Registering with Department

1. 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).
2. If a parent 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).
3. 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.
4. 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 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 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 schoolwork, 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]

“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 an 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 sentenced 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.

Regards, Leendert”