In her address on the reopening of schools Basic Education Minister Angie Motshekga said no-one would be forced to return to school. Parents can keep their children at home if they register for home education. Unfortunately, that is not a simple legal matter or an easy process.
Home education is always an excellent choice, not just during a crisis. However, parents need to be well-informed of the legal ramifications of this decision. They should not start a process of registration without being aware of the consequences. They need to understand the complexity of laws pertaining to parents, children, education and their rights and responsibilities. Section 51 of the SA Schools Act of 1996, which is the current law governing home education, allows for parents to apply for the registration of a learner to receive education at home.
This process is not as simple as registering the birth of your child, as it requires approval from the Head of Department, dependent on his or her view that:. registration is in the best interests of the learner. education at home is likely to meet the minimum requirements of the curriculum at public schools, and. will be of a standard not inferior to that provided by public schools.
The SA Schools Act is not the only law that applies here. The Constitution of South Africa, the Children’s Act and other laws apply too. In addition, various aspects of the Policy on Home Education may conflict with these laws.
The policy describes how the law is to be implemented, even if it is not law.
Section 28 (2) of the SA Constitution states that “a child’s best interests are of paramount importance in every matter concerning the child.”
An estimated 95% of home educating parents choose not to register for home education because they believe the requirements to register violate other legally prescribed rights and responsibilities, such as their right to choose the kind of education their children receive, their responsibility to act in their children’s best interests and their legal responsibility to protect their children’s right to privacy, which is protected by the Children’s Act.
Article 26 (3) of the Universal Declaration of Human Rights, which is referenced in the Policy on Home Education, states: “Parents have a prior right to choose the kind of education that will be given to their children.”
Many parents believe that if this is a prior right they should not have to apply for permission to exercise it. They question an official’s ability to decide what is in the best interests of their child. Some parents object to some of the content prescribed in the national curriculum statement. Others wish to protect their children from pre-approval home visits by state officials, which the policy prescribes, as they view this as a violation of their right to privacy.
Home educating parents need not fear re-admitting their children to the school system. Although the Minister made it clear there can be “no guarantees”, a public school that is not full may not refuse to admit a child of compulsory school age (7-15 years) after a period of home education, whether they were registered or not.
Parents who apply for registration should keep copies of all documents and communication with the Department of Basic Education in case of delays or complications with their application. This is because the SA Schools Act also allows for the prosecution of anyone who prevents a child from receiving education. Families should get professional legal advice for their specific circumstances. “Temporary crisis homeschooling”, for example, may differ from permanent home education.
The Pestalozzi Trust is a national homeschooling legal defence association, which parents can join for protection of their rights as homeschoolers. The Trust can also advise parents about the legalities of their particular situation.
With the correct advice a family can make an informed choice. They can enjoy peace of mind knowing they have legal assistance.
* Shirley Erwee is an independent home education consultant and advocate for educational freedom. She has been home educating her six children since 1997. Please note the information in this article does not constitute legal advice and is the personal opinion of the author.
