Schooling: are your choices legal?
Parents should check that small schools are registered before enrolling their children, because they can be held responsible, writes Hayley Gibbons
The high court in Makhanda closed 35 illegally operating schools in November 2019 and this follows the closure of seven similar schools in the Eastern Cape in June.
While many may assume the reason for this action is dilapidated school buildings or inadequate sanitation, the actual reason is that not one of these 42 schools was registered with the provincial education department.
Chapter 2 of the constitution of SA, the Bill of Rights, states that anyone is permitted to open and run an independent school (that is a school not established by the government), provided that the institution concerned is 29.3 (b) “registered with the state”.
Thus, the required registration of private education institutions is actually a constitutional matter, not simply a law in the South African Schools Act. There is no getting around it. Registered schools must provide certificates of registration and be able to show their EMIS (Education Management Information System) numbers on request. Parents would do well to ask to see these before enrolling their children, because they themselves can be held responsible for sending children to unregistered institutions. The law does not make allowances for claims of ignorance: successful prosecution can result in jail time — for both owners and parents.
So, what is going on? There are, literally, thousands of unregistered “schools” around the country now. The reasons for the mushrooming of this sector are beyond the scope of this article, but it is clear, in brief, that parents are dissatisfied and looking for alternatives for their children.
The seeming inability of the department of basic education to police the sector continues to invigorate it. Institutions of a few hundred learners operate illegally alongside so-called “tutor centres” with fewer than 50 learners, and “cottage schools” with a handful of children. None of them is legal if unable to produce a registration certificate from the correct provincial department. And authorities have warned that “grades” attained at such institutions will not be recognised by basic education, meaning that should a learner who has attended an illegal school be readmitted to the formal schooling sector, prior learning obtained at the former will have no merit, and the decision of grade placement for the child will be at the department’s discretion entirely.
Enter a major culprit of the confusion: “homeschooling”. As vice-chair of the Eastern Cape Home Schooling Association, I receive e-mails and WhatsApps on a regular basis, asking me to point the way to “someone who can homeschool” children. The requests are for a teacher who will take in the inquirer’s child at the teacher’s home, from 8am to 5pm daily, for full-time education.
The inquirer usually envisages that the situation will involve three or four other children, who will be receiving education at the “teacher’s” home as well. Thus, we have an intimate “home school”, perfectly suited to a child who perhaps has been experiencing difficulty in an overcrowded public school classroom. The problem is, though, that this is not homeschooling, or, as our government prefers to call it, “home education”.
Home education has a very specific definition in the South African Schools Act. It is to be found in section 51 of the latter, which states that, (1) “a parent may apply to the head of department for the registration of a learner to receive education at the learner’s home.” Where? At the learner’s home. Not at a teacher’s home or anyone else’s home, or “tutor centre”.
Furthermore, the 2018 Policy on Home Education, section 18.4 (2), which deals with supplementary tutoring for homeschooled children, states, “The tutor in providing her or his services in respect of specific areas of the curriculum: a) may not replace the primary responsibility of the parent in respect of providing home education to the child; and b) may not attempt to play the role of a school under the pretext of providing a tutoring service to the learner, for example taking over the full responsibility for the delivery of the curriculum at the learner’s home or at another place away from the home education site.”
It now becomes clear that “homeschooling” is strictly something that happens in the home of the child who is receiving this type of education. And it is the parent of the child who is responsible by law to provide the home education. In fact, it is illegal for that parent to apply for the child to be home educated, and thereafter, either to employ a fulltime tutor for the child, or to send the child to a centre for full-time tutoring.
Why? Well, because that is equivalent to private schooling! It is not homeschooling. There are three distinct forms of education available in SA, namely, public schooling, private schooling and home education. In the first two instances, ALL the education institutions involved must apply for, and be granted, registration with the department of education before they commence operations.
A small school — usually called a cottage school — which is run from someone’s home, or a tutor centre which is operating as a school by taking in students during school hours and providing the majority education to purported “homeschooled” children — must be registered with the correct provincial education department as a private school.
The fact that a private school is small and in a residential home does not make it a “home school”. The terminology has been confused and abused — often for sinister reasons. Small schools regularly struggle to become registered, because they do not meet the government’s requirements.
Homeschooling — defined by location (child’s home) and relationship (parentchild) — is legal in SA. So, being able to call one’s operation “homeschooling”, simply because it occurs at a home, is useful. (That said, I have much sympathy for genuine applicants who do meet the requirements, and yet have received appalling service from their provincial education departments — some waiting for answers for up to 10 years.)
Sadly, it has become evident to me that many parents simply do not do their homework when it comes to checking credentials with regard to education institutions. This problem is then compounded by unscrupulous businesspeople, who take advantage of the current climate in education, of unsatisfactory standards in the formal sphere and the resulting unpoliced education market, to make some money.
Parents often fall for the line offered them by these schools, that the school is “registered” with a “curriculum provider”. That may be so, and the pretty logos and shiny prospectus packages and textbooks are impressive. Nevertheless, being registered with a curriculum provider does not make the school legal. It has to be registered with the education department.
Another diversionary tactic is the explanation to parents that the illegal school has private “legal cover” in case of harassment by the department. The inference that is supposed to be drawn is that nothing will happen to either the school or the parents, because the company providing such cover can prove that the education being received at the institution is “in the child’s best interests”.
Unfortunately, for all the either ignorant or devious people involved, SA already has case law which shows that judges will not suffer this kind of foolish argument. Schools are required to follow the correct procedures to get themselves registered, and if they experience poor service delivery in the process, they are expected, it seems, to take the necessary action against those infringing upon their rights — even if that is the government.
So, what is a parent to do? If you have decided that public school is not for you, then you have two options remaining. If you choose to home educate, understand that YOU will be the primary educator of your child at home until s/he is past compulsory schoolgoing age (15.) You may employ the services of a tutor on a limited basis.
Only if you are doing this, may you term your actions “homeschooling”. If this is not for you and you are looking for a small school situation in which you do not have to be involved in the education provision yourself, understand that this is not homeschooling. It is private schooling, no matter how few children there are at the school. If you do not want to take the risk of ever being in the predicament of having to answer for why you allowed your child to attend an illegal school, make sure that before you enrol him/her, you ask to see the institution’s registration.
Institutions of a few hundred learners operate illegally alongside so-called 'tutor centres' with fewer than 50 learners, and 'cottage schools' with a handful of children