Emotions ran high in Pretoria at the beginning of November when thousands of members of civil society organisations and political parties, including Solidarity and AfriForum, marched against the Basic Education Laws Amendment (Bela) Act – and two clauses in particular: the admissions and language policies, clauses 4 and 5.
Leader of the DA and Minister of Agriculture in the GNU, John Steenhuisen, said at the event that his party was committed to resolving the matter, but they were willing to take the issue to court: “The right to mother tongue education is contained in the Bill of Rights and the Constitution. It will probably end up in the Constitutional Court for interpretation, but we can avoid all of that. We can find each other, I am convinced of it.”
The Act in question was passed by a National Assembly vote in May 2024 and was hailed as a critical milestone in the transformation of the education sector, despite opposition to the final Bill by the Democratic Alliance, ActionSA and the African Christian Democratic Party.
President Cyril Ramaphosa signed the Bela Bill into law on 13 September 2024, but said he would delay the implementation of the two clauses for three months for negotiations with parties in the Government of National Unity (GNU).
Language policies
Those opposed to clauses 4 and 5 say that they will reduce the authority of school governing bodies and centralise decision-making power, particularly about admissions and language policies. The fear is that schools may be forced to take learners from other language groups, resulting in changes to the language policies of those schools.
What many critics don’t seem to realise is that the South African Schools Act already has policies in place to deal with admissions at school. There have, in fact, been very few cases in education law in which the provincial authority has interfered in admissions. Where it has been the case, it usually refers to one learner at one school or other isolated cases.
To clarify, clauses 4 and 5 are already contained in the current SA Schools Act with provisions made for the head of the department to comment on language and admissions policy, but this is rarely enacted as the education department does not want to intervene except in cases where it is deemed necessary.
Inequality
It is important to acknowledge that the Bela Act seeks to address the enormous inequality in the South African school system. The new Act seeks to rectify this by providing more children across the country with opportunities for better education.
In rural areas, there are very few schools. Many of them turn away learners who apply for places based on rigid school policies. Education experts have for years lamented that the legacy of spatial apartheid continues to haunt the education sector – this act attempts to right some of the wrongs of the past.
It must also be pointed out that the Bela Act has already been subjected to numerous consultation processes, and critical amendments have been made.
Not everyone is unhappy. SECTION27 and other civil society organisations promoting equal access to quality education support the Bela Act. They have stated that it promotes a democratic society based on human rights while extending as far as possible learners’ access to education.
They argue that the clauses are not about diluting the power of school governing bodies (SGBs), but about using departmental oversight to uproot discrimination in the education system and bring about more inclusivity.
Structural and systemic challenges
Transforming our education system from the legacy of apartheid requires continuous efforts to address structural and systemic challenges.
The act addresses exclusionary practices that can be discriminatory while protecting the rights of all. It responds to decisions of the Constitutional Court and high courts that sought to redress inequitable access to quality education due to exclusionary language and admissions policies, in effect, adopted by SGBs.
The courts have not always ruled in favour of school SGB policies. In 2010, the Constitutional Court ruled in various instances that the language policy, learner pregnancy policy and admissions policy infringed on the constitutional rights of learners to human dignity, to freedom from unfair discrimination and to receive a basic education.
In other cases, the court ruled that the Gauteng Education Department needed support to make quality education accessible and equitable.
In one judgment, it was also concluded that the department had the power to admit a learner. It held that the SGB may, in terms of the South African Schools Act, determine capacity as part of the admission policy.
Teacher-learner ratios
However, this power is subject to another provision of the South African Schools Act which states that the department maintains ultimate control over the implementation of the admission decision. Moreover, the court held that the capacity determination set out in the school’s admission policy could not inflexibly limit the discretion of the head of department.
One of the reasons is that many privileged schools that receive fees from parents can hire additional SGB-employed teachers to keep class sizes smaller, while disadvantaged public schools have high teacher-learner ratios. This affects the quality of teaching and learning, hence admissions policies in well-resourced schools are designed to keep the ratios down.
While SGBs represent the school community and reflect the importance of participatory governance in education, they do not necessarily have the larger picture of the education needs of the wider province in mind.
Constitutional right
It is the responsibility of provincial education departments to ensure the constitutional right to basic education for all. The DA and the FF Plus argue that clauses 4 and 5 “impede on the right to mother-tongue education”, particularly in Afrikaans-medium schools.
Broadening access to education for learners with diverse language backgrounds enhances rather than diminishes opportunities in the best interests of children.
As part of advancing access to quality education across race and socioeconomic status, schools and universities must consider the broader linguistic needs of the communities in which they are situated.
The Bela Act seeks to reflect the changing demographics of communities. It is in keeping with the ultimate responsibility of the provincial departments of education to ensure that all children are accommodated in our schools. DM
Dr Solange Rosa is the director of the Bertha Centre for Social Innovation and Entrepreneurship, Graduate School of Business, University of Cape Town. She is also the co-founder of Schools Inclusive Governance Network and former chairperson of Westerford High School SGB (2020-2024), and member of The Grove Primary School SGB (2012-2019).