Is home education legal?

Abstract: Home education is legal. However, education officials who refuse to comply with the law continue to infringe the rights of children and their families. In order to protect the rights of their children, thousands of homeschoolers have joined the Pestalozzi Trust. The Trust supports them in enforcing the rights of their children.

Home education has always been legal in South Africa.

In the last decades before 1994, however, home education was subjected to progressively greater limitations. In the end, it could only be (and was) practised under extremely restrictive requirements set by the then government. Only a handful of families could meet the requirements.

This was overturned by the interim constitution.

The constitution guaranteed the “right to education”, but what is not generally understood, is that the right to education does not mean that everyone has the right to be subjected to the state’s notions of what education is. The right to education means that everyone has the right to choose

  1. whether to be educated;
  2. what education to receive;
  3. when to be educated;
  4. where to be educated;
  5. by whom and with whom to be educated; and
  6. for how long to be educated.

Adults exercise this right freely, but in the case of children, the parents must guide, direct and secure the education of the child. Note: The constitution and international law specify that the parents guide and direct the education of the child – not the teacher, the school principal, the education department or the minister of education. The only authority that may overrule a parental decision about the education of a child is a court of law, and then only when it has been proven that the parents are acting contrary to the best interests of the child.

In principle, therefore, the right to education is the right to freely choose one’s education.

The constitution does, however, also allow the state to restrict the free exercise of the right to education, provided that the restriction is

  1. contained in a law
  2. which applies to everyone equally; and
  3. which is reasonable and justifiable.

Accordingly, in 1996 Parliament adopted the new South African Schools Act, which places certain restrictions on the free exercise of education of children (not on the education of adults, who have the same right to education as children). In 2005, Parliament also adopted the Children’s Act, which explicates what the constitution and international law requires for the education of children.

The SA Schools Act requires parents to send every child to school or to register the child for education at home unless the parent has good reasons (“just cause”) to do neither. Parents who do not comply may be prosecuted and upon conviction be sentenced to a maximum of six months in jail or a fine.

The Children’s Act, in turn, confirms the constitutional principle that parents have the duty and the right to guide, direct and secure the education of the child in a manner that is in the child’s best interests. Parents who neglect this duty may be prosecuted and upon conviction may be sentenced to a maximum of ten years in jail and a fine.

Why is there a problem if home education is legal?

Home education is perfectly legal, therefore, but serious problems arise because education officials refuse to comply with the law. They place unreasonable and unjustifiable preconditions for the registration of learners for home education in accordance with the Schools Act. These preconditions, more often than not, are contrary to the best interests of the children.

In order to protect the rights of their children, thousands of homeschoolers have joined the Pestalozzi Trust to back them up in the event that the education authorities challenge their rights and responsibilities to provide their children with that education that is in the best interests of each child.

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