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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

Moshoeshoe - lessons from an African icon - by Prof Frederick Fourie
2004-11-03

(The full text of the article that appeared in City Press and Sunday Independent)

Our understanding of history informs our understanding of the present. No wonder the contestation over historical figures in South Africa’s past is so fierce and so divisive.
The question is: could it be any other way? I would like to think that it could; that black and white South Africans, across linguistic, cultural, religious and other divides, can develop a shared appreciation of our history – at least with certain periods and personalities as a starting point.

One such personality whose legacy I believe offers a possible platform for unifying our still divided country is King Moshoeshoe, who lived from 1786 to 1870, and is acknowledged as the founder of the Basotho.

King Moshoeshoe is the topic of a documentary that has been commissioned by the University of the Free State as part of its Centenary celebrations this year. It is part of a larger project to honour and research the legacy of Moshoeshoe. The documentary will be screened on SABC 2 at 21:00 on November 4th.

Moshoeshoe rose to prominence at a time of great upheaval and conflict in South Africa – the 19th century, a time when British colonialism was entrenching itself, when the Boer trekkers were migrating from the Cape and when numerous indigenous chiefdoms and groupings were engaged in territorial conquests. It was the time of the Difaqane, a period when society in the central parts of the later South Africa and Lesotho was fractured, destabilised and caught in a cycle of violence and aggression.

In this period Moshoeshoe displayed a unique and innovative model of leadership that resulted in reconciliation, peace and stability in the area that later became Lesotho and Free State. It made him stand out from many of his contemporaries and also caught the attention of his colonial adversaries.

Such an evaluation is not a judgment about which model of leadership is right and which is wrong, or which leader was better than another; but merely an attempt to explore what we can learn from a particular exemplar.
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Historians point to the many progressive leadership qualities displayed by Moshoeshoe which he used effectively in establishing the Basotho nation and in defending it.
First, there is his humanism and sense of justice worthy of any great statesman. Confronted by a situation in which cannibals murdered and devoured his grandfather, Moshoeshoe chose not to take revenge. Instead he opted to rehabilitate them and feed them as he believed hunger drove them to cannibalism.

Secondly, there is his skilful alliance-building with his contemporaries such as Shaka in an attempt to neutralize those rivals who were intent on attacking his followers. This is also displayed in the way he sought the protection of the British to keep the Boer forces at bay.
Thirdly, his emphasis on peaceful options is also seen in his defensive military strategy which saw him retreat to a mountain fortress to be able to protect and build a burgeoning nation in the face of the many forces threatening its survival.

Fourthly, there is his remarkable inclusivity and tolerance for diversity which saw him unite disparate groups of refugees from the violence and hunger that displaced them and then weld them into the Basotho nation. He also engaged with French missionaries, inviting them to stay with him and advise him on Western thought, technology and religion.
These are but some of the qualities which belie the notion that all 19th century African leaders were merely marauders and conquerors that gained their ascendancy through violence. Instead Moshoeshoe is a prime example of the human-centred, democratic and pluralist roots of South African, indeed African society.

The Moshoeshoe project that we have initiated (of which the documentary, called “The Renaissance King”, forms but one part) derives from our location as a university in the Free State, a province with a particular history and a particular political culture that developed as a result of this very model of leadership. This province has benefited tremendously from leaders such as Moshoeshoe and president MT Steyn, both of whom many observers credit with establishing a climate of tolerance, respect for diversity of opinion, political accommodation and peaceful methods of pursuing political objectives in the province. Their legacy is real – and Moshoeshoe’s role can not be overstated.
In addition the project derives from the University of the Free State being a site of higher learning in a broader geo-political sense. As a university in Africa we are called upon to understand and critically engage with this history, this context and this legacy.
Besides the documentary, the UFS is also planning to establish an annual Moshoeshoe memorial lecture which will focus on and interrogate models of African leadership, nation-building, reconciliation, diversity management and political tolerance.

In tackling such projects, there may be a temptation to engage in myth-making. It is a trap we must be wary of, especially as an institution of higher learning. We need to ask critical questions about some aspects of Moshoeshoe’s leadership but of current political leadership as well. Thus there is a need for rigorous academic research into aspects of the Moshoeshoe legacy in particular but also into these above-mentioned issues.
While the documentary was commissioned to coincide with the University of the Free State’s centenary and our country’s ten years of democracy, it is a project that has a much wider significance. It is an attempt to get people talking about our past and about our future, as a campus, as a province and as a country – even as a continent, given the NEPAD initiatives to promote democracy and good governance.

The project therefore has particular relevance for the continued transformation of institutions such as universities and the transformation of our society. Hopefully it will assist those who are confronted by the question how to bring about new institutional cultures or even a national political culture that is truly inclusive, tolerant, democratic, non-sexist, non-racial, multilingual and multicultural.

I believe that the Moshoeshoe model of leadership can be emulated and provide some point of convergence. A fractured society such as ours needs points of convergence, icons and heroes which we can share. Moshoeshoe is one such an African icon – in a world with too few of them.

Prof Frederick Fourie is the Rector and Vice-Chancellor of the University of the Free State

* The documentary on “Moshoeshoe: The Renaissance King” will be screened on SABC2 on 4 November 2004 at 21:00.

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