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Dr Solomon Chibaya
Dr Solomon Chibaya is a lecturer in the Department of Education Management, Policy, and Comparative Education at the University of the Free State (UFS).

Opinion article by Dr Solomon Chibaya, Faculty of Education, University of the Free State.


One of the most humbling intellectual reckonings occurs when reality defies even the most well-reasoned predictions, compelling one to acknowledge misjudgement. Some may call it swallowing the humble pie, but in the realm of law and governance, it serves as a reminder of the unpredictable nature of socio-political dynamics. When the Basic Education Laws Amendment (BELA) Bill was signed into law, I anticipated a legal battleground - a flood of court challenges from those vehemently opposed to its provisions. I was wrong. I also foresaw fractures within the Government of National Unity (GNU), expecting tensions to manifest in visible discord. Wrong again. The fierce contestation promised by opponents of the Bill and the Act has, thus far, amounted to little more than rhetorical smoke without the anticipated fire. The impassioned declarations of legal warfare that once filled public discourse have not translated into the courtroom the battles as I had envisaged. This turn of events is not only fascinating but also challenges broader assumptions about resistance and contestation in contemporary policymaking.

Why have legal challenges not materialised?

To understand the absence of legal challenges against the BELA Act, one must retrace its origins - its conception, development, and the rigorous debates that shaped it. The BELA Bill was first drafted in 2013, following the African National Congress’s (ANC) 2012 elective conference, which mandated amendments to the South African Schools Act (SASA), 84 of 1996. At its core, the Bill was anchored in the transformative principles of the Constitution of South Africa, serving as a legislative instrument to advance equity, inclusivity, and equality in the education system. Given its constitutional foundation, one must ask: who could successfully litigate against a law built on such unassailable pillars of justice and democratic values? The very essence of the Act is woven into the broader framework of South Africa’s post-apartheid transformation, making any legal opposition not just a challenge to policy but a confrontation with the constitutional ideals that underpin the nation’s democracy.

Constitutional imperative for inclusivity

Any legal challenge against the BELA Act, particularly concerning language and admission policies, would ultimately be rendered unconstitutional. The Act is not merely a legislative adjustment; it is a transformative mechanism that promotes linguistic diversity, broadens access to education, and fosters inclusivity in school admissions and employment. These reforms align with the constitutional vision of democratic participation and equitable opportunity, ensuring that mother-tongue instruction evolves alongside a more integrated and representative education system. Who, then, could successfully contest a model that upholds these fundamental democratic values?

At the heart of the Act’s implementation lies a collaborative governance framework, where School Governing Bodies (SGBs) comprising parents, educators, and non-educator staff, work in tandem with the Department of Basic Education at both provincial and national levels to shape policies that best serve their schools. Rather than diminishing the role of SGBs, the Act strengthens their mandate within a broader, constitutionally guided educational ecosystem. Any resistance to this cooperative approach would not only be a defiance of participatory governance but also an attempt to obstruct the very principles upon which South Africa’s democratic and inclusive education system is built.

A masterstroke in legal foresight

A closer examination of the BELA Act reveals a legislative framework meticulously designed to pre-empt legal battles by embedding arbitration and mediation as the primary mechanisms for resolving disputes. In the event of conflicts between SGBs or their representatives, such as FEDSAS, and the Department of Basic Education, the Act prescribes alternative dispute resolution mechanisms, effectively curtailing costly and protracted litigation. Beyond its procedural elegance, the Act reflects a jurisprudential evolution, drawing heavily from precedents set by past court rulings and sealing the loopholes that once rendered the South African Schools Act (SASA) vulnerable to legal contestation. By doing so, the BELA Act assumes the character of case law, informed by judicial scrutiny and legislative refinement.

With such a robust legal foundation, the anticipated flood of litigation against the Act has failed to materialise. Could I have miscalculated again? Highly improbable. In a climate of economic volatility and geopolitical realignment, financial prudence is non-negotiable, and litigation remains an expensive and time-consuming endeavour. Even the most relentless legal advocates must recognise the futility of challenging a law so deeply embedded in the constitutional ethos of the Republic of South Africa (1996). The once-fiery calls for litigation have seemingly dissipated into a quiet acknowledgement of legal inevitability. 

News Archive

Reverend Frank Chikane honours ‘Oom Bey’ at second Beyers Naudé Memorial Lecture for 2012
2012-09-11

Rev. Frank Chikane and Dr Choice Makhetha, Vice-Rector: External Relations at the UFS.
Photo: Stephen Collett
10 September 2012

The 9th Beyers Naude Memorial Lecture, a partnership initiative between the University of the Free State (UFS) and Kagiso Trust, was held on the South Campus of the university last week. The theme of the lecture focused on Collaborative partnership for social cohesion: Building of a nation with ethics.

Guest speaker, Reverend Frank Chikane, is a member of the UDF, ANC, Director-General in the Office of the President and a board member of Kagiso Trust.

In his speech, Rev. Chikane focused on the first 45 years in the life of Beyers Naudé, sketching a picture of a man who lived for what he believes in. When this former minister of the South African Dutch Reformed Church and member of the Broederbond, decided to question the morality of the Apartheid government after the Sharpeville Massacre in 1960, he made some changes in his beliefs and started to play a big role in the struggle against apartheid.

“If one know about ‘Oom Bey’s’ earlier life, you will see how radical his contribution was in turning South Africa from a country on the brink of destruction to a country of peace. ‘Oom Bey’ must be seen as a role model, someone we can aspire to be in South Africa today,” Rev. Chikane said.

“From his legacy one sees elements of someone building a nation with ethics.

“He took sides with the poor against an unjust system. Power breaks cohesion. It makes people not to think,” Rev. Chikane said.

If Afrikaners and black people stood together after the South African War (Anglo-Boer War), we would have talked a different language today. However, they did not. Afrikaners stood together, excluding black people and cohesion between all races was destructed. ‘Oom Bey’ tried to build relationships between people from all races in South Africa in an effort to create peace amongst all people. He was alienated from the Broederbond and defrockedrom the church.

In his speech, Rev. Chikane also said that South Africa did not succeed in collaborative partnerships in terms of the economy. “We need collaborative action to change our economy. This specific failure can destroy all that we have built together.”

“All South Africans can be like ‘Oom Bey” and make a contribution, especially in terms of the economy. To deal with this challenge, we can all contribute. This is important because due to a poor economy, many people are desperate and desperate people can destroy any relationship that we might have built so far.”

At this event, the university and Kagiso Trust also announced the winners of a poetry and essay competition that coincided with this last Beyers Naudé lecture for 2012. The award ceremony looked at the creativity of the learners, how they expressed themselves as well as the novelty of their work. Students as well as learners from schools in the Free State participated in the competition and first, second and third place winners received cash prizes as well as a book from Rev. Frank Chikane for their brilliant work.
 

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