President Cyril Ramaphosa
President Cyril Ramaphosa and Minister of Basic Education Siviwe Gwarube are at the centre of legal action initiated by AfriForum, Solidarity, and the Solidarity Support Centre for Schools (SCS). These organisations have served both officials with letters of demand, citing that the proclamation of the Basic Education Laws Amendment (BELA) Act in its entirety is “irrational and unconstitutional.” The dispute now hinges on whether the President and Minister will respond within ten days or face a legal battle.
A Controversial Proclamation
On 24 December 2024, the BELA Act was promulgated in full by President Ramaphosa, a decision that triggered widespread controversy. AfriForum and Solidarity contend that the proclamation ignored rational recommendations made by Minister Gwarube. The Minister had advised delaying the implementation of contentious provisions, particularly Clauses 4(d), 4(f), and 5(c), which shift power over language and admission policies from school governing bodies (SGBs) to provincial Heads of Department (HODs).
The organisations argue that these clauses undermine the “partnership model” central to South Africa’s school governance system. In a joint letter to the President, Kallie Kriel of AfriForum and Dr Dirk Hermann of Solidarity highlighted the legal implications: “The legality principle and the rule of law require that executive powers must be exercised rationally. Negating the Minister’s recommendations to enact the Act in its entirety fails this test.”
Minister’s Position and Recommendations
In her November 2024 media statement and subsequent correspondence to the President, Minister Gwarube underscored the necessity of establishing norms, standards, and regulations before implementing key clauses of the BELA Act. She warned that premature enactment could lead to arbitrary decision-making by provincial officials, potentially eroding the governance powers of SGBs.
The letter of demand addressed to the Minister further elaborates: “The absence of guiding norms and standards opens the door to misuse of these powers, as seen in past cases such as Hoërskool Overvaal. Provincial officials could override SGB decisions without clear checks and balances.”
AfriForum and Solidarity argue that the Minister’s earlier recommendations were consistent with constitutional principles and international legal standards. Yet, they claim these rational proposals were sidelined at the eleventh hour due to political pressure within the Government of National Unity (GNU).
GNU Dynamics and Political Allegiances
The Government of National Unity, formed after the ANC lost its parliamentary majority, has been marred by internal tensions. Reports suggest that the ANC, GOOD Party, and DA reached a consensus during the GNU’s Clearing House Mechanism to implement the BELA Act fully. However, AfriForum and Solidarity contend that this informal mechanism lacks constitutional standing and cannot substitute for Cabinet deliberations.
The DA’s Federal Leader, John Steenhuisen, reportedly welcomed the proclamation on the condition that the Minister would issue regulations to mitigate its impact. However, the absence of these conditions in the proclamation has raised questions about the integrity of the GNU’s decision-making process.
Legal Arguments and Constitutional Precedents
Both letters of demand draw extensively from constitutional law and case precedents to support their claims. In their correspondence to President Ramaphosa, AfriForum and Solidarity cite the Constitutional Court’s ruling in Kruger v President of RSA (2009), which distinguishes between the President’s powers under Sections 84 and 85 of the Constitution. The organisations argue that the proclamation, falling under Section 85(2), required collective Cabinet approval, which appears to have been bypassed.
Additionally, the demand letter references the Constitutional Court’s judgement in Pharmaceutical Manufacturers Association of SA v President of the RSA (2000), asserting that executive actions must be “objectively rational.” They claim that ignoring the Minister’s rational recommendations constitutes a violation of this principle.
The Core Contentious Clauses
At the heart of the dispute are Clauses 4(d), 4(f), and 5(c) of the BELA Act, which have sparked fears of undue state interference in school governance. These clauses:
• Grant HODs the power to override SGB decisions on language and admission policies.
• Transfer authority over learner admissions and capacity determinations from SGBs to provincial officials.
The organisations argue that these provisions disrupt the balance of power established by the South African Schools Act (SASA). They cite previous court rulings, including the Rivonia and Ermelo cases, which emphasised the importance of SGBs in safeguarding democratic participation in education governance.
Implications for Afrikaans and Mother-Tongue Education
AfriForum CEO Kallie Kriel expressed concerns over the impact of the BELA Act on Afrikaans schools. “This is an act of aggression against Afrikaans schools and children,” he said. “The ANC is using the GNU to impose policies that threaten mother-tongue education and constitutional rights.”
Leon Fourie of the SCS echoed these sentiments, accusing the President of succumbing to “political pressure from anti-Afrikaans elements in the ANC.” Fourie warned that the BELA Act could set a dangerous precedent for minority language groups, undermining inclusivity in education.
Calls for Resolution
Both letters of demand conclude with a call for dialogue to resolve the dispute amicably. AfriForum and Solidarity have proposed a meeting with the President and Minister to discuss potential remedies, including suspending the contentious clauses until norms and standards are finalised. They warn that failure to engage within ten days will result in legal proceedings to review and potentially overturn the proclamation.
Reactions from Stakeholders
The controversy has elicited mixed reactions from political parties, unions, and civil society organisations. The South African Democratic Teachers’ Union (SADTU) has welcomed the BELA Act’s full implementation, describing it as a step toward equity in education. Meanwhile, the EFF has criticised the delays in enacting the Act, accusing the government of pandering to “right-wing coalitions.”
ANC Secretary-General Fikile Mbalula dismissed claims of irrationality, insisting that the BELA Act represents a “milestone in the transformation of South Africa’s education system.” However, he acknowledged that the GNU’s internal negotiations had been fraught with challenges.
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