Although the minister of Basic Education claims that no constitutional issues were raised on the BELA Act, the enactment of the act is likely to spark conflict between homeschooling families and the state, a concern explicitly identified in the  Socio Economic Impact Assessment (SEIA) done for the Bill. The SEIA notes: "Home schooling parents and organisations are dissatisfied with the requirement that they must register their children for home education and provision of assessment reports by competent assessors." This dissatisfaction was repeatedly voiced during the public hearings on the BELA Bill, further confirming the deep-seated tension between stakeholders.

The root of this potential dispute is because the BELA Act is inappropriate to regulate home education and it grants education officials the authority to limit the constitutional rights of home learners. These officials, however, lack both the legal standing and the expertise to make decisions that significantly impact these rights. Moreover, these limitations are imposed without any reasonable or justifiable basis, raising serious concerns about fairness, competence, and proportionality.

Why the BELA Act is inappropriate to regulate home education

Section 51 of the SA Schools Act gives prescriptions on home education. However, according to its preamble its intent is :”WHEREAS it is necessary to set uniform norms and standards for the education of learners at schools and the organisation, governance and funding of schools throughout the Republic of South Africa;”

It is not reasonable or sustainable to realise this intent by regulating home education in the SA Schools Act. Firstly, since home education differs significantly from school education, norms and standards for schools might not be appropriate for education outside schools. Secondly, since each child is unique and home education can be individualized for each child, it makes no sense to prescribe uniform norms and standards. Thirdly, education departments are not involved in the organisation, governance or funding of home education, it does not make sense to make any prescriptions on this.

Since home education happens in the private sphere of the family, it could be argued that it is more appropriate to regulate the educational rights of children through the Children’s Act. Regulating it in the Schools Act also exposes parents to double jeopardy, because they can prosecuted for educational neglect in terms of the SA Schools Act and the Childrens Act.

Since home education receives no funding from the state, it is also not justified for the state to regulate such education, without doing any research on less invasive ways and means through which quality in the sector can be achieved through for example self regulation. To the contrary, it could be wholly unjustifiable to utilize state resources intended for schools for education outside schools, especially in a time where the state is retrenching teachers due to budget constraints.

The number of home learners in South Africa is already comparable with the school population of a province. The BELA Act significantly increases the administrative burden of the regulating home learners. It is estimated that annual cost of regulating one home learner could be equivalent to 3.2% of the cost of a school learner. This means the regulation of 31 home learners means that one child less can be accommodated in a school. Given that the prescribed regulation has not scientifically proven benefit, it could be difficult to take away school resources to regulate home education.

Reasons why Section 51 is unlawful

The reasons why section 51 can be viewed as unlawful are the following:

1. Section 51 limits several constitutional rights of not only home learners, but also school learners.
   
   
   1. Children have the constitutional right to parental and family care in terms of section 28(c) of the constitution. According to section 1 of the Children's Act, "care" includes "guiding, directing and securing the child’s education...". As home education is part of parental care, granting the Head of Department (HOD) authority to override parental decisions regarding home education - without proper expertise or legal standing constitutes an infringement on children's right to parental care. Granting education officials the authority to 'veto' homeschooling decisions undermines the statutory framework of the Children’s Act, which prioritizes parental care.
      
      
   2. Section 51 of the BELA could deter parents from choosing home education by restricting curriculum choices and requiring assessment by competent assessors. This deterrent might lead some parents to forego home education, keeping their children in the already overburdened schools system. If these learners were educated outside the public school system, it could create opportunities for other learners by alleviating pressure on schools. This impact is significant, as the home education sector is already equivalent to the size of an entire province in terms of learner numbers. The burdensome registration requirements therefore negatively affects the right to basic education for those learners who could have benefitted from a less strained school system, had more parents been encouraged to choose home education.
      
      
   3. Section 51 requires home educators to seek permission from education officials to homeschool, while parents enrolling children in schools face no such requirement. Furthermore, home learners are required to be regularly assessed by competent assessors, meaning teachers registered with SACE, while many schools make use of unregistered teachers (https://bit.ly/3PFYdPL). This creates procedural inequality, violating the right to equality under Section 9 of the Constitution. As affirmed in Khosa v Minister of Social Development, equality demands fairness, not additional burdens for specific groups. Home educators, who bear full responsibility for their children’s education, are subject to intrusive oversight, unlike school parents who delegate education to teachers acting in loco parentis. This unequal treatment undermines parental authority and assumes home education requires stricter oversight without evidence to support such a claim.
      
      Furthermore, registration could also discriminate against foreign learners. The Department of Basic Education announced that undocumented foreign parents and guardians must be allowed to enroll their children in schools ahead of the start of the 2025 academic year and register for matric examinations even if they do not have the required documents. However, registration for home education requires the submission of required document. If education departments refuse to register learners for home education when required documents are not provided, this can be viewed as unequal treatment.
      
      Currently registration for home education requires parents to download an application form in electronic format from the website of the Department of Basic Education (DBE) and then submit the completed application form with supporting documents in electronic format via email. This makes it impossible for parents that do not have access to a computer and the internet to register for home education. This can be viewed as procedurally unfair in terms of the Administrative Justice Act. Since it excludes certain parents from the right to lawfully educate their children at home, this can also be viewed as unfair discrimination.
      
      Additionally, the assessment requirements in the BELA Act impose significant financial burdens on families. Assessment costs disproportionally penalize poor, large and single-income families while already burdened with providing quality education at their own expense.
      • Discrimination against poor families. Low-income families may be unable to afford assessment cost, making home education inaccessible. 
      • Discrimination against large families. Families with multiple children face compounded cost exacerbating the financial strain. 
      • Discrimination against single-income families. Many homeschooling families rely on a single income as one parent dedicate themselves to home education. 
        
        
   4. Clauses 1 and 35 of the BELA Act limit the right to education through multiple means:
      
      
      • It imposes arbitrary requirements tied to the National Curriculum Statement (NCS). Clause 1 defines “basic education” as adherence to the NCS, excluding alternative curricula — even those of equal or higher standard — that deviate from its framework. Clause 35 further restricts home education by requiring that programs predominantly align with the NCS, effectively criminalizing the use of superior, non-comparable curricula.
      • The definition of basic education in the BELA Act is inconsistent with international law and other global frameworks. According to Article 26 of the Universal Declaration of Human Rights (UDHR), education is an individualised right directed at the full development of the unique human personality. Parents as the primary caregivers, have the "prior right" to choose the kind of education that best supports the personality of a child. In contrast with this, the BELA Act is designed to "... ensure that all children receive uniform, universal and quality basic education.", as explained in a speech by minister Angie Motshekga during the home education round table in February 2020. 
      • The restriction of curriculum choice is arbitrary. Parents have the freedom to choose any kind of education to develop the personality of there children from birth, however when the children reach the age of compulsory school attendance, `education choices are restricted without any scientific reason.
      • The definition of "home education" in Clause 1 of the BELA Bill restricts education to the "environment of the learner’s home," unreasonably limits the right to basic education under S29 of the constitution. This definition excludes alternative settings, such as workplaces or shared learning spaces, even if under parental direction. It also prohibits collaborative home education, potentially forcing families who educate together to register as independent schools, which imposes unnecessary burdens. These restrictions limit children's right to parental care under Section 28 preventing parents from guiding and directing their children's education in the way they see fit.
        
        
2. There is no justification for the limitations imposed on the constitutional rights outlined above. According to Section 36 of the constitutions rights "...may be limited only in terms of law of general application to the extent that the limitation is reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom, taking into account all relevant factors, ..." However, the limitation imposed by Section 51 of the BELA Act fails to meet this standard for the following reasons:
   
   
   1. Lack of evidence-based justification. There is no research-based evidence that the registration requirements in section 51 of the BELA Act will contribute positively towards realizing the right to basic education for home learners. In fact, the minister of Basic Education admitted in parliament that no research on home education was conducted before drafting the act. The justification if often based on anecdotal evidence of teachers that had negative experiences with home learners that returned to school.
      
      
   2. Contradictory research findings. During the oral submissions to the BELA Bill, research from the United States was presented to parliament showing no causal relationship between the degree of state regulation and the quality of education received by home learners.
      
      
   3. Failure to evaluate trade-offs. Even if evidence were to support the claims that section 51 improves education quality, its value must be weighed against the negative impact of limiting other constitutional rights, in order to make it justifiable. No such evaluation was conducted as part of the SEIA for the BELA Bill.
      
      
   4. Disproportionate penalising majority: Research shows that home learners generally perform as good or better than school learners. There are however rare cases where home education is used to hide neglect or abuse. It is claimed that the registration requirement was designed to avoid such situations. During her speech at the Home Education Round Table in February 2020 the minister "... cited a Benoni case which could have been avoided where parents locked the children up, and the State had to account for that." However, the registration requirement disproportionately limits the rights of the majority in order to avoid harm to a minority, while this harm does not have wider public impact.
      
      
3. By giving the HOD the authority to decline applications for home education, the BELA Act effectively allows the HOD to override parental decisions. This is problematic as the HOD is neither the upper guardian of children nor equipped with the necessary competence to determine what kind of education is in the best interest of an individual child. Only a court, after reviewing clear evidence of neglect, and consulting various expert witnesses can override parental decisions. Education officials, who lack a direct caregiving relationship with the child, do not have the same legal standing to decide what is in the child’s best interests and should not be allowed to undermine parental rights and the rule of law. This is exacerbated by the definition of "competent assessors" that limits these to only professionals registered with educational bodies, and excludes professionals such as educational psychologists that can perform more holistic and curriculum independent assessments.
   
   
4. Apart from the unjustifiable limitation of rights, the registration requirements for home education does not have any basis in the constitution. Section 29 of the constitution requires independent institutions to register with the state, but imposes no such obligation on parents educating their children at home. Since home learners are natural persons and receivers of education, not institutions and providers of education, it is unreasonable to require them to meet the same conditions. For instance one registration condition mandates that educational institutions "do not discriminate on the basis of race;". It is clear that such registration conditions cannot logically apply to home learners.
   Some justify treating home learners as educational institutions on the ground that Section 51 of the SA Schools Act - which governs home education - is placed under Chapter 5, the chapter dealing with Independent Schools. Based on this home education is viewed as an independent school. Under South African law, chapter titles and headings generally do not have binding legal authority in the interpretation of specific sections of a statute, but they may be used as secondary aids to clarify context or resolve ambiguities if consistent with the legislative purpose. In this specific case treating home learners as institutions is not consistent with the constitution.
   
   
5. If parents choose to educate their children at home, the BELA Act gives the HOD powers to decline or cancel registration for home education, if the HOD is of the opinion that it is not in the best interest of the children. If these parents proceed to homeschool without being registered, they can be prosecuted in terms of the BELA Act. If third parties report that home learners are educationally neglected, the parents can also be prosecuted in terms of the Children's Act. There was such an incident in 2015 when a family lost custody of their children due to accusations of neglect, despite being registered for home education.
   The means that homeschooling parents can potentially be prosecuted for the same conduct, in terms of different acts, by different state departments. This exposes home educating parents to double jeopardy. Exposing home educators to double jeopardy, while not doing this for parents that choose school education can also constitute unequal treatment. It is unlikely that parents that send their children to school will be prosecuted for educational neglect, even if the quality of education provided by the school is very low, because school attendance is deemed to realize the right to education.
   
   
6. Home educators  bear the full costs of educating their children, without relying on state funding, while the state benefits significantly from the cost savings of not accommodating these learners in public schools. This saving is substantial. According to recent research (Learning Society Institute - 2023), there are about 300 000 home learners. Assuming an average school size of 506 learners (according to recent FEDSAS report), this is equivalent to 592 schools - comparable to the number of schools in the Northern Cape province. Despite saving the state the equivalent of an entire provincial education budget, home educators receive no tax relieve for their contribution. Instead, the assessment requirement of the BELA Act disproportionately affects these families, many of whom are already absorbing the cost of education privately. Penalizing a sector that save the state significant resources, makes little financial sense, particularly during times of budget constraints in education. 

Would enforcement of Section 51 be constructive?

According to section 2 of the constitution : "law or conduct inconsistent with it is invalid". If any of the reasons outlined above are valid,  the registration requirement of section 51 of the BELA Act would be inconsistent with the constitution and therefore invalid. This may explain why many parents have for decades chosen not to register their children for home education. If the minister seeks to enforce compliance with section 51 through litigation, they would need to provide evidence that none of the above reasons are valid - a challenge that could prove difficult. A more constructive approach would be to collaborate with homeschooling organizations to leverage the opportunities already present in the SA Schools Act. By working together it is possible to develop mechanisms to increase compliance while respecting constitutional rights rather than coercing compliance through litigation.

More constructive ways to realize the right to education

Although it can be argued that the state has an obligation to ensure the realization of the right to basic education, this can be achieved more effectively by empowering parents to "guide and direct" the education of their children under the framework of the Children's Act. Placing an burdensome registration obligation on parents merely shifts power to education officials, without meaningfully contributing to the realization of the right to education of home learners. Instead of interfering with parental decisions, the expertise of education officials would be better utilized by collaborating with parents to maintain and enhance educational standards. 

Proponents of these powers often argues that they are necessary to prevent parents from using home education  as a smokescreen for neglect and exploitation. However this justification is flawed. Education officials typically lack the competence and resources to identify or address cases of neglect. The responsibility for  reporting neglect already lies with compulsory reporters as outlined in section 110 of the Children's Act. Strengthening this mechanism through amendments would be a far more effective and targeted approach to addressing potential cases of neglect. 

To strengthen compulsory reporters of child neglect while respecting family freedom, focus on providing evidence-based training to identify genuine cases, implementing a multi-tiered reporting system that prioritizes support over legal action for low-risk concerns, and enhancing community-based resources to address underlying issues without intruding on family autonomy. These measures ensure child safety while maintaining trust and parental rights.