Representation to the Department of Basic Education
Stakeholder Workshop 9/10 October 2014
By Joy Leavesley on behalf of her children
Our children are blessed to live in our wonderful country, at such a time as this. The
struggle for freedom has meant they now enjoy one of the most advanced
democracies in the world. The heart of our collective lives, President or pauper, is in
our Constitution. It is an amazing document, which is supported by international
law and sits comfortably at the forefront of the Human Rights movement. I am
encouraged also to see we will soon be celebrating the 25th anniversary of the United
Nations Convention on the Rights of the Child (UNCRC)1, ratified by South Africa in
1995 - a document so vital to the lives of our children.
There are many freedoms included in the Constitution2, the UNCRC, the African
Charter on the Rights and Welfare of the Child3 and the Children’s Act4 amongst
other documents, but I am focusing on those which provide my children with the
right to an education. There are also many judgements and rulings in regard to how
to interpret and apply these documents, which I will also present on behalf of my
children.
First up, I guess, I must lay out the foundation on which my children’s education
must be built. The foundation has three cornerstones:
Best Interests: The right to having my children’s best interests considered as the
paramount principle/right/standard in determining their education (Constitution
28(2), African Charter 4(1), UNCRC article 3, Children’s Act ss 9).
Parental care: It is widely accepted that as parents, my husband and I, are best
placed to provide direction to our children in the exercise of their rights in a manner
consistent with their evolving capacities (Constitution 28(1)(b), African Charter 9 (2)
& (3), 18, 19 and 20, UNCRC article 5, Children’s Act ss 18&19).
Involvement: My children’s views, in accordance with age and maturity, must be
included in determining their education (African Charter 4(2) & 7, UNCRC article 12,
Children’s Act ss 10).
In summary, the foundation laid out provides for my husband and I, in partnership
with each of our children, to achieve the best education for them individually. This is
obviously on a sliding scale, as each child gains more maturity and is able to take
more responsibility then this will occur.
To determine “the best education”, we have to define education. There is no
definition of education in any regulation, statute or policy within South Africa
Convention on the Rights of the Child. Adopted and opened for signature, ratification and accession by general assembly
resolution 44/25 of 20 November 1989 entry into force 2 September 1990, in accordance with article 4
2Constitution of the Republic of South Africa, no. 108 of 1996
3 African Charter on the Rights and Welfare of the Child OAU doc. Cab/leg/24.9/49 (1990), entered into force Nov. 29, 1999
4 Children’s Act, no. 38 of 2005
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outside of the definition in the NEPA5 which is really not a definition of education
but rather a suggestion of where education may occur “means any education and
training provided by an education institution”. Therefore we have to look towards the
UNCRC which defines it in terms of what it should achieve; “The development of the
child's personality, talents and mental and physical abilities to their fullest
potential;(b) The development of respect for human rights and fundamental
freedoms, and for the principles enshrined in the Charter of the United Nations;(c)
The development of respect for the child's parents, his or her own cultural identity,
language and values, for the national values of the country in which the child is
living, the country from which he or she may originate, and for civilizations
different from his or her own;(d) The preparation of the child for responsible life in
a free society, in the spirit of understanding, peace, tolerance, equality of sexes, and
friendship among all peoples, ethnic, national and religious groups and persons of
indigenous origin;(e) The development of respect for the natural environment”.
Interestingly it steers clear of explaining how it should be achieved. So while we have
a duty to provide education and we know what education looks like, we have no guide
as to how to achieve education. It seems therefore my husband, myself and our
children, individually, are at liberty to determine how education should be achieved,
based on our three founding principles – best interests, parental care and
involvement. In analysing how to achieve education in the best interests of our
children, the following could be considered as relevant factors:
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Is this pedagogy or educational approach in my child’s best interests?
Is this able to accommodate the asynchronous nature of my children?
Does this encourage learning above teaching?
Does this encourage a culture or lifestyle of learning, development and
maturing?
Is this child-centred or teacher/process/assessment centred?
Does this allow for constructive social connection across ages, cultures,
religions etc?
Does this contribute to our learning environment by promoting delight,
creativity, curiosity and safety?
Does this prize effort and process rather than perfection and outcomes?
Does this encourage higher level cognitive skills such as creating, analysing,
reasoning and so on?
Is this relevant for 2014 and the world of 2020 and beyond?
Does this include knowledge and skills of significant value/import to a
perceived adulthood of my child?
Does this develop my child in totality?
Is this appropriate for my child’s age (chronological age as well as age in
maturity?)
Is this responsive and flexible to adapt to my child?
Does this allow for my child to develop his/her unique talents and strengths?
Does this provide additional support for areas of weakness?
If this is not suitable what alternatives are available?
Are the materials/opportunities/methods suitable for my child?
National Education Policy Act no. 27 of 1996
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Does this facilitate all elements of education?
Are assessments fair? Consistent? Used to enhance my child’s education?
Does this require mastery of one level prior to promotion to the next level?
Is this the best international practice/supported by scientific research?
Is this respectful of my child’s values and beliefs?
Does this accommodate our unique home situation, cultural environment, life
experiences?
Is the time required reasonable? Does the time required allow for the total
development of my child?
Does this negatively impact on my child in any way? Emotionally, physically,
socially, emotionally?
Does this support the family’s role in my child’s education?
Does this give my child meaningful control/autonomy over his/her own
learning (according to maturity)?
Does this integrate and build on prior knowledge and experiences?
And so on…
This seemingly endless list of possible considerations has been discussed by Judge
Sachs in S v M6 in September 2007 “Furthermore “‘(t)he list of factors competing for
the core of best interests [of the child] is almost endless and will depend on each
particular factual situation’.” What we also know about our children is the factual
situation mentioned is also constantly changing and moving as the children grow and
develop and as our world changes at a pace never seen before. He also mentioned in
the same ruling how difficult it is to provide a one size fits all formula to children.
This we know well, as what has been brilliant for one of our children has had to be
abandoned as ineffective for the other. Judge Sach: A truly principled child-centred
approach requires a close and individualised examination of the precise real-life
situation of the particular child involved. To apply a pre-determined formula for
the sake of certainty, irrespective of the circumstances, would in fact be contrary to
the best interests of the child concerned. This best interests right and standard it easy
to apply as a parent. We have the intimate, detailed, day to day, hour by hour
relationship, knowledge, understanding and history of our children; and are able to
undertake the close and individualised examination of the precise real-life situation
of the particular child involved. We also have freedom from a pre-determined
educational formula, which Judge Sachs mentioned would be contrary to our
children’s best interests. This may seem vague and indeterminate but as Judge Sachs
explains flexibility is its strength “Yet this Court has recognised that it is precisely
the contextual nature and inherent flexibility of section 28 that constitutes the
source of its strength. Thus, in Fitzpatrick this Court held that the best
interests principle has “never been given exhaustive content”, but that “[i]t is
necessary that the standard should be flexible as individual circumstances will
determine which factors secure the best interests of a particular child.”
With this information it is hard to imagine that school (an institution), curriculum (a
pre-determined formula) or set standards (an inflexible standard) meet the
requirements for achieving the best interests of my children. It is also interesting to
contemplate how assessments of children’s attainment of the “curriculum” or
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S V M (CCT 53/06) [2007] ZACC 18; 2008 (3) SA 232 (CC) (26 SEPTEMBER 2007)
“standards” promote or fulfil their right to an education. Clearly there are limitations
which can come to bear on our rights, as might be reasonable and justifiable in an
open and democratic society. As school, curriculum, standards or assessments do not
seem reasonable or justifiable in achieving the child’s best interests, through parental
care and involvement of the child, can these requirements be constitutional? This is
further complicated by the fact that the legislature and executive have failed to define
education, or establish a system which honours the individual child’s best interests,
and assume that somehow school, by its very nature, provides education. Judge
Cameron in C v M7 in July 2009, “Amongst other things section 28 protects children
against the undue exercise of authority. The rights the provision secures are not
interpretive guides. They are not merely advisory. Nor are they exhortatory. They
constitute a real restraint on Parliament”
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CENTRE FOR CHILD LAW V MINISTER FOR JUSTICE AND CONSTITUTIONAL DEVELOPMENT AND OTHERS
(CCT98/08) [2009] ZACC 18; 2009 (2) SACR 477 (CC) ; 2009 (6) SA 632 (CC) ; 2009 (11) BCLR 1105 (CC) (15 JULY 2009)