The Foundation for Rights of Expression and Equality (Free SA), a non-profit organisation dedicated to upholding democratic principles and promoting civic engagement in legislative issues, has written a letter to the Minister of Basic Education, Siviwe Gwarube, to raise serious concerns about the harms posed by the Basic Education Laws Amendment Act, 2024 (BELA).
The letter also urges the Minister to implement proposed regulations (see attached) that would mitigate the threats that the Act poses.
“In the letter, we raise concerns that several provisions in the Act, notably amended clauses 5 and 6 of BELA, centralise powers in ways that are unconstitutional and that undermine the autonomy of school governing bodies (SGBs). These provisions are contrary to the principles of decentralised governance that are enshrined in our Constitution”, said Noluthando Hlophoyi, spokesperson for Free SA. Adding that the letter further proposes actionable solutions to mitigate the likely harms of BELA.
The move by Free SA comes on the back of President Cyril Ramaphosa’s recent public remarks about the Act, in which he reiterated the government’s commitment to implementing the BELA Act, regardless of widespread concerns about the impact that the proposed legislation will have.
“We have written to the Minister to invite her to recognise the constitutional challenges posed by the Act, and we’ve called on her to exercise her regulatory powers, as well as to engage in an open dialogue with civil society,” she continued.
Compromising the Constitution:
In the letter, Free SA outlines that the Constitution promotes cooperative governance and decentralised decision-making that foster community participation and accountability. Specifically, Section 195(1)(e) underscores the importance of public administration being responsive to the needs of communities.
BELA, however, undermines these principles by:
- Vesting excessive discretionary power in the Head of Department (HoD) and the Minister regarding school admission and language policies. (Section 5(5)(b) and Section 6(7)).
- Allowing the unilateral dissolution of SGBs by the HoD without adequate safeguards, contrary to Section 20(1) of the South African Schools Act, 1996 (SASA).
- Requiring SGBs to submit policies for approval, which can be rejected based on criteria that are vague and susceptible to subjective interpretation (Section 5(5)(d)).
Eroding School Governing Bodies:
BELA also erodes democratic governance in schools, a fundamental pillar in the post-apartheid education legal framework. The principle of decentralising power exists so communities directly affected by policies have a role in decision-making. This was particularly evident in the establishment of SGBs through the South African Schools Act, 1996, which empowers parents, educators, and local stakeholders to influence key aspects of school management, such as admissions, language policy, and discipline.
The BELA Act undermines these democratic ideals by shifting critical decision-making powers to the HoD and the Minister of Basic Education, effectively sidelining the voices of parents and school communities.
BELA therefore weakens the accountability mechanisms that SGBs provide, eroding trust between schools and their communities and diminishing the sense of ownership and responsibility that local stakeholders have in the governance of their schools.
It also contradicts the democratic principles enshrined in the Constitution, which emphasize participation, transparency, and responsiveness to the specific needs of communities. Without robust local governance, schools may become less adaptive to the unique cultural, linguistic, and socioeconomic contexts they serve to the detriment of learners and their communities.
Free SA calls on Minister to implement regulations:
In light of the threats posed by the Act, Free SA calls upon the Minister to consider implementing mitigating regulations to limit the damaging impact of the BELA Act. According to Section 61 of the South African Schools Act, the Minister can make regulations on any matter necessary or expedient to achieve the objectives of the Act.
Free SA therefore urges the Minister to issue regulations to:
- Provide clear, objective criteria for approval of SGB-drafted policies, ensuring alignment with constitutional principles.
- Establish transparent, participatory processes for community input on admission and language policies.
- Limit the discretionary powers of the HoD to reject policies or dissolve SGBs, requiring detailed justifications and an appeals mechanism.
- Strengthen protections for the autonomy of SGBs in decision-making.
Free SA is committed to engaging constructively with the Minister as well as the Department of Basic Education to protect the rights of learners, parents, and school communities, and to uphold the democratic principles enshrined in our Constitution.
