The FW de Klerk Foundation submitted written comments to the Minister of Basic Education today regarding the Basic Education Laws Amendment Bill, which proposes to amend the South African Schools Act, 1996 (SASA) and the Employment of Educators Act, 1998 (EEA). The Bill aims to align SASA and EEA with developments in the education landscape and to ensure that systems of learning are put in place in a manner which gives effect to the right to basic education enshrined in section 29 of the Constitution of the Republic of South Africa, 1996.
However, the Bill will empower provincial education department heads to overrule School Governing Bodies’ (SGB) ability to determine admissions and language policies based on “equality” and “equity” – although these terms are not defined. Domestic law and court rulings hold that SGB are best positioned as parents or guardians of school attendees and members of their local community to ensure “democratic school governance”. The Foundation has pointed out that this would lead to an erosion of language and culture rights as single-medium schools are forced to provide dual-medium education, with experience showing that the dominant language leads to the extinction or severe dilution of other languages – as evidenced by the language transformation processes followed by public universities in South Africa.
Further, the Bill discriminates against undocumented learners through the inclusion of a list of “required documents” which sets a higher threshold to access basic education, not in line with current admission policies or SASA. It also imposes criminal sanction for parents who don’t submit such documents, yet fails to consider or resolve the practical barriers in obtaining such documents from the Department of Home Affairs.
The Foundation has made a number of suggestions regarding the proposed amendments in light of the unreasonable impact on fundamental human rights, which include:
- The deletion of the provisions which take away or limit powers correctly vested with the SGB and confer them instead to the State, centralising decision-making power in the Provincial Departments who are already overburdened and under-resourced and not appropriately placed to make such decisions – including language policy, admission, staff appointments and leasing of facilities;
- The provision by the Bill of Provincial oversight and consultation with the SGB on language and admission in line with the Constitution and provincial law, with the final decision lying with the SGB and a reasonable dispute resolution process for parents;
- The provision of definitions of key concepts such as “equality” and “equity”; and
- A review of section 1 “required documents” definition considering relevant case law and existing requirements set in SASA to ensure documents a) serve a legitimate purpose with regards to school administration or admission, and b) are readily accessible and available via the Department of Home Affairs.
We believe that SGBs are the appropriate, competent body to deal with matters relating to admission and language in public schools. To vest power in the State would lead to a complete erosion of language rights, as protected by section 6 of the Constitution. By empowering SGBs and their ability to decide on the best interests of their constituent children, the State empowers children.