Tuesday 28 May

SECTION27, Equal Education, the Equal Education Law Centre, and the Legal Resources Centre call on Parliament to protect the best interests of learners and reinstate clauses in the Basic Education Laws Amendment Bill (“the BELA Bill”) designed to ensure that school language and admissions policies do not unfairly discriminate against learners and hinder their access to public schools. The National Council of Provinces’ (NCOP) proposed amendments to the BELA Bill would water down important clauses that entrench proactive oversight powers on the part of provincial education Heads of Departments (HODs). We are concerned that these regressive changes have come in response to conservative pressure and we urgently call  for them to be reversed.

The BELA Bill is the biggest update to education law in the last decade, seeking to consolidate developments which have taken place both through practice and judicial decisions. It has been years in the making and has gone through many comprehensive public consultation processes. One of the problems it aims to fix is the confusion around the decision-making powers of school governing bodies (SGBs) versus the HOD when it comes to school admissions and language policies. Historically, many language and admissions policies have, whether intentionally or not, excluded learners from schools based on race and class. Some well-resourced public schools have also used language and admissions policies as a tool to make sure their class sizes remain small, while under-resourced schools are bursting at the seams. 

In response, Provincial Education Departments (PEDs) have often tried to increase access to basic education, protect the best interests of learners, and reduce the overcrowding and learner placement crisis by directing schools to add more languages of learning and teaching, and by making the final decision to place learners in better-resourced schools with more space. However, some well-resourced SGBs have fought back, often in the courts, arguing for unfettered control over languages of teaching and learning, and full control over which and how many learners they accept. Because the language in the South African Schools Act is unclear, the question of who has the final decision-making power over the placement of a learner and school language policies has mostly been left to the courts to deal with slowly and on a case-by-case basis. 

School Admissions Policies 

The Constitutional Court has said that schools do not have the final say on admissions policies and that the PED has direct and “ultimate control” when it comes to learner admissions. The Supreme Court of Appeal has gone further to say that the law requires the PED to intervene in admissions decisions when necessary. To strike the right balance, the courts have also said that when PEDs intervene, they must do so fairly by consulting with the school and giving them an opportunity to appeal the decision. 

The version of the BELA Bill adopted by the National Assembly reflected this balance of powers and what our courts have said. This version of the BELA Bill clarified that the HOD has the final authority to admit a learner, and required the HOD to consult with the SGB before making the decision, as well as giving the SGB the right to appeal. To proactively prevent discriminatory admissions policies, SGBs would have been obliged to routinely submit their admissions policies to the HOD for review. When reviewing an admissions policy, the HOD would have needed to consider factors including:

  • The best interest of the child, with emphasis on equality and equity;
  • Whether other schools in the community are accessible to learners;
  • The school’s resources and the efficient and effective use of state resources; and
  • The space available at the school for learners.

The previous version of the Bill allowed the HOD to direct the SGB to change their policy based on these factors.

School Language Policies

Language policies say what language a school will use for learning and teaching. Even though the SGB has the power to make their own language policies, the Constitutional Court has said that the SGB of a public school 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.” Further, the court made clear that the SGB’s powers do not mean that the HOD cannot intervene on reasonable grounds, to make sure that the language policy of a school is in line with the constitutional right to basic education and the right for all learners (not just the few) to receive basic education in the learner’s language of choice, which may include home language where possible. 

To make sure language policies allow learners to learn in their home languages where possible and reflect the language needs of the surrounding community, the previous version of the Bill said SGBs had to submit their language policies to the HOD for approval and the HOD could recommend amendments and/or direct the school to use more than one language of learning and teaching. In approving language policies or directing a school to adopt another language, the HOD would have had to consult with the school community and consider factors such as:

  • The best interests of the child with emphasis on equality and equity;
  • The changing number of learners who speak the language;
  • The effective use of classroom space; and
  • The broader language needs of the community where the school is.

The previous version of the Bill also gives the SGB the right to appeal the decision. 

NCOP Amendments Water Down Proactive HOD Oversight 

Under NCOP’s proposed amendments, the HOD would still have the power to direct a school to adopt a language or admit a particular child in certain circumstances and subject to procedural fairness. The power of the HOD to direct schools to review their policies based on the above factors also remains in the Bill. However, the power of the HOD to direct an SGB to change their policies where they are not in line with the factors has been removed. Moreover, SGBs would no longer be explicitly obliged to submit their admissions and language policies to the HOD for approval on a routine basis. This change deprives the HOD of a valuable opportunity to act proactively where change is needed and prevent future exclusionary incidents from occurring. The change also makes it more likely that the HOD will need to use the powers to direct schools to adopt a language or admit particular students. 

The watering down of HOD powers appears to have come in response to sustained conservative backlash, fear-mongering and electioneering by particular groups. These conservative groups have claimed that the previous Bill’s provisions on HOD powers concerning admissions and language policies “disempower schools”, are a “breach of the 1994 settlement”, and an attempt to “hijack” functioning schools. This is not true. Instead, by succumbing to conservative pressure, the NCOP’s amendments risk creating a situation where some well-resourced schools can continue using admissions and language policies as tools of discrimination to exclude learners and deny them access to quality education.  

Call to action

We call on Parliament to resist the conservative backlash and put the best interests of learners first. We are firmly of the view that the provisions relating to HOD oversight are not only constitutional, they are also necessary to promote the transformation of the public education sector to better serve the needs of all learners, as well as address past and current inequality in access to quality education. We urge the two houses of Parliament to retain the HOD’s powers to review and amend school language and admissions policies. At a minimum, we urge Parliament to safeguard the remaining provisions against the loss of vital redress measures that aim to alleviate vast inequalities in our education system. Finally, we recommend the swift finalisation and adoption of the Bill, as it has been years in the making and is long overdue. 

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