In 1993, Bokkie and Andre Meintjies received a jail sentence for educating their children outside the school system under South Africa’s compulsory school attendance laws. Although they were later released under the general amnesty provisions, their case highlighted a broader constitutional question that remains unresolved today: the constitutional status of education provided outside institutions.
The Constitutional Gap
Today education is increasingly delivered through families, online platforms, tutors, learning centres and hybrid arrangements. Section 29 explicitly recognises public and independent educational institutions but does not explicitly recognise education provided outside institutions. This leaves the constitutional status of educational models that do not fit within traditional institutional structures insufficiently defined.
S29(1) states the extent to which everyone has the right to basic and further education. S29(2) of the constitution states that “Everyone has the right to receive education in the official language or languages of their choice in public educational institutions where that education is reasonably practicable.” S29(3) also states that “Everyone has the right to establish and maintain, at their own expense, independent educational institutions…“. S29(4) addresses subsidies to independent educational institutions.
Although the Constitution does not prohibit education outside institutions, it does not explicitly recognise education delivered outside institutions.
The absence of explicit constitutional recognition of education provided outside institutions has contributed to inconsistent legislative and administrative approaches to such education.
- This has contributed to ongoing questions regarding the relationship between S28 and S29. S28 states that children have the right to parental and family care. According to the Children’s Act, such care includes direction and guiding the education of the child. An overly institutional interpretation of S29 may diminish recognition of the educational obligations that arise from parental and family care under S28. This also affects education institutions that struggle to function effectively without parental involvement.
- S29 also does not explicitly accommodate education provided through online platforms, decentralised learning centres, or other educational arrangements that do not comfortably fit within existing categories of educational institutions.
- It contributed to uncertainty regarding appropriate oversight, accountability and dispute-resolution mechanisms for educational arrangements that fall outside institutional frameworks. Parents and learners involved in such arrangements often have no accessible specialist forum through which disputes can be resolved.
- Although one non-institutional form of education, namely home education is recognised in the SA Schools, an institutional interpretation of the law causes education departments to place administrative burdens on families that negatively affects the interests of children. Parents are expected to emulate a school at home, instead for letting the education be guided by the best interests of the children.
As a result, a significant portion of educational activity now occurs outside existing regulatory categories. Examples include home education arrangements and learning centres.
Proposed solutions
The right to basic education can be strengthened through various means. The first proposal amends S29(1)(a) where the second proposal adds a subsection to S29. The third proposal is a combination of the two previous proposals.
Primary Proposal
Amend S29 (1)(a) to read: “Everyone has the right to a basic education, including adult basic education, whether received through educational institutions or alternative educational arrangements that meet appropriate standards.”
Alternative educational arrangements operate outside traditional educational institutions, including home education, online learning, decentralised learning centres, tutoring arrangements and future educational models.
Secondary proposal
Add the following paragraph (5) to S29: “Parents or legal guardians have the responsibility to choose and direct the education of children for whom they are responsible, through educational institutions or other educational arrangements that meet appropriate standards, consistent with the best interests of those children.”
Combined proposal
Amend S29 (1)(a) to read: “Everyone has the right to a basic education, including adult basic education, whether received through educational institutions or alternative educational arrangements that meet appropriate standards. Parents or legal guardians have the responsibility to choose and direct the education of children for whom they are responsible consistent with the best interests of those children.”
Conclusion
The proposed solutions do not diminish the state’s responsibility to ensure that every child receives a basic education. Its purpose is merely to recognise that education may legitimately be provided through both institutional and non-institutional arrangements.
By explicitly recognising non-institutional education, it expands the means through which the right to basic education can be realised which in turn can relieve pressure on public educational institutions. This proposal will also strengthen the ability of parents, families and communities to guide and direct the education of children consistent with the obligations recognised in Section 28.
In a context where many communities continue to experience shortages of school places and educational resources, recognition of lawful non-institutional educational arrangements can complement, rather than replace, the state’s efforts to realise the right to basic education, particularly in rural areas where access to formal educational institutions may be limited by distance, population density or resource constraints.
It will also provide constitutional recognition for educational arrangements that respond to the increasing demand for alternatives for learners with special educational needs who find little or no accommodation within existing institutions.
The proposal also does not place any financial obligations on the state to subsidise non-institutional arrangements, as is the case for independent educational institutions in S29(4).
While legislation may regulate particular educational models, constitutional recognition is necessary because the issue concerns the fundamental nature of the right to education itself. Explicit recognition of education provided outside institutions would provide a stable constitutional foundation for future educational innovation while preserving the state’s responsibility to ensure access to basic education.
