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When predictions falter: The unfolding reality of the BELA Act

18 March 2025 Photo Supplied

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

UFS responds to concerns around high costs of higher education

2015-10-15

Dear Students

UFS responds to concerns around high costs of higher education

There is an understandable and shared concern among students in the country around the high costs of higher education. As you know, this also is a matter of deep concern on our campuses, which the University of the Free State (UFS) has made a priority in discussions with student leaders - and through new strategies to relieve the burden of costs on poor students and their families. In fact, in the past two weeks, the UFS leadership has again engaged students on the matter of fees in the future.

This is what we have done so far. We have maintained our position as one of the universities with the lowest tuition fees in the country. As you would have seen from recent newspaper reports on the cost of a degree at various institutions over the past five years, the UFS has had consistently low fees. This is not an accident; both the University Council and the executive leadership of the UFS is of one mind that we must offer a high quality education at minimum cost to all our students, despite the rising costs of operating a large multi-campus university with 30 000 students. Our commitment to you is to continue to keep those costs to students as low as possible, without compromising on the quality of education.

In addition, we took a decision earlier this year to become the first university to drop application fees for first-year students. We are proud of that achievement, since so many students fall at this first hurdle as they contemplate post-school education and training. We also waived registration fees for postgraduate students and now Research Master’s and PhD students can study tuition free under certain conditions. We raised more than R60 million from the private sector to enable talented students, who do not receive NSFAS funding, to complete their degree studies at the UFS. We set aside some of the university’s own funds to enable even more students to access finance for their studies. And we now have a special office set aside to counsel and assist students to apply for more than one scholarship to support their studies. The university does not follow a policy of maximizing exclusions. It has endeavoured and succeeded to turn around the majority of its potential deregistration cases. During 2015 we had 2 700 students at the risk of being de-registered, but our serious efforts resulted in only over 200 instances of exclusion we could not mitigate. As is the practice for the past few years, these students’ debt for 2015 has been reversed.

But, we do not only look for funds from outside to support our students. Last year we set up a Staff Fund to which ordinary members of the academic and support staff can contribute from their own, and sometimes very modest, salaries to enable Kovsie students to finish their degrees. We have volunteers who work on the No Student Hungry (NSH) Bursary Programme to raise funds for students who cannot afford a regular meal. We have an open line to rural and township schools to nominate poor students with good results for support by the Rector’s Fund, and some of those students are now in their final year of studies. And many of our staff support individual students in their homes and with their families, without being asked to do so. This is what we call the Human Project and it remains central to the way in which we deal with students.

We will of course continue to make representation to government, the private sector, and individuals to increase funding, especially for first-generation students, and for families where more than one student is at university. We will continue to take to the road to raise funds from companies and foundations to finance our students. We will expand on-campus opportunities for limited working hours for students who wish to earn some money to support their studies. As we have said often before, no student who passes all their courses or modules will be turned away simply because they do not have the funds to study.

The UFS discusses and agrees to fee increases with our students well in advance of the next academic year. None of these decisions are taken without the agreement of the student leadership and thus far these engagements, while tough, have always been done in good faith and with the students’ interests at heart.

It is important for you to know that, with the declining government subsidy, in real terms, and the expanding needs of our students, we will not be able to keep the university running without fees - even though this source of revenue comes mainly through scholarships and bursaries. We need to compensate staff, purchase new library books and renew journal subscriptions (which is very difficult given the low value of the Rand), upgrade computers and software, pay rates and taxes, purchase laboratory equipment, pay the water and electricity bills, expand internet services, upgrade campus security, and hire more academics to keep class sizes reasonably small. It is important for you to know that the university has managed to avoid increasing student fees as a result of much higher municipal rates. Our lecturers are not the highest paid in the country and financially we run a tight ship. We consistently achieve unqualified audits and we are known to be one of the universities that manage its NSFAS contributions with great efficiency. We do this because of our commitment to ensure that our students are able to enjoy a high quality of education on a stable campus where there is a deep respect for all campus citizens.

Despite all these efforts, the most important message we wish to communicate, is that the door remains open for continued discussion with student leaders as we continue to find ways of keeping university education open and accessible to all qualifying students. At the same time, the UFS leadership is involved in discussions with government about how to best manage the escalating cost of higher education for our dents.

Thank you for your support and understanding at this time and be assured, once again, of our commitment to students as a matter of priority to the university leadership.

Best regards

Prof Jonathan Jansen
Vice-Chancellor and Rector

University of the Free State
19 October 2015

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