Explainer: BELA and its controversies

On 20 December 2024, President Cyril Ramaphosa finally signed the BELA Act into effect. Archive photo: Ashraf Hendricks

Groundup asked educationist Paula Ensor to provide a summary of the recently passed Basic Education Laws Amendment (BELA) Act, and the stormy controversy that has surrounded it.

To understand and assess the legislation it is important to bear in mind the provisions of the Bill of Rights with respect to education, and court rulings that have dealt especially with the role and responsibilities of public school governing bodies (SGB).

SGB policies on language and admissions have come under particular scrutiny because of the way in which they have been used in the past to unfairly exclude learners.

The government is charged to take into account equity, practicality and the need to redress the results of past racially discriminatory laws and practices in the development of education policy. The education system in South Africa still embodies the legacy of apartheid, with unequal access to quality education. The Basic Education Laws Amendment (BELA) Act is intended as a mechanism to reduce inequality, build inclusiveness and improve the quality of education for all learners.

The Bill of Rights stipulates that everyone has a right to basic education, and that everyone has a right to receive education in the official language or languages of their choice in public educational institutions, where this is practicable.

Background

The BELA bill was initiated in 2017 to amend the South African Schools Act of 1996, and Employment of Educators Act of 1998. The law was finally passed by the National Assembly in May 2024.

On 13 September 2024, President Cyril Ramaphosa signed the BELA Act into law. But he postponed the implementation of the highly contested sections 4 and 5, which deal with admissions and language policy, to allow for further discussion with opponents of the new law, primarily the Democratic Alliance (DA), ActionSA, Freedom Front-Plus (FF), Solidarity and the African Christian Democratic Party. The matter was put before the clearing house mechanism task team of the Government of National Unity consisting of the DA, FF, GOOD and the ANC.

On 20 December, Ramaphosa announced that agreement had been reached and he had signed a Presidential Proclamation to give effect to the Act in its totality on that day.

Why was the law introduced?

The South African Schools Act was promulgated in 1996. Many changes have taken place in the schooling system since then, and the aim of the legislation (which has 56 sections), is to address these changes and align the law with court decisions that have impacted on schooling.

Why was the Act so controversial?

The two major controversial sections of the Act, namely 4 and 5, refer to three issues: (1) the introduction of Grade R as a compulsory year of schooling, (2) school admissions policies and language policies, and related to both of these policies, (3) the powers of the SGB in determining them.

Compulsory Grade R for children turning 5 by 30 June in year of admission

While there is general recognition that the introduction of compulsory Grade R for children turning five years of age by 30 June in the year of admission will significantly improve the educational experience of learners, especially from poor backgrounds, the DA and others have argued that it was an “unfunded mandate” and might result in funds being taken from elsewhere (such as the National School Nutrition programme).

Admissions policy

The Act states that the admission policy of a public school is determined by the SGB, in line with the Constitution and relevant legislation, and bearing in mind the best interests of the child; whether there are other schools in the community that are accessible to learners; and the efficient and effective use of available space and other resources of the school.

The head of the provincial education department, after consultation with the governing body of the school, has the final authority to admit a learner to a public school. The SGB must review its admission policy every three years, or when circumstances change, or when required to do so by the provincial head of department. Learners who are refused admission may appeal, and the Act lays down the procedures to be followed in such a case.

This clause was opposed by the DA and other parties for centralising control in the provincial departments of education and infringing on the rights of learners, parents and their communities.

Language policy

The Act stipulates that the language policy of a public school is determined by the SGB, and that when making or changing the language policy, the SGB must be satisfied that the policy takes into account the language needs of the broader community in which the school is placed; the best interests of the child; the requirements of equity and equality; the need to protect and promote indigenous languages; the changing number of learners who speak the language of learning and teaching in the school; the effective use of classroom space and resources of the school; and enrolment trends in the school.

Sign Language is now an official language for the purposes of teaching and learning in a public school; this is uncontroversial.

The school language policy must be reviewed every three years, or when circumstances change, or when requested to do so by the head of the provincial education department. The department head may, when it is practical to do so, direct a public school to have more than one language of instruction. The Act lays down how the department head is required to consult with the SGB, parents and community before any proposals are made, and the Act sets out how such proposals might be taken on review.

What this means in effect, if say an Afrikaans-medium school operates in a largely non-Afrikaans-speaking community, and there is space in the school to admit more learners, the provincial department head can approach the SGB with a proposal for a dual-medium school. The ACT sets out the procedures to be followed before such a proposal can be implemented.

This clause has been opposed by FF and Solidarity who argue that these changes constitute an assault on the Afrikaans language and undermine the culture of Afrikaans-medium schools.

Less controversial clauses

The clauses above are those that have generated the greatest controversy. Less controversial is Clause 35, which tightens regulations on home schooling (registration of learners, curriculum options, assessment procedures etc) but preserves the rights of parents to pursue the option of home schooling. It has been wrongly assumed in some quarters that the Act was outlawing homeschooling. This is not the case.

The Act also allows for the amalgamation of schools in the face of falling enrolments. There has been some opposition to the possible implementation of this provision for rural schools (the Act does not specifically mention schools in rural areas).

Also:

• The Act stipulates a fine and/or jail time of up to 12 months for anyone found guilty of preventing a child from attending school without good reason. Schools have the responsibility to monitor learner attendance. Penalties are imposed for those guilty of disrupting the normal functioning of a school.
• The Act provides strict measures against misconduct by pupils and gives schools the right to expel offenders for serious offences, setting out the procedures to be followed in such cases. Drugs, alcohol and weapons are banned from schools, and staff are empowered to search for and confiscate such items.
• All corporal punishment and initiation practices are forbidden in line with the Child Protection Act. Corporal punishment is defined to include physical punishment, but also acts which “belittle, humiliate, threaten, induce fear or ridicule the dignity or person of the learner”. Those found guilty will be fined, imprisoned, or both.
• A code of conduct is to be drawn up by the SGB in every school, taking into account diverse cultural and religious beliefs, after consultation with learners, parents and educators. The right to apply for exemption from a code of conduct is set out in the Act.
• Various governance issues relating to the constitution, composition and conduct of SGBs are set out, and when required, their dissolution.
• The Act stipulates procedures to be followed for closure of schools.

Opposition based on misinformation

False: Teachers have authority on whether learners have abortions

The BELA Act has a section which empowers the Minister to make regulations on relevant matters relating to the education portfolio. The 2024 amendment inserts the power to make regulations to manage learners’ pregnancies (the DBE already has a policy on the management of learners’ pregnancies). This has been wrongly interpreted as teachers having the authority to make decisions regarding learner pregnancies, including abortions. There is no truth to this claim.

False: BELA Act obliges schools to introduce sex education

Another baseless claim made about BELA is that it would oblige schools to introduce Comprehensive Sexuality Education against their will. This is not part of the BELA Act.

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