Submission to the Department of Basic Education on BELA Bill

persuade x1The following is Imago Education's submission to the Department of Basic Education (DBE), presenting reasons why section 25(6) of the proposed Basic Education Laws Amendment Bill should be scrapped. (If you want to submit your own objection to the this clause of the Bill, please see here.)

1 Introduction

The Basic Education Laws Amendment Bill (hereafter referred to as “the Bill”) has wide-ranging implications for public schools and for home education. Although most aspects of the Bill are of general concern, my present interest is with the manner in which the Bill seeks to regulate and restrict home education for children who have completed grade 9 (i.e. children who are in the Further Education phase leading up to a school-leaving qualification). The relevant clause of the Bill is found in section 25(6), and states:

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 Urnalusi, 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.

This clause requires that children who are home educated for grades 10 to 12 work towards the National Senior Certificate (NSC) and make use of the services of an Umalusi-accredited service provider. The implication is that such children may not work towards international school-leaving qualifications.

This restriction is of great concern to a large number of home-educated families in South Africa who have chosen or intend to use school-leaving qualifications like Cambridge Assessment International Education  (hereafter referred to as Cambridge International) or other international qualification systems. Since my experience and concern is specifically with Cambridge International, I will focus on that system; however, many of the arguments are applicable to other systems as well.

It is my strong contention that clause 6 of the Bill is unconstitutional and should therefore be removed from the Bill completely. I now present arguments to substantiate this contention.

2 The child’s best interest as of paramount importance

2.1 The paramountcy of the child’s best interest

Section 28 of the South African Constitution (hereafter referred to as “the Constitution”) deals with children’s rights. Of particular importance is section 28(2), which states:

(2) A child’s best interests are of paramount importance in every matter concerning the child.

A number of court judgments over the past two decades have established this principle as of absolutely foundational importance in every matter concerning children, including issues as wide-ranging as adoption by non-South African citizens  and the sentencing of children who have committed crimes.

In a judgment delivered by Goldstone J. (2000) in the Constitutional Court of South Africa , a law proscribing the adoption of a child born to a South African citizen by a non-citizen was declared invalid on the grounds that it violated — both potentially and in an actual situation — the best interests of the child.

It is therefore critical, in the present case, to consider whether section 25(6) of the proposed Bill violates the constitutional provision that “a child’s best interests are of paramount importance in every matter concerning the child”. If it is found that this proposed legislation violates the child’s best interest — either potentially or actually — the proposed legislation would constitute a violation of the Constitution.

2.2 What constitutes the child’s “best interest” in this matter?

In order to apply this principle, it is necessary to ask what would constitute a child’s best interest as regards home education for grades 10 to 12. To answer this, I will begin with the Constitution itself. Some important considerations are as follows:

  1. The whole tenor and spirit of the Constitution is towards freedom -- freedom of movement, of expression, of access to information and ideas, of belief and opinion, of religion, of professional choice. Indeed, the Constitution states that the Bill of Rights “enshrines the rights of all people in our country and affirms the democratic values of human dignity, equality and freedom” (section 7(1)). It is therefore reasonable to assume that the child’s best interest is served by the advancement of these freedoms.
  2. Of particular importance in the present context are those freedoms which are closely associated with education, and which are advanced by high quality education. These include the freedom of professional choice (section 22) and freedom of movement, including international movement (section 21) — since good education opens up many opportunities for such movement.

In addition to the Constitution, the United Nations Convention on the Rights of the Child (UNCRC),  makes a number of pertinent statements about a child’s best interests in matters educational:

States Parties agree that the education of the child shall be directed to: (a) The development of the child’s personality, talents and mental and physical abilities to their fullest potential (Article 29.1).

States Parties recognize the right of the child to education, and with a view to achieving this right progressively and on the basis of equal opportunity, they shall, in particular: ... (b) Encourage the development of different forms of secondary education, including general and vocational education, make them available and accessible to every child, and take appropriate measures such as the introduction of free education and offering financial assistance in case of need (Article 28.1).

States Parties shall promote and encourage international cooperation in matters relating to education, in particular with a view to contributing to the elimination of ignorance and illiteracy throughout the world and facilitating access to scientific and technical knowledge and modern teaching methods. In this regard, particular account shall be taken of the needs of developing countries (Article 28.3).

These considerations provide a helpful set of criteria by which to evaluate a child’s best interest in relation to school-leaving qualifications. I turn now to a consideration of the benefits of the Cambridge International education qualification system.

2.3 The Cambridge International education system

Cambridge International is an internationally-renowned education system with a large number of proven benefits. To mention but a few:

  1. The educational quality of the Cambridge International education system is unquestioned. It has a history going back to 1858, and currently operates in about 160 countries with nearly one million candidates writing its exams every year.
  2. Cambridge International school-leaving qualifications are widely recognized by universities and colleges around the world.
  3. There are many universities, particularly in Europe and Great Britain, which require the equivalent of A levels for acceptance into their undergraduate programmes. This is a higher level than the South African NSC, whereas it is an integrated part of the Cambridge International system. South African children who wish to study at one of these universities, and who are bound by the NSC as a school-leaving qualification, will be at a distinct disadvantage.
  4. Cambridge International is constantly developing its curricula, its assessment methods, and its educational approaches on the basis of sound educational research.
  5. There is a wide range of outstanding resource materials available to teachers and students to ensure mastery of the outcomes specified in the curriculum. These resources equip students with the technical skills, critical thinking abilities, and global perspectives that are essential for success in today’s world.
  6. The value of the Cambridge International education system is confirmed by the experience of students and teachers at both secondary and tertiary level.
  7. Cambridge International is recognized by Universities South Africa for university exemption, and is respected by South African universities.
  8. Cambridge International opens many doors for tertiary education, prepares students academically for excellence in tertiary education, and paves the way to professional success.
  9. Recent research in the United States confirms that students who use Cambridge International for their school-leaving qualification have a distinct advantage at tertiary level.
  10. Cambridge International qualifications are widely-used and widely-recognized in Africa. The British Council, which administers exams for Cambridge International, operates in at least 20 countries in Africa, including most of the SADC countries.
  11. The use of Cambridge International in Africa represents an excellent implementation of Article 28.3 of the UNCRC. The availability of Cambridge programmes in Africa puts a vast reservoir of educational materials at the disposal of countries which lack the experience, funds, and other resources to develop such resources for themselves. By this means, people who would otherwise be limited to relatively meagre educational resources are able to gain access to the best in the world. This kind of educational advancement contributes to the upliftment of communities and nations in the developing world.

2.4 Evaluation of Cambridge International in the light of the “child’s best interest”

It should be crystal clear that, for at least some children in certain circumstances, using Cambridge International as a school-leaving qualification is in their best interest. Note:

  1. There are strong reasons to believe that Cambridge International gives children an excellent foundation for tertiary education.
  2. The skills developed through using Cambridge International provide an excellent foundation for success in the workplace.
  3. For many children, Cambridge International allows them to develop their personalities, talents, and mental and physical abilities to a high degree (Article 29.1(a) of the UNCRC).
  4. Cambridge International promotes free movement between African countries, as families with children who use Cambridge qualifications can easily move from one country to another without interrupting their schooling. (My own family has personal experience of this: we moved from South Africa to Zambia and, after three years, back to South Africa while our children were studying and writing exams through Cambridge International.)
  5. Cambridge International’s international recognition gives children much greater scope to travel and study worldwide.

2.5 Conclusion: the child’s best interest

Given these considerations, it is impossible to maintain that the Bill’s requirement for home educated children to use only the NSC for their school-leaving qualification is always in the child’s best interest. It is more than obvious that the child’s best interest may be served by using an international school-leaving qualification like Cambridge International. This clause of the Bill is therefore unconstitutional.

3 The bill demonstrates a profound confusion of the rights of the child with the responsibilities of the state

The Constitution guarantees the right to education, and imposes certain responsibilities on the State in this matter. The State’s responsibility in relation to education is to ensure that each and every citizen (and especially each child) is able to access quality education. By imposing this responsibility on the State, the Constitution aims to enable citizens and residents to exercise their right to education. However, it would go against the intention of the Constitution if the State’s responsibility were to be construed as a licence to restrict educational choices, or to prevent access to international educational options that are of world-renowned quality — options which increase a person’s educational and professional freedom, as well as his/her freedom of movement locally and internationally.

The State is responsible to provide free, universal, basic education (i.e. grades R to 9), and to make further education (grades 10 to 12) progressively available (section 29(1) of the Constitution). It is understandable that the State, due to a limitation of resources, is only able to provide one monolithic education system, rather than offering a variety of curricula and approaches. However, it would go against the spirit of the Constitution if this limitation on the State’s educational capacity were to be used as a reason to prevent children and their parents from accessing, at their own cost, educational systems and services which they deem to be more appropriate for their own needs and preferences. This would also violate the UNCRC at many points (see esp. Article 28.1(b), quoted in section 2.2 above).

The Bill thus demonstrates a profound confusion of the State’s responsibilities with the rights of the country’s citizens and residents by requiring families who choose home education for grades 10 to 12 to use only the State’s school-leaving qualification. On what basis can the Bill prevent a child who has passed grade 9 from choosing, with the guidance of his/her parents, to enrol with Cambridge International as a private candidate in order to broaden his/her options for tertiary study and choice of a profession? On what basis can the Bill prevent such a child from accessing any information and ideas which will enable him/her to succeed in his/her Cambridge studies? How, without gross infringement of the child’s rights, as enshrined in the Bill of Rights, can the State prevent the child from making such choices?

Constitutionally, the State may regulate providers of education, but that is not the same thing as limiting children’s educational rights and choices.

4 The bill creates absurd contradictions

A third problem with section 25(6) of the Bill is that it creates absurd contradictions which threaten the constitutional right to equality before the law.

To begin with, note section 9 of the Constitution:

9. Equality.— (1) Everyone is equal before the law and has the right to equal protection and benefit of the law.

(2) Equality includes the full and equal enjoyment of all rights and freedoms. To promote the achievement of equality, legislative and other measures designed to protect or advance persons, or categories of persons, disadvantaged by unfair discrimination may be taken.

Note also section 3(1) of the South African Schools Act of 1996, which requires the following in terms of compulsory school attendance (the period of compulsory attendance remains the same in the Bill):

Subject to this Act and any applicable provincial law, every parent must cause every learner for whom he or she is responsible to attend a school from the first school day of the year in which such learner reaches the age of seven years until the last school day of the year in which such learner reaches the age of fifteen years or the ninth grade, whichever occurs first.

Now consider the following scenarios:

  1. A sixteen-year-old girl has a love for extreme adventure. After she has completed grade 10, her parents arrange for her to spend two years with them on a round-the-world yacht cruise. No arrangement is made for formal schooling during this time.
  2. A fourteen-year-old boy becomes increasingly disinterested in school during grade 9. He manages to pass the year (just), but refuses to go back to school for grades 10 to 12. In desperation, his parents allow him to stay at home playing computer games while they are at work.
  3. A fifteen-year-old girl from a wealthy family decides that she would like to study overseas for her bachelor’s degree. Her parents enrol her in an independent school which uses Cambridge International for its school-leaving certificate so as to allow her the widest possible scope for her tertiary studies.
  4. During his home education from grades 1 to 9, a boy from a lower middle-income family shows great aptitude for chemistry and for academic study generally. After completing grade 9, his parents, who themselves are academically strong, decide to continue his home education for grades 10 to 12 using Cambridge International. They want him to be as well prepared as possible for university; they also want to keep his options open for international studies. They are unable to afford expensive service providers, but obtain for him the best books and other materials that they can afford. Furthermore, they are intimately involved in their son’s learning, and spend many hours sharing their own knowledge and helping their son to develop his academic skills.
  5. A fifteen-year-old boy is an exceptionally talented violinist. After completion of grade 9, he and his parents decide that he will devote himself full time to the violin. This includes lessons, practice, and international travel. As an adjunct to his training in the violin, he will enrol as a private student (home educated, in effect) for Cambridge International IG and AS level subjects, with the intention of obtaining a Cambridge school-leaving qualification.

According to current legislation and legislation proposed in the Bill, the parents and children in the first three scenarios are all free to do as they choose. Even though scenarios 1 and 2 involve no schooling at all, with scenario 2 being arguably detrimental to the child’s well-being, the Minister of Education and the Head of Department have no legal grounds for imposing any sanction on the families’ choices. Comparing scenarios 3 and 4, the girl whose parents can afford an independent school is permitted by law to obtain an international qualification, but the boy whose parents can’t afford such a school, and who are more than capable of home educating him, is required by the Bill to use the NSC. According to the Bill, his parents would be permitted to keep him at home doing nothing (as in scenario 2), but they are not permitted to enrol him for an international qualification. In scenario 5, an international school-leaving certificate would be an obvious advantage, but the Bill would allow only the NSC. However, the Bill would allow the child to pursue his career in the violin and to forego schooling completely.

It does not require much thought to realize that the restrictions which the Bill imposes lead to absurd conclusions. Not only do they work against the child’s best interest, but they threaten to violate the right to equality before the law. Comparing scenarios 3 and 4 above, an international qualification is allowed to children whose parents can afford an independent school, but children who wish to rely on home schooling are restricted to the NSC. Even more ominously, parents are legally permitted to cease providing education for their children after grade 9, but parents who wish to home educate their children using an international qualification face legal sanction. The Bill thus interferes with the “full and equal enjoyment of all rights and freedoms”.

5 Conclusion

The Constitution of South Africa gives paramountcy to the principle of the child’s best interest in every matter concerning the child. Section 25(6) of the proposed Education Bill requires that children who are home educated for grades 10 to 12 must write the NSC as their school-leaving exam; international school-leaving qualifications are thus excluded. There are, however, many reasons why an international school-leaving qualification will, in many cases, be in the best interests of the child. This section of the Bill thus violates one of the most fundamental rights of the Constitution and must be regarded as constitutionally invalid.

In addition to its violation of section 28 of the Constitution, the Bill confuses the responsibility of the State with the rights of the child. Instead of recognizing the State’s responsibility to provide education for what it is, namely a means of allowing children to exercise their right to education, the Bill seeks to require certain people to use only the State’s school-leaving qualification.

Finally, absurd contradictions would be created if section 25(6) of the Bill were to be applied alongside the provision that school attendance is no longer compulsory once a child has completed grade 9. These contradictions are of such a nature as to threaten the constitutional right to equality before the law.

It is therefore clear that section 25(6) of the Basic Education Laws Amendment Bill is unconstitutional and needs to be scrapped.


Submitted by
Dr MB Button
Director, Imago Education (Pty) Ltd
6 November 2017


I want to thank Joy Leavesley for invaluable assistance in understanding the legal issues relating to this submission.