Homeschool, micro-school, learning centre, unregistered private school, low-fee school and cottage school are names that refer to small independent or private schools that are operated by a small group of entrepreneurs, parents, ex-teachers or volunteers. This fast-growing phenomenon was acknowledged in a 2010 research paper by the Centre for Development and Enterprise, which described it as South Africa’s "hidden asset".
However, the Home Education Policy of 2018 claims that an " ...educational institution such as a cottage school, tutor centre, home school centre and micro schools operating like an independent school whilst unregistered in terms of the Act;" is illegal. Based on this policy, many officials claim that home educators are not allowed to make use of the services of such institutions. The Home Education Policy has however no law-making power and cannot declare any conduct or institution illegal.
In order to identify such illegal educational institutions, the application form used to register for home education since 2019 required parents to provide the "Home Education Site Address". It also required information on tutors used by home educators. Many applications for home education were declined if parents indicated that learners were receiving education at such an institution.
However, according to S29(3) of the constitution everyone has the right to establish at their own expense, independent educational institutions on condition that they do not discriminate on the basis of race, maintain standards not inferior to those at comparable public institutions and are registered with the state.
S46 of the Schools Act makes provision for the registration of independent schools, narrowly defined as institutions that enroll learners for one or more grades. More registration conditions are in provincial education acts and notices. However, no provision is made for the diversity of non-school educational models. This is caused by a fundamental flaw that basic education is regulated by a schools act and not an education act, that ignores education services that are not provided by schools. Can a home education policy declare such institutions illegal?
It is problematic to expect all educational institutions to adopt the school model, because the school model is often unable to adapt to the diverse needs of learners that do not fit into the school system. Many parents choose home education for this reason, but not all parents are able to do this. Since the constitution views the best interest of children as paramount, there is no justification to outlaw non-school institutions that promote the interests of such children.
If one adheres to constitutional supremacy, rights given by the constitution cannot be taken away, merely because inferior laws have not made provision for these. This means that educational institutions that cannot register as independent schools cannot be rendered unlawful merely because legislation fails to provide an appropriate registration mechanism, as long as it can be reasonably demonstrated that they comply to constitutional requirements.
It seems that legislators are starting to realise this. In S1 of the BELA Act home education is defined as ... “a purposeful programme of education for a learner, alternative to school attendance, which — (a) is provided under the direction of the learner’s parent, primarily in the environment of the learner’s home; (b) may include tutorial or other educational support, if necessary, secured by the parent on specific areas of the curriculum followed by the learner; ...". This does not regulate tutor centres, but acknowledges that parents may use them. Tutor centres are not only used by home learners, but also by school learners. Furthermore, new application forms for home education removed the fields that request details on the home education site address and details of tutors.
In summary, in terms of the constitution, tutor centres are not illegal per se, despite unconstitutional policies and officials that still promote these.
