This opinion considers whether, under section 51 of the Basic Education Laws Amendment Act (“the BELA Act”), parents who provide home education may freely choose an educational curriculum.

It examines the interaction between sections 51(2)(b)(i) and 51(2)(a)(iii), the scope of administrative discretion conferred on provincial authorities, and the implications of vagueness for both administrative approval and criminal enforcement.

Statutory framework

Section 51(2)(b)(i) of the BELA Act requires parents to undertake to: “make suitable educational resources available to support the learner’s learning.”

Section 51(2)(a)(iii) requires that the Head of Department (“HOD”) be satisfied that: “the proposed home education programme is suitable for the learner’s age, grade level and ability and predominantly covers the acquisition of content and skills at least comparable to the relevant national curriculum determined by the Minister.”

Parental choice of curriculum is therefore subject to approval based on both learner suitability and national curriculum comparability.

Constitutional principles engaged

The provisions under consideration engage several foundational constitutional principles, including:

1. The principle of legality and the rule of law (section 1(c));
2. The right to lawful, reasonable, and procedurally fair administrative action (section 33);
3. The best interests of the child (section 28(2));
4. Freedom of conscience, belief, and opinion (section 15), insofar as curriculum choice reflects philosophical or pedagogical convictions;
5. Parental responsibility and care, as recognised in constitutional jurisprudence relating to family autonomy.

Any statutory scheme that limits parental decision-making in education must therefore be sufficiently clear, rational, and proportionate to withstand constitutional scrutiny.

Vagueness and the principle of legality

The requirement that a home education programme must “predominantly” cover content and skills “at least comparable” to the national curriculum is undefined and indeterminate.

The Act does not specify:

1. What degree of alignment constitutes “predominant” coverage;
2. How “comparability” is to be measured;
3. Which elements of the national curriculum are essential or non-essential;
4. How alternative pedagogical approaches are to be assessed.

The Constitutional Court has consistently held that laws imposing obligations on citizens must be stated with sufficient clarity to enable compliance. Vague laws undermine the principle of legality, a core component of the rule of law.

Where compliance depends on the subjective satisfaction of an official without objective criteria, affected persons cannot reasonably predict the legal consequences of their actions. In this context, parents cannot determine in advance whether their chosen curriculum will be approved, despite acting in good faith.

Subordination of parental judgment and the best interests of the child

Section 51(2)(b)(i) recognises parental responsibility to select resources suitable for the learner. However, section 51(2)(a)(iii) effectively redefines suitability through alignment with the national curriculum.

This creates a structural tension:

• Individual learner needs, abilities, and educational contexts may justify a curriculum that diverges from the national model;
• Yet approval hinges on national curriculum comparability, irrespective of demonstrated educational benefit to the learner.

Section 28(2) of the Constitution provides that the best interests of the child are of paramount importance in every matter concerning the child. Home education is inherently individualized, and parental decisions regarding curriculum are often motivated by the specific educational needs of a child.

A statutory framework that prioritises systemic curricular conformity over individualized educational suitability risks elevating administrative convenience above the best interests of the learner. At minimum, the Act provides no guidance on how these interests are to be balanced.

Administrative discretion and constitutional administrative justice

The broad discretion afforded to HODs by section 51(2)(a)(iii), in the absence of objective standards, raises concerns under section 33 of the Constitution.

• Unstructured discretion creates a material risk of:
• Inconsistent decision-making across provinces;
• Arbitrary or subjective refusals;
• Unequal treatment of similarly situated parents.

Administrative justice requires that decisions be capable of rational justification and meaningful review. Where the statutory test itself is undefined, both decision-makers and reviewing courts lack a principled basis on which to assess compliance.

This undermines transparency, accountability, and fairness in the registration process.

Criminal enforcement, fault, and “just cause”

Failure to register a home learner constitutes a criminal offence, subject to a defence where parents have a “just cause” for non-registration.

Criminal liability requires that obligations be clear and ascertainable. Where registration depends on uncertain approval criteria and unpredictable administrative discretion, parents may reasonably be deterred from applying, particularly where rejection could expose them to further regulatory consequences.

In any prosecution, the state must prove beyond reasonable doubt that the accused lacked just cause. Given the vagueness of the curriculum approval requirement, and the absence of objective compliance standards, establishing the absence of just cause would be evidentially challenging, especially where parents acted bona fide in the educational interests of their children.

Conclusion

It is the considered opinion that section 51 of the BELA Act materially restricts curriculum choice for home educators through vague and undefined approval requirements tied to the national curriculum.

These provisions engage and potentially undermine constitutional principles of legality, legal certainty, administrative justice, and the best interests of the child. The absence of objective standards creates scope for arbitrary administrative action and weakens the enforceability of criminal sanctions for non-registration.

Unless clarified through precise regulations or authoritative guidance, section 51 is likely to generate legal uncertainty, deter lawful compliance, and invite constitutional challenge.

On 11 December 2025, the Department of Basic Education (DBE) published a circular on home education. This circular was directed to Education Officials, District Managers, School Principals and the Home Education Community. This circular was distributed to the National Task Team (NTT) responsible for drafting home education regulations on 24 February 2026.

This is the third circular on home education. Circulars published this far are the following:

• Circular S14 of 2020 : Home Education in the context of Covid-19
• Circular S15 of 2022 : Home Education registration within the context of online schools
• Circular S24 of 2025 : Guidance on Home Education Curriculum and Assessment. Click here to download.

What is the status a circular?

A circular is not a law that is binding on the public. However it is an instruction that is binding on officials and they are likely to apply the interpretation contained in the circular when exercising their administrative functions.

If parents do not agree with the interpretation provided with the circular, it will result in conflict between parents and officials. This has already happened when the KZN Education Department declined applications on the basis of Circular S15 of 2022, because officials viewed the education programme chosen by parents as an online school.

The guidance provided by S24 of 2025 is temporary in nature, until regulations are published.

What does Circular S24 say?

The circular provides guidance on two matters:

• How to determine whether curriculums are predominantly comparable with the national curriculum as required by S51(2)(a)(iii) of the BELA Act.
• How to determine a standard that is not inferior to the standard determined in the national curriculum statement.

Curriculum

Enforcement of the S51 curriculum requirement is difficult to enforce, because it is vague and it contradicts other sections in S51. Read article here.

The aim of this circular is to provide more clarity on the curriculum requirement. It proposes that curriculums are compared by considering the following factors:

• Age appropriate and grade-appropriate learning: An important reason why many parents choose home education is because it allows learners to progress at their own pace according to the development of their personality. Age / Grade appropriate learning will require that the contents that learners must master is determined by their age or grade, irrespective of the personal development or ability. A rigid interpretation of age- or grade-appropriate learning risks undermining the flexibility inherent in home education and may conflict with the constitutional requirement that administrative decisions serve the best interests of the child.
  
  
• Progressive acquisition of knowledge and skills … alligned with the broad aims of the national curriculum: The National Curriculum Statement (NCS) documents state that it “aims to produce learners that are able to …” and then it lists things such as creative thinking, problem solving, etc. Things that few people will disagree with. Although there is nothing objectionable to this clarification, it is of little value to clarify how curriculums be compared.
  
  
• Exposure to broad learning fields : The NCS describes subjects, instructional time to be allocated to each subject, number of assessments per term, contents and skills. The circular states that the educational programme must provide exposure to broad learning fields recognised in the National Curriculum. How “broad learning fields” can be mapped to the NCS is however not described. The introduction of new undefined concepts such as “broad learning fields” risks expanding statutory requirements beyond what Parliament enacted.
  
  
• Meaning of “comparable” : The circular further states that the word “comparable” does not mean identical content or structure, but requires the consideration of engagement with broad learning fields, progressive development and a coherent educational experience with suitable depth and breadth. This process introduces even more undefined concepts and provides no guidance on how these concepts are to be used for comparison purposes. Such a process is likely complex and susceptible to subjective judgments.
  
  
• Evidence for comparison : The circular then lists different types of evidence that parents can provide to demonstrate curriculum comparability. Parents can choose what type of evidence they want to provide in order to enable officials to perform curriculum comparisons. However, the evidence chosen parents might not be useful to officials for comparison purposes.

Assessment

The BELA Act requires that home learners must be assessed "against a standard that is not inferior to the standard determined in the National Curriculum Statement". However S29(3)(c) requires that independent education institutions must "maintain standards that are not inferior to standards at comparable public educational institutions". This means home learners are evaluated against a theoretical standard in the NCS, while independent schools are evaluated against standards of actual public schools. This means that different standards apply to home learners than to independent schools. The distinction raises questions about whether the evaluation framework for home education is administratively proportionate compared to other recognised forms of alternative education.

This is further complicated because the standard maintained at an independent school is a collective concept, which cannot logically apply to individualised home-based learning. (Read more here) This raises questions about whether applying institution-based standards to individualised home education is constitutionally appropriate and proportionate.

Compliance can be obtained by providing a diverse types of evidence. This evidence must be evaluated by a competent assessor as defined in the BELA Act. The assessor must determine whether the standard of education is not inferior by considering things such as undefined concepts such as meaningful learning, progression across fields, development of core competencies and broad alignment with phase-end expectations of the NCS. Such an evaluation is complex and susceptible to subjective judgments.

To find assessors that can use the diverse forms of evidence to determine the standard of education received will probably be difficult for competent assessors that do not have an understanding of home education. Competent assessors are trained to assess against the clearly defined NCS and not the undefined concepts in the circular. This is exacerbated by the exclusion by the BELA Act definition of professionals such as educational psychologists and other therapists that are registered with the Health Professional Council as competent assessors.

A recent survey highlighted the reality that a large percentage of parents that applied for registration were not registered. The Act does however exempt unregistered learners from the obligation to submit end of phase assessments. However, if a learner is not registered, it will not be possible to process the assessment reports, because the capturing of the assessment results should be linked to the registration number of the learner. The circular does not address this matter. It assumes a functioning registration system that does not yet exist in practice.

The circular places no obligations on officials to process the assessment reports. If the processing of assessment reports does not result in remedial actions, the assessments do not serve any reasonable purpose. Even in provinces where the majority of applications are timeously processed, there is probably not administrative capacity to process assessment reports and take remedial actions if needed.

Furthermore, according to S51(2)(b)(ii), parents must undertake to "monitor the learner’s academic progress". For parents that diligently honor this undertaking, a end-of-phase assessment will merely confirm what the parents already know. For parents who already fulfil statutory monitoring responsibilities, mandatory external assessments may provide limited additional educational value relative to their cost and administrative burden.

Conclusion

The circular will probably increase conflict between officials and parents for the following reasons:

• Parents have limited certainty that officials will regard their curriculum as comparable with the NCS due to the vague and subjective comparison process.
• Parents have little certainty what the outcome of assessments will be, given their complex and subjective nature.
• While parents already lack certainty that registration applications are processed timeously, they have even less certainty that assessment reports will be processed. What exacerbates this is that parents are expected to pay for competent assessors, while officials might not even process assessment reports.
• Even if assessment reports are processed, parents have no certainty what officials will do with the results. Will they offer remedial services or cancel registrations?

Although it will still take a while before the regulations are published, the circular provides some insight into what the DBE wants in the regulations. This allows parents to prepare for when the regulations are published for public comment.

Although public engagement during the BELA process did not substantially change the wording of the Act, Circular S24 suggests an effort by the DBE to reassure home educators that flexibility in curriculum choice and assessment methods remains possible. At the same time, this flexibility introduces complex comparison processes that may place significant administrative burdens on the Department itself.

The issues raised by Circular S24 highlight the importance of continued public engagement during the development of the home education regulations. Clear, objective and proportionate regulatory standards will be essential to avoid unnecessary conflict and to ensure that administrative discretion is exercised consistently and fairly.

In 2017, it was estimated that there were about 100 000 home learners in South Africa. This estimate took into account the national census of 2012, the membership of home education organisations, the household survey and the school population. The article on this is available at https://www.sahomeschoolers.org/blog-items/entry/how-many-home-learners-are-there-in-south-africa.html

International trends, particularly from the United States, suggest homeschooling can grow at around 10% annually. While South African conditions differ, anecdotal evidence from local curriculum providers suggests comparable growth. One summary of U.S. homeschooling trends, for example, can be viewed at https://babwell.com/homeschooling/

Based on this growth, it is estimated that home learners grow to about 121 000 in 2019. Such a growth seems realistic, because some curriculum providers reported higher growth than this.

During the pandemic, homeschool organisations such the Pestalozzi Trust and also the HSLDA in the USA experienced a doubling of membership in 2020. If it is assumed that this reflects the growth of home education, it brings the number to 242 000 in 2020. However, as children returned to school in 2021, it was conservatively estimated that home education declined with 10% to 217 800 learners. After this, it was estimated that home education continued to grow at 10% annually again giving 289 891 by 2024.

In December 2023, the Learning Society Institute published a peer reviewed report on home education by Dr Renuka Ramroop from the University of Limpopo. This report provides the first research-based insights into the demographics of home education. This report estimates the number of home learners to be about 300 000, which correlates well with the above estimates.

South Africa has roughly 13 million school-aged learners (based on national education statistics), this would place homeschooling at just over 2% of the total learner population.

This report also gives an estimate of the provincial breakdown, based on the number of responses received.

Because these figures are based on voluntary survey participation, provinces with stronger homeschool networks or internet access may be overrepresented. If populations are considered, it seems that Free State is over represented and KZN under represented.

While earlier figures were based on projections and assumptions, they align closely with the first formal research findings — and with the lived experience of homeschooling’s rapid normalization across South African society. More than a decade ago, people would have asked what it is if home education was mentioned. Today, most people will respond by stating that they know a friend or family member that is homeschooling.

These projections cover learners that receive education at home. There are indications that a growing number of learners also attend so-called learning centres, tutor centres and cottage schools — small, often informal educational initiatives that operate outside the traditional school system.

Both home education and informal centres will increasingly be empowered by online learning platforms becoming more advanced and prevalent. Together, home education and learning centres suggest that education in South Africa is gradually diversifying. Rather than a single dominant model, the future may consist of a spectrum of educational forms — from formal schools on one end, through small community-based centres, to fully home-based education on the other.

Current education law recognises public schools, independent schools and home education, but does not clearly accommodate the growing diversity of hybrid and informal learning models. While the Constitution requires independent educational institutions to register with the state, many emerging education models do not fit neatly into the existing legal categories, creating regulatory uncertainty for home educators and learning centres.

Because the legal framework was designed around traditional schooling models and was only recently amended, significant regulatory reform in the near future may be unlikely. SAHomeschoolers provides regulatory advisory and advocacy services that assists parents and centres to educate children in a safe environment.