Bela Bill provides procedures binding on provincial education departments and school governing bodies

The Basic Education Laws Amendment (Bela) Bill was passed in the House of Assembly in 2023, and in the National Council of Provinces (NCOP) in May 2024. Once a bill has been passed by both Houses of Parliament, Section 84(2) of the Constitution obliges the President to sign the Bill into law, unless he has reservations about its constitutionality, in which case he must refer the Bill back to Parliament.  

The President consults legal advisers to establish the constitutionality of the Bill, and we can assume that this has been done, and the advice received has been that the Bill passes legal muster, and therefore the Constitution requires that he assents to the Bill.

During the parliamentary process, there were two major concerns relevant to the current apparent impasse. First, the Bill makes education compulsory from the year in which a child turns six. This will mean that South Africa will now have 10 years of compulsory education from Grade R to Grade 9. 

In the NCOP process, the Western Cape expressed concerns about the costs of making Grade R compulsory. Currently, more than 95% of children aged 5-6 are in Grade R classes. The increased costs will be driven by the need for additional infrastructure and by the costs of the teaching personnel required for Grade R. 

Treasury has estimated the annual costs of Grade R teacher salaries to be in the region of R17bn. This is 5% of the annual allocation to basic education.  

The concept of ‘compulsory education’ is important here because, as a public good which is enforced, this not only has implications for parents but also for the state which is obliged to ensure that all children can access public schooling in the official language of their choice, where this is reasonably practical (as required by Section 29(2) of the Constitution). 

This section of the Constitution specifies that all educational alternatives must be considered, including equity, practicability, and the need to redress the results of past discriminatory laws and practices. This section frames the responsibility of all components of society.

The South African Schools Act of 1996 (Sasa) provided that school governing bodies (SGB) may determine the language policy of the school, provided there is no form of unfair discrimination. Several court cases have tested the balance between the responsibility of SGBs in public schools and the responsibility of the provincial education departments to provide all children of compulsory school-going age with access to a place in a public school. 

The Constitutional Court in 2009 made a ruling on this matter (the Moseneke judgment). The emphasis of this judgment (and of others) was that the powers of the SGB are not absolute but must be interpreted within the guidance of the Constitution. 

There is an obligation on the state to evaluate what is reasonably achievable and to comply with procedural fairness in its interactions with SGB on the matter of language policy. Both parties were requested to do further work in order to be compliant with the intentions of Section 29(2) of the Constitution.

Bela does not change what is in Sasa and the Constitution but applies the lessons from court judgments to specify in law the procedural steps necessary to operationalise the relationship between the SGB and the provincial education departments in taking forward Section 29(2) of the Constitution. These are very detailed in Bela. For example:

The SGB must submit its language policy to the head of the provincial education department (HoD) for approval. The HoD may approve the policy or return it to the  SGB with recommendations, together with reasons. 

The HoD must be satisfied that the policy takes into account: 

• The language needs of the broader community.


• The best interests of the child.


• The changing number of learners who speak the language of learning and teaching.


• The need for effective use of classroom space and resources.


• The enrolment trends of the public school. 

The HoD may direct a public school to adopt more than one language of instruction. In doing so, the HoD must take into account:

• The best interests of the child, with emphasis on equality and equity. 


• The changing number of learners who speak the language of learning and teaching at the public school.


• The need for effective use of classroom space and resources of the public school.


• The language needs, in general, of the broader community in which the school is situated. 

The HoD may not do this unless he or she has:

• Informed the SGB body in writing of his or her intentions and reasons and notified the parents and the community through a notice in at least one newspaper; causing the principal to give every learner a notice for their parents; ensuring that the information is spread as widely as possible. 


• Granted the SGB and the community a reasonable opportunity to make representations.


• Conducted a public hearing for the community and considered the representations. 

The HoD must: 

• Inform the school and the governing body of his or her decision and the reasons. 


• Take all necessary steps to ensure that the school receives the necessary resources including educators and LTSM so that the school can provide adequate tuition in the additional language of instruction. 


• If the SGB is not satisfied with the HoD’s decision, it may appeal to the MEC against the decision within 14 days.  

If an appeal has been received, the MEC must within 14 days consider, decide, and inform the governing body of the outcome. 

This set of procedures is binding on both the provincial department and the SGB. What’s important is that this provides the basis for a reviewable appraisal of the process, thus protecting the SGB and ensuring that the department acts in a way that is procedurally fair.

Bela does not change what is in Sasa and the Constitution, but applies the lessons from court judgments to specify in law the procedural steps that are necessary to operationalise the relationship between the SGB and the provincial education departments in taking forward Section 29(2) of the Constitution. These are very detailed in Bela, and have been informed by the outcome of various court cases which had implications for the need for greater procedural guidance. DM

Mary Metcalfe is a South African educator and academic who served in the Executive Council of Gauteng from 1994 to 2004.