Home education, quite obviously, is the oldest form of education that human beings have provided to each other. Yes, the content has become increasingly sophisticated with time, but thousands of parents over hundreds of years have known the privilege of teaching their children to read, write and do maths, without any outside help. This proud tradition continues into modern times, with many moms and dads even guiding their teenagers right through rigorous A-levels, largely unassisted.
The advent of the Industrial Revolution of the eighteenth and nineteenth centuries, saw the institutionalization of education, as women joined the workforce in droves, and the rise of the modern state began to make specific socio-economic demands on populations. Since then, national governments have enacted laws on home education which vary in terms of restriction, with some countries, like Germany, outlawing the practice altogether.
So what do South Africa’s laws say? Well, first you want to look at the Constitution. The part which has relevance for education is Chapter 2, the Bill of Rights. Section 15 guarantees freedom of religion, thought and opinion, while section 16 guarantees the “freedom to receive or impart information or ideas.” These two rights are foundational to home education, which functions on the premise that parents choose the information (call it “curriculum”) to be imparted to or shared with their children. Section 28 deals with “Children.” Of special significance is point (2), which states that a “child’s best interests are of paramount importance in every matter concerning the child.” This section also states that every child has the right to “family care or parental care” and only to “alternative care” if removed from the family environment. The Bill’s section 29 says that “Everyone has the right – (a) to a basic education.”
It is clear from this brief look at the Constitution, then, that it undoubtedly supports a situation in which a parent, primarily entrusted with the care of his child, makes a decision in his child’s best interests, to provide a basic education, himself, to that child at home. The Bill of Rights goes further, in fact, and in section 39.1 (b), states that courts “must consider international law” when interpreting our Bill of Rights, which thus makes a plethora of international treaties, which are favourable to home education, applicable to our national homeschooling laws. (See the UN Convention on the Rights of the Child.)
And what of the South African Schools Act (SASA)? Home education has not always been legal in this country. It was written into law in the 1996 SASA, defined as that education which takes place by the hand of the child’s PARENT/LEGAL GUARDIAN (some argue that a full-time personal tutor is also acceptable in law; I am unconvinced and will eat my hat if the forthcoming BELA bill clarifies it as so), at the child’s OWN HOME. Nothing else is homeschooling. Nothing else is legal. And I will leave it at that for now. (SASA, section 51 (1): “A parent may apply to the Head of Department for the registration of a learner to receive education at the learner’s home.”)
Chapter 2 of the SASA states that every parent “must cause” his child to attend school during the compulsory schooling years (7 to 15.) (Why? Well, remember the Bill of Rights?: every child has a right to a basic education. The State, especially a welfare state such as ours, has a responsibility to protect those rights.) UNLESS the child is exempted. Yes. Chapter 2, section 4.1: “A Head of Department may exempt a learner… from compulsory school attendance.” Your child, therefore, because you have chosen to home educate in accordance with section 51 of SASA (the section dealing with homeschooling), is exempted from compulsory school attendance, upon registration with the education department. All homeschooling parents should familiarise themselves with section 51 of the South African Schools Act: “Registration of a learner for education at home.” (It’s short!!)
We have established that home education is legal and supported all the way to the Constitution. So what’s the problem? If you abide by the lawful definition, as explained, what are you afraid of? Well, the purveyors of fear will tell you that the parents of a learner who is not registered for home education can be prosecuted and, upon conviction, be sentenced to jail or a fine. True. What they don’t tell you, at the same time though, is that there is a procedure by which the Head of Department (HOD) has to abide when dealing with unregistered homeschoolers.
Chapter 2, 3.(5) of the SASA lists the steps for the HOD of a provincial education department to follow, upon discovery that a learner “is not enrolled at or fails to attend a school”, as would be the case with an unregistered homeschooled child. This is not the Wild West! It is ILLEGAL for anyone to attempt to enter a private property without the permission of the owner or a warrant or court order. The latter two cannot be issued against a home educating parent, abiding by the SASA definition of home education, who is simply unregistered. Why? Because:
- Home education is recognized as a legal form of education in SA
- Said home educating parent is only considered to have committed an offence IF he does not have “just cause” to refuse registration, and, AFTER having been issued with a written notice from the HOD, still does not register. (SASA, Ch. 2, 3.(5): “If a learner who is subject to compulsory attendance… fails to attend…the Head of Department may – (a) investigate the circumstances… (b) take appropriate measures to remedy the situation…(c) failing such a remedy, issue a written notice to the parent of the learner, requiring compliance…(6) (a) any parent who, without just cause and after a written notice from the Head of Department, fails to comply…is guilty of an offence and liable on conviction to a fine or to imprisonment”)
So, what does all this mean? The question of whether or not to register with your provincial department is another whole essay! (Watch this space.) Suffice it to say, homeschoolers have reason for concern and most choose not to register. That said, the experience of many who have registered has been positive, with no interference in curriculum choice, despite constant claims within our community that the government fully intends to enforce CAPS on us all. (Rolls eyes.) But let this analysis go to show that if you are a true home educator, registered or not, you are still in a protected space, unlike cottage-schoolers and tutor centres for kids of compulsory schooling age. You must be warned IN WRITING, at which point, in my opinion, it would be silly not to register. Registration is the law. Once an HOD has warned you, she is entitled upon further disobedience, to charge and prosecute you. And once you are at this point – at which the Department has decided you are going to register – there is no lawyer or defence fund that can help you. Consider your options.
There is already case law in South Africa which shows that judges in such cases will order you to register. (See http://www.saflii.org/za/cases/ZAWCHC/2010/3.html “There is no evidence that first respondent has complied with section 51 of the Act, nor that she is not in breach of section 3 of the Act. in short, this case, ironically, was run on the basis of requesting this Court to sanction a continued breach of the relevant law”: this was the judge’s response, in this case, to a homeschooling mother with unregistered children.) But, the worst case scenario is that your refusal to comply, after warning, will result in a sentence. So: know your rights. The State does not want to jail you. It supports your legal homeschooling and would rather warn you. Read. Know your rights. Relax.