The Foundation for Rights of Expression and Equality (Free SA) has written to Minister of Basic Education, Siviwe Gwarube, raising concerns about the Basic Education Laws Amendment Act (BELA) and urging revisions to ensure it aligns with democratic principles and constitutional values.
THE Foundation for Rights of Expression and Equality (Free SA) has written to Minister of Basic Education, Siviwe Gwarube, raising concerns about the Basic Education Laws Amendment Act (BELA) and urging that she uses her powers, in terms of existing legislation, to create regulations that limit the “damaging effects of BELA.”
While acknowledging the Act’s goal to address educational challenges and improve inclusivity, Free SA argues that certain provisions, especially those in amended clauses 5 and 6, concentrate power in a way that undermines local school governance and violates the principles of decentralization enshrined in the Constitution.
In their letter, Free SA highlights that the Constitution promotes the decentralization of power, allowing local communities—especially parents, educators, and school stakeholders—to be directly involved in key decisions regarding their schools.
However, Free SA believes that BELA grants excessive discretionary authority to the Head of Department (HoD) and the minister, particularly concerning school admissions and language policies.
“Moreover, the Act allows for the unilateral dissolution of School Governing Bodies (SGBs) by the HoD, without sufficient safeguards to ensure fair and just processes.”
“This concentration of power could erode community involvement in school governance and risk creating a top-down system, undermining the accountability and responsiveness of schools to their communities.
“The BELA Act weakens the democratic principles that were meant to ensure schools are responsive to the unique needs of their communities,” said Free SA.
Despite the concerns raised by Free SA and others, the Department of Basic Education defended the BELA Act’s provisions.
Elijah Mhlanga, spokesperson for the Department, argued that the Act has received majority support after extensive consultation and public hearings.
“First and foremost let us deal with the notion of ‘wide-spread objection,’ which is not only incorrect but also misleading and seeks to undermine the democratic process that occurred for a period exceeding seven years.”
“The BELA received majority support in all processes in public hearings and parliament processes. Just because some stakeholders voiced their concerns about some of the provisions in the BELA does not mean there was wide-spread objection.”
Mhlanga also emphasized that the BELA Act, which was signed into law on 13 September 2024, is now in effect as of 24 December 2024, marking a new phase in the governance of South Africa’s schools.
“The BELA Act is important for ensuring that education is accessible and inclusive for all South Africans, advancing the transformation goals that have been elusive for the past 30 years,” he explained.
He further outlined that the Act strengthens governance and accountability by ensuring that SGBs consult with parents on key matters like financial decisions and codes of conduct.
“It also places a responsibility on Provincial Education Departments and holders of public office to act with restraint and to follow due process if they wish to contest a school’s actions.”
Mhlanga reassured that the Department of Basic Education will continue engaging with stakeholders, including Free SA, to address any concerns regarding the implementation of the Act.
“The Minister of Basic Education has made it clear that we need to place children at the heart of everything we do to make the BELA Act a reality.”
He emphasized that the Department was embarking on an “ambitious drive to develop and introduce national policy, national norms and standards and national regulations” to ensure effective implementation, with plans to publish these for public comment by June 2025.
Katherine Sutherland, a legal researcher at the Equal Education Law Centre (EELC), added further clarity regarding the legal status of the BELA Act.
“The president said he was suspending certain clauses for further consultation when he signed the act. But, the BELA act says the act only comes into effect at a date set by the president through proclamation. Given that BELA was not brought into effect when the President originally signed it, there was never any “suspension of two clauses”. The whole Bill was “suspended” until the President finally brought it into effect in December 2024”
“Asking to amend or consider amendment, means the President or Minister must go to court,” she said referring to the need for any legal amendments to the Act to be pursued through the proper legal channels.
“I don’t think people asking to relook at the Act understands the law.”
Sutherland reinforced that the provisions of the Act, particularly those clarifying the role of SGBs and ensuring that schools operate in a way that benefits all learners, are reasonable and long overdue.
“The act reflects developments in the law regarding the balancing of powers and responsibilities of SGBs and government that have happened over the last 30 years through court judgments. It is essentially codifying the many judgments of the Supreme Court of appeal and the Constitutional Court, and clarifying existing confusion in SASA.”
In response, Free SA continues to urge the Minister to use her regulatory powers to address the concerns raised by the Act’s critics, including the centralization of power and its potential negative impact on school governance.
Weekend Argus
