit the preferred demographic of the community (or the more active members of the community) to be able to work in such schools. Add to that, there are still schools that don’t have simple infrastructure in place, and there is very little hope of getting such infrastructure, while at the other end of the spectrum there are extremely well-resourced schools with amazing infrastructure. So the myth that education is the great leveller is exposed. It is impossible for all children across the socioeconomic spectrum to participate and benefit equally in this system. In fact what our current setup is doing is entrenching these inequalities and dooming them. That our education system needs an overhaul into a state supported open learning system is an urgent matter.

School reform has been a conversation and on the agenda ever since education was understood and legislated as compulsory school attendance. From the ever changing curricular, to the ever changing pedagogy, to the ever changing reading methodologies, to ever changing logistics of more homework than less homework, longer hours, shorter breaks, to longer breaks, back to shorter breaks, from decentralised power to centralised power and back. And yet with every change, we find a need for further change.

Then there are shining examples where education and learning are really happening. And these spaces vary in their philosophy, infrastructure age ranges and focus (Arts, Sciences, Social Justice, Nature, Sports etc). They work. Mostly because the people attending them want to be there, have a say in much of how the day is run and have a vested interest in what is being offered. What we do know from these spaces and from over a century of education ‘reform’ is that there is NO ONE solution that meets every single person’s learning requirements. Any singular solution is doomed to fail a large group of people. And yet we continue mindlessly, with reforms and tweaks and autocratic implementations of a system for which there is ABSOLUTELY NO EVIDENCE that backs up its continued existence. Even a superficial reading of educational philosophy and of the science behind learning will reveal that there is no basis that forced, compulsory schooling, characterised by a standardised curriculum and standardised assessments is the optimal learning environment for anybody – let alone young children.

There is a strong current of movement away from dependence on the state to provide for a holistic education to one of self-organising families and communities that are utilising the myriad of opportunities and resources to create and follow personalised learning systems. In South Africa and abroad. This is a good thing. It means that the spirit of learning, self-development and innovation is alive and well. Why would you want to stop it? Instead of trying to stop this innovation and learning spirit, the State should be supporting them. More importantly, the State should be actively working to support communities historically under-resourced communities to access innovative and open learning systems. Innovation in education, although dominated by those with means, should not be the exclusive domain for those who have the means. The State has a responsibility to open up learning options and spaces for everybody.

Furthermore, we are starting to see a more nuanced understanding of what it means to be educated, a refining of the purpose of education, a corresponding redesign of education that is fit for purpose and a critical examination of dominant pedagogy in the light that it has shown itself to be quite ineffective. A shift away from prepackaged curricular, from ticking of boxes, from assessments and the degrading practice of grading humans, from force-feeding of information using rewards and punishment, from compliance and obedience. To this end, there are global experiments and examples of a variety of institutional setups – characterised by consent, freedom to pursue areas of interest, personalised and self-designed learning paths, access to mentors and allies. In the majority worlds, there is also vigorous discussions around the continuing coloniality of the current schooling systems and proposals for decolonizing education. These proposals are not limited to simply more inclusive learning materials and a revision of the history curriculum. These proposals also question the coloniality of the industrial schooling pedagogy and the accompanying epistemicide of our ancestral ways of knowing as a result of the dominant pedagogical and colonial schooling system.

Evidence withstanding, the South African Schools Act and the proposed amendments in the BELA Bill ignore all the rich traditions of authentic learning and the vast amount of evidence about how children actually learn. Instead of embracing and supporting innovation and diverse learning spaces it seeks to curtail them. This is contrary to the spirit of our constitution, the Universal Declaration of Human Rights and United Nations Child Rights Convention.

The state’s role is to make education possible. By supporting communities, providing infrastructure, equipment, even sending the kinds of experts or resources requested by communities. We need open learning systems – with tons of learning opportunities – for everybody. We need to ‘open the doors of learning and culture’. It is currently being tightly shut.

Before getting to the amendments, let the record reflect that I object to the interpretation of education to mean compulsory attendance. This is a very superficial definition of what it means to be educated. It is anti-learning and it most definitely is a violation of the rights of children to freedom of association and freedom of thought. A right in which a person has no choice in whether to exercise or not is not a right – it is a compulsion… So either we stop lying or we start honouring children’s right to decided whether to exercise a right or not.

The comments that follow, in no way negates my overall objections to the SASA or the BELA Bill and should not be construed as an acceptance of the SASA or its amendments.


Given the limited time I have to restrict my comments to the sections on Prosecution (Because this is a democracy) and Home Education (as it is one of the freedoms for educational development that is affected by these amendments.)

Prosecution of a six-year jail sentence. Jail sentences are for criminals and not for parents and communities opting to act in ways that they choose to educate that they believe, in consultation with their children, are in the best interests of the child. Under no circumstances is it ever justifiable to jail a parent for honouring their child’s decision to opt out of schooling and to self-direct their education.

Communities too, have recently objected to decisions imposed on them by the department of education. Yes, they have forced schools to be shut. Yes, that is not the best way to deal with a dispute. NO. An amendment to include a six-year jail sentence for such communities is ridiculous. Communities disagreeing with the government are not criminals.

This is a democracy.

There is no place in a democracy for jail sentences for non-compliance. People and communities should be free to decide their level of participation in government provided services and should also be free to object to or reject any of the education department’s decisions without fear of imprisonment. You can’t force people to accept a service that you provide for them if they do not want it – not in a democracy.
Legislating a jail sentence causes a dangerous imbalance of power. With the power to jail people, the state effectively has no incentive to improve its services (which are in dire need of improvement) or to negotiate in good faith in any dispute with communities or parents in regard to their freedom of education.

REGISTRATION S(51)(1) &( 2)

Home educating families have exercised their freedom of choice to decide on this kind of education. Article 26 (3) of the Universal Declaration of Human Rights, states: “Parents have a prior right to choose the kind of education that shall be given to their children.”
The Head of Department has no right to be able to veto that right. Neither is the Head of Department the best suited person to make a decision that is in the best interest of the child – as a child is entitled to via 28 (2) of the South African Constitution: A child’s best interests are of paramount importance in every matter concerning the child.

This section is completely unworkable and there will be a high rate of non-compliance in this regard. It is also unnecessary and does nothing to actually improve learning or education, just more paperwork and bureaucracy and wasted costs – money that could be diverted into actual service delivery.

Forcing parents into non-compliance in order to honour a child’s chosen educational path is a cause of additional stress for both parent and child. Given that a 6-year jail sentence for parents hangs over both the parent and child, this is clearly NOT IN THE INTERESTS OF THE CHILD.
Since the state has up to this point not been able to demonstrate that it is able to effectively provide the kind of schooling it has committed to, so much so that interest groups had to call on the courts to get the department to deliver on its responsibility, it seems unlikely that the state will be able to act timeously in its proposed oversight of home educating families.

People home educate for various reasons and with a range of pedagogies and educational philosophies in mind. Children have a right to decide for themselves the kind of educational path they would like to pursue. They have the final right and the adults around them are required to get their consent with regard to where and how they would like their education to proceed. No parent, nor government official has the right to force a child to be in a place they have deemed not in their best interests. At best, if a child so chooses, may ask for the department to mediate in a stalemate between parent/guardian and child about their educational path.

Learning and education are fundamental rights, Children should be able to pursue them without any threat of being removed from their families or be threatened with their parents and guardians being jailed for choosing what is their right to choose.

A forcibly imposed curriculum violates Section 16 (1) of the constitution, Everyone has the right to freedom of expression, which includes— (a) freedom of the press and other media; (b) freedom to receive or impart information or ideas; (c) freedom of artistic creativity; and (d) academic freedom and freedom of scientific research.


Home educated children follow an independent learning path that is often self-directed and mostly personalised. They naturally and continuously assess themselves according to their intrinsic goals in order to adjust their learning paths. The only time an assessment is acceptable is if/when a child would like an independent assessment of their learning.

Standardised assessments will be pointless since home educated children do not follow a standardised curriculum.


Home educated children choose to home educate because they want to pursue their own interests. A state prescribed curriculum effectively denies them their right to pursue their interests in lieu of pursuing a meaningless path. The burden of proof lies on the State to prove that this prescribed curriculum/content is really in the best interest of children.


“51(6) A parent of a learner who wishes to continue with home education after the learner has completed grade 9, must make use of the services of a private or independent service provider accredited by Umalusi, established in terms of section 4 of the General and Further Education and Training Quality Assurance Act. 2001 (Act No. 58 of 2001), to register for the Senior Certificate Examination through an independent or private assessment body.”

If ever there was an example of a bill that actually undermines that which it is providing, it is this section right here.

Given the challenges of our country, what we have inherited, one would think that the State would create the conditions to acquire a school leaving qualification that is easily accessible for every single person. This means that the content of what would be tested in the final examination is published; any person who wants to can source the information from service providers or any other self-study path; be able to register when they are ready, and write the examinations at the appropriate times. The first sitting should be free for all people.

Anything else, and especially the proposal in 51(6) places an unnecessary burden of time and costs to people and unfairly prejudices them – since many other options for further study or employment are foreclosed without this qualification.

For instance, in this imagined scenario:
A young person forced to drop out of school at 15 for reasons outside of their control – pregnancy, extreme poverty, illness etc that later finds themselves in a situation where they can now pursue their school leaving qualifications on a part time basis actually can’t do so without spending an inordinate amount of money to a private service provider to effectively provide them with information that is actually already freely available. This is burdensome and prejudicial to people with limited income and that need to simultaneously work and study. You’re effectively making school leaving options a domain for those with time and money.


Innovation is not opposition. It is innovation. Freedom of education is not opposition, it is freedom. Learning, real learning is that which happens when people, young and old, self-direct their learning. How do we model to children how to negotiate respectfully, how to accept differences, how to be bold, innovative and creative? We model that as adults. We operate and design our institutions to model that as well. We model that as a government. This is how democracy should be – participatory and consultative.

Trying to sneak in amendments without proper consultation, without giving enough time to respond is not acting in good faith and certainly not acting with children’s best interest in mind. In fact, this bill is not only anti-learning in terms of limiting people’s options, it is also anti-child if it thinks it is okay to a child to have its parents jailed for six years for honouring their right to an education of their choice. What could possibly be in this CAPS curriculum and in state schools that we can justify effectively orphaning children for six years?

To summarize, the State should move towards supporting a wide range of learning spaces and make them accessible for all people to be able to choose to use freely rather than moving to control and confine options.

To that effect, I object to the inclusion of
Amendment of section 3 of Act 84 of 196, as amended by Act 10 of 197
51(2)(d)(iii)& (iv)
s(51)(1) &( 2)
And I suggest an amendment to


  1. The BELA Bill
  2. Young People’s Voices – Compilation by Democratic Education South Africa
  3. Objection to the BELA Bill by Democratic Education South Africa Part 1
  4. Objection to the BELA Bill by Democratic Education South Africa Part 2
  5. Shirley Erwee – Home Educator and Home Education Advocate
  6. Submission by Pestalozzi Trust – Legal Defense Fund for Home Educators
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