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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

Legal elite tackle thorny issue of corruption
2013-01-24

 

Our Faculty of Law brought together top experts and judges for a Symposium on Corruption, to investigate one of the most pressing concerns of South Africans.
Photo: Stephen Collett
24 January 2013



   YouTube Video

Chief Justice Mogoeng Mogoeng yesterday (24 January 2013) concluded the proceedings of the first day of the International Symposium on Corruption, hosted by the Faculty of Law of the University of the Free State (UFS). In his address Justice Mogoeng made no excuses as to the magnitude of the threat corruption presents to South African citizens.

“Urgent action and efficient measures are called for to arrest this scourge, for the sake of our constitutional democracy,” he warned. “Our vibrant constitutional democracy will not and cannot survive in the face of rampant corruption.”

Justice Mogoeng said the spate of civil and labour unrest erupting throughout the country can be attributed to corruption. According to him the scope and far-reaching implications of corruption drives South Africans to “boiling point” and evokes “anger, frustration and a don’t-care-attitude that often manifests in widespread protest actions” and disrespect for the rule of law.

“South Africans, irrespective of race or creed, must identify and focus on their common enemies and find a conciliatory and unifying way of dealing with what divides them, including the lingering prejudices of the past,” Justice Mogoeng urged.

Despite the threat corruption poses, he stressed that all South Africans have a role to play in the fight against corruption and that there are different role players that can become involved in the process. Especially important is the media and faith-based agencies which, according to Justice Mogoeng, can regenerate morals and secure a “national moral code.” The State must further ensure enforcement of anti-corruption measures and preside over the selection of individuals of “solid character” to reside in agencies meant to fight corruption.

He highlighted the need for an unbiased and independent judiciary, one immune to outside influences controlled by powerful forces, as well as personal agendas.

Although Justice Mogoeng believes that the private sector is most guilty of transgressions based on corruption, he stated that a “well-coordinated war” against it must be waged in all sectors in order to stamp it out.

Justice Mogoeng presided over the unveiling of the redesigned foyer of the CR Swart Building and praised the Faculty of Law for its innovation with regard to the symposium.

“I look forward with great optimism to more well-organised symposiums that strike at the nerve-centre of the well-being of our constitutional democracy,” he concluded.

Symposium seeks answers and solutions

The Faculty of Law at the University of the Free State (UFS) concluded its International Symposium on Corruption on Friday 25 January 2013. The event featured a stellar cast of speakers, including the Chief Justice of South Africa, three current Supreme Court of Appeal judges, high-court judges, advocates, prosecutors, journalists, as well as local and international legal academics.

Throughout the two-day symposium, corruption was dissected as a severe problem in the South African socio-economic landscape and solutions were sought to alleviate the pressing concern.

The main attractions of the symposium were undoubtedly the attendance and presentations delivered by Chief Justice Mogoeng Mogoeng, as well as Prof. Leon Wessels. Prof. Wessels was described as “one of the founding fathers of the constitution of South Africa” by Judge Fritz Brand, a current Appeal Court judge and the third-longest serving judge in the country.

“Corruption is stealing the constitutional dream of this country. Corrupt leaders are fearless, those who expose corruption, are fearful,” Prof. Wessels warned.

Judge Brand closely trails the second longest serving judge in the country in former Kovsie, as well as former UFS Council Chairman, Judge Faan Hancke. Both judges addressed the symposium and chaired sessions, along with Prof. Johan Henning, Dean of the Faculty of Law, and Judge Ian van der Merwe, Chairman of the UFS Council.

It was, however, not all doom and gloom, as several of the speakers offered tangible ideas in what was often termed the “war on corruption”. Celebrated Sunday Times journalist Mzilikazi wa Afrika who has been arrested following the police leasing scandal which he exposed, urged South Africans to stand together in their fight against corruption, before it is too late.

People on the front lines in the day to day fight against corruption also spoke at the symposium, giving the audience a better understanding of the intricacies and challenges involved in the process. The Head of the National Prosecuting Authority’s Asset Forfeiture Unit, Mr Willie Hofmeyer, as well as Advocate Xolisile Khanyile, who is the Director of Public Prosecutions in the Free State, elucidated this struggle.

The symposium also hosted Prof. Chizu Makajima, a celebrated academic from the United Kingdom.

The two-day symposium ended in style as the delegates gathered in the Centenary Hall on the Bloemfontein Campus for lunch, with a further address by Prof. Leon Wessels


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