When the president signed the Basic Education Laws Amendment (BELA) Act on 13 September, contentious Clauses 4 and 5 were put on hold, allowing for a three-month consultation period. On 5 November, Solidarity, the DA, Afriforum, and the Freedom Front held a protest at the Voortrekker monument, in which 10,000 people participated. On 28 November it was announced that a settlement was reached between Solidarity, the Presidency and the Minister of Basic Education on the implementation of Clauses 4 and 5 at the National Economic Development and Labour Council (NEDLAC). This outcome is described as a major victory for civic society over politicians.

NEDLAC is a structure that resolves disputes between organised business, labour and community & development interests as well as the state. Solidarity and other unions are part of organised labour, whereas SGB’s can be viewed as organisations that represent community interests. This made NEDLAC a suitable vehicle to resolve the dispute around Clauses 4 and 5 of the BELA Act.

The dispute about Clause 35 is between parents on the one side and the state on the other hand. Some people view homeschoolers as a community, but the term 'movement' is probably more appropriate, as homeschooling is a collective of individuals from diverse communities who choose home education for different reasons. This makes NEDLAC unsuitable for resolving the dispute about Clause 35.

However, although the NEDLAC structure is unsuitable for resolving the Clause 35 dispute, it does make an important point about the method used for dispute resolution, namely mediation.

Mediation is a method that is increasingly used for dispute resolution, as an alternative to litigation. As the Department of Justice has put it, the advantages of mediation include the following:

• It offers speedy resolution of disputes. It is considerably cheaper than litigation.
• It may provide a win-win situation for both parties to a dispute.
• The process is flexible and avoids technicalities.
• It is a voluntary process.
• It promotes reconciliation.

In the home education movement, many put a lot of trust in the Constitution and the Constitutional Court, due to victories achieved through litigation. A notable constitutional judgement that greatly contributed towards freedom in education was the Harris case that determined the policy cannot be enforced.

However, recent books seriously question whether such a trust is always justified. Koos Malan's book, 'There is No Supreme Constitution', explains that the bill of individual rights cannot guarantee justice, because rights are subject to the ideologically-driven exercise of judicial interpretation, often with damaging consequences for those relying on the bill of rights. In the book "The Emperor Has No Clothing", Keith Matthee SC gives evidence that, despite its popularity, the Constitutional Court of South Africa, in its ruling on whether unborn human life is worthy of dignity, has shown that it is an emperor without clothes.

Given the success of mediation in resolving the conflict on Clauses 4 and 5, there is merit in investigating whether there are opportunities to resolve the dispute about Clause 35 by means of mediation. Mediation and litigation have advantages and disadvantages, and these should be carefully considered. The movement should avoid putting their hope in litigation alone.

Unfortunately, the home education movement is fragmented with different views on who should determine what is in the best interests of children. If effort can be put into finding common goals for cooperation, acknowledged structures such as the Joint Liaison Committees and the National Task Team can be used to find a win-win solution for all.