Legal (Cottage Schools)

We use the term “cottage school” here to indicate any smaller private institution that functions as a school, whatever it calls itself. It includes “learning centres”, “micro schools” and every other institution where children receive their education.

Abstract: Everyone has the constitutional right to establish private schools to educate children in a manner that is in the best interests of the children. Education officials, however, refuse to comply with the law and continue to infringe the rights of children and private schools of every kind. To protect their rights and those of the children, many cottage schools have joined the Pestalozzi Trust. The Trust supports them in enforcing the rights of children and their schools.

    1. Cottage schools are not “home schools”. The SA Schools Act specifies that home education only applies where each child is educated in his or her own home.
    2. Cottage schools are schools. Children who are educated at any place other than in their own homes are attending schools – whatever name those institutions choose to use. Note: A school who uses a home schooling curriculum is  not a “home school”; it remains a school.  
    3. Different laws apply. The laws that apply to schools are different from the laws that apply to home education. For that reason, it is dangerous to confuse the terms.
    4. The only legal cottage school is a cottage school that is a registered private school. Every institution where children receive their education must be either a state school or a registered private school. A cottage school that is not registered as a private school with the relevant provincial education department is an illegal private school.
    5. Unregistered cottage schools are at risk. The owners and operators of an unregistered cottage school can be prosecuted and upon conviction may be sentenced to a maximum of three months in prison or a fine. Parents who send school-age children to an unregistered cottage school can be prosecuted and upon conviction may be sentenced to a maximum of six months in prison or a fine.
    6. Why, then, are there thousands of unregistered schools in the country? Because:
      1. There are millions of desperate learners and parents who will do almost anything to find good education for the children.
      2. Education departments break the law at every turn, making it impossible for many schools to get registered. In the meantime, the children must get the education that meets their needs, and they must get it at the correct stages of their development. Parents who fail to provide their children with the education that they need (within their means) can be jailed for ten years.
    7. What are the problems with registration? These include:
      1. Long delays in processing applications by education departments. Some schools (with hundreds of disadvantaged learners) have been waiting for registration for six years or longer.
      2. Unreasonable (and therefore illegal) restrictions, such as:
        1. Requirements for minimum numbers of learners. In most provinces, this minimum is 20 learners. In others, officials decide in an arbitrary and unpredictable manner how many they will require.
        2. Extremely burdensome administrative requirements that consume resources that are needed to educate children. This applies in the registration process itself as well as in the day-to-day administration of the education.
        3. Expensive and burdensome “quality control” measures. Registered private schools (including cottage schools) must obtain accreditation from Umalusi. This ###is very expensive, and in addition travel and accommodation for the teams of Umalusi officials also have to be covered. The process itself is very administration intensive, and results in much control and little if any quality. The requirement for Umalusi accreditation does not apply to state schools, and therefore discriminates heavily against private institutions.
        4. Discrimination against private schools. Much higher standards of facilities, management and learner performance than is required of state schools, are demanded of private schools. Sec 29 of the constitution, however, prevents the state from requiring higher standards of private schools than the lowest standard provided in state schools. This phenomenon is, therefore, an infringement of the constitutional rights of private schools.
        5. Unconstitutional imposition of the CAPS system. Umalusi can only exercise “quality control” in accordance with the CAPS system. Therefore, private schools accredited by Umalusi (a requirement for registered schools) must comply with CAPS. Contrary to what many think, CAPS is not only a curriculum. The acronym stands for “Curriculum and Assessment Procedure and System”. As indicated, CAPS is a comprehensive education system which allows little if any deviation by registered schools, and severely restricts their ability to accommodate individual learner differences. This requirement also far exceeds the demands that the constitution allows the state may make on private schools.
    8. What are the duties of parents? The constitution and the Children’s Act require parents to “guide, direct and secure” the education of each child in a manner that is in the child’s best interests. Parents who fail to do this can be prosecuted and, upon conviction, be sentenced to ten years in jail and a fine. For this reason, tens of thousands of parents take the risk to send their children to unregistered cottage schools that are not subjected to the onerous and mostly illegal demands made by the state, as described in the previous paragraph.
    9. What can happen to owners and parents of illegal cottage schools? They can be prosecuted. However, in the past this has seldom happened. If cottage schools that are members of the Pestalozzi Trust are challenged by government officials, the Trust will, in the first place, attempt to keep them out of court by assisting them in resolving the issues that can be resolved. Experience shows that this is almost always successful. If a court case cannot be prevented, the Trust will pay the court costs. In that event, the following can be expected.
      1. Massive media coverage, not only locally but also internationally. If South Africa (which operates one of the worst public school systems in the world as acknowledged by education officials themselves) prosecutes people for providing good education, many media outlets will find that very newsworthy.
      2. Constitutional challenges. The Trust will challenge the attack on good education on the basis that the restrictions imposed by the state, some of which were described above, constitute unreasonable and unjustifiable infringements of the constitutional rights of the school and of the children who attend the school.
  • In short: The Trust has been advised that the restrictions and demands placed on all private schools, including cottage schools, are almost certain to be successfully challenged on constitutional grounds in the courts. The Trust will, therefore, support member schools that resist these intrusions by the state, and it will do so by every lawful means.
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