“When I first started homeschooling a few years ago I was utterly confused by the law – despite the fact that I am a qualified attorney holding a masters degree in law. After reading pieces of legislation, various websites and forums and talking to people at homeschooling expos, I came to the conclusion that the homeschooling laws in South Africa are unreasonable, very possibly unconstitutional and that the legislation is worded in a way that affords me a loophole – it is okay not to register my child for homeschooling with the government if I am looking out for the best interests of my child. The best interests of the child is always paramount.

I did not want to follow CAPS. I did not want to have to comply with what I thought were unreasonable reporting requirements. I did not want my children to be formally assessed. Doing all of these things would defeat the purpose of home educating my children. When my oldest was old enough to be of legal school-going age, I considered signing up with the Pestalozzi Trust, so that should I have any issues with the government, my family and I would be protected.

Fast forward a few years and Covid19 hit. Homeschooling was suddenly in vogue and scores of parents were looking for information. Wanting to help meet this need (and wanting to showcase all the glorious methods of homeschooling beyond boxed curricula/school-at-home) I decided to conduct online workshops on “Homeschooling: The Basics”. In this workshop I wanted to include information on the legalities of homeschooling in South Africa. I therefore approached the legislation and policies with fresh vigour. I also delved into the case law, but what I discovered shocked me.

Reading the SA Schools Act in its entirety, it is crystal clear to me that there is no legal choice to make when it comes to registering your child or not registering your child. The option is to send your child to school or to register your child for homeschooling. When it comes to the best interest of your child, the courts have stated emphatically that they will only consider this issue if you are registered in terms of the law.
There is no loophole. There is a choice though.

You either choose to comply with the law OR if you think the laws are unjust, you go to court and you make that case. We live in an open and democratic society where we have processes which allow us to challenge unjust laws. If you disobey the law, claiming they are unjust but you don’t take legal action to rectify this, then you are simply disobeying the law.
This puts me in a conundrum. I don’t like our laws. I don’t think that the requirements reflect an understanding of homeschooling. As I dug deeper though, I realised a few other things:

1. I don’t understand what the legal requirements actually are. Sure I’ve read them but when speaking to a teacher, she made the requirements sound much easier than I had imagined – a “portfolio” is 4 documents per child, an “assessment” can be a video of my child mastering a skill (like telling time). Perhaps an “attendance register” can simply be a line that says my child has perfect attendance?
2. Many other countries regulate homeschooling in an even stricter manner than South Africa. Our laws can actually work to our advantage if we learn how to work within the system. Homeschoolers, even unschoolers, in other countries have learned how to comply with laws and regulations in a way that still allows them to educate their children the way they want to.

3. While our homeschooling laws appear unreasonable to me, I cannot say with certainty that they would be regarded as unconstitutional or unlawful in substance by a court of law. Balanced with our rights as parents to choose how to educate our children (something enshrined in the UN Declaration on Human Rights) is our government’s obligation to ensure that all children in this country have access to basic education (something enshrined in the South African Constitution). Any court considering the current laws and policy would have to consider both and the balancing act may not come out in our favour.

So what are my options as a homeschooler? I can go underground and simply choose to homeschool illegally. I can go to court to challenge the current laws (but this route doesn’t guarantee success and will be extremely expensive). Or I can engage with the government. I can either attempt to convince the government to change the current laws and if that is unsuccessful, I can attempt to sway the interpretation of the current laws as much in my favour as I can. Engagement, to me, makes the most sense.
I don’t want to be illegal and I don’t want to live in fear of a notice/order to send my child to school or possible jail time. The option of going to court to challenge the laws will still exist if engagement does not work. Right now our government has opened the doors to engagement. I attended a few stakeholder meetings during the course of 2020 where many positive things were said. I don’t know if it will all be lived up to, but I see this as the most sensible route to take at the moment.

In order to engage constructively, a group of eclectic homeschoolers ( myself, Atiyya Gardee, Razina Mayet, Carimah Fattar, Shaista Musa, ‘Aqeelah Ishmail, Zarina Chotia, Farzana Moolla, Sadiyah Mossam, and Nadiya Carrim) have formalised our existing group into an association called Fitra Home Education South Africa. Along with the intention to engage with government and other stakeholders, our members do many things – create homeschooling awareness, providing homeschooling support, support outreach projects and create our own eclectic unit study curricula. Fitra is on instagram and Facebook and will soon be opening its doors to new members.

I am also part of the Gauteng Association for Legal Home Education (which can be found on Facebook) – set up by Alma Lubbe Moodley with other homeschooling parents (and attorneys) who have taken their own journeys to discover what the law actually is and who are agreed on the best course of action.
Those who are interested in joining us are welcome to meet up with us on these groups.

Written by Fatima Bham:

Fatima Bham Dadabhay is a homeschooling mother of 3 who is also an attorney with a masters degree from Harvard Law School.
She has been homeschooling her children for the last five years and is one of the founding members of Fitra Home Education South Africa and the Gauteng Association for Legal Home Education which are both affiliated to SANHSA (South African National Homeschooling Association.)