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.

Many families feel that home education is unaffordable, because it often requires that one parent must give up their career in order to attend to education. The loss of a second income could make homeschooling unaffordable.

However, careful analysis shows that this is not necessarily the case. There are also costs associated with a second income, namely school fees, daycare, additional transportation, increased cost of food due to a lack of time to prepare food, etc. There are also opportunity costs, because being at home creates opportunities to start a business from home.

Property prices are also often inflated in areas where there are good schools. Homeschooling families can afford to buy less expensive properties in other areas. Places like Stellenbosch and Paarl are examples of sought after areas due to good schools. Such families can also save money by taking vacations outside school holidays, to name but a few.

If all these factors are taken into account, home education might be much more affordable than you think. Research done many years ago by what is now a well known American politician, Elizabeth Warren, has shown that families that live on one income are less likely to go bankrupt than families that live on two incomes. View a video on this at https://m.youtube.com/watch?v=pM3t-m0Zryk Although this research is not about homeschooling, it does address the perceived risk of choosing home education.

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.