Home educating parents often ask us if home visits by education department officials are legal. In some provinces, government officials prescribe a home visit as a prerequisite for registration of learners for home education, but are they legal? How should parents handle such requests and should they allow them?
In short, the answer is an outright NO!
No, they are not legal.
No, you should not allow them.
- There is no requirement for a home visit in the SA Schools Act.
- There is no requirement for a “home education site” inspection in the national Policy on Home Education.
- There is no requirement for a home visit in the currently-pending BELA Bill (as at April 2024).
(The BELA Bill or Basic Education Laws Amendment Bill is intended to amend the current version of the SA Schools Act).
According to the Pestalozzi Trust, the homeschool legal defence organisation, home visits have been removed from the BELA Bill. Therefore they are not prescribed by any existing law nor by pending new legislation:
“Home visits, which caused many homeschoolers anxiety and were a serious security concern have been removed. A consultation with parent and learner was retained, but this may only happen on just cause being shown. The consultation need not take place at the homeschooler’s home.” (Newsletter from the Pestalozzi Trust, 15 September 2023)
If an educational official requests a home visit, you are therefore entitled to refuse. Just politely say, “No.” If you are curious, you could also ask:
- what the legal basis of the visit is. No government official may invade your home without a court order, unless its an emergency, such as a fire.
- what the purpose of the visit is
- what the guidelines and criteria are governing the inspection and where these are set out in the law.
You are unlikely to receive satisfactory answers to any of the above. Any information that an official needs about home education can be obtained without invading your children’s privacy, which you are legally obligated to protect.
Home visits by officials are unlawful
On a South African 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 courtesy 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.
Why should you not allow a home visit?
The following comments by the late Leendert van Oostrum about the legal issues were 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 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 not 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”
*To give context to this comment, this email was written at the time that Jacob Zuma was president of South Africa and was being investigated for misusing government funds for massive improvements on his private homestead at Nkandla.
Most parents who grew up in the school system have been conditioned to be obedient and compliant. We are not used to challenging government officials. However, if a government official is acting beyond the boundaries of his duty and beyond the jurisdiction of his official role, then you do not have to comply. In fact, to protect the freedom of all home educators, you have a duty to set firm boundaries and prevent government overreach becoming the norm.
As the saying goes, “All it takes for evil to prosper is for good men to do nothing.”
If you feel intimidated by any request by a government official, don’t deal with it alone. Ask for advice. Get someone to support you. We always recommend that home educating families should join the Pestalozzi Trust, the homeschool legal defence association, as well as their local provincial association for home education so that you have someone to reach out to for advice when any issues arise.
Last updated on 1 May 2024.
Homeschooling and the Law in South Africa
Be prepared. Be informed. Be empowered.
Read our other articles relating to Homeschool Laws in South Africa.
- Read this first – Disclaimer
- Must You Register for Homeschooling?
- Be Properly Informed of the Legalities of Homeschooling
- Registering with the Department vs A Child’s Best Interests
- Registering for Homeschooling versus Notification
- Are Home Visits Legal?
- Removing or Returning a Child to School
- Cottage Schools
Homeschool Assessments, Reports and Compliance
Part 1 – Homeschool Assessments
Part 2 – Homeschool Reports
Part 3 – Should You Submit Homeschool Reports?
Curriculum Compliance
School at Home versus Eclectic Homeschooling
Footprints and CAPS
Footprints Language Arts and CAPS
Barefoot Days and CAPS