Bela Bill seeks to bring SA’s education system in line with Constitution, say civil society bodies

The Basic Education Laws Amendment (Bela) Bill has generated considerable controversy since its announcement. Opposition to it reached boiling point in the week before Friday, 13 September, when President Cyril Ramaphosa signed the Bill into law.

The Democratic Alliance, ActionSA and the African Christian Democratic Party opposed the signing of the Bill, which was passed by a National Assembly vote in May with 223 votes in favour of it and 78 against.

Daily Maverick spoke to several civil society organisations that made submissions on the Bill and all welcomed its adoption. They said that while it was flawed in some areas, it sought to address issues that had arisen over the years regarding the South African Schools Act of 1996 (Sasa).

“The South African Schools Act was promulgated against the backdrop of apartheid, recognising that there was discrimination in systems of education in the country. It came into being to make it one unified system. As our thinking around rights has developed, there is a necessity to also update our legislation,” said Demichelle Petherbridge, a senior attorney at SECTION27.

Petherbridge said that, given how important access to education was, the changes that the Bela Bill — now an Act — would implement had to give effect to a democratic society based on human rights, while extending learners’ access to education as far as possible.

Read more: Bela Bill will immediately be taken to court if signed into law, says powerful lobby group

Uprooting discrimination

The most disputed parts of the Bill are clauses 4 and 5, which deal with admissions and language policies at public schools. 

While Sasa gave school governing bodies (SGBs) unilateral power to determine a school’s language policy, Clause 4 of the Bill stipulates that SGBs must submit their language policy to the provincial heads of the education department for approval.

The heads of department can return the policy to the SGB with recommendations if it does not pass muster and instruct the SGB to offer more languages that suit the immediate community’s needs.

The DA argued that these aspects of the Bill would reduce the authority of SGBs and centralise decision-making power.

However, Petherbridge said the clauses were not about diluting the power of SGBs but about using departmental oversight to uproot discrimination in the education system.

“From SECTION27’s side, we have seen many discriminatory practices in relation to these two topics. We see learners excluded on the basis of language; we see learners excluded by the school’s admission policies. Often, it’s our black learners, our poor learners and schools have excluded them on the basis of language or admissions,” said Petherbridge.

Equal Education Law Centre legal researcher Katherine Sutherland said the language and admissions provisions aligned with the question of where decision-making powers lay regarding language and admissions.

“What the courts have said in more than three cases, but also in no uncertain terms, is that school governing bodies have remained in control of their school admissions policies and their language policies, but the provincial education department plays an interventionist and oversight role to ensure equity, but they must do so in a procedurally fair manner,” said Sutherland.

This means that heads of departments (HoDs) cannot unilaterally change a school’s language and admissions policy but must consult with the community, parents and SGBs to come to a solution that benefits learners. The SGB can also appeal against the HoD’s recommendations and decisions.

“This is to ensure equity and to make sure public resources, which we know in the education sector are increasingly very few, are used for the benefit of all learners and not just a few,” said Sutherland.

Read more: Bela Bill provides procedures binding on provincial education departments and school governing bodies

When he signed the Bela Bill, Ramaphosa delayed the implementation of clauses 4 and 5 for three months to allow time for consultation and public engagement. Sutherland said the delay was unfortunate because the clauses were the most important for addressing equity and access to schools.

Sutherland said claims that the language and admission provisions would dilute the power of SGBs were a red herring.

“The issue around where learners are placed, the people who have been litigating it, have been former Model C schools that are able to afford to litigate. They’re receiving public resources but are adamant about maintaining extremely small class sizes.

“Fee-paying schools are also supposed to accept learners regardless of whether they can pay fees or not, as long as they apply for a fee exemption. They’re trying to essentially ensure that they minimise the number of learners who aren’t able to afford fees,” said Sutherland.

Increased years of learning

Another provision that SECTION27 and the Equal Education Law Centre believe is a step in the right direction is making Grade R compulsory.

Sutherland said early childhood development (ECD) was important in addressing South Africa’s reading and numeracy crises.

Petherbridge said, “We recognise the importance of Grade R becoming compulsory because so many children are not getting the kind of educational support they need at such a young age.

“It’s an important step to equalise those particular circumstances where parents who are not able to afford good crèches or early childhood  facilities will now be able to enrol their children at a school.”

“It’s a small step,” said Sutherland, “but it’s significant because it prioritises early learning, which is … at the forefront of the current administration. We also hope that it is followed by the requisite and required funding to make sure that it actually happens.”

Sutherland said that in light of the budget cuts to national and provincial education departments, the National Treasury had a duty to ensure adequate investment in ECD.

“The more you invest in early learning, the less you have to invest in the future. The amount you have to invest in ECD and early learning is so much smaller than what you would have to invest at a later stage if you didn’t invest in ECD,” said Sutherland.

The Legal Resources Centre (LRC) said introducing compulsory Grade R attendance was a welcome step towards achieving universal access to ECD and in line with the government’s commitment to providing universal access to grades R and RR in the National Development Plan 2030.

“However, this initiative is at odds with planned budget cuts in the education sector, as it will require more teaching posts and resources for effective implementation.

“We urge government to consider alternative areas for budget reductions and for the National Treasury’s allocations to be informed by its impact on education outcomes. Without prioritising increased investment in education, schools which are already under-resourced will face even greater challenges in delivering quality education,” said the organisation.

Drawbacks

While the Bela Bill does make significant positive changes, one aspect that civil society has taken exception to is the criminalisation of parents and caregivers whose children are not at school. The provision was already in Sasa, but the Bela Bill allows for increased punitive measures — defaulting parents and caregivers can now face up to 12 months of imprisonment.

The LRC said that in its submissions on the Bill, it pointed out that criminalising parents or caregivers for failing to ensure that their children attend school was a blunt instrument that did not address the underlying issues.

“The focus should be on ensuring that children without birth certificates are given access to schools, that children receive scholar transport to take them to school, and that when they arrive at school, they have access to textbooks and stationery, teachers, and are not subjected to overcrowded classrooms.

“These factors, combined with the socioeconomic challenges many ordinary South Africans face, often contribute to children being out of school,” said the LRC. DM