The South African Schools Act (SASA) does not provide for automatic penalties if parents fail to register for home education. Instead, it sets out a graduated and discretionary process that the education department may follow once it becomes aware that a learner of compulsory school-going age is being educated at home without registration.

1. No automatic enforcement

Section 3(5) of SASA gives the education department discretion, not a legal obligation, to act. Becoming aware of non-registration does not automatically trigger enforcement or criminal proceedings.

2. Investigation and engagement first

Before any enforcement steps may be taken, the department must:

• Investigate the circumstances to understand why the learner is not registered.
• Give due consideration to any concerns raised by the parents regarding registration.
• Take reasonable steps to address those concerns, remove any obstacles to registration, and provide assistance where necessary.

This reflects the law’s intention that registration disputes be resolved administratively and cooperatively, rather than punitively.

3. Written notice only as a last step

Only if the department is satisfied that:

• the parents’ concerns have been adequately addressed,
• any obstacles to registration have been removed, and
• the parents still fail to register, may the department issue a written notice instructing the parents to comply with the registration requirement within a specified timeframe.

4. When does non-registration become an offence?

In terms of section 6(a) of SASA, non-registration becomes an offence only if:

• a written notice has been issued,
• the parents fail to comply within the specified period, and
• there is no just cause for that failure.

Without these conditions being met, no offence exists in law.

5. Criminal prosecution is discretionary, not automatic

Even where an offence is established, the department must still decide whether to take the matter further by laying a complaint with the police. If a complaint is laid:

• a police investigator must compile a docket, and
• a prosecutor must independently decide whether prosecution is justified.

In practice, this involves further discretion and prioritisation, as the offence concerns administrative non-compliance and does not involve direct harm or victims.

Parents are not summoned to court unless a prosecutor elects to place the matter on the court roll.

6. Penalties and proportionality

Section 6 of SASA provides for a penalty of a fine and/or imprisonment of up to 12 months. However, imposing a criminal sentence for an administrative failure would be difficult to justify.

This concern was explicitly acknowledged during parliamentary deliberations, where the Minister conceded that the penalty provision is inappropriate for home education. Nevertheless, the provision remains in the Act and can only be set aside by a court.

If a court were to impose a criminal penalty, parents would still have the right to appeal the judgment to higher courts, including the Constitutional Court.

7. No precedent under the current legal framework

Although home education was illegal prior to 1996, and prosecutions occurred under that earlier regime, no parent has been successfully prosecuted for failing to register for home education since registration was introduced in the Schools Act.

Summary

Failure to register for home education does not result in immediate criminal liability. The law requires investigation, engagement, assistance, and written notice before any offence can arise. Even then, prosecution is discretionary and subject to multiple safeguards. The legal framework is designed to encourage compliance through cooperation, not punishment.

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