Concerning Registration

Written by Fatima Bham from Fitra Home Education South Africa. She is also engaged in the leadership of the Gauteng Legal Home Education Association that falls under our association structure.

“When I first started homeschooling a few years ago I was utterly confused by the law – despite the fact that I am a qualified attorney holding a masters degree in law. After reading pieces of legislation, various websites and forums and talking to people at homeschooling expos, I came to the conclusion that the homeschooling laws in South Africa are unreasonable, very possibly unconstitutional and that the legislation is worded in a way that affords me a loophole – it is okay not to register my child for homeschooling with the government if I am looking out for the best interests of my child. The best interests of the child is always paramount.

I did not want to follow CAPS. I did not want to have to comply with absurd reporting requirements. I did not want my children to be formally assessed. Doing all of these things would defeat the purpose of home educating my children. When my oldest was old enough to be of legal school-going age, I considered signing up with the Pestalozzi Trust, so that should I have any issues with the government, my family and I would be protected (I did belatedly sign up with them and am currently a member).

Fast forward a few years and Covid19 hit. Homeschooling was suddenly in vogue and scores of parents were looking for information. Wanting to help meet this need (and wanting to showcase all the glorious methods of homeschooling other than boxed curricula) I decided to conduct online workshops on “Homeschooling: The Basics”. In this workshop I wanted to include information on the legalities of homeschooling in South Africa. I therefore approached the legislation and policies with fresh vigour. I also delved into the case law, but what I discovered shocked me.

Reading the SA Schools Act in its entirety, it is crystal clear to me that there is no legal choice to make when it comes to registering your child or not registering your child. The option is to send your child to school or to register your child for homeschooling. When it comes to the best interest of your child, the courts have stated emphatically that they will only consider this issue if you are registered in terms of the law.

There is no loophole. There is a choice though.

You either choose to comply with the law OR if you think the laws are unjust, you go to court and you make that case. We live in an open and democratic society where we have processes which allow us to challenge unjust laws. If you disobey the law, claiming they are unjust but you don’t take legal action to rectify this, then you are simply disobeying the law.

This puts me in a conundrum. I don’t like our laws. I don’t think that the requirements reflect an understanding of homeschooling. As I dug deeper though, I realised a few other things:

1. I don’t understand what the legal requirements actually are. Sure I’ve read them but when speaking to a teacher, she made the requirements sound much easier than I had imagined – a “portfolio” is 4 documents per child, an “assessment” can be a video of my child mastering a skill (like telling time). Perhaps an “attendance register” can simply be a line that says my child has perfect attendance?

2. Many other countries regulate homeschooling in an even stricter manner than South Africa. The vagueness of our laws can actually work to our advantage if we learn how to work within the system. Homeschoolers, even unschoolers, in other countries have learned how to comply with laws and regulations in a way that still allows them to educate their children the way they want to. (This article brought to my attention by Shaista Musa was eye-opening: UnschoolingMom2Mom)

3. While our homeschooling laws appear unreasonable to me, I cannot say with certainty that they would be regarded as unconstitutional or unlawful in substance by a court of law. Balanced with our rights as parents to choose how to educate our children (something enshrined in the UN Declaration on Human Rights) is our government’s obligation to ensure that all children in this country have access to basic education (something enshrined in the South African Constitution). Any court considering the current laws and policy would have to consider both and the balancing act may not come out in our favour.

So what are my options as a homeschooler? I can go underground and simply choose to homeschool illegally. I can go to court to challenge the current laws (but this route doesn’t guarantee success and will be extremely expensive). Or I can engage with the government. I can either attempt to convince the government to change the current laws and if that is unsuccessful, I can attempt to sway the interpretation of the current laws as much in my favour as I can. Engagement, to me, makes the most sense.

I don’t want to be illegal and I don’t want to live in fear of a notice/order to send my child to school/jail time. The option of going to court to challenge the laws will still exist if engagement does not work. Right now our government has opened the doors to engagement. I attended a meeting on Monday 17 September 2020 with the DBE where many positive things were said. I don’t know if it will all be lived up to, but I see this as the most sensible route to take at the moment. In order to engage constructively, a group of eclectic homeschoolers ( myself, Atiyya Gardee, Razina Mayet, Carimah Fattar, Shaista Musa, ‘Aqeelah Ishmail, Zarina Chotia, Farzana Moolla, Sadiyah Mossam, and Nadiya Carrim) have formalised our existing group into an association called Fitra Home Education South Africa. Along with the intention to engage with government and other stakeholders, our members do many things – create homeschooling awareness, providing homeschooling support, support outreach projects, create our own eclectic unit study curricula. I am also part of the Gauteng Association for Legal Home Education – set up by Alma Lubbe Moodley with other homeschooling parents (and attorneys) who have taken their own journeys to discover what the law actually is and who are agreed on the best course of action. Those who are interested in joining us are welcome to meet up with us on these groups.”

Representative structure for Associations in South Africa

What is a national association? “National associations are formed to fill a gap that might be identified as a collective voice. National policies are not developed or influenced by a single organisation, hence the need for the formation of national associations. The coordination of the sector helps prohibit the government from being able to divide and rule”. 3 Cephas Zinhumwe, Secretary-General of the National Association of NGOs in Zimbabwe 

National associations are membership networks whose raison d’être is to represent the collective interests of their members. A national association for homeschooling will play a critical part in bringing our movement together. The South African National Home Schooling Association (SANHSA) would exist to strengthen the associations in the rest of the country; create an enabling environment for civil society engagement; convene the movement as a whole; serve the needs of the associations that form part of it, and be a representative structure on a national level. 

As representatives of the civil society community at a national level, SAHNSA would serve as a vehicle for a constructive and coordinated voice for the homeschooling movement. A national association is well placed to play the role of interlocutor between the government and our homeschooling movement, and are in a position of strength to influence public policy. A national association would generally play a lead role in addressing issues that have a reverberating impact on our movement as a whole. In issues that are more specific to a sub-sector of our movement (e.g. special needs and rural homeschooling), the national association would play more of a facilitating role by providing a forum for members with similar interests to collaborate, and by supporting member initiatives.

Why do we need to set up a national association? We need to transform the fragmented and weakened nature of our movement; hold our government to account; overcome restrictions on the freedoms of our movement; maximise resources and create a forum where our diverse organisations can meet; exchange knowledge and experience and jointly devise solutions to challenges plaguing our movement. 

The goal behind the establishment of SANHSA is to encourage and advance the participation of every home educator in South Africa and to open up spaces for civil society engagement for our movement. 

SANHSA will consist of representatives from each provincial association. The executive and Chairperson, that will run SANHSA, will be elected from the executives of each province which will serve as a mouthpiece for all associations represented and effectively every home educator in South Africa. It will be registered as an NPO(Non-Profit Organization) as soon as the executive has been elected and the constitution has been written. Each province would also need to formalise its structure by registering as an NPO to lend credibility, transparency, and accountability to the movement. 

The Eastern Cape Home Schooling Association(ECHSA) has initiated the formation of SANHSA and the ECHSA executive will serve as an interim executive until an executive has been elected. ECHSA will also serve to help set up provincial associations in provinces that do not have associations and serve to co-ordinate with established associations in the country to form part of the national structure. 

Individuals may also join SANHSA as it will act as a vessel to pool individuals that come from provinces that do not have associations as yet. SANHSA will take the opportunity to instruct and equip individuals to form their own associations. If an individual is part of an association that is part of SANHSA, the individual is automatically part of SANHSA. 

(Source: Resource guide for National Associations: How to establish a National Association. Published by the CIVICUS Affinity Group of National Associations. https://www.civicus.org/index.php/es/centro-de-medios/recursos/manuales/602-agna-resource-guide-for-national-associations )