What does the law say about Homeschooling? Two sections of the SA Schools Act, 84 of 1996, have a bearing on homeschooling. The first one is Section 3:
3. Compulsory attendance.
(1) Subject to this Act and any applicable provincial law, every parent must cause every learner for whom he or she is responsible to attend a school from the first school day of the year in which such learner reaches the age of seven years until the last school day of the year in which such learner reaches the age of fifteen years or the ninth grade, whichever occurs first….
(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).
(6) Subject to this Act and any other applicable law—
(a) any parent who, without just cause and after a written notice from the Head of Department, fails to comply with subsection (1), is guilty of an offence and liable on conviction to a fine or to imprisonment for a period not exceeding six months; or
(b) any other person who, without just cause, prevents a learner who is subject to compulsory attendance from attending a school, is guilty of an offence and liable on conviction to a fine or to imprisonment for a period not exceeding six months.
Parents therefore can be prosecuted if they prevent their children from attending school.
According to Section 51 of the SA Schools Act, 84 of 1996, a parent must apply for registration for his child as a learner at home with the Provincial Education Department. A child who is registered is exempted from compulsory school attendance. A parent whose child is registered therefore cannot be prosecuted on the grounds of his child not attending school.
Quoting from the SA Schools Act:
- Registration of learner for education at home.
(1) A parent may apply to the Head of Department for the registration of a learner to receive education at the learner’s home.
(2) The Head of Department must register a learner as contemplated in subsection (1) if he or she is satisfied that—
(a) the registration is in the interests of the learner;
(b) the education likely to be received by the learner at home—
(i) will meet the minimum requirements of the curriculum at public schools; and
(ii)will be of a standard not inferior to the standard of education provided at public schools; and
(c) the parent will comply with any other reasonable conditions set by the Head of Department.
(3) The Head of Department may, subject to subsection (4), withdraw the registration referred to in subsection (1).
(4) The Head of Department may not withdraw the registration until he or she—
(a) has informed the parent of his or her intention so to act and the reasons therefor;
(b) has granted the parent an opportunity to make representations to him or her in relation to such action; and
(c) has duly considered any such representations received.
(5) A parent may appeal to the Member of the Executive Council against the withdrawal of a registration or a refusal to register a learner in terms of this Act.
Exception: Western Cape. The legal situation in the Western Cape differs from that in the other provinces. Art. 36 of the Western Cape Provincial School Education Act (WCSEA) states the following: “The requirements and conditions for the registration of a learner for education at home shall be as prescribed.” In order to define the requirements and conditions for registration, the Western Cape government must promulgate regulations that define these requirements and conditions. The Western Cape government has not yet promulgated such regulations. In the absence of such regulations it is impossible to determine whether somebody who has registered with the WCED for education at home actually meets the requirements of the law. Given that there is no legal mechanism for registration with the WCED, any registrations done by the WCED officials do not have any legal status, and can be regarded as illegal.
Why do 98% home educators prefer not to register? In spite of this threat of prosecution the vast majority of home educators in South Africa prefer not to register. A few reasons may be mentioned to illustrate why these parents choose NOT to register. (The registration process differs from province to province, and some provinces require for example also that parents should have a teaching qualification – a requirement which thorough research has shown to be unfounded.)
- Minimum requirements. One of the requirements in the registration process is that the home learner registered with the government should comply with minimum requirements of the curriculum at public schools. Note that it is NOT merely a curriculum – it is an entire education system, including assessments. The state curriculum is heavily loaded ideologically, with specific political aims. Most parents who choose home education prefer not to comply with it, since it is not necessarily in their children’s best interests.
- Home Visits. Before a learner can be approved by the education department, home visits are done. The purpose of home visits is not clear, but the parents and the house apparently are screened to ascertain whether they meet certain unnamed standards. No criteria for the home visits are known to be published or supplied to homeschoolers. It entails an intrusion into the privacy of the family and the children. Most parents regard it as a violation their children’s and their own right to privacy, and find that the information that the education officials might require, probably could have been obtained in less intrusive ways.
- Other legislation. Apart from the SA Schools Act there is also other legislation applicable to parents of home learners, for example the Children’s Act, PAJA, PAIA, as well as the UNCRC (the United Nations Convention on the Rights of Children) and the African Charter on the Rights and Welfare of the Child, both of which have been signed and ratified by South Africa.
Legal Aid. We suggest that home educators join the Pestalozzi Trust, or make us of the services of lawyers of their choice, whether they register with the education department or not. The Pestalozzi Trust will defend their members’ decision. Why is it necessary to have legal aid prepared?
- If a home learner is NOT registered with the education department, his/her parents can be prosecuted and upon conviction be sentenced to 6 months in jail or a fine.
- If a home learner IS registered with the education department, his/her parents may find that the requirements of the education department which have to be met make it impossible for them to act in their child’s best interests.
Membership of the Pestalozzi Trust. The Pestalozzi Trust is prepared to support its members in any conflict with the authorities–with officials of the education department, the welfare and the police. The main task of the Trust is to keep its members out of court, and the Trust succeeds admirably in this task. Members of the Trust receive an emergency number which is available 24/7, and are kept informed of all developments pertaining to their home education.