AfriForum and Solidarity to challenge full implementation of Bela Act in court

16 Jan 2025

The groups argue that the Bela Act violates previous agreements and disregards critical recommendations by Minister of Basic Education Siviwe Gwarube, particularly on language and admissions policies.

AfriForum is set to take legal action against the government over the promulgation of the Basic Education Laws Amendment (Bela) Act.

In a briefing on Thursday, AfriForum, Solidarity and the Solidarity Support Centre for Schools (SCS) condemned President Cyril Ramaphosa’s full implementation of the Act, calling it “irrational” and a violation of several agreements.

The groups argue that President Ramaphosa’s decision contradicts prior agreements and ignores a crucial recommendation from Minister of Basic Education Siviwe Gwarube. Gwarube had advised delaying the implementation of the language and admissions policies until necessary norms and standards were in place.

Breach of agreements

The core of the dispute centres on what these organisations perceive as a breach of protocol by both Gwarube and Ramaphosa.

AfriForum, Solidarity and SCS argue that Gwarube’s actions are inconsistent with her own position. They point out that just two weeks before the promulgation, she had clearly stated that the Bela Act, in its current form, was incomplete and required revisions, especially in areas such as language policy and admissions. Despite this recommendation, she went on to co-sign the promulgation notice with the President.

In November 2024, Gwarube reached an agreement with Solidarity at the National Economic Development and Labour Council (Nedlac) regarding two contentious clauses in the Act. This followed a dispute lodged by Solidarity on 1 October 2024, when it sought authorisation for a protected protest against these sections.

Under the terms of the Nedlac agreement, sections 4 and 5 of the Act were to be phased in, contingent on the successful implementation of Gwarube’s recommendations to Ramaphosa. Sections 4 and 5 of the Act provide for school governing bodies (SGBs) to maintain control over language and admissions policies, subject to oversight from the provincial head of department, in accordance with the Constitution.

Gwarube clarified that the agreement with Solidarity did not replace the ongoing consultations within the Government of National Unity (GNU) clearing house. Despite this, both President Ramaphosa and Deputy President Paul Mashatile publicly rebuked her for the deal.

Read more: Gwarube’s Nedlac Bela Act deal moot while consultations continue, insist Ramaphosa, Mashatile

On Friday, 20 December 2024, Ramaphosa announced that he would sign a Presidential Proclamation to bring the Bela Act into immediate effect. Gwarube is set to lead the implementation of the Act and she emphasised that the first priority would be to establish “guidelines, norms, standards, and regulations” to provide legal clarity on the Act’s provisions.

Gwarube also said the timelines for implementing these measures would be set by her, acknowledging that the process would take time. She emphasised her commitment to ensuring that the Act was fully implemented and further assured that the implementation would be carried out in a way that protected the rights of all children and schools, safeguarding them from any form of victimisation at all times, as Daily Maverick’s Kristin Engel reported.

According to Dr Dirk Hermann, COO of Solidarity, the promulgation of the Bela Act without considering Gwarube’s conditions is a “dishonourable breach” of the agreement that was supposed to guide its implementation.

He expressed his organisation’s surprise and displeasure at the full promulgation of the Bela Act, especially since it was done without any of the conditions the minister had recommended to the President.

“The Constitution and case law confirm that the minister’s recommendation, as the person responsible for implementing the Act, carries weight. The promulgation of a law is not the sole task of the President. The purpose of the minister’s recommendations is to postpone the Act’s enactment so that the necessary steps can be taken to implement the Act effectively,” he said.

Legal challenge looms

In the legal letters sent to both Gwarube and Ramaphosa, the organisations assert that the Act’s promulgation is not only irrational, but violates various agreements made between the government and parties such as Solidarity at Nedlac.

The letter to Ramaphosa argues that the decision to bring the entire Act into operation is irrational and undermines constitutional processes. It points out that, despite Gwarube’s well-reasoned recommendations — which were part of the Nedlac consultation process — these were disregarded when he signed the proclamation.

The organisations assert that Gwarube’s recommendations were sound and rational, particularly concerning critical sections of the Bela Act (sections 4(d), 4(f), and 5(c)), and should have been followed before the Act was implemented.

The organisations further argue that Ramaphosa’s decision to proceed without consulting the Cabinet or properly engaging with the GNU was problematic. They stress that the Clearing House Mechanism cannot replace the Cabinet’s role and they question whether external pressures — from ANC-aligned groups and trade unions — played a role in disregarding the minister’s advice.

“We cannot discount the contents of the media release by the ANC Study Group of Basic Education on 5 November amidst the ongoing consultation process, and public statements by the premier of Gauteng and other ANC-aligned trade unions such as Sadtu, which placed pressure on you to put the entire Bela Act into operation. These actions also clearly disrespected the consultation process, and the importance of your and the minister’s function with regard to the issuing of the proclamation,” read the letter.

They also point out that, despite the recommendations of the task team established during the Clearing House Mechanism of the GNU process which largely aligned with Gwarube’s proposals, these recommendations were unexpectedly set aside at the last minute, just prior to the issuing of the proclamation.

“We are given to understand that the ANC and Good [party] were opposed to such recommendations and that this turn of events was ultimately decisive in the form in which the proclamation was signed and issued,” read the letter.

In the letter addressed to Gwarube, they state that the proclamation included the full implementation of amendments to the South African Schools Act (Sasa) without the preconditions that had been recommended by Gwarube. They point to her earlier advice to Ramaphosa that the relevant sections should only be enacted after the development of national norms, standards, and regulations, which has not been done.

“Your recommendation to the President outlined in detail the necessity for you to finalise norms and standards, regulations and national policy before the relevant sections come into operation. It is not clear to us why the President has not followed your recommendations or whether there has been a change in your recommendations at the eleventh hour, (and if so for what reason), before your countersigning of the proclamation,” read the letter.

The letter argues that this premature implementation undermines the governance framework established by Sasa, particularly the democratic role of school governing bodies in determining admission and language policies, and it is feared that the amendments, which empower provincial education officials to override these policies, will lead to arbitrary decision-making and disrupt the essential partnership between the state and school communities.

The letters ask if Gwarube would be open to further discussions to avoid litigation and seek ways to address the legality issue arising from the proclamation in its current form, acknowledging that this would require Ramaphosa’s agreement and consent. The letters also set a deadline of 10 days for the government to resolve the matter. Should no satisfactory resolution be reached within this timeframe, the organisations have expressed their intention to pursue legal action.

Afrikaans language rights at risk, say critics

Passed in May 2023, the Bela Act seeks to address historical inequalities in South Africa’s education system. It responds to Constitutional and high court rulings aimed at correcting exclusionary language and admissions policies by school governing bodies (SGBs) that limit access to quality education. Advocacy groups such as SECTION 27 support the Act, emphasising that its provisions are not meant to undermine SGB authority, but to use departmental oversight to combat discrimination and promote inclusivity.

Read more: There are 56 good reasons South Africa needs the Bela Bill

However, the Democratic Alliance, with groups like Solidarity, AfriForum, and the SA Onderwysersunie, have opposed these clauses, arguing that the Act undermines SGB authority by centralising decision-making. They have previously threatened legal action over sections 4 and 5.

Hermann stressed that Gwarube’s recommendations were meant to ensure a more measured approach to the implementation of the Act, particularly concerning the protection of mother-tongue education, especially in Afrikaans schools. By ignoring these recommendations, the government is accused of undermining the educational rights of learners who rely on Afrikaans as their primary language of instruction.

Kallie Kriel, CEO of AfriForum, describes the full promulgation of the Bela Act as an “act of aggression” by the government towards Afrikaans schools and children.

“The promulgation indicates that the ANC is busy turning the Government of National Unity into the government of national disagreement that aims to co-opt parties like the DA and FF+ to help the ANC carry out its policy,” he said.

CEO of the SCS Leon Fourie echoed similar concerns, suggesting that political pressure from anti-Afrikaans factions within the ANC may have played a significant role in the decision to ignore the minister’s recommendations. He pointed out that the President had failed to provide any justification for disregarding Gwarube’s advice and the agreements reached with Solidarity.

“It appears that the President’s irrational promulgation of the Bela Act in its entirety succumbed to the political pressure from the anti-Afrikaans elements within the ANC,” said Fourie.

Werner Human, Head of Operations at the Solidarity Movement, said that alongside the legal actions against the promulgation notice of the Bela Act, institutions within the Solidarity Movement will also focus this year on ensuring that the norms, standards and regulations related to language and admissions policies – now being developed by Gwarube – include provisions designed to prevent the abuse of power by education officials and protect Afrikaans schools from discrimination.

“The institutions of the Solidarity Movement also reserve the right to take legal action against the unconstitutionality of the Bela Act itself, after concluding the legal process against the promulgation notice,” Human added.

Sadtu backs Act

Nomsa Cembi, representing the South African Democratic Teachers Union (Sadtu), expressed the union’s support for the Bela Act, saying that they believe the Act is aligned with its intended goals. According to Cembi, the Bela Act is crucial for transforming South Africa’s education system, aiming to create a more equitable and accessible education landscape for all learners across the country.

“We believe that the Bela Act is correct as it is. They can go to court, but would not want to see them succeeding in court, because we want to see the Bela Act being implemented so that it can take forward the transformation agenda of our education system to a more equitable and accessible system,” she told Daily Maverick.

Cembi said that the issues surrounding admissions and language policies in the Bela Act were not new, but were directly related to previous court rulings. Cembi said these judgments provided the government with a mandate to take an oversight role in matters related to education and admissions. She emphasised that the provisions included in the Bela Act aligned with these prior court decisions, ensuring that the Act was consistent with legal precedents on education, admissions and language policies.

On Monday, the Good party issued a statement condemning the legal action by Solidarity and AfriForum against the promulgation of the Bela Act, describing the proceedings as being “steeped in bad faith”.

The Nedlac deal was apparently secretly negotiated outside the Nedlac process, behind closed doors, without any public record — discovered only after the Good Party filed a Promotion of Access to Information Act request and obtained the Nedlac records.

“This lack of transparency further erodes the integrity of the Nedlac process and casts doubt on the legitimacy of the agreement. The Nedlac documents reveal that Solidarity understood their agreement carried no bearing on the GNU process and conceded as much,” read the statement by Good party secretary-general Brett Herron.

Herron said a key misunderstanding in Solidarity’s case is the claim that the Bela Act was set to be implemented on 13 December 2024. This date marked the end of the consultation period, not implementation. Solidarity’s premature legal action, based on this misinterpretation, constituted an abuse of process and undermined the spirit of the Labour Relations Act, Herron said.

Rather than proposing new solutions, Solidarity merely recycled old ideas already under review by the GNU clearing house, he said.

“This lack of meaningful contribution exposes their participation as disingenuous, aiming to delay and distract rather than resolve. The legal proceedings instituted by Solidarity and AfriForum lack credibility and substance, as they rest on a foundation of bad faith and procedural abuse. The Bela Act is a win for children,” Herron said.

Ramaphosa’s spokesperson Vincent Magwenya said that if legal action had been or was being initiated, the President would respond to their papers as required. Gwarube’s spokesperson Lukhanyo Vangqa had not responded by the time of publication. DM

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South Africa

Breach of agreements

Legal challenge looms

Afrikaans language rights at risk, say critics

Sadtu backs Act