Many of us have already listened to the above with interest, and perhaps a little foreboding. It is the report-back on Inclusive Education to Members of Parliament involved in the education portfolio, by senior officials, including the Director-General of Basic Education, himself. Inclusive Education is the section in Basic Education under which Home Education falls, and so this briefing included updates on Home Education. The briefing took place on 30 October 2019.
What to make of it? Well, we have been waiting for some time now to hear about the infamous BELA bill – the bill which proposes changes to the Schools Act, including changes to the section on home education – specifically, when it will be presented to Cabinet for approval, by Minister Motshekga. None of that was in here. What WAS in here, was comment on the Home Education Policy. To recap, the Schools Act is the law governing education in South Africa. Policy is made to go along with law, to guide officials on how to implement the law. The Home Education Policy was signed off by Minister Motshekga in November 2018 and has been in force ever since. There is reason to believe that the Policy is invalid, mainly for procedural reasons – ie. the way it was put together was wrong – and because it purports to instruct parents, which is not the purpose of policy, as already mentioned. Consequently, as many will know, a case has been taken up against the Minister and the Director-General in the Pretoria High Court, to have the Policy declared invalid. It is to this that Dr Moses Simelane is referring at 57:56, when he speaks about “a litigation” which is currently taking place.
So, how has the DBE responded? Rather predictably. Listening further to the briefing, you will hear comment on “regulations,” by which “we can defend” the implementation of the Policy on Home Education. Regulations are laws, basically. “Afterthought” laws, if you will. So, an Act of Parliament will be passed in the House, and by-and-by, if it becomes necessary to add something to that Law, which is not too long and involved, then instead of going through the whole process of drafting a Bill (which amends laws), the responsible Minister can simply make up regulations and add them to the relevant Act. She/he does not need to consult the public on the content of the regulations, purportedly because regulations are supposed to extrapolate what is already in the Act, not add substantively new or different content.
The outcome of the aforementioned litigation, then, may well be in the favour of the homeschooling community, ie. the Policy may be scrapped. It is clear, however, from the recording, that the DBE intends to defend it, present it to Cabinet and Parliament as soon as a date is made available by the Speaker, and, in the event that they are hamstrung in any way, simply transfer the intended outcomes of the Policy to the South African Schools Act by way of regulations. What they wanted to achieve via the Policy, they will thus seek to achieve via the Act. Dr Simelane comments in the recording that these regulations are “about to be completed.”
Knowing what is in the 2018 Policy, can we hazard a guess at what some of the regulations will be? Certainly:
The Schools Act already makes registration of a child for home education obligatory, so there is no change there;
The Policy strengthens the wording of the Act on WHERE home education takes place, ie. primarily at the learner’s home. It also strengthens the State’s position of “aversion” to illegal schools, by forbidding home educated learners to be associated “in terms of education provision” with illegal schools, and regards such association to be grounds for the HOD to consider withdrawal of the home educated learner’s registration for home education;
The Policy provides that the parent of a home educated child must arrange for the child’s assessment at the end of each phase, at a standard not inferior to standards of assessment in the National Curriculum Statement, by a “competent assessor” (a SACE-registered teacher or other professional, eg. psychologist,) and that said parent must provide the HOD with the assessment report, showing that the child has achieved the minimum outcomes for the phase. Failure to achieve such, can result in the registration for home education’s being withdrawn;
The Policy allows for parents to choose curricula, but refines the choice to include “content and skills at least comparable” to those of the national curriculum, and provides for sign-off by the HOD;
The Policy stipulates that there shall be a pre-registration visit by officials to the home, and that parents must ensure that there is a dedicated space within the home “conducive” to learning;
Parents may, according to the Policy, enlist the services of a tutor, who “may not replace the primary responsibility of the parent in respect of providing home education” or “play the role of a school under the pretext of providing a tutoring service”;
Parents must, according to the Policy, keep evidence of “planned activities” and keep portfolios of the home educated child’s work;
I do not intend for the above list to be taken as exhaustive. From my reading of the Policy, it seems to me that these are the definite issues arising from that document which are likely to be turned into regulations, thus requiring legal compliance from home educators. What should our response be? No doubt, the community will mount a legal challenge to legislation. This time, however, the challenge will not be about irregular PROCEDURE, as in the case of the Policy, but will be all about the constitutionality of the home education laws in the South African Schools Act, including the regulations.
Could we win? Unfortunately, the advice given to ECHSA by a constitutional law expert indicates that it is unlikely. Now, ofcourse, that is a legal opinion. And, perhaps, there are some points which are winnable. “Content and skills”, for example. Certainly, registration, illegal tutoring/schools and assessment are guaranteed losses, in my opinion. But, we will have to cross that bridge when we come to it.
And let’s back up a little. Let’s return to those heady days when our children were exiting toddlerhood and we were full of (ok, sometimes unrealistic) dreams for their education at home! What mattered most to us then, was to be able to KEEP them. To keep them close, and nurture with word and with gesture and with example. I have listened with incredulity to a leader within the homeschooling community state that if we have to teach the national curriculum, then we may as well send our children to school. Truly?? What does home education mean to us? Does it only have worth if we can do everything we want to do? Will we allow it to become about winning or proving a point? I would say we need to see the wood again. Fight, sure. But win or lose, there is not one thing on that list above that can take anything that is best about homeschooling from you, unless you let it.