12 December 2024
Joint media statement: The Equal Education Law Centre and Equal Education provide much needed clarity on the Basic Education Laws Amendment Act
The Equal Education Law Centre and Equal Education seek to provide urgent clarity to the public and address widespread misinformation about the Basic Education Laws Amendment (BELA) Act. We feel the need, in this critical moment, to address three critical concerns.
Firstly, contrary to public statements, no part of the BELA Act has legally come into operation as the President has not yet proclaimed its commencement.
Secondly, the President’s purported “suspension” of sections 4 and 5 lacks legal basis – provisions that are not yet in effect cannot be suspended.
Thirdly, while recent agreements between the Department of Basic Education (DBE) and right wing interest groups like the Solidarity Movement incorrectly suggest otherwise, there are no legal barriers to implementing sections 4 and 5 immediately, as these provisions already contain sufficient guidance for implementation and in fact affirm what the Constitutional Court and Supreme Court of Appeal have already confirmed about the powers of the heads of education departments and school governing bodies.
As the President’s self-imposed three-month consultation period comes to an end on 13 December, we outline why any further delay in implementing BELA would potentially raise serious constitutional concerns. This moment presents an opportunity for the Government of National Unity to demonstrate its commitment to democratic processes and the will of the people over privileged and narrow political interests.
Context
When signing and assenting to the BELA Act, the President stated that political parties (both in and outside the Government of National Unity) sought further engagement on sections 4 and 5, and that “in the spirit of cooperation and meaningful engagement” he would delay the implementation of sections 4 and 5 of the BELA Act for a period of three months to allow for further consultation.
We understand that such discussions are being conducted through the Government of National Unity’s “clearing house mechanism”.
The President further stated:
“This will give the parties time to deliberate on these issues and make proposals on how the different views may be accommodated. Should the parties not be able to agree on an approach – I want to make this clear – then we will proceed with a full implementation of all the parts of the bill, within a three-month period.”
This three-month period of “further consultation” comes to an end tomorrow.
Is the BELA Act in operation?
When addressing the media, the President stated that other than sections 4 and 5, the rest of the BELA Act would be implemented immediately. Although the BELA Act was signed on 13 September 2024 and assented to on 16 September 2024, a presidential proclamation fixing the date of commencement has not yet been published.
Section 54 of the Act states:
“This Act [. . .] comes into operation on a date fixed by the President by proclamation is the Gazette”
As far as we are aware, the President has not proclaimed any date for any provisions of the BELA Act to come into effect. Therefore, no matter what the President has stated to the media, no part of the BELA Act has yet come into operation.
Legality of the “suspension” of sections 4 and 5
Following from our first point, we have concerns regarding the purported “suspension” of sections 4 and 5. Once the President signed BELA into law, it ceased being a Bill and became an Act of Parliament. At this stage, the President’s power under section 79(1) of the Constitution to refer a Bill back to Parliament no longer applies.
Importantly, since no part of the BELA Act has been officially brought into operation through proclamation in the Government Gazette, there are no provisions that can be “suspended” – including sections 4 and 5. Should the President bring the whole act into operation, the Constitutional Court has made it clear that once an Act is in operation, the President cannot suspend its provisions or withdraw the proclamation that brought them into effect.
While the President does have the legal authority to bring different parts of an Act into effect at different times, and confirmed by the Constitutional Court, this power must be exercised lawfully and rationally. The courts have accepted that, notionally, the President could delay bringing certain provisions of an Act into effect to resolve political disagreements or impasse. However, in doing so, the executive has no power to resolve the impasse, since only Parliament would be empowered to amend the provisions. Importantly, the power to delay the implementation of legislation, or specific clauses therein, cannot lawfully be used to veto or otherwise block the implementation of an Act – for example, an indefinite delay.
We will therefore be monitoring the situation closely to ensure that any delay in implementing the BELA Act, and specifically sections 4 and 5, does not effectively become an unconstitutional veto of these important provisions.
Legality of settlement agreement between the Minister of Basic Education, Solidariteit and the Presidency
On 28 November 2024, the media reported that an agreement had been reached through NEDLAC processes between the Minister of Basic Education, the Solidarity Movement and the Presidency. According to the Solidarity Movement (which includes Solidarity and AfriForum), as a result of the agreement, sections 4 and 5 of the BELA Act will no longer be implemented on 13 December 2024. The Solidarity Movement further stated
that:
“Norms and standards and national policies and regulations must first be developed which will, among other things, determine that schools which are running at their full capacity may not receive instructions to change their language and admission policy.”
The regulations are to contain “greater legal clarity on when and how the authority of the Head of the Provincial Education Department to (a) depart from the admission policy of a public schools; and (b) require a School Governing Body to review their admission policy, may be exercised”.
The agreements, however, may not constrain the President’s discretion and constitutional power to bring the BELA Act, or sections 4 and 5, into effect. The adoption of regulations, norms and policies is not necessary for sections 4 and 5 of the BELA Act to be implemented effectively. Importantly, these provisions already stipulate factors that must be considered with regard to the Head of Department’s exercise of powers to direct a School Governing Body to review their language or admissions policy, and require the HOD to undergo a public participation process, including a notice and comment procedure and a hearing. Additionally, the provisions also provide for an appeal to the MEC. Regulations are thus not a necessary precondition for sections 4 and 5 to be effective and rationally implementable.
We also note that the regulations referred to in the settlement agreement are the Norms and Standards for School Capacity – regulations that are currently being developed as a result of Equal Education and Equal Education Law Centre’s timely intervention in a matter between the Department of Basic Education and the Suid-Afrikaanse Onderwysers Unie (SAOU). These will determine the minimum standards for class sizes, materials, infrastructure, and other crucial aspects of a conducive learning environment.
We have been made aware that SAOU, and other right wing interest groups, were given a seat at the table in the development of the draft Capacity Norms, and that their mandate to protect the privilege of a small minority of former Model-C schools reflects in the draft Norms. This pattern, by groups like Solidarity, of leveraging political mechanisms to protect narrow interests at the expense of educational equity threatens to undermine the efficacy of these norms. These norms represent a pivotal opportunity to establish transparent, measurable criteria for school infrastructure and accountability, and we cannot allow them to be diluted or derailed by regressive political manoeuvring.
Way forward
We urge President Ramaphosa to bring the entire BELA Act into force without delay. The Act, which underwent numerous rounds of rigorous public consultation was duly passed through both the National Assembly and National Council of Provinces, and represents a crucial step towards dismantling historical educational inequities.
Despite this, the law has been subjected to opaque and overt lobbying efforts by organisations like Solidarity, in apparent efforts to protect the interests of historically privileged minority groups. The level of influence and persuasion that these interest groups seem to have over the GNU government, and the DBE in particular, threaten to undermine democratic process and impede meaningful education reforms that could provide more equitable access to quality education for all learners across South Africa.
We urge you, Mr President, that in delaying implementing BELA for political reasons, that you exercise this discretion with great caution. In the context of the Government of National Unity, there must be clear safeguards to ensure that political negotiations – particularly those influenced by select interest groups representing historically privileged minorities – do not override or undermine established democratic processes and public participation. We cannot pick and choose which parts of legislation to implement based on who shouts the loudest. We must honour the extensive public consultation process that birthed the Act and not bow to the pressure of narrow interests!
This moment will set a critical precedent for how the GNU navigates the balance between political compromise and democratic principles. The decision on BELA’s implementation will reveal whether political negotiations within the GNU will take precedence over the voices of the people they govern – voices that were clearly expressed through extensive public participation and parliamentary processes. We will continue to monitor these developments closely and act swiftly should there be any attempt to undermine constitutional principles or perpetuate undue delays in implementing the Act.
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To arrange a media interview, contact:
Jay-Dee Booysen (Equal Education Law Centre Media and Communications Specialist) jay-dee@eelawcentre.org.za or 082 924 1352
Ayanda Sishi-Wigzell (Equal Education Communications Manager) ayanda@equaleducation.org.za 076 879 3017
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