by Christopher Cordeiro (LearnFree)
Registration – Who will have the final word? Part 1
The issue of registration causes quite a bit of confusion and debate among home educators. These debates often generate more heat than light. This article is going to lay out the history behind the debates and list the practical approaches that have been adopted over the years. It is going to explain what the positions on registration are, but won’t try to answer what they should be. That is up to independent-minded home educators and ultimately the courts.
Sometime ago LearnFree promised to begin unpacking this contentious subject, but perhaps unpacking is not the best way of describing it. It can be more like bomb-disposal.
So here we go with bomb-proof suit on, wire cutters in hand and hoping we cut the right wire at the right time. But if we don’t, keep the old bomb squad joke in mind: “If you see me running, try to keep up”.
“What’s the fuss?”
There are a substantial number of home educators, between three or four thousand and even perhaps 5000, who are very comfortable registering and have never experienced any, or very little, difficulty in registering with a provincial education department. For them the anxious debates about registration can best be summed up as: “What’s the fuss?”.
It is not that they do not understand the issues involved. They have registered with relative ease. In some places officials have taken a relaxed view and registered home educators who deviated from a number of the requirements of the Policy. In others, registration has been refused on an arbitrary basis and families have been left in the difficult situation of what to do. Faced with the prospect of having to put their children in school they have had to choose fight or flight, and the vast majority, especially those who do not have support to challenge officials or the money needed to go to court to protect their rights have simply chosen to fly below the radar.
Where officials have taken a relaxed view we can say that these officials have been acting according to the law. These officials knowingly or unknowingly are doing what they should do. They are not enforcing the policy in a narrow, strict and dogmatic way. Please note the shift here. They are following the LAW strictly, not the POLICY strictly. That may seem strange to say, but the policy is merely a policy and according to the law cannot and should not be rigidly or strictly enforced. So by using their discretion they are acting lawfully in interpreting the policy flexibly. It is an open question whether the officials are doing this with a fine understanding of the law or just out of plain common-sense or ignorance of the Policy itself.
The question that arises in these cases is what will happen if and when the provisions of the BELA Bill restrict the lawful freedom that officials have. In short, what happens when, after the BELA Bill has become law, key aspects of the Policy which at present have to be implemented in a flexible fashion, then have to be implemented in a rigid fashion, because they have the force of law? That is a question that we will only have an answer to if we see the BELA Bill pass into law in two to three years.
However, currently it appears that something like 80% to 95% of home educators refuse to register. So the question arises, why is this the case? To answer this we have to go back into the history of the struggle for home education rights in South Africa and look at the question of “registration vs notification”.
Notification not Registration
In the past, the home education associations took the position that “registration” i.e. getting permission from the state to home educate is a fundamental violation of the rights of parents and children. In 2014, in an attempt to reach the Department half-way, home education associations agreed that they will be willing to “notify” their provincial education department that they are educating their children at home, but not to register.
All of the home education associations, without exception, endorsed this position in 2014/2015 during talks with the DBE. It is not clear if any associations have changed the position they adopted in 2014/2015 and have taken a new position or if newly-formed associations accept or reject this position.
The argument made at the time and that still seems to be widely supported among home educators is that a parent, who knows the child best should make the decision to home educated and not an official who does not know the child. They argue that you can’t apply to be granted permission to perform a duty of care that is innate and natural to the parent or caregiver.
This argument is based in part on s28(1) of the Constitution that states: “Every child has the right … b. to family care or parental care …”. Care is not defined in the Constitution, but the Children’s Act defines “care” as follows: “‘care’in relation to a child, includes, where appropriate… (e)guiding, directing and securing the child’s education and upbringing, including religious and cultural education and upbringing, in a manner appropriate to the child’s age, maturity and stage of development”.
The argument is made that the state cannot and should not intervene when a parent is exercising their primary duty of care. It is only when this is not done that the state may intervene.
Therefore it is argued that “registering” for home education should be more like registering a birth, i.e. notifying the state of what has happened.
This argument has not been tested in court as no home educator has ever been charged with failing to register and offered a defence based on this argument: that their choice to exercise a fundamental parental right and duty cannot be limited by the state without good reason.
So the big question and one that has vexed home educators for more than 25 years is how can this argument and other arguments in favour of home education freedom be tested in court.
We will look at two ways in which this can be done: the defensive approach, and the offensive approach.
Using the law to change the law: the Defensive Approach
In general, in a constitutional democracy, the most effective way to change the law is to use the law itself to change the law. An excellent example of this is the recent campaign to de-criminalise the personal use of cannabis.
Laws against the possession and use of cannabis have been in effect in South Africa since 1870. These laws have stayed on the statute books since 1994 and there have been tens of thousands of successful prosecutions for the possession and use of cannabis.
In August 2010, the police raided a property and a couple were arrested on charges of possessing and using cannabis. They argued that they had the right to possess and use cannabis as long as it was for personal use and applied for leave to appeal to the Constitutional Court. The case was struck from the role in the magistrate’s courts pending the appeals.
The couple “intervened” in a separate case brought before the Constitutional Court in 2017 to determine the legality of possession of cannabis for personal use. The right to possess cannabis for private use was in this case upheld and the government was ordered to amend legislation to reflect this.
This seems to be the strategy adopted by the majority of the home education community i.e. waiting for the State to act and then responding to that.
Home educators are waiting for a provincial education department to try and prosecute a parent and will then spring into action.
Another approach is taking a more offensive stance.
Using the law to change the law: the Offensive Approach
In this case a party takes the offensive and challenges a law. This is a very good approach, as long as you have a family or person willing to challenge the law in question. Constitutional cases have a lower chance of success when they are merely an abstract challenge. It is best to have a person whose rights are affected. That means that some family must be willing to invest the time, energy and money to go to court.
The Pestalozzi Trust contemplated this type of action when it challenged the Policy on Home Education. However, no family that was a member of the Trust was willing to be the party bringing the challenge. That is completely understandable as we must all put the best interests of our children first, and many of us will think that we don’t want our children to be in a major court case about education that would in and of itself impact their education. Such a challenge would also have had to challenge the South African Schools Act and would turn on what “registration” means, (i.e. should it be more like notification or should an official give a parent “permission” to home educate).
The above are a couple of the main historical positions taken by home educators. These are however, quite theoretical and principled arguments. In our next article we will look at some of the practical approaches that have been followed.
Registration – Who will have the final word? Part 2
In the first article in this series we set out the major approaches that home educators have taken to the question of registering for home education with the provincial home education departments. While we have no accurate figures, even on the most optimistic figures less than 20% of home educators are registered. Some home educators have registered and have never had any concerns over the issue of registration. In the past, the home education associations took the position that “registration”, i.e. getting permission from the state to home educate, is a fundamental violation of the rights of parents and children. Home educators have followed a two-part legal strategy. The first of these is waiting for the education departments to try and enforce the law and then respond through the courts. The second is to, when possible, challenge the DBE in court. The problem with the first approach is that the DBE has never prosecuted a home educator and the problem with the latter is finding families willing to go through the trauma of a court case.
In this follow-up article we are departing the realms of the theoretical (for the most part) and getting practical.
“What’s the fuss?” revisited
Since the start of the COVID-19 the number of home educators have increased and many new home educators follow the CAPS curriculum and use curriculum providers. Many of these home educators are considering returning to school post-COVID and registration is a practical solution for them. It is not a legal requirement that they need to be registered for home education to be accepted into a school. The child has a right to basic education.
However, here are certainly many practical benefits to registration if you are following the CAPS curriculum and want to return to school. While many have experienced problems even when they have all their paperwork in order it is undoubtedly easier to return to school if you have proof of registration with the provincial education department, transfer cards, assessments based on grades and the CAPS criteria, and standard report cards.
While practical, this approach doesn’t help families who are using approaches or curricula that an education department will find difficult to reconcile to the CAPS system.
“You keep on knocking but you can’t come in”
However, despite their best effort many new home educators who want to register have found out that this is as not as easy it seems.
Despite your best efforts you may just never be able to register. This is something experienced home educators found out a long time ago. They filled in all the forms and then waited months if not years for registration. Sometimes they never heard anything at all.
Many long-term home educators have just given up after a few tries.
These delays can cause great anxiety for those who are trying to register, especially if they would like to have the option of returning to school. Those who find themselves in this situation have two concerns:
- “What if I am prosecuted for home educating?” The best advice to avoid this is to ensure that you keep the records of your attempts and be ready to produce them if you are ever approached.
- “Can my child get back into school?” Legally, there should be no problem in getting your child back into school. However, legal arguments don’t always prevail and it is best that you have all your paperwork in order and we suggest you get professional support to ensure that you do.
Most departments dealing with home education are understaffed and the staff do not have the capacity to administer the complex home education registration system. The practical reality then is that you may struggle to register but you will need to persevere.
“OK… but” – Conditional Registration
Research into home education practice in South Africa appears to indicate that many home educators, especially those whose children have just left school, use the CAPS curriculum and curriculum providers. However, it appears that fairly quickly they move to a much more eclectic approach and they dump CAPS and the providers or at very least they do not follow the whole programme.
These families face very few problems when they register initially because they are using the school-like system that the education departments are comfortable with. It is when assessments take place or that they re-register that problems can arise.
However, home educators who are not following CAPS and who use alternative curricula or approaches may encounter more problems when registering. The temptation here will be to register as if you are going to be using CAPS and as if you are willing to meet the assessment requirements that spring from CAPS, even when you are actually going to be doing your own thing. The danger in doing this is that you may be forced to comply with CAPS or have your home education registration revoked.
Even if you are allowed to register using an alternative curriculum or approach, you should confirm how you will be assessed. The only reasonable way to assess those who are not using CAPS is either to be assessed according to the system you are using (for example Charlotte Mason or Montessori), or by an educational psychologist or through a standardised assessment that measures literacy and numeracy.
Home educators who are not using CAPS should make this clear when registering and ensure they are registered with this noted so that no attempts will be made later to force them to comply with CAPS. This is often called a “conditional registration”.
You cannot be forced to comply with unreasonable conditions that are not in your child’s best interest even if you have been registered. However, it is much easier to protect your rights if you make clear from the start that you are registering subject to certain conditions such as that you will not be using CAPS and agreeing on how your child will be assessed.
If you are going to register subject to conditions that you are setting, you should ensure you have support when doing so.
One objection to “conditional registration” is that by registering a parent is compromising the principle that it is the parent who decides to home educate and not the state that gives permission. The fear of those who believe the state should not be giving permission is that once you grant that the state can give permission, you then implicitly accept that it can withhold that permission. That is a lapse back to the theoretical but it does appear to be one reason why so many don’t register.
Delaying the Registration decision
In the past many parents have delayed the decision to register until they are approached by education officials. The Provincial Education Department (PED) has to issue you with a notice requiring you to comply with the compulsory schooling law. Before that notice is issued the PED has to:
1) investigate the reasons for your child’s non-attendance, and
2) take appropriate steps to remedy the situation, and
3) only when the above steps fail, to issue the notice.
Therefore, during this period of investigation parents would set out the reasons for their child’s non-attendance and the reasons why they cannot comply with the registration requirements. Parents would then argue that one of the appropriate steps that should be taken is for the department to register the child for home education on the conditions agreed with the parents (assuming those are in the best interests of the child).
The actions of departmental officials would have to be:
• Lawful (and that includes that these decisions will have to be in the best interest of the child because that is a key Constitutional provision),
• Procedurally fair (this includes you having the chance to fully state your case and that the provincial education department [PED] must be unbiased in their decisions), and that the PED will need to give reasons for their decision.
Once you have their decision and the reasons for their decision you could appeal against that decision, first using the internal processes of the department and then through the courts.
It is an open question if the provincial home education departments have ever launched an investigation into why a home educator was not attending school or was not registered. To date there have been no reports of this happening.
The Director-General of the Department of Basic Education recently stated that while he would like to see parents whose children do not attend school prosecuted, the SAPS does not have resources to pursue parents. So one must ask what is the point of a law that the state can’t enforce.
The Courts will have the final say
The issue of registration has from time to time divided the home education community.
In the 2000s there was a strong movement among certain Christian groups to urge registration under any circumstances. They claimed that one had to “render unto Caesar” as a religious obligation and trusted that if they did that the State would miraculously change.
Recently arguments have been made that registration is the “law”. What is often missed in these arguments is the question “Is that law actually enforceable?” or to put it another way: if the DBE has all its legal ducks in a row, why does it not prosecute home educators? After all, that is what home educators have been waiting for well over twenty years. Wide of the issue of the lack of the police’s willingness to be involved, the DBE or provincial education departments could approach the courts for a court order, as PEDs have done in cases of unregistered independent schools. The basic problem is that the law as it stands now is very hard if not impossible to enforce. This is a major driver behind the BELA Bill: to get the DBE’s legal ducks in a row. The BELA Bill will be a law that can be rigidly enforced rather than a policy which has to be enforced flexibly.
When, and if, the BELA Bill becomes law it is more likely that we will see cases go to court and we will start getting an answer to the great registration debate.
Anyone who has any practical experience of litigation knows that you can’t say what the final ruling of the courts will be until the highest court has ruled. (After all, it looked quite like possession of cannabis would end up with you in jail.) The issue of home education registration will only be definitively settled when the issue is brought before the Constitutional Court. Until that time all views, including this one, are merely speculation.
Trust Editorial Note: Any legal information contained herein is intended
for general informational purposes only. It is not a substitute for legal
advice from an attorney licensed to practise in your jurisdiction with
knowledge of your specific legal issue, and you should not rely upon such legal
information. Members of the Pestalozzi
Trust are advised to contact the Trust, who will assist you and, where
necessary and appropriate, place you in contact with a registered member of the
legal profession. Remember that the legal costs of Trust members are covered by
 South African Schools Act 1996.
s3(5) If a learner who is subject to compulsory attendance in terms of subsection (1) is not enrolled at or fails to attend a school, the Head of Department may—
(a) investigate the circumstances of the learner’s absence from school;
(b) take appropriate measures to remedy the situation; and
(c) failing such a remedy, issue a written notice to the parent of the learner requiring compliance with subsection (1).