Is there a law that stipulates that we must register our children with the Department or not?
The short answer is usually “NO.”
“According to legal advice obtained by the Pestalozzi Trust [the South African homeschool legal defence association] , various aspects of the new education system are in conflict with law and the constitution….The Trust therefore supports all lawful actions to avoid or prevent the imposition of the system. In accordance with legal advice, the Trust can no longer recommend the registration of members of the Trust with education authorities as provided for by legislation.”
The law and its interpretation and application is never simple – that’s why lawyers have jobs!
However, government officials frequently give the impression that they are and even set unlawful requirements and in so-doing they overstep the limitations of the law and the boundaries of their authority.
The SA Schools Act is not the only law to consider with regard to the responsibilities of parents and registration of home learners.
The Children’s Act is also applicable as is the Promotion of Administrative Justice Act, the Promotion of Access to Information Act and the Protection of Personal Information Act, among others.
Article 26 (3) of the Universal Declaration of Human Rights states:
“Parents have a prior right to choose the kind of education that shall be given to their children.”
[Government officials should not!]
A White Paper on Education and Training (Notice 196 of 1995, Department of Education) explains the principles on which the SA Schools Act is based.
One of these principles that is applicable to homeschooling is the following:
“Parents or guardians have the primary responsibility for the education of their children, …Parents have an inalienable right to choose the form of education which is best for their children, particularly in the early years of schooling, whether provided by the state or not, subject to reasonable safeguards which may be required by law.”
According to the Constitution everything relating to a child, should be in that child’s best interests.
Homeschooling mother, Joy Leavesly has pointed out that there have been rulings in the Constitutional Court where existing laws were ruled as unlawful on the grounds that they did not honour this “best interests” principle. (Isn’t it interesting to learn that laws can be unlawful?) The laws regarding home education have never yet been ‘tested’ in a court of law in this manner.
Leendert van Oostrum of the Pestalozzi Trust has explained the potential inconsistencies of the various applicable laws listed above as simply as possible as follows:
- If a homeschooling parent fails, without just cause, (good enough reason) to register a home learner for education at home, the parent can be prosecuted and, if found guilty, can be sentenced to up to six months in jail OR a fine. (SA Schools Act).
- If a parents fails to protect and fulfill a child’s right to education or any of the child’s other rights, including the right to privacy, in a manner that is in the child’s best interests, the parent can be prosecuted and can, if found guilty, be sentenced to up to ten years in jail AND a fine. (Children’s Act).
- Therefore, parents must be very sure that education officials do not infringe the rights of their children in the manner in which they perform the registration of home learners. If the processes and procedures for registering home learners, or the officials implementing them, infringe the rights of the children, the parents can plead that they have “just cause” for not registering.
- Up to now, about 98% of all homeschooling parents have concluded that the processes and procedures by which home learners are registered will infringe the rights of their children and that they must not, therefore, subject their children to those processes and procedures without the risk of being guilty of a far greater crime (child neglect), than the crime of failing to register.
(At the same time, if they have to protect their children against unlawful infringement of their rights by registration officials, they are by definition not guilty of failing to register without just cause. Because they have just cause.)
Yes, the above does not constitute simple terms. However, if one reads it carefully a few times, it might become clearer. (Tuisonderwys egroup 17 March 2015)
The question below was asked of Leendert van Oostrum, a homeschool legal advisor of the Pestalozzi Trust on the tuisonderwys egroup at yahoogroups.com on 21/01/2013:
“With regards to the law on homeschooling that is applicable in Gauteng, I would like to know if there is a law that stipulates that we must register our children with the department or not?
From your experience with homeschooling, what are the advantages and disadvantages of this?
Many homeschool curriculum suppliers expect homeschooling parents to register their children as a pre-requisite to using their curriculum, therefore I want to brush up my knowledge on this topic.”
Read this question and answer in Afrikaans at Inskrywing by Department
Below is an edited translation of the answer that was originally given in Afrikaans:
“The law in Gauteng does not differ much from the other provinces…
There is a national law that says that you must register your child, unless you have good reason not to do so.
The provinces use this law and then set all sorts of unreasonable and even unlawful requirements for registration. In other words, they use an otherwise lawful registration requirement to force people to comply with a battery of requirements, which they otherwise could not force upon you.
The result is that about 95% of all homeschoolers have come to the conclusion that they are legally justified in not registering, as a result of the unlawful requirements of the department, and because many of the unlawful requirements, in their judgment, are in conflict with their children’s best interests.
One example of a general requirement is that the homeschooling must comply with the national curriculum.
This is illegal. What the law says, is that it must meet the MINIMUM requirements of the curriculum in public schools. Now the rules of interpretation of the law determine that we don’t have to meet ALL the requirements of the national curriculum. Thus this requirement is unlawful.
Furthermore, it is very easy to show that nearly all state schools do not fulfill the requirements of the national curriculum. This means that the departmental demands of homeschoolers are not fulfilled by their own schools, which is unfair and therefore unlawful. It would also mean that should anyone’s homeschooling possibly be refused because he does not meet the demands of the national curriculum, that the children could be sent to a state school that meets even less of their requirements! Unreasonable!
Another example is that the department insists on inspecting the homes of homeschoolers (they call this ‘visiting’). Such visits involve an invasion of the children’s right to privacy, and that of the people who live in the home.
Such an invasion of a fundamental right could be acceptable if it was justified. There is however, no information that officials need in order to do their work with regard to the homeschooling of the children, which could not be obtained by less invasive means (if they wish to see the children’s school work, they could accomplish this by inspecting it in their own offices). [More detail on this topic follows below.]
Regarding Curriculum Suppliers
There is no law that demands that curriculum suppliers require that their clients must be registered. Just like there is no law that a car dealership is required to only sell cars to people with driver’s licences. (A child of four can own a car, he may just not drive it! Therefore the control of driver’s licences is the function of the traffic department and not of the car dealer.)
Being private undertakings, curriculum suppliers can set any requirements for the use of their products that they wish. If they want to refuse to sell the product to you unless you sing “Jan Pierewit” on the steps of the town hall, they can do it.
I personally, would shy away from products sold by organisations that require that I must sing “Jan Pierewiet” on the town hall steps or any other place. I also think it’s not very wise to do business with enterprises that interfere with things that they have no right to, and which gives them the power to set requirements that they legally have no right to set.” [end quote]
In an email to a home educating mother at the end of March 2014, Penny Vinjevold, Head of the Department of Education in the Western Cape wrote:
“Section 36 of the Western Cape Provincial School Education Act, 1997 (Act 12 of 1997) makes provision for the regulation of home schooling, however such regulations have not been issued. Instead the WCED makes provision for the registration of learners through the process of completing a simple and easy to understand form, which is widely used by parents in this province.”
This constitutes a written admission by the Head of Department herself that there are no laws issued requiring the registration of home learners.
As Leendert van Oostrum, (homeschool legal advisor in SA) pointed out, regulations are laws but “simple and easy to understand forms” are not laws.
This message constitutes an admission by Ms. Vinjevold that her department and its Minister has failed to comply with the law.
The majority of home educators in the Western Cape and the rest of the country, believe that complying with unlawful requirements is not in the best interests of their children and they therefore choose lawfully not to register.
UNLAWFUL HOME VISITS BY OFFICIALS
On a SA homeschool group on social media, a parent from the Western Cape who had applied to register for homeschooling, reported that she received an UNEXPECTED visit from an official from the Western Cape Department of Education on Friday 20 February 2015.
She allowed him to ‘inspect’ their homeschooling and apparently he was polite, interested and satisfied and then ‘approved’ the application for homeschooling.
However, by doing a home visit and not having the curtesy to make an appointment to do so, this official acted UNLAWFULLY and he violated the limits of his authority, giving other homeschoolers evidence and reason for LAWFUL NON-COMPLIANCE.
The following comments by Leendert van Oostrum about the legal issues are published with his permission, so that new homeschoolers can learn more about their rights and their responsibility to protect their children’s right to privacy:
“Yes, the report by this mother can indeed be used as testimony in a court of law, to show that a family has “good cause” not to register with the education department. It is valid evidence that education officials break the law and exceed their powers in the following ways:
1. Entering a private home constitutes invasion of privacy. It can only be justified if the person doing so is in possession of a court order to that effect, or if someone in the house is in immediate danger. That applies also to police officers and social workers.
2. A constitutional right may only be invaded if there is a law allowing the invader to do so, and if the law is reasonable and justifiable. There is no law in existence that allows education officers to enter the home of homeschooling families. The kind Mr Van De Rede was, therefore, objectively breaking the law.
3. If, however, the parents invited the official of their own volition (i.e. without any coercion whatsoever, and with full information on their rights) to enter their home, the official is no longer breaking the law in doing so.
4. If the family allowed or invited the official to enter their home because the official brought them under the impression that he is legally empowered to enter it, he is guilty of intimidation as well as of invading their privacy.
5. Even if the official were empowered to visit the family home, doing so without “reasonable notice” is an infringement of the family’s right to just administrative action. The parent would be completely within her rights if she refused him entrance, telling him to make an appointment before he comes (in fact, most officials in the Western Cape do make appointments for home visits).
6. Of course, the parent may waive her right to reasonable notice. However, if she does so because the official created the impression – directly or indirectly, that he is not required to give notice, she can also claim that she was intimidated by the official, and charge him for invasion of privacy.
7. Interestingly, departmental officials are not allowed to visit a public or private school without reasonable notice. That means that this official (even if he was empowered to do home visits and even if he was empowered to do so without reasonable notice – neither of which is true) was also infringing the right to equality of all homeschooling families (not only this one) by discrimination against homeschoolers.
The most important consequence of a letter like this, however, is that it could be used in a court to prove that the parent failed to protect her children’s right to privacy against unreasonable infringement by the official. For failing to guard and protect the constitutional rights of her children a parent could, in principle be prosecuted and upon conviction be sentence to up to ten years in prison.
Anyone can lay a charge under the Children’s Act against a parent who does so.
The invasion of the children’s privacy comprises not only an invasion of their private space (their family home) but may also be the effect of giving him details about their education and upbringing.
The parent might argue that her own privacy was not invaded, because she chose to invite the official. However, she is also legally responsible to protect the privacy of her children.
The parent could also argue that she allowed the official to invade the privacy of her children because she was under the mistaken impression that she was legally required to do so (the plea that she erred in law) . This letter, however, constitutes evidence that she did no act by mistake – she testifies, against herself, that she had information that must have created in her mind at least the possibility that she was wrong.
Finally: whether the official made any demands as to curriculum or not is beside the point – if he acted beyond his powers in some respects on one occasion, there is nothing to stop him from doing so in other respects as well the next time. This is precisely what happened in the Free State. For years the officials did not make any demands as to the kind of curriculum of learning programme that parents should use. At one stage, they started to give “preference” to certain “approved” curricula. The “preference” became a requirement over time, and the last I heard, the department were requiring homeschoolers to use a “CAPS compliant” curriculum.
The point is this: The conduct of a government official is prescribed by the law. If the official acts in any way not prescribed by the law, the official is breaking the law, irrespective of how nice and friendly he is about it. Good officials comply with the law, even as they enforce it. Officials who break the law are corrupt officials and if we condone their corruption, we are just as corrupt ourselves.
And, before we know it, we have to hear that someone in a position such as that of Mr Van Der Rede has built him- or herself a house at departmental expense. How can we complain then?
If we condone the actions of Mr Van De Rede as reported here, we must also condone the actions of the owner of Nkandla.