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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

Sites of memory. Sites of trauma. Sites of healing.
2015-04-01

Judge Albie Sachs – human rights activist and co-creator of South Africa’s constitution – presented the first Vice Chancellor’s Lecture on Trauma, Memory, and Representations of the Past on 26 March 2015 on the Bloemfontein Campus.

His lecture, ‘Sites of memory, sites of conscience’, forms part of a series of lectures that will focus on how the creative arts represent trauma and memory – and how these representations may ultimately pave the way to healing historical wounds. This series is incorporated into the five-year research project, led by Prof Pumla Gobodo-Madikizela, and funded by the Mellon Foundation.

Sites of memory and conscience – and healing

“Deep in solitary confinement, I read in the Bible: ‘the lion lay down with the lamb … swords will be beaten into ploughshares.’” And with these opening words, Judge Sachs took the audience on a wistful journey to the places in our country that ache from the past but are reaching for a better future at the same time.

Some of the sites of memory and conscience Judge Sachs discussed included the Apartheid Museum, Liliesleaf, District Six Museum, and the Red Location Museum. But perhaps most powerful of them all is Robben Island.

Robben Island

“The strength of Robben Island,” Judge Sachs said, “comes from its isolation. Its quietness speaks”. Former prisoners of the island now accompany visitors on their tours of the site, retelling their personal experiences. It was found that, the quieter the ex-prisoners imparted their stories, “the gentler and softer their memories; the more powerful the impact,” Judge Sachs remarked. Instead of anger and denouncement, this reverence provides a space for visitors’ own emotions to emerge. This intense and powerful site has become a living memory elevated into a place of healing.

After Judge Sachs visited the National Women’s Memorial in Bloemfontein some years ago, he came to an acute realisation as he read the stories, experienced the grief, and saw the small relics that imprisoned commandoes from Ceylon and St Helena sculpted. “It’s so like us,” he thought, “our people on Robben Island making a saxophone out of seaweed, our people carving little things. It was so like us. It was another form of inhumanity to human beings in another period.”

The Constitutional Court

The Constitutional Court next to the Old Fort Prison is also a profound site of trauma and healing. Bricks from the awaiting trial lock-up were built into the court chambers. “We don’t suppress it, we don’t say let’s move on. We acknowledge the pain of the past. We live in it, but we are not trapped in it. We South Africans are capable of transcending, of getting beyond it,” Judge Sachs said.

Transforming swords into ploughshares

Judge Sachs had great praise for Prof Gobodo-Madikizela’s research project on Trauma, Memory, and Representations of the Past. “You convert and transform the very swords, the very instruments, the very metal in our country. In a sense, you almost transform the very people and thoughts and dreams and fears and terrors into the ploughshares; into positivity.”

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