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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

Lessons of The Spear
2012-08-16

Discussing weighty issues at the UFS were from left: Prof. Jonathan Jansen; Vice-Chancellor and Rector; Nic Dawes, Editor-in-Chief, Mail & Guardian; Max du Preez: Investigative journalist and political columnist; Ferial Haffajee: Editor, City Press; and Justice Malala: Political commentator and newspaper columnist.
Photo: Johan Roux
14 August 2012

What were South Africans left with after The Spear? More importantly, what did we learn from The Spear?

These were the issues discussed at a seminar, Beyond the Spear, on the controversial Brett Murray painting at the Bloemfontein Campus of the University of the Free State (UFS) on Monday 13 August 2012.

The university hosted this seminar, Beyond the Spear, in conjunction with acclaimed journalists, to look deeper into the lessons that South Africans learnt from this painting and the reaction from the public and politicians following soon after it went on display at the Goodman Gallery in Johannesburg.

The four panellists, Mr Justice Malala (political analyst, journalist and host of the news show, The Justice Factor), Mr Nic Dawes (editor in chief of Mail & Guardian), Mr Max du Preez (investigative journalist and political columnist) and Ms Ferial Haffajee (editor of City Press), all presented their views and experiences on the public’s perceptions of this artwork.

In his opening remarks, Prof. Jonathan Jansen, Vice-Chancellor and Rector, said the purpose of the seminar was to help us make sense of what happened. Prof. Jansen also chaired this seminar.

“This being South Africa, there will be more ‘Spears’. More public crises will unfold that divide the nation and that will stir the emotions. We need to understand what happened so that we are better prepared to deal with the coming ‘Spears’.”

Issues on leadership, South Africa’s hurtful past and the freedom of expression were some of the topics raised by the panellists.

“This has taught us that South Africans – especially the older generation – still need to vent their anger… White South Africa must be patient and allow black citizens to shout at them,” said Mr Du Preez. He warned that this anger should serve a constructive purpose. In reaction to a question if Brett Murray did not disrespect Pres. Jacob Zuma’s dignity with his controversial painting, he said that this painting was “…rude and disrespectful.”

“It was meant to be. It was not honouring him.” He said that politicians will do anything, including messing with the country’s stability, to further their own interests. “From now on we need to be far more alert, far more cynical about our politicians.”

Mr Dawes shared his experience and said that the debates around The Spear were very painful considering where the nation has come from. He said the painting opened up painful pasts and difficult spaces. “It is up to the media to open up these difficult spaces.” He said the painting also brought up questions of how South Africans deal and live with pain. “South Africa must live with its past. The debate should now be how to preserve space for the country’s ghosts and how its citizens could get the resilience to deal with it.”

Ms Haffajee, who was caught in the crossfire between freedom of expression and human dignity and who refused to remove a picture of the painting from the City Press website, said that the media was viciously played by politicians.

“This had shown that achieving freedom took many lives, but it took very little to kill it.” She said The Spear is art that it is part of a rich cultural heritage of protest art.

Mr Malala said with the debates around The Spear painting, something died in South Africa. “The debate was taken away from us. We let politicians get to us.”

After the panellists delivered their presentations, Prof. Jansen led a discussion session between the audience and the panellists.

 

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