The Basic Education Laws Amendment Bill, 2022 (Bela) has raised serious questions and concerns about whether its legislative proposals signal a return to the pre-1994 state school governance model, ultimately undermining the quality of South African public school education.

The values of our constitutional dispensation require policy changes to align with the principle of cooperative governance. In the context of basic education, this means ensuring amendments will in fact improve the quality of education offered to South Africa’s youth, while avoiding detrimental consequences.

The Basic Education Laws Amendment Bill, 2022

A revised Bela Bill was introduced in Parliament during January 2022. Since then, the National Assembly’s Portfolio Committee on Basic Education has invited the public to comment on the Bill and hosted four rounds of public hearings.

The department and portfolio committee are to be commended for the consultative process followed to date and the changes already effected in recognition of public input. This is indicative of the department and committee’s respect for the democratic process and recognition of the value of the public voice.

Leaving behind apartheid’s state school legacy

The dawn of South Africa’s democracy saw the reversion of the pre-1994 school governance model. Under the authoritarian system of apartheid, school governance was centralised and controlled by the national government. Local schools were acted upon without consultation.

Key to the apartheid system was control and the social re-engineering of society, and this was partly implemented through schools. The infamous 1953 Bantu Education Act serves as an example. It transferred the locus of authority from the provincial and local to the central government. It also removed the localised influence of missionary schools.

In 1975 the state would use this centralised control to enforce the use of both English and Afrikaans tuition for certain senior school subjects – a move which resulted in the widespread protests of 1976.

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Under the post-1994 democratic dispensation, a decision was made to move to a system of cooperative governance: from state schools to public schools. This move recognised the need for a three-tiered partnership between the national and provincial governments, and local school governing bodies (SGBs).

Education White Paper One, on which the 1996 South African Schools Act is based, emphasises that the governance power of schools must be placed within the communities where schools are situated, and requires that state intervention be minimal. Members of SGBs are embedded within their local communities, making them best placed to understand the nuances and needs of their school community. The decentralisation of decision-making power acknowledges and restores the inherent rights of parents.

The important purpose of the Schools Act and school governing bodies

Section 29 of the Constitution enshrines the right to basic education. Education White Papers One and Two acknowledge and emphasise the primacy of parents’ rights concerning the governance of the school which their child attends.

The state is obliged to support and enable parents to exercise their fundamental rights and fulfil their obligation to provide their child with the kind and quality of basic education they desire for their child. Parents have to be able not only to participate in school governance, but also to determine it in consultation with the other partners: the essence of cooperative governance.

The White Papers acknowledge parents are the primary stakeholders in the basic education of their child, providing policy guidelines as well as values and principles for parental participation in decision-making processes. The Schools Act must comply with, promote and protect these rights, policies, values and principles.

These powers are delegated to the state only to enable it to support and enable parents to provide their child with basic education. Any provision that impedes rather than promotes the ability of parents to do so must be opposed by parents and the state.

The value of the school governing body and parental involvement

In line with the values and framework of the Constitution, the governance of every public school vests primarily in the SGB – a decentralised and collaborative decision-making structure, exemplifying grassroots democracy in action.

The SGB comprises the school principal and elected representatives (parents, educators, other staff members, and learners). The Schools Act requires parents to hold majority membership of the SGB, enabling parents to exercise their rights, functions and obligations concerning the education of children and the governance of the school.

The participatory nature of SGBs protects schools’ autonomy. The state has a crucial role, interest and obligation to support and equip – not hinder – SGBs to exercise decision-making powers and to effectively govern schools.

The importance of parental rights and the need to protect them

Since the primary responsibility for the education of a child sits with their parents, parents enjoy certain fundamental rights which enable them to ensure their child receives the kind and quality of basic education they desire. The importance of these rights is acknowledged, promoted, and protected in South African law and in international instruments.

Both the International Covenant on Civil and Political Rights as well as the Convention on the Rights of the Child require state parties to respect the rights and duties of parents to provide direction to their child. Not only is the primary importance of the active participation of parents in decision-making concerning an appropriate education for their child recognised, but protected and promoted as well. As signatory to these instruments, the South African government is bound to honour these obligations.

When parental rights are eroded, democracy is undermined and unintended detrimental consequences are likely to follow. For example, parents have the right and hold the power to determine the language and admission policy, decide on the religious practices that will be followed at the school, adopt a code of conduct and draft other policies of the school.

Instead, the Bela Bill proposes centralising many of these powers and decision-making rights under the control of the provincial head of education. This creates the potential for an abuse of power and a reversion back to the levels of centralised control of the apartheid era.

A public school belongs to the immediate school community and its policies should reflect and serve that community. The SGB and local school are best placed to understand and serve the needs of the school and learners. This is the very reason for the establishment of the cooperative governance public-school model.

This is a critical time to ensure the Bela Bill acknowledges parents’ fundamental rights and the importance of participatory governance of schools and collective decision-making processes.

Undoing all the lessons learnt and good gained through our hard-won democracy must be avoided at all costs. DM

Liesl Pretorius is Legal Adviser and Parliamentary Liaison for Cause for Justice.

Nicola de Jager is Associate Professor in the Department of Political Science at Stellenbosch University.