BELA is Breaking

With characteristic South African humour, teachers are taking to social media to show what they fear the BELA Act will do to school discipline. Last Sunday’s City Press headline was “Teachers Fume Over BELA Act”. Educators are warning that the BELA Act is going to create chaos in schools, with videos in an online News24 report capturing the mood perfectly, 'Imagine not being able to raise your voice at a learner without breaking the law'.

That educators are breaking ranks over BELA Act is a sign that BELA is broken.

From Omnibus Act to Omnibus Disaster

During the public hearings criticism over a clause or clauses was deflected by officials stating that the BELA Act had 56 clauses—a mix of reforms to streamline education. But what has emerged is that BELA is all bad and a failure with almost every clause representing a major challenge.

BELA was rejected by the majority of South Africans, a fact quietly buried since neither the Portfolio Committee on Basic Education (PCBE) in the National Assembly or the Select Committee on Education and Technology, Sport, Arts and Culture in the National Council of Provinces (NCOP) produced comprehensive reports on public participation. Those reports would have shown that the Bill had been rejected by the majority of the public and as time went on as much as 80% of the public were rejecting the Bill.

Those who took a principled stand against BELA from the very beginning - predominantly homeschooler - were mocked, attacked, and dismissed. Now, they are being proved right.

From the outset, opposition parties and the public pointed out that fundamental reform was needed and that they wanted a Bill that would improve education in the country and meet the pressing real challenges that were threatening education. The public called for improved security at schools, improvements to rural education, changes to the curriculum and the inclusion of online schooling and independent micro-schools.

Officials responded that BELA was an administrative act. BELA was clearly aimed at providing job security for head office officials and giving them powers to make their jobs easier. Looking through the Act it appears as if it was drafted on the basis that someone walked through the Department of Basic Education’s Pretoria Head Office saying, “I’m going to the canteen, should I get you something, and by the way do you want to add anything to a new law?”.

BELA chaos is just beginning.

BELA is turning into the predicted disaster as all the flaws of the Act are coming to the fore.

At the beginning of the year, BELA’s provisions allowing the enrolment of foreign learners without documentation was seen as a reasons that many South African children cannot find a place in public schools.

The Ministry has issued the first set of regulations that stem from the BELA Act for public comment and this has rekindled the ‘vaccine wars’. In February 2021 the DBE under the then Minister issued a call for comment on the Admission Policy for Ordinary Public Schools which included a vaccination certificate requirement. This proposed creating a national policy based on a long standing Gauteng regulation, that a vaccination certificate is required for school admission. But, the public comment was not processed and no engagement with the public took place, the Policy was left to linger until the BELA Act was passed.

The straw that has broken the donkey’s back for ordinary educators is school discipline and the new definition of corporal punishment. Teachers’ are mocking the new definitions of “corporal punishment,” which absurdly prohibits making a child feel physical discomfort. As Hon. Wynand Boshoff (FF+) warned in parliament, even after-school detention could now be illegal. The Portfolio Committee requested workable discipline guidelines but none have been provided, leaving teachers desperate and parents fearing anarchy.

BELA Act is the gift that keeps on giving though with lots more trouble in store.

Grade R but not enough money – By making Grade R compulsory and therefore a right that must be immediately realisable the Act creates a situation were a legal challenge upholding a child’s right to basic education could compel education departments to provide Grade R even where they don’t have the money to do so. While ‘Grade R and ECD for all’ is a noble intention there was no need to create a legal quagmire. Grade R and ECD could have been progressively introduced while structural reform of the basic education and broader education sector were undertaken to provide the needed funding.

We will buy what you need – School Governing Bodies do not appear fully aware of the fact that they will now only be able to procure learning and teaching support materials if they can prove they can procure them more “cost effectively”, whatever that means, than the province. This will impact thousands of schools that do not have the money to replace low quality materials that have been centrally procured. A critical aspect in drafting legislation needs to be to make it as ‘corruption-proof’ as possible. The new procurement system is an open door to corruption and collusion with large players at the expense of local, small and medium businesses.

Closure of rural schools - MECs can now close schools with fewer than 135 learners, without providing the parents and community with reasons. This will devastate education and communities in rural areas where what is needed is creative solutions.

Back to Abortion Bill? – It is not clear what will exactly come out of the regulations on the management of learner pregnancy. Will they merely be about access to school for pregnant learners or will they try and give effect to the controversial Policy on the Prevention and Management of Learner Pregnancy in Schools that led to BELA Bill being called a schools abortion bill?

Data Security - Will the regulations implementing a national education information system be innocuous or a violation of data privacy?

Regulations - A Blank Cheque?

The above reflects the many concerns about what was being hidden under the innocuous sounding new Section 61 that gives the minister power to make regulations on select topics. The public objected to this as giving the minister a blank cheque and no official would state clearly what the content of these regulations was going to be. Were they based on existing policies or draft policies or what?

More haste less speed

Rushed through the National Assembly in the closing hours of the sixth parliament to try and meet party political imperatives the BELA Act is in reality turning into a political disaster of epic proportions. Erstwhile supporters of the Bill are now turning into voluble and humorous critics. The reality is that the Bill has passed into an Act and little can be done in the short-term. That was perhaps even the plan, to hoodwink supporters and then say after the fact, ‘live with it’ nothing can be done.

The harm the BELA Act is set to do to the education sector can however be contained, in the short, medium and long-term.

Short-Term: Minister Gwarube to the Rescue.

As the Bill was being rushed through days before the national general election, few people, if anyone, would have thought an opposition politician would be the new Minister of Basic Education.  It is looking more and more like everyone must agree that Hon. Gwarube was right in boycotting the BELA Act signing.

Her best option, that she appears to be pursuing, is to limit the damage through carefully crafted regulations and blunting the rush to get regulations issued. That is not enough though, extensive consultation is needed and time needs to be taken to get all parties on board with the new regulations. Politically, even the ministers most ardent critics are now challenging the Act and this gives her the political capital and space she needs.

Her political opponents, who seem hell bent on ramming regulations through, are running the risk that they will alienate the few supporters the BELA Act still has.

Medium Term: See You in Court

Once again, homeschoolers are stepping into the breach. The first legal challenge to BELA has been launched by the Pestalozzi Trust (read more here). Ironically, this challenge may vindicate Minister Gwarube’s own stance on the Bill.

Long Term: Reform the Architecture

BELA’s collapse reveals a deeper problem: South Africa’s education law architecture is broken. Homeschoolers are already developing proposals for a wholesale overhaul. 

This is the national dialogue we need, not rushed regulations to paper over a bad Act, but bold reform that rethinks education from the ground up.

BELA is Broken

The reality is: BELA is law. The harm that BELA is doing can, if the Ministry, and the education sector as a whole, takes its time over regulations while tackling fundamental reform, be stopped.

South Africa doesn’t need the Bad BELA Act. South Africa needs educational freedom, parental choice, and genuine reform.