The Constitutional Misclassification of Home Education in the BELA Act
Why Section 51 of the BELA Act Conflicts with the Constitution's Design for Parental and Institutional Rights
The new BELA Act treats homeschooling families like schools, demanding registration and assessments that don’t fit home education. This piece unpacks why those rules conflict with the Constitution and what parents can do about it.
1. The Constitutional Context - What S29(3) actually says?
Section 29(3) of the Constitution states that:
“Everyone has the right to establish and maintain, at their own expense, independent educational institutions that—
(a) do not discriminate on the basis of race;
(b) are registered with the state; and
(c) maintain standards that are not inferior to standards at comparable public educational institutions.”
This clause applies specifically to independent educational institutions — organised entities that provide education collectively independent of public schools.
2. The BELA Act’s Misclassification - Treating families as schools
Section 51 of the BELA Act requires that home learners be registered with the state and monitored by “competent assessors” against a minimum standard.
This placement and formulation imply that the BELA Act views home education as a type of independent school, because:
Section 51 falls under Chapter 5 of the Act, which deals with independent schools;
The registration requirements in Section 51 mirror those of independent institutions described in Section 29(3) of the Constitution; and
The Schools Act, which the BELA Act amends, is explicitly limited in its preamble to the organisation, governance, and funding of schools.
By regulating home education under the same framework as independent schools, the BELA Act commits a constitutional category error.
3. The Constitutional Mis-Categorisation
The requirements of Section 29(3) apply to institutions, while the registration and monitoring provisions of Section 51 apply to the actions of natural persons.
Applying requirements designed for legal entities to the activities of parents and families is irrational and violates the principle of constitutional rationality, which requires that legislative means be logically connected to their purpose.
Furthermore:
Section 29(3) governs the establishment and maintenance of institutions, but home education is not something that is “established.” It is a natural and ongoing parental duty that does not require state permission.
Section 51 applies only to children of compulsory school-going age, whereas home education begins at birth and continues until the child is independent. It is irrational to require state permission to continue what parents are already lawfully doing, merely because the child is of a particular age.
Section 29(3)(a) prohibits racial discrimination by institutions — a condition that is meaningless when applied to individual parents or home learners.
Section 29(3)(c) requires institutions to “maintain standards that are not inferior to standards at comparable public institutions.” This refers to standards of collective education, which cannot logically apply to individualised home-based learning.
Finally, Section 29(3)(b) requires institutional registration with the state, but home learners are already recorded in the population register. There is no rational basis for re-registration.
For these reasons, applying the institutional requirements of Section 29(3) to the private educational choices of parents is constitutionally inconsistent and legislatively misplaced.
4. The Proper Legislative Framework - Why the Children’s Act is the Right Vehicle
The relationship between parents and children — including education — is regulated by the Children’s Act, which recognises parents as the primary caregivers responsible for their child’s upbringing, without requiring state permission for any aspect of parental care.
The Children’s Act already:
Presumes parental competence in caring for and educating children;
Provides for contingency oversight when parents fail in their duties; and
Balances parental autonomy with the state’s protective role.
If any regulation of home education is deemed necessary, it would be more rational and constitutionally consistent to locate it under the Children’s Act, not under a statute designed for schools. It could even be argued that the Schools Act ought to be subordinate to the Children’s Act, because the school acts “in loco parentis”, in the place of the parent. In such a context permission from education officials to educate a child outside the school system cannot be justified.
5. Implications for Enforcement — When Invalid Laws Collide with Reality
Section 2 of the Constitution states that any law or conduct inconsistent with the Constitution is invalid. Because Section 51 is constitutionally inconsistent, enforcing it will be difficult in practice.
However, given that the BELA Act is newly enacted and unlikely to be amended soon, education departments must determine how to proceed responsibly within these constraints. In the short term, education departments have three realistic options:
A. Minimal Implementation:
Proceed with limited enforcement, low conviction and minimal resources, ignoring the Act’s internal inconsistency.
B. Moratorium on Prosecution:
Section 3 of the BELA Act places no obligation on education departments to prosecute parents who do not register. A provincial Head of Department (HOD) could issue a moratorium on prosecution for non-registration, while allowing voluntary registration for families who find state endorsement of their homeschooling decision beneficial.
C. Exemption under Section 4:
Departments may grant exemption from compulsory school attendance to all parents who simply notify the department of their intention to educate their children outside the school system.
6. Towards a New Educational Dispensation - Time to Recognise Learning Outside Schools
In the long term, South Africa needs a new educational dispensation that acknowledges and empowers learning modalities outside the school system.
Such a framework should allow parents to exercise their constitutional responsibility to educate their children while enabling the state to fulfil its duty to ensure every child’s right to basic education under Section 29(1)(a) of the Constitution.
Oversight should focus on protecting the child’s right to education, not licensing the parent’s right to educate.
7. Guidance for Parents - Practical Steps Until Reform Happens
While the BELA Act remains in force, parents cannot wait for departments to adjust course.
It is not advisable for all homeschooling parents to refuse registration. In certain cases — particularly for vulnerable families who may face external pressure or scrutiny — the practical benefits of having state endorsement may outweigh the disadvantages of complying with an unconstitutional requirements.
Every family’s situation is unique. For parents seeking peace of mind and informed guidance, SAHomeschoolers.Org, in collaboration with several homeschool leaders, offers a personal consultation service to help families weigh their options carefully and make decisions consistent with their convictions and circumstances.
Learn more at:
👉 https://www.sahomeschoolers.org/various-resources/home-education-consultation-services.html
8. Conclusion - A Call for Rational and Lawful Policy Reform
Section 51 of the BELA Act misclassifies home education as institutional schooling, contrary to the Constitution’s design.
This miscategorisation violates the principle of rationality, extends the Schools Act beyond its purpose, and intrudes on the constitutionally protected relationship between parents and children.
A lawful and practical way forward is to suspend enforcement, allow voluntary participation, and in the longer term, develop a new legal framework under the Children’s Act that both respects family autonomy and secures every child’s right to quality education.
This analysis does not deny the state’s duty to ensure that every child enjoys the right to basic education. It simply requires that such oversight be exercised through the correct constitutional framework, respecting the distinction between institutions and families.