Issued by the FW de Klerk Foundation on 17/01/2024

The Basic Education Laws Amendment Bill (“BELA Bill”), which proposes amendment to the South African Schools Act, 1996 (“SASA”) and the Employment of Educators Act, 1998 (“EEA”), was passed by Parliament’s first house, the National Assembly (“NA”) on 26 October 2023. It is now before the second house, the National Council of Provinces (“NCOP”) and is currently open for written submissions, until 31 January 2024. 

During the NA’s call for comments, the FW de Klerk Foundation submitted extensive written comments expressing significant concerns about the implications of the BELA Bill. These comments, in line with the Foundation’s commitment to upholding the Constitution, focused on the State taking powers away from School Governing Bodies (“SGBs”).

Among the key issues raised by the Foundation are the powers afforded to the provincial education department heads to overrule SGB authority in determining admissions and language policies. The Foundation argues that such a shift undermines the principles of democratic school governance and that it will be deemed a violation of the founding provisions, especially in terms of language rights as embedded in section 31 of our Constitution. It raises serious concerns that these provisions might threaten the future of single-medium Afrikaans schools, and hence the right outlined in section 29(2) to education in the official language of choice in public educational institutions. In addition, the proposed amendments, including the provision on “equality” and “equity”, lack clear definitions and may lead to arbitrary decision-making, as evidenced by the potential erosion of language rights.

Moreover, the Foundation highlights the discriminatory nature of the Bill towards undocumented learners: including a list of “required documents” which impose higher barriers to accessing basic education, contradicting current admission policies and SASA. The Foundation asserts that the criminal sanctions for parents who fail to submit such documents overlook practical challenges in obtaining them from the Department of Home Affairs.

The Foundation emphasises the importance of SGBs as democratically elected and competent parent bodies to address matters related to admission and language policies in public schools. It advocates for deleting provisions that strip SGBs of powers, arguing that centralising decision-making power in provincial departments could lead to inefficiency and potential abuse of authority. Decisions regarding admissions taken arbitrarily, may result in chaos and even conflict where schools do not have the capacity to accommodate additional learners.Additionally, the Foundation calls for a review of the Bill’s provisions on language policies and the establishment of a reasonable dispute resolution process for parents.

The public has a second chance to comment on the Bill (as changed by the NA after its public participation process) as it enters the NCOP for consideration. As the FW de Klerk Foundation, we reiterate our commitment to providing comprehensive comments (written and verbal) on the BELA Bill, to ensure that the legislative process considers the concerns and perspectives of various stakeholders. This ongoing dedication is particularly pertinent given that the worrisome clauses, which have been a source of concern for the FW de Klerk Foundation, still exist in the latest version of the BELA Bill submitted to the NCOP.

In conclusion, the BELA Bill, in its current form, raises serious concerns about potential infringements on language rights, discrimination against undocumented learners, and the erosion of the democratic governance of public schools. The Foundation will actively participate in the ongoing legislative process, continuing to advocate for amendments that align with the constitutional framework and uphold the fundamental rights of all South African citizens.