BELA ACT FACES LEGAL CHALLENGE OVER FLAWED PROCESS

Tue 22 July 2025:

The Pestalozzi Trust has launched a constitutional court challenge against the BELA Act, arguing Parliament failed to ensure meaningful public participation, creating a flawed and potentially unconstitutional law.

South Africa’s controversial Basic Education Laws Amendment (BELA) Act is facing a significant legal challenge that could send it back to Parliament. The Pestalozzi Trust, a legal defence fund for home and alternative education, has filed a constitutional court application arguing that the legislative process was rushed and procedurally flawed.

The core of their argument is that Parliament failed its constitutional duty to facilitate meaningful public participation, leaving key stakeholders, especially within the homeschooling community, without a proper voice.

The legal challenge, as outlined by Pestalozzi Trust spokesperson Christopher Cordeiro, rests on several key grounds. The Trust contends that there was “undue haste in processing the Act” and “procedural irregularities in Parliament itself.”

A central pillar of their case is the assertion that there was a severe lack of meaningful public participation. Cordeiro explained that for participation to be meaningful, several components are necessary: timely notification of hearings, proper education about the Bill’s contents, and adequate time for the public to express their opinions.

According to the Trust, these conditions were not met. Cordeiro stated, “Many people during the available process came in with very little knowledge of the Bill, complained about that… In a number of cases, people were lectured to about the Bill rather than given an opportunity to express their opinions.”

The Trust also alleges that the public inputs that were received were “either misrepresented or not fully represented, and in some cases not represented at all” to the relevant parliamentary committees. The ultimate goal of this procedural challenge, Cordeiro clarified, is “for the bill to go back to Parliament… And that Parliament must reconduct the public engagement process and its other processes and do those appropriately, fairly, and constitutionally.”

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Homeschooling regulation at the centre of the storm

While the court case is procedural, it highlights a fundamental disagreement over how to regulate alternative forms of education. The BELA Act, signed into law in 2024, amends the South African Schools Act and has been met with fierce opposition over several clauses, particularly those dealing with school admission policies, language policies and the regulation of homeschooling.

The Pestalozzi Trust is fundamentally opposed to regulating home education under a Schools Act. “Homeschooling needs to be regulated under a completely different kind of legislation,” Cordeiro argued, pointing out the impracticality of applying rules designed for a “1 500-person school” to a home education environment.

The Trust advocates for separate and appropriate legislation for homeschooling, developed through deep consultation with the homeschooling community itself, arguing that the Department of Basic Education “know[s] very little about homeschooling and home education.”

This concern is echoed by the rapid growth in alternative education, including online schools, which critics say the BELA Act fails to adequately address. “The Department of Basic Education is not keeping up with these trends,” Cordeiro noted, adding that a recommendation by the Portfolio Committee to include online education in the bill “never happened.”

The lack of a proper framework for these growing sectors further fuels the argument that the process lacked foresight and adequate consultation. The push for a legal review underscores a deep-seated belief among critics that the current approach to public participation was insufficient for creating a viable and fair education law for all South Africans.

The Parliamentary Portfolio Committee on Basic Education has urged the Department to finalise the regulations for the Act, expressing concern that “deliberate attempts are being made to hold the full implementation of the BELA Act by delaying the drafting of regulations.” This has created confusion, with some provincial departments unsure if they are dealing with binding regulations or non-binding guidelines, further complicating the Act’s rollout.