Home schooling was recognized in 1996 in Section 51 of the SA Schools Act. 

Section 51 of the SA Schools Act was however amended in 2024 with the Basic Education Laws Amendment (BELA) Act.

Homeschooling and the law

The supreme law in South Africa is the Constitution. The cornerstone of the Constitution is the Bill of Rights, which is described in chapter 2 of the Constitution. The BELA Act however is however not consistent with the Constitution, because it treats homeschooling families like schools, demanding registration and assessments that don’t fit home education. S

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—

1. do not discriminate on the basis of race;
2. are registered with the state; and
3. maintain standards that are not inferior to standards at comparable public educational institutions.”

This provision defines the rights and duties of those who found or manage schools, not of parents caring for their own children.

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.

The placement and formulation of Section 51 implies that the BELA Act views home education as a type of independent school education, because:

1. Section 51 falls under Chapter 5 of the Act, which deals with independent schools;
2. The registration requirements in Section 51 mirror those of independent institutions described in Section 29(3) of the Constitution; and
3. The Schools Act, which the BELA Act amends, is predominantly 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. By no stretch of the imagination can it regulate how parents care for their children.

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:

1. 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.
2. 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.
3. Section 29(3)(a) prohibits racial discrimination by institutions — a condition that is meaningless when applied to individual parents or home learners.
4. 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.
5. 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.

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:

1. Presumes parental competence in caring for and educating children;
2. Provides for contingency oversight when parents fail in their duties; and
3. Balances parental autonomy with the state’s protective role.
4. Makes provision for education in its definition of ‘care’ that includes ‘guiding, directing and securing the child’s education and upbringing, …’

It presumes parental competence and establishes mechanisms for intervention only when parents fail in their duties, thereby balancing autonomy with protection. If any statutory regulation of home education is necessary, it would be constitutionally coherent to locate it in the Children’s Act rather than in a statute designed for schools.

The Children’s Act governs the parent–child relationship, while the Schools Act governs institutions that act in loco parentis. Logically, the latter must operate within the framework of the former. If the Schools Act operates outside this framework it interferes with the Child’s right to parental care.

5. Purpose of the Schools Act

The Schools Act is designed to regulate the establishment, governance, funding, and admission of schools. It may justifiably include provisions to facilitate the re-entry of home learners into the school system, ensuring fair placement and support. However, extending those provisions to families who do not intend to enter or return to school exceeds the Act’s purpose and infringes on family autonomy.

It cannot be constitutionally assumed that all home learners will return to school, nor that home education should be conducted in a way that prioritises administrative convenience for the State.

6. Conclusion

By regulating home education under a Schools Act designed for institutions, the BELA Act:

• Misapplies Section 29(3) of the Constitution to private family conduct;
• Fails the test of rationality and proportionality;
• Intrudes into the protected sphere of parental care under Section 28(1)(b); and
• Operates outside the constitutional and legislative framework appropriate for home education.
• The rational and constitutionally consistent approach would be to recognise home education as a form of parental care governed by the Children’s Act, while limiting the Schools Act’s role to facilitating re-entry into formal schooling when parents choose it.

The situation in practise

Although the BELA Act is not consistent with the constitution, it is invalid and difficult to enforce. However this does not mean that parents can ignore Section 51. For parents that plan to return their children to school or require state endorsement of their parental decision, it might be in the best interest of the children to be registered. Parents need decide on whether it is in the best interest of their children to be registered or not. To empower parents to make an informed decision for their unique situation, SAHomeschoolers offers a personal online consultation service.

➡️ Book your consultation:
https://www.sahomeschoolers.org/various-resources/home-education-consultation-services/product/215-smart-start-homeschool-consultation.html

Home education internationally and Africa

Home education is also legal in many countries internationally. Click here for a list providing the legal status of home education in various countries.

Families that want to move to other African countries can click here for more information on the legal status of home education and contact details in those African countries.
 

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