Authored By: Sibongakonke Mkhize
University of South Africa
Introduction: Historical Background and Research Basis
The Basic Education Laws Amendment Act (BELA Act) was established as a refurbished legislative modification of the South African Schools Act 84 of 1996 (SASA). Act 84 of 1996 was enacted in the post-apartheid era, aimed at promoting access to equitable and quality education. This was a significant legislative piece, as it played a pivotal role in establishing a democratic school governance framework and correcting the injustices of the past.1 The law, however, is constantly evolving to reflect broader social and economic realities. SASA has consequently undergone many amendments in response to developments in the education sector. The BELA Act came into effect as part of the Department of Education’s efforts to realign regulatory oversight and strengthen state involvement in processes such as learner admissions, language policies, and other aspects that were previously administered largely by school governing bodies.2
As the most recent amendment to education sector legislation, the BELA Act is the subject of this paper’s critical analysis. This research critically examines its purpose, intentions, and the administrative strains and challenges it introduces — challenges that fall most heavily on those it is meant to govern. With the Department of Education assuming greater involvement, the question becomes whether this intervention is producing meaningful change or creating additional burdens for an already overstretched teaching profession. This paper focuses on the new aspects of the amendment, presents critical arguments, and assesses its practical efficacy in achieving what it aims to accomplish.
Addressing Regulatory Inconsistencies
The BELA Act’s primary stated aim is to promote equality and uniformity in the education system. As an amendment, it specifically addresses ongoing inconsistencies within the already functioning framework. This paper focuses on the amendments that have attracted the most public controversy and debate.
The Corporal Punishment Ban
The South African Schools Act eradicated corporal punishment from its first enactment, making it unlawful since 1996. In Christian Education South Africa v Minister of Education, the body governing an independent Christian school challenged section 10 of SASA, which banned corporal punishment.3 Their argument was heavily based on religious beliefs and biblical scripture encouraging corporal punishment as a form of correction. It was further claimed that parental consent to corporal punishment made it valid, and that prohibiting it infringed upon the right to freedom of religion. The court held that the ban did not in fact limit that right, since the right to freedom of religion is not absolute and the best interests of the child are always of paramount importance, surpassing the claims advanced regardless.4
The recent amendment has further entrenched this position by providing a precise and unambiguous definition. The definition found in section one of the BELA Act reads as follows:‘corporal punishment’ means any deliberate act against a child that inflicts pain or physical discomfort, however light, to punish or contain the child, which includes, but not limited to, hitting, smacking, slapping, pinching or scratching with the hand or any object; kicking, shaking, throwing, throwing objects at, burning, scalding, biting, pulling hair, boxing ears, pulling or pushing children; and forcing children to stay in uncomfortable positions, forcing ingestion, washing children’s mouth out with soap, denying meals, heat and shelter, forcing children to do exercise or denying or restricting [sic] a child’s use of the toilet.5
This substantiates section ten’s prohibition of corporal punishment and its subsequent consequences, making it a crime to inflict corporal punishment on learners.6
While the BELA Act reinforces constitutional rights, it leaves educators with only non-violent disciplinary options. Educators are effectively stripped of control over their classrooms if they cannot correct learners effectively. In an ideal world, learners would not require discipline — but in reality, they do, and with the corporal punishment ban in place, learners may seek to exploit the law to their advantage. How then do educators maintain an environment in which they can teach productively, if they are not in control of that environment? A strong argument can be made that the new amendment’s definition of corporal punishment is overreaching into the territory of normal and effective discipline. The amendment over-criminalises the disciplining of young minds who need direction and guidance.
In the landmark case of Freedom of Religion South Africa v Minister of Justice and Correctional Development, the Constitutional Court held that corporal punishment in the home is unconstitutional.7 This is a clear example of a provision with good intentions — protecting constitutional rights and affirming the paramount importance of children’s best interests — yet one that creates challenges with long-term consequences for coming generations by expanding the definition of “corporal punishment” to the point where even effective discipline is criminalised. The BELA Act fails to indicate what effective discipline looks like in a practical context. If learners cannot be effectively disciplined, how are they expected to mature into law-abiding citizens? How is the rule of law to be upheld without consistent consequences? Without that consistency, authority loses its legitimacy and relevance.
Promises of Accessibility vs. Administrative Challenges
The BELA Act is not merely another piece of legislation; it envisions a significantly more advanced education system. Yet it promises much without providing practical guidance on how these aims are to be achieved. The Act provides, in section four (amending section five of SASA), that the head of department holds overruling authority with regard to learner admissions to a public school.8 Section five further states that the governing body may establish a language policy subject to the Constitution and any applicable provincial law, provided that the policy is limited to one or more of the official languages of South Africa, and further recognises sign language as an official language for the purposes of learning at a public school.9 These provisions further address the injustices of the past and seek to ensure that discrimination or exclusion does not occur on the basis of race, culture, or language background.10
When it comes to practical implementation of these regulatory requirements, however, the challenges become apparent. Schools must now prepare and submit documentation to higher authorities to process admissions and justify those submissions. This creates unnecessary dependency on the established National Intergovernmental Committee, which is tasked with handling admissions for schools across the entire nation.11 This could cause significant backlogs and hinder the school year under the weight of administrative demands placed on a single committee. It also becomes an accessibility concern rooted in inequality. Schools differ vastly in terms of resources, and this disparity creates a gap between them. Under-resourced schools, where administrative capacity is already limited, will struggle severely to comply with rigid national and provincial standards, and face an increased risk of non-compliance penalties.12 Education staff must now shift their attention from delivering quality education and learner support to producing administrative documents and completing paperwork — directly undermining the right to education as enshrined in section 29 of the Constitution.
While the BELA Act aims to increase accountability and uniformity within the system, the heightened administrative demands prioritise bureaucratic efficiency over access to equitable and quality education. In Governing Body of the Juma Musjid Primary School v Essay NO, a public school situated on privately owned trust land faced eviction when the trust sought to reclaim the property.13 The Court held that the right to basic education cannot be delayed — it is immediately realisable, and the state bears a positive obligation to ensure that learners have access to education.14 The administrative burden created by the BELA Act risks diverting schools from this immediately realisable obligation, in precisely the same way that the litigation in Juma Musjid threatened to divert that school from its educational purpose.
Conclusion
This paper has advanced substantive arguments addressing the practical weight of the provisions of the Basic Education Laws Amendment Act. The overreaching, strict emphasis placed on the corporal punishment ban consequently diminishes effective discipline — an inconsistency that risks communicating to learners that any meaningful disciplinary action is equivalent to violence. The amendment also fails to indicate what effective discipline looks like with the corporal punishment ban in place, leaving educators to navigate a murky grey area on their own, with the constant risk of criminal liability.
The dangerous imbalance between access to education and the fulfilment of compliance requirements has proven burdensome to education staff. Administrative submissions must not become the primary priority at the expense of providing equitable and quality education. An immediately realisable right — one that obligates the state to ensure its fulfilment — cannot be adequately met if the volume and standard of required administrative submissions are set at exaggerated levels. This is particularly acute for under-resourced schools, which face a real risk of falling behind on administrative obligations or failing to fulfil them altogether.
While the provisions of the BELA Act carry good intentions and echo the values of the Constitution, the practical work required to achieve its goals and meet its requirements is, in several respects, unrealistic — to the point where even the fundamental right to basic education is placed at risk.
Reference(S):
1 South African Schools Act 84 of 1996.
2 Basic Education Laws Amendment Act 32 of 2024.
3 Christian Education South Africa v Minister of Education 2000 (4) SA 757 (CC) para 1.
4 Ibid para 41.
5 Basic Education Laws Amendment Act 32 of 2024 s 1.
6 South African Schools Act 84 of 1996 s 10(2).
7 Freedom of Religion South Africa v Minister of Justice and Correctional Development 2019 ZACC 34 para 76.
8 Basic Education Laws Amendment Act 32 of 2024 s 4.
9 Ibid s 5.
10 TJ Kanyopa & S Chibaya ‘Conceptual Analysis of the Basic Education Laws Amendment Act and Its Implications for Diversity and Inclusion’ (2025) 5(7) Journal of Posthumanism 1904.
11 Basic Education Laws Amendment Act 32 of 2024 s 4(1)(b).
12 Kanyopa & Chibaya (n 10) 1905.
13 Governing Body of the Juma Musjid Primary School v Essay NO 2011 (8) BCLR 761 (CC) para 1.
14 Ibid para 37.
