Home schooling: What the law says about it

Home schooling in South Africa was legalised by the South African Schools Act No. 84 of 1996 (S51), but you must know what the law says about it.

According to article 29(1) of the Constitution, everybody in South Africa has the right to basic education, including children. Everybody also has the right to decide where they want to receive this education and what the content of this education should be.

The South African Schools Act requires parents to register their children for education at home, should they decide against enrolling them at a formal government or private school. This registration must be done at the provincial department of education.

The Act makes it clear that children are not entitled to make these decisions for themselves. That is why article 28(1)(b) of the Constitution states that children have the right to family or parental care, or appropriate alternative care. This means that parents and guardians must make decisions on behalf of the children in their care and what is in their best interests. This includes decisions on education and means that parents and guardians must decide what type of education a child should receive, be it school education or home schooling.

When interpreting the Bill of Rights, the Constitution also requires, in article 39(1)(b), that courts must consider international law.

One piece of international law that is applicable is article 26(3) of the United Nations’ Universal Declaration of Human Rights, which states that “Parents have a prior right to choose the kind of education that shall be given to their children”.

This means that only parents and legal guardians have the authority to decide whether children in their care should be educated at home or at a formal school.

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Parents are required to submit the curriculum that they plan to follow to the relevant department of education. However, approval of the planned curriculum by the education department is not a requirement present in the Constitution or the Schools Act. Furthermore, a judgment in the Pretoria High Court also confirmed this.

On March 25, 2012, Judge Cynthia Pretorius ruled that the state curriculum is not binding on independent schools or on parents who educate their children at home.

Reports frequently mention that parents and guardians must submit their highest qualification when registering their children for home schooling. However, neither the Constitution nor the South African Schools Act state that the right to choose home education is only relevant to parents with certain levels of education. Therefore, there

is no legal basis for requiring parents to submit their qualifications.

Research has also shown that the parents’ qualifications have little to no influence on the success of home education.

* Sources: Department of Basic Education, SA, Homeschoolers