Objecting to section 25(6) of the BELA Bill: what YOU can do

persuade manyFor homeschoolers who are using or who plan to use Cambridge International as a school-leaving qualification, section 25(6) of the proposed Basic Education Laws Amendment Bill presents a problem (see here for details). The section is certainly not phrased as well as it could be, but the wording as it stands seeks to prevent homeschoolers from using any school-leaving qualification apart from the South African National Senior Certificate.

There appear to be good reasons why this restriction cannot be sustained legally, but it is nevertheless important for as many people as possible to register their objections to this section of the Bill.

I have, in association with the Pestalozzi Trust, developed the following strategy for objecting to this section of the Bill.

The strategy

  1. I have prepared an institutional submission for the Department of Basic Education (DBE) which outlines a number of legal problems with 25(6) of the Bill (you can read the full submission here; many thanks to Joy Leavesley for her invaluable input on the legal issues.) The substance of my argument is as follows:
    1. The child's best interests are paramount in any matter concerning the child (section 28 of the Constitution). It is demonstrable that, for many children, it is in their best interests to use Cambridge International as a school-leaving qualification. This fact renders section 25(6) of the Bill unconstitutional and subject to being declared invalid. 
    2. By seeking to make the state's school-leaving exam obligatory for homeschoolers, the Bill confuses the state's responsibility with the child's rights. 
    3. When combined with the laws on compulsory schooling (notably the fact that schooling is not compulsory after grade 9), the Bill creates absurd contradictions:  parents are legally entitled to neglect their children's education completely after grade 9, but parents who choose to homeschool their children after grade 9 using Cambridge International become lawbreakers. This threatens the right to equality (section 9 of the Constitution).
  2. It is important to understand just how crucial the consideration of the child’s best interest is. Court cases have been decided on this consideration alone, and judges regard it with the utmost seriousness.
  3. Other institutions who work with Cambridge homseschoolers are encouraged also to make institutional submissions to the DBE. Institutional submissions are regarded with a greater degree of seriousness than individual submissions.
  4. As many individuals as possible should make submissions objecting to this clause in the Bill. The approach that we have worked out is for individuals to follow up on the institutional submission by explaining why Cambridge International is in the best interests of their children in particular. In this way, the objective, legal claim that international qualifications may be in a child’s best interest, can be illustrated by (hopefully) hundreds of specific examples of circumstances in which Cambridge International is, in fact, in the best interests of particular children. Once this claim is established, section 25(6) of the Bill is proved to be unconstitutional and invalid.

Making your submission

  1. It will help to read my full submission to familiarize yourself with the legal arguments.
  2. It is important to present a well thought-through argument in support of your position. The DBE will pay little or no attention to claims and objections that are not properly substantiated. I have prepared a template to help you make your submission. You can download it here. It's probably a good idea to save and submit your own letter in pdf format, to guard against accidental changes.
  3. Send your letter of objection to Adv. TD Rudman at . Send a BCC to and to so that we can keep a tally of the submissions.
  4. If you would like an opportunity to interact with officials from the DBE on this matter, say so in your covering email. You can also ask to be informed of any public hearings that might be held.
  5. If you want to make objections anonymously, you can send them to the Pestalozzi Trust. Write BELA Bill: ANONYMOUS in the subject line. The Trust's attorneys will anonymize your submission and submit it.
  6. The deadline of Friday 10 November 2017 was not extended, so if you can get your submission in before that, excellent. However, as long as the process of considering submissions is still going on, there is a very high probability that your submission will be considered. If you cannot submit by 10 November 2017, do not hold back! Submit whenever you can.
  7. If you know families with children who have finished Cambridge, please ask them to make submissions as well. Their submissions will provide powerful evidence that preventing homeschoolers from using Cambridge is not in the best interests of the child — with the implication that section 25(6) of the Bill constitutes one of the worst possible violations of the SA Constitution.

Important!

Although section 25(6) of the Bill may not stand legal scrutiny — and one Cambridge provider has indicated that it is not applicable to students registered with them — we should not allow it to be passed without objection. Note:

  1. If this section of the Bill is passed without objection, officials from the DBE will, at the very least, have a tool for harassing families who want to use an international school-leaving qualification.
  2. If this section is passed, objecting to it will require an expensive court process. Let’s object now, before the Bill is passed, rather than incurring the expense, inconvenience, and anxiety of a court case.
  3. If we do not object, and the issue does come to court, our case will be significantly weakened. As in OUTA’s case against etolls, the court will ask why we did not object when the Bill was up for public comment.

Conclusion

The DBE was overwhelmed by hundreds of submissions asking for an extension to the closing date for public comment on the Bill. Let’s give them thousands this time!