/ 8 June 2024

Ramaphosa unlikely to sign Bela bill into law before new administration is in place

School Graft1
Not conducive to learning: The dilapidated classrooms at Kwa-Dukathole Comprehensive School in Katlehong lack furniture, so pupils are forced to share chairs or even stand during lessons. (Delwyn Verasamy/M&G)

The Basic Education Law Amendment (Bela) Bill will probably not be signed by President Cyril Ramaphosa before the new administration takes its seats in the National Assembly (NA), said presidency spokesperson Vincent Magwenya.

It will now be up to the new administration to decide by a motion of the house whether the bill should go through the National Assembly again for reconsideration, or it should proceed to the president to be signed into law.  

The bill, first drafted in 2017, proposes the biggest update to education law in the past decade. It seeks to amend the South African Schools Act of 1996, and the Employment of Educators Act of 1998 to align with “developments in the education landscape”. 

A key aspect of the Bela bill seeks to make grade R the new compulsory school-starting grade and provides for penalties when parents fail to enrol their children. 

The bill also proposes measures to prevent the unnecessary disruption of schooling by protests or other causes, including criminalising such actions. It will introduce penalties for parents who deliberately keep their children out of school for extended periods.

The bill addresses aspects of homeschooling, requiring parents to register their children with the department and specify the curriculum being used. It mandates independent assessments to monitor the children’s progress. 

It also offers an expansive definition of corporal punishment to include “any acts which seek to belittle, humiliate, threaten, induce fear or ridicule the dignity and person of a learner”. 

The bill aims to revise the admission and language policies of schools, by transferring decision-making authority from the school governing body (SGB) to the head of department (HOD). This change was prompted by instances of discriminatory admission practices observed in some schools.

But it has faced opposition, including from the Democratic Alliance, which says the bill cannot “fix the education system” by “centralising power into the hands of unelected bureaucrats”. 

On 15 May, the National Council of Provinces (NCOP) said it made amendments to the bill, which has been adopted by the portfolio committee on basic education. 

Civil society organisations Equal Education and Section27 have rejected the NCOP’s proposed changes to the bill, saying it “water[ed] down important clauses that entrench proactive oversight powers on the part of provincial education HOD”. 

“We are disappointed with the new amendments and we believe that there should be oversight by the HOD on language and admissions policies but we just want the bill to be passed at the end of the day,” said Equal Education Law Centre’s Katherine Sutherland.

In its amendments, the NCOP added that in terms of clauses 4 and 5 of the bill, the involvement of the head of department in approving policies has been removed, and the time frames which the basic education department said have caused difficulty in implementing the adoptions. 

“In the adopted amendments, the HOD retains the final authority on admissions and in providing guidance on the number of mediums of instruction that public schools may use,” the portfolio committee on basic education chairperson, Bongiwe Mbinqo-Gigaba, said in a statement

According to a constitutional court 2019 ruling school governing bodies have the power to determine the school language policies. But the court has warned that should the school governing body adopt policies that are not in line with the constitutional right to basic education, the head of department should intervene. 

school governing bodies of public schools must “recognise that it is entrusted with a public resource which must be managed not only in the interests of those who happen to be learners and parents at the time but also in the interests of the broader community in which the school is located”, the court said. 

With the proposed new amendments, the oversight role of the HOD will be scrapped. 

Section27 added that the changes will not only align the Schools Act with constitutional court cases such as MEC for Education in Gauteng Province v Governing Body of Rivonia Primary School but will also give “access to the right to basic education and address past inequalities that have stubbornly lingered in South Africa’s education system through discriminatory SGB policies”. 

Responding to the amendments, the DA said the bill was passed through the National Council of Provinces and went to the desk of the president without following parliamentary protocols

“The bill hands extensive decision-making power to the heads of provincial basic education departments, diminishing the role of SGBs and local communities in determining language and admissions policies,” said the DA’s education minister, Baxolile Nodada. 

The education department said the changes to the language policies were prompted by instances of discriminatory admission practices. 

A case that is often cited when the school language policy is brought up is Matukane and Others v Laerskool Potgietersrus. In this case, the school governing body tried to exclude black learners seeking English-medium instruction from a parallel-medium school.

The school attributed its desire to maintain the culture and ethos of the institution, which was closely connected to the Afrikaans language, and would be diluted if the school was “swamped by English-speaking pupils”.

The court found that this constituted unfair discrimination, and directed the school to admit the learners, even though this was inconsistent with the school governing body’s language policy. 

In September 2013, the basic education department released a draft policy on the Incremental Introduction of African languages in schools. It provides that learners in all grades should learn one language at a home language level, and two languages at the first additional language level, with a specific focus on the protection of African languages. 

“Not only will an adopted language policy promote languages that have been historically marginalised; it is also aimed at promoting the culture and heritage that attaches to them,” Equal Education said. 

The DA said it has been advocating for “mother tongue” languages but the school governing body should determine the decision on language policies. 

“Let the SGB decide, they know the community better because why should we put that power in the hands of the government?” Ndoda said.

The National Council of Provinces, in its amendments to the bill, also agreed to amplify the corporal punishment definition and used the Criminal Procedure Act, which expands the powers of the courts in dealing with sentencing and penalties.