RIGHT TO EDUCATION

On Monday, 27January 2025, a group of parents protested outside Danie Malan Laerskool in Pretoria North demanding transformation and inclusivity at the school which allegedly excluded black learners. The parents’ contentions rest  upon the fact that there are three Afrikaans classrooms, while there are only in English classroom.

EFF member, Price Shabangu, who was present at the time of the protests, indicated that members of the community demanded that an English classroom be erected to accommodate those students who were not placed. DA Shadow MEC for Education, Sergio Isa dos Santos, however indicated that the school has reached capacity based on the limited infrastructure and indicated that the school is not doing anything wrong, and that the problem of children not being placed lies with the department since there are not enough schools to accommodate all the new students in the area.

This situation is particularly relevant in terms of the recent enactment of the Basic Education Laws Amendment (BELA) Act and has caused much concern over the effect this legislation may have on schools, particularly in terms of their admission and language policies.

The Right to Education

Section 29 of the Constitution of the Republic of South Africa, 1996, provide the right to  Education, stating unequivocally, under subsection (a) “Everyone has the right  […] to a basic education, including adult basic education”.

Section 29(2) provides “Everyone has the right to receive education in the of ficial language or languages of their choice in public educational institutions where that education is reasonably practicable.”  This section further elaborates how its prescripts are to be achieved by stating “In order to ensure the effective access to, and implementation of, this right, the state must consider all reasonable educational alternatives, including single medium institutions, taking into account ­(a) equity; (b) practicability; and (c) the need to redress the results of past racially discriminatory laws and practices.”

The right to a basic education may be limited only in terms of the limitation clause of the Constitution and may only be done so in terms of a law of general application which is “reasonable and justifiable in an open and democratic society based on human dignity, equity and freedom.”

The right to education is not only a foundational right but also a socio-economic right that enables individuals to access other rights, such as dignity, equality, and freedom.

Similarly, the right to education in a language of choice is significant because it enables students to learn effectively, engage meaningfully with their academics, and access education more easily, while also preserving their cultural identity.

BELA Act

The BELA Act amends the South African Schools Act 84 of 1993 (SASA) and was signed into law by President Cyril Ramaphosa on 13 September 2024. The BELA Act’s implementation was however postponed to facilitate further deliberation on sections 4 and 5, being the most contentious provisions of the BELA Act. Ultimately however all sections of the BELA Act were approved and the BELA Act in its entirety has been passed into law.

Section 4 of the BELA Act deals with schools’ admission policies, whereas section 5 of the BELA Act deals with the school’s language policy. Previously, under SASA, schools were allowed to determine their own admission policies, and the School Governing Bodies could draft the language policies for their schools. Under the BELA Act however schools are required to have their admission policies approved by the provincial Head of Department, and School Governing Bodies are required to submit language policies to the Head of Department for approval.

Through section 4 and 5, the BELA Act attempts to reduce the autonomy of School Governing Bodies, giving the Department of Basic Education more control over admissions and language policies.

Concerns

The changes implemented by the BELA Act in relation to admission and language policies have raised several concerns.

By requiring School Governing Bodies to submit admission policies to the Head of Department for approval, autonomy of School Governing Bodies are reduced thereby limiting their decision-making power. This approval process may lead to administrative delays, potentially disrupting school processes and operations. Additionally, although the BELA Act seeks to promote equity, the strict regulations which it introduces could lead to overcrowding and, a potential decline in the standard of education, particularly with regards to schools which are in high demand.

Furthermore, by necessitating School Governing Bodies to submit language policies to the Head of Department for approval, there is a perceived risk to the provision of education in children’s home language.School Governing Bodies may also lose their authority over language policies, shifting control to the Department of Basic Education. Implementing multilingualism also poses practical challenges, because it requires additional resources, teacher training, and infrastructure, all of which could strain school resources.

The Future

Danie Malan Laerskool may soon be one of many predominantly Afrikaans schools which need to comply with the BELA Act to accommodate more English students, reflecting the changes envisioned by the Act.

Much of the resistance from schools are for the fear of losing cultural identity. While BELA Act does not eliminate the right to receive education in any specific language, it may oblige some single- or majority-language schools to convert into multilingual schools in an effort to promote inclusivity and equality. This may indeed impact the cultural identity of schools, but ultimately schools may be compelled to adapt under the BELA Act to accommodate the diversity of children who are admitted to their school.

While the right to education must be upheld as a fundamental and transformative right, it is essential to strike a balance between ensuring access to education and respecting the right to receive education in a language of choice. The challenge will lie in promoting inclusivity in schools while still protecting the cultural and linguistic diversity which is so fundamental to the South African nation.