Dare to be Free: Is Homeschooling Legal

Compiled by Hanlie Wentzel on 3 July 2018.

To answer the question simply…yes!

Is Homeschooling Legal

Home education is legal. However, education officials who refuse to comply with the law continue to infringe the rights of children and their families. In order to protect the rights of their children, thousands of homeschoolers have joined the Pestalozzi Trust. The Trust supports them in enforcing the rights of their children.

Home education has always been legal in South Africa.

In the last decades before 1994, however, home education was subjected to progressively greater limitations. In the end, it could only be (and was) practised under extremely restrictive requirements set by the then government. Only a handful of families could meet the requirements.

This was overturned by the interim constitution.

The constitution guaranteed the “right to education”, but what is not generally understood, is that the right to education does not mean that everyone has the right to be subjected to the state’s notions of what education is. The right to education means that everyone has the right to choose

  1. whether to be educated;
  2. what education to receive;
  3. when to be educated;
  4. where to be educated;
  5. by whom and with whom to be educated; and
  6. for how long to be educated.

Adults exercise this right freely, but in the case of children, the parents must guide, direct and secure the education of the child. Note: The constitution and international law specify that the parents guide and direct the education of the child – not the teacher, the school principal, the education department or the minister of education. The only authority that may overrule a parental decision about the education of a child is a court of law, and then only when it has been proven that the parents are acting contrary to the best interests of the child.

In principle, therefore, the right to education is the right to freely choose one’s education.

The constitution does, however, also allow the state to restrict the free exercise of the right to education, provided that the restriction is

  1. contained in a law
  2. which applies to everyone equally; and
  3. which is reasonable and justifiable.

Accordingly, in 1996 Parliament adopted the new South African Schools Act, which places certain restrictions on the free exercise of education of children (not on the education of adults, who have the same right to education as children). In 2005, Parliament also adopted the Children’s Act, which explicates what the constitution and international law requires for the education of children.

The SA Schools Act requires parents to send every child to school or to register the child for education at home unless the parent has good reasons (“just cause”) to do neither. Parents who do not comply may be prosecuted and upon conviction be sentenced to a maximum of six months in jail or a fine.

The Children’s Act, in turn, confirms the constitutional principle that parents have the duty and the right to guide, direct and secure the education of the child in a manner that is in the child’s best interests. Parents who neglect this duty may be prosecuted and upon conviction may be sentenced to a maximum of ten years in jail and a fine.

Why is there a problem if home education is legal?

Home education is perfectly legal, therefore, but serious problems arise because education officials refuse to comply with the law. They place unreasonable and unjustifiable preconditions for the registration of learners for home education in accordance with the Schools Act. These preconditions, more often than not, are contrary to the best interests of the children.

In order to protect the rights of their children, thousands of homeschoolers have joined the Pestalozzi Trust to back them up in the event that the education authorities challenge their rights and responsibilities to provide their children with that education that is in the best interests of each child.

(Sourced from: http://pestalozzi.org/web2/en/is-home-education-legal/)

Should I Register with the Education Department

According to the law you have to register, unless you have good reason not to. Important: Inform yourself of the legal implications of registration and of non-registration.

What does the law say about Registration?

According to the SA Schools Act 84 of 1996, Sec 51, a parent must apply for registration for his child as a learner at home with the provincial education department, except if the parent has good reason not to. Non-registration exposes parents to prosecution, and upon conviction parents can be fined or imprisoned for 6 months. In spite of this threat of prosecution the vast majority of home educators in South Africa (98%) prefer not to register.

Exception: Western Cape.

The legal situation in the Western Cape differs from that in the other provinces. Art. 36 of the Western Cape Provincial School Education Act (WCSEA) states the following : “The requirements and conditions for the registration of a learner for education at home shall be as prescribed.” In order to define the requirements and conditions for registration, the Western Cape government must promulgate regulations that define these requirements and conditions. The Western Cape government has not yet promulgated such regulations. In the absence of such regulations it is impossible to determine whether somebody who has registered with the WCED for education at home actually meets the requirements of the law. Given that there is no legal mechanism for registration with the WCED, any registrations done by the WCED officials do not have any legal status, and can be regarded as illegal.

Why do home educators prefer not to register?

A few reasons may be mentioned to illustrate why 98% of home educating parents in South Africa prefer NOT to register. (The registration process differs from province to province, and some provinces require for example also that parents should have an education qualification – a requirement which thorough research has shown to be unfounded.)

  1. One of the requirements in the registration process is that the home learner registered with the government should comply with minimum requirements of CAPS, “Curriculum and Assessment Procedure and System”. Note that it is NOT merely a curriculum – it is an entire education system. The CAPS curriculum is heavily loaded ideologically, with specific political aims. Most parents who choose home education prefer not to comply with CAPS, since it is not necessarily in their children’s best interests.
  2. Home VisitsBefore a learner can be approved by the education department, home visits are done. The purpose of home visits is not always clear, but the parents and the house apparently are screened to ascertain whether they meet certain unnamed standards. It entails an intrusion into the privacy of the family and the children. Most parents regard it (rightly so) as a violation their children’s and their own right to privacy, and find that the information that the education officials require, probably could have been obtained in less intrusive ways.
  3. Other legislation. Apart from the SA Schools Act there is also other legislation applicable to parents of home learners, for example the UNCRC (the United Nations Convention on the Rights of Children) and the African Charter on the Rights and Welfare of the Child, both of which have been signed and ratified by South Africa. This means that the contents of the documents are applicable to the law in South Africa. According to these documents parents have to ensure that their children’s personalities are fully developed. According to the Children’s Act parents have to act in their children’s best interests, and parents who fail to do so, can be prosecuted and upon conviction sentenced to 10 years’ imprisonment and a fine. It is therefore very important to teach your child in such a manner that it is in his best interest and so that his personality is fully developed. It is impossible to do so if the requirements of the education department have to be met.

It therefore appears that parents can better act in their children’s best interests if they do NOT register their home learners with the education department.

Legal Aid. We suggest that home educators join the Pestalozzi Trust, or make us of the services of lawyers of their choice, whether they register with the education department or not. Why is it necessary to have legal aid prepared?

  • If a home learner is NOT registered with the education department, his/her parents can be prosecuted and upon conviction be sentenced to 6 months in jail or a fine.
  • If a home learner IS registered with the education department, his/her parents may find that the requirements of the education department which have to be met make it impossible for them to act in their child’s best interests.

Membership of the Pestalozzi Trust. The Pestalozzi Trust is prepared to support its members in any conflict with the authorities–with officials of the education department, the welfare and the police. The main task of the Trust is to keep its members out of court, and the Trust succeeds admirably in this task. If home educators do not join the Trust, they should take trouble to find lawyers who are knowledgeable about home education and the related legislation before they start their home education journey, and who will be willing to defend their home education in court, should the family come into conflict with the authorities. Members of the Trust receive an emergency number which is available 24/7, and are kept informed of all developments pertaining to their home education.

(Sourced from: http://pestalozzi.org/web2/en/should-i-register/)