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Bela Act makes Grade R compulsory, but where is the money?

Bela Act makes Grade R compulsory, but where is the money?
Katherine Sutherland and Daniel Peter Al-Naddaf
By Katherine Sutherland and Daniel Peter Al-Naddaf
19 May 2025
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If Treasury can quietly decide which democratically enacted laws deserve funding resources, we no longer live under a constitutional democracy, but under rule by executive discretion.

South Africa’s budget season has been dominated by political party grandstanding, masquerading as genuine engagement with the Budget. Amid these theatrics, one glaring issue has inexplicably fallen by the wayside: the complete absence of funding for compulsory Grade R implementation, despite Parliament rightfully passing a law in 2024 that makes it mandatory.

Meanwhile, an estimated 200,000 six-year-olds are waiting outside the classroom because National Treasury has decided which laws warrant implementation and which can be quietly smothered through budgetary neglect.

The Basic Education Laws Amendment (Bela) Act makes Grade R compulsory and part of the definition of basic education, a constitutionally protected and immediately realisable right.

The Department of Basic Education’s costing estimated that inclusion of universal Grade R in the basic education sector would require R17-billion – R5.26-billion for educators and R12-billion for infrastructure. For context, this additional money that is needed amounts to only 0.7% of the previously proposed 2025 national Budget. To be clear, this costing is known to Parliament and Treasury, neither of which has contested these figures.

Yet, three consecutive Budget proposals have allocated nothing to Grade R implementation – the 2024 Medium Term Expenditure Framework outlining spending plans for the next three years; the Budget that never was, and the 2025 Budget that was never passed.

When Equal Education Law Centre (EELC) and other civil society organisations directly questioned Treasury on this matter, officials first dodged the issue before suggesting provinces should “use what they currently have” – expecting them to somehow absorb a R17-billion obligation within budgets already cut to the bone, despite provinces deriving 97% of their income from national government.

The EELC’s walk-in law clinic has heard from clients around the country of their inability to obtain placement for their learners in Grade R. The Western Cape Education Department (WCED) reported 4,365 unplaced Grade R learners earlier this year, acknowledging insufficient capacity to fulfil its obligations.

In response, the provincial education department said that it was redirecting children from no-fee public schools to fee-paying independent institutions, shifting the state’s responsibility to families who inevitably cannot afford it.

Meanwhile, parents have sought our advice, fearing potential criminal sanctions for failing to enrol their children in Grade R, creating an absurd situation where caregivers are legally bound to access services the government refuses to provide.

The DBE tacitly acknowledges its own inability to meet its obligations in the draft implementation guidelines for Bela, which state:

“Any parent whose child must be enrolled in Grade R at a school in terms of section 2(a) of the Bela Act and who can demonstrate that there are no Grade R places available to that child at registered early childhood development centres, public schools and independent schools within 5km of their place of residence or place of work would justifiably not be able to comply with the compulsory school attendance requirements.”


Not only is the burden shifted to already disadvantaged families, these guidelines introduce onerous administrative hurdles. It is now the responsibility of parents to “demonstrate” unavailability of places within an arbitrary 5km radius — regardless of transportation costs, fees, safety concerns or other access barriers.

The problem with unfunded mandates


An unfunded mandate – when legislation or policy establishes a legal obligation for a sphere of government to deliver specific services without Treasury allocating the requisite financial resources to fulfil this obligation – is a breach of the principle “finance follows function”.

Unfunded mandates are not inherently unlawful, but Grade R is not just any unfunded mandate. When Grade R was included in the definition of basic education, it created not just an obligation for parents to send their children to school, but a corresponding right that children have now — not whenever Treasury decides it is convenient.

It is noteworthy that not a single political party has taken up Grade R funding as an issue in their engagement with the budgets, despite almost all having vigorously campaigned on early learning and literacy.

This funding gap reveals three serious governance failures.

First, it fundamentally disrupts the separation of powers. When Parliament passes a Bill, it exercises its law-making authority. When Treasury subsequently refuses to fund these mandates, it overrides Parliament's legislative authority without any democratic process.

Parliament becomes a hollow chamber if its laws can be rendered meaningless through budgetary decisions made behind closed doors.

Second, it fractures our system of cooperative governance. The Constitution envisions a harmonious relationship between national and provincial governments, where responsibilities are matched with resources.

This is not to suggest that provinces bear no responsibility — many have failed to efficiently utilise existing education resources and could reprioritise certain expenditures.

However, an unfunded mandate of such gravity goes far beyond ordinary budgetary tensions, creating an environment where even the most efficiently run provinces are set up to fail.

Third, unfunded mandates fundamentally weaken the rule of law while breeding cynicism among a public already excluded from Treasury’s inner workings. When government enacts laws promising educational rights it has no intention of honouring, it teaches the public that law creates binding obligations only for them — not for the state itself.

Each unfunded mandate not only chips away at public trust, but also introduces the dangerous idea that laws are merely optional guidelines for government while remaining strict mandates for the public.

If Treasury can quietly decide which democratically enacted laws deserve resources — while parents simultaneously face potential criminal sanctions for non-compliance with those same laws — we no longer live under a constitutional democracy, but under rule by executive discretion.

Government processes then become merely theatrical performances rather than substantive governance, with Parliament reduced to a stage for political grandstanding while real decisions happen behind Treasury’s closed doors.

Way forward


The path ahead is painfully clear. Almost every political party represented in Parliament promised during the election to prioritise early learning, literacy and numeracy. Now, those promises have to translate into concrete budgetary commitments.

Having made Grade R both compulsory and part of basic education, there is no grey area, no room for budget gymnastics or administrative workarounds.

The only solution is to fund Grade R implementation. Not next year. Not when fiscal conditions improve. Now. Because the right to basic education is not conditional, and laws are not suggestions. DM

Katherine Sutherland and Daniel Peter Al-Naddaf are with Equal Education Law Centre’s research department and are members of the Budget Justice Coalition.

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