BELA faces legal challenge from homeschoolers…
The Pestalozzi Trust – a civil rights organisation dedicated to protecting homeschooling and civil education – has warned President Cyril Ramaphosa in a letter that it will launch a legal challenge to the BELA Act. In this interview with BizNews, the trust's Christopher Cordeiro says: "…once the President says what the date of its coming into force, the trust will, I think, be one of the first, if not the first, to serve its papers. And people can go and read those papers because I think they'll have an element of tragic comedy when you start going through and seeing really how poorly the process was conducted." Cordeiro lists the principle and practical objections from homeschoolers, and outlines the procedural and substantive grounds for the legal challenge. "And…it would be a travesty of our constitutional processes if a court upheld the bill." Meanwhile, he urges radical reform in the Education Sector.
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Extended transcript of the interview ___STEADY_PAYWALL___
Chris Steyn (00:02.368)
The BELA Bill and home schooling. How is that going to work? We speak to Christopher Cordeiro of the Pestalozzi Trust. Welcome Christopher.
Christopher Cordeiro (00:14.319)
Welcome and good morning Chris and good morning to all of your listeners and viewers.
Chris Steyn (00:21.344)
Firstly, tell us about the trust and its work.
Christopher Cordeiro (00:25.037)
Well, homeschooling was legalised in South Africa in 1996. And the Pestalozzi Trust is a civil rights organisation dedicated to protecting homeschooling and broadly the term civil education. And so the trust was actually created shortly after that legalisation of homeschooling, really for two reasons: One, to promote homeschooling, because obviously in 1996 homeschooling was not very well known. And then also to protect homeschooling, because one of the perennial problems over the last 30 years has been that the State doesn't understand homeschooling. And it's constantly trying to squeeze homeschooling into the conventional schooling box. And therefore homeschoolers in a sense need special protection to kind of preserve the ethos and the effectiveness of homeschooling. And that's essentially what the role of the trust has been over, I think now, most probably the last 25 or more years.
Chris Steyn (01:32.844)
So why are homeschoolers opposed to the BELA Act?
Christopher Cordeiro (01:37.807)
Gosh, there's a number of reasons, but I think it really comes down to three issues, in a sense related to principle:
First, there had been, despite claims by certain sectors in the department, very little consultation with homeschoolers and the very fact that home…and the proof is in the pudding. Homeschoolers are particularly opposed because this consultation hasn't taken place.
Secondly, there's a lack of research on homeschooling by the department. And that's despite the fact that in 2014, 2015, when this act was in preparation, now 10 years ago, the department's own internal documents say there must be research on homeschooling and it must be conducted in a way in which both parties agree to the kind of methodology because it's not conventional in the way in which the department would normally conduct its…than the department normally works.
So there's a need for a high level of integration and working together by the department with homeschoolers. And so there's no research on homeschooling. And then the previous minister admitted that to the Portfolio Committee on Basic Education, even a few years before the act was actually, or the bill was placed before Parliament. So those are two of the high level, those are two of the reasons.
And then there's an in principle objection. Homeschoolers in general object to the idea that an official should decide whether they should be allowed to homeschool. They object to the concept that they're applying for permission to do something which is completely natural and kind of inherent in their role as parents. So there's also that broad in principle objection.
And then I think there are a of other practical objections to the way in which the legislation has been drawn up.
One of them is that the, once again, there's this attempt to kind of fit homeschooling and particularly assessment of homeschooling within conventional schooling models and within the conventional schooling legislation. So there's a lot of stuff that underlies something like Section 51. And when you go into those underlying parts, they all talk about school. So how is the government going to kind of, how is the department going to implement that?
Christopher Cordeiro (04:05.453)
And that was something that the trust has in fact written to both the president and the minister about and said that in fact practically, it's how are we going to implement the stuff where if you look at the underlying documents they only refer to schooling – and there's certain things now that like, for example, the choice of the curriculum and the way it will be assessed that homeschoolers can't actually fill in because no one knows how it's going to be implemented.
Chris Steyn (04:33.776)
So you are going to challenge this and you have informed President Cyril Ramaphosa of the challenge in a letter. What are your grounds for challenging it exactly?
Christopher Cordeiro (04:43.599)
So I think there's a series of grounds, both procedural and substantive.
The procedural grounds really fall under three broad categories. And I should say the challenge is really to have the whole bill struck out. So it's not just the homeschooling clauses, it's the bill as a whole.
As I said, the trust is a civil rights organisation and the bill, and in this process of developing the bill, there have been a number of violations of the constitutional rights to public participation and to that participation being meaningful. So this is a broad challenge against the bill.
And the President was warned about this when the bill passed the National Council of Provinces. In fact, when the bill passed the National Assembly, the very last, the day after the bill passed, the President was sent a letter setting out all of the procedural flaws in the bill and in a sense begging him not to actually sign the bill, but send it back to Parliament because once he signs the bill, he essentially then triggers the fact that you have to have a legal challenge against the bill.
So procedurally, there's many, many, you could have a multi-hour programme on the flaws, but under three kind of broad headings, there was a failure to do proper socio-economic impact assessment, which is a cabinet requirement. There was the failure to put that assessment out for the public to see before they commented. There's no point in telling the public after they've commented, these are the socio-economic impact assessments. And that is a fundamental flaw of the whole bill that affects every section. Specifically, the homeschooling up till today has not had any proper costing of what the impact would be on homeschooling. There is socio-economic impact assessment is one huge flaw and pointed out to the committee, I need to say repeatedly and in writing during the hearings, saying that this is not here.
Second big issue is the conduct of the hearings themselves. They largely violated the principles that were set out by the Constitutional Court in 20, I think it's 2023 now, in a judgment that struck down the the Traditional and Khoi-San Leaders Act, the so-called Mogale judgment.
Christopher Cordeiro (07:07.929)
That judgment highlighted what's the requirements for meaningful public participation very clearly. Those were violated in the public hearings. One of the ones that's most concerning to homeschoolers was inserting provinces, the voice of the child being suppressed. So the Children's Act makes it very clear that children have the right to be heard in all matters that affect them. And it wasn't allowed in a couple of provinces. So that almost is already a fatal flaw in the bill.
And then there were all of the procedural flaws in Parliament because the bill became a very much became a kind of political football with an attempt to push it through literally in the dying hours of the previous, the sixth parliament. And that led to a huge number of flaws. I mean, anyone who wants to see a kind of parliamentary circus needs to go just and watch the last session of the Portfolio Committee on Basic Education and to see how flawed that process was.
Christopher Cordeiro (08:06.191)
And then I should maybe say, and those are the procedural flaws, and then there are obviously substantive flaws.
And those don't just, and not necessarily be part of a trust case, but I think it's important to understand that this bill has actually been rejected by the public in large, large numbers. And not just on the clauses that are getting all the, you know, not just on the policy, on the language policy and admission to schools that actually gets all of the media attention.
It was homeschoolers who rejected the in the largest numbers. The largest number of no's were from homeschoolers.
The public rejected the bill concerning the alcohol clause, which has come out of the bill, but there is actually a procedural flaw there which I'll maybe come to. But then some of the three clauses which are sort of not really known or recognised a lot, and one is closure of small schools. So this is blatantly the most substantive procedure in the bill, substantive flaw in the bill, which is that small schools can be closed, to keep it simple, primary schools, let's say under 135 learners, could be closed without reasons being given. And that's completely against the…against the administration of the administrative justice principles in the constitution. So that is a huge…that is a huge constitutional flaw. There's also been a lot of concern, and that's a concern for people in rural areas.
So the concerns of the BELA are not in the stereotypical way in which it's been presented.
There's a huge concern from people, people of faith, traditional leaders, about the potential for the Clause 39, which actually allows for the minister to make regulations on the management of learner pregnancy that they would then put the very, that could then put the very controversial management of learner pregnancy policy into kind of, into regulations. And that policy has the, and that policy is quite explicit in that it does allow for abortion, that it allows schools to facilitate abortion for learners as young as 12 without reference, without reference or consent from parents.
Christopher Cordeiro (10:31.631)
And then there's another clause which actually got, which actually got sort of…Well, it was in general a problem in terms of procurement, the centralisation of the procurement of learning and teaching materials, which essentially means textbooks. And that centralisation actually got stronger as the bill progressed. And in the final version, I'm surprised that SGBs are not kicking up a huge fight about it. But that is now being highly centralised and not just potentially into the hands of the State, but even into the hands of big commercial actors.
So I think before we look at the substantive issues, it's important to understand that the public have actually rejected this bill, contrary to kind of what you see, and across the board. And I could say as well that the public, actually, the more they found out about the bill, the less they liked it. So when the bill went around with the National Assembly in the Northern Cape the first time, about 50% of the people rejected the bill. It was kind of like a 50-50. When it went around the second time, 80% said no to the bill. And I think people are going to also become aware of all of these flaws.
So there's a number of these substantive flaws. And there's a number of issues of concern. Some of them, unfortunately, are not really constitutionally substantive flaws like the procurement. But that's going to be a very practical problem for people.
And then the, and of course, homeschoolers are concerned about freedom of curriculum choice, which is protected in mainly of the international treaties that we've signed and the covenants. And so the department has promised, they've said no, no, we're going to definitely, we'll never infringe on your right to curriculum choice, we'll see what happens. But those are some of the potentially substantive flaws as well in the bill.
Chris Steyn (12:16.608)
How confident are you that this legal challenge will succeed?
Christopher Cordeiro (12:21.751)
Luckily I'm not a lawyer, so lawyers, lawyers, I'm a legal strategist, not a lawyer. So lawyers always have to say that, you know, we never know, we'll see. Look, it would be a complete travesty of the process of public participation for this bill to succeed. It's on record, we have people shutting kids down from making comments. It's not just that there's like one, there's hundreds and hundreds. People came to these hearings, they didn't know what the bill was about.
What I could most probably say is, I think maybe there's a simple answer, which is that as soon as the bill comes into force, which is not in force at the moment, once it comes into force, once the president says what the date of its coming into force, the trust will, I think, be one of the first, if not the first, to serve its papers. And people can go and read those papers because I think they'll have an element of tragic comedy when you start going through and seeing really how poorly the process was conducted.
And so it's very difficult, yeah, it's very difficult to see how a court would uphold, it would be a travesty of our constitutional processes if a court upheld the bill.
Chris Steyn (13:38.816)
Meanwhile, when is it likely to come into force?
Christopher Cordeiro (13:42.721)
No one knows. The president did say he's going to give 90 days, three months for discussion. It doesn't come, it doesn't come until a very interesting day, which is that would then mean that somewhere around the 16th of December, he's likely to promulgate and say the bill now comes into force, which of course is when everyone goes off on holiday. So I suppose there's some politically, politically expedient reasons to let a controversial bill come into force before everyone goes for the for sort of our annual get away kind of pity day kind of break.
Chris Steyn (14:21.302)
Now, what policy reforms do you think are urgently needed in the education sector?
Christopher Cordeiro (14:28.899)
Well, you know, this is one of the real, and this is the kind of other problem with the bill, which is that BELA essentially is a technocratic bill. It's a bill, and the department's very honest, it has been honest about it. They've said throughout, they've said, this is a technical bill, it's not gonna address all the sort of things you're worried about. It's really a bill for the administrators. And that's a huge flaw.
So the first thing is we need a child-centric bill. We've got some very strong worldwide leading child-centric legislation, both in the Children's Act and in the Child Justice Act. Neither of those were properly incorporated into the BELA Bill. So those came after 1996 and the advent of the bill, of the School's Bill. But they were never incorporated. So our education law was never rewritten taking those fundamental pillars into account. That's kind of one.
Flaw two is that the twin of the bill, so when SAS, South African Schools Act came into force, the twin of BELA Act was then the National Education Policy Act. And that act also came into force. And that act wasn't reformed at the time. There wasn't reform now in this recent process. So we kind of have got, we've got one leg, but we don't have the other leg. And then so those are the two key kind of, so we need radical policy reform. And that came up in the hearings on the BELA Bill and which now the BELA Act. People were saying we need to have provision for online schooling. We need to look at all of these new developments since COVID. We need to update. We need to meet all of the other needs.
So we need a wide scale reform of our education policy and then we need that enacted into law. And I was just recently in India attending the inaugural meeting of the Indian Association of Education Law and Policy. They have developed, they developed as late, as far back as 2020, a new education policy for India. And I think we can see why India is doing so well in its economy.
Christopher Cordeiro (16:50.227)
And they will, at that stage already, were looking at AI, were looking at online, were looking at language policy, all the aspects of the policy that are concerned, they've passed this large, consolidated new education policy. And that's what we need and what we don't have. And I think I would hope that the minister would kind of go beyond this kind of technocratic, controversial technocratic bill and actually take a wide look at the kind of education reform we need and the reform we need to our education infrastructure, our education, our legal education infrastructure, well the infrastructure of our education law and really sort of rebuild the house because if we don't, we're certainly behind, we're certainly behind globally, we're even behind in Africa in certain aspects, so there's a huge need to reform the whole of our education law.
Chris Steyn (17:45.632)
Thank you. That was Christopher Cordeiro speaking to BizNews about the homeschooler challenge to the BELA Bill. And I'm Chris Steyn. Thank you very much, Christopher.
Christopher Cordeiro (17:56.057)
Thank you very much. Thank you to your listeners.
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