3. DEVELOPMENT OF EDUCATION LAW AND POLICY: HISTORICAL EVOLUTION

3.DEVELOPMENT OF EDUCATION LAW AND POLICY: HISTORICAL EVOLUTION

The trajectory of education law and policy in South Africa embodies a profound historical transformation, moving from the entrenched inequalities of apartheid to the democratic vision of inclusivity and justice. This evolution highlights how education shifted from being a tool of oppression and segregation to becoming a constitutional right central to dignity, equality, and social progress. Within this context, the following section explores two critical dimensions of this journey:

1. the transition from apartheid to democracy, and
2. the enactment of landmark legislation that laid the foundation for a rights-based and transformative education system.

3.1From apartheid to democracy

South Africa’s transition from apartheid to democracy marked a decisive turning point in the development of education law, and policy. Under apartheid, education was deliberately used as a tool of racial segregation, and social control, most notoriously through the Bantu Education Act,1 which entrenched inferior schooling for Black learners, and denied them equal opportunities for advancement. This system institutionalised inequality, ensuring that access to quality education was racially stratified, and reinforcing broader patterns of economic, and social exclusion. As scholars note, apartheid education was not only about denying knowledge but also about legitimising oppression, thereby making the dismantling of this system central to the democratic project.2

With the advent of democracy in 1994, education law, and policy underwent a profound transformation, guided by the principles of equality, dignity, and universal access. The new constitutional order enshrined education as a fundamental right in section 29 of the Constitution, signalling a break from the past, and a commitment to redressing historical injustices. Transitioning from exclusion to inclusion, the democratic government introduced legislation, and policies that established a uniform system of schooling, and prohibited discrimination. Furthermore, transformative constitutionalism provided the framework for reimagining education as a vehicle for social justice, and nation-building, ensuring that schools became spaces of empowerment rather than oppression. In the new dispensation, schools are not classified as state schools but as public schools, signalling that the state is not the only stakeholder responsible for public education, but notably that parents, through School Governing Bodies (SGBs), are required to play a prominent role in the education system, and be a valued contributor to the education space. The new dispensation reflects a decentralisation of education.3 Thus, the journey from apartheid to democracy reflects not only a legal evolution but also a moral, and political commitment to reconstruct education as a cornerstone of a rights-based society.4

3.2Landmark legislation

The advent of the democratic dispensation, and the Constitution5 opened the door for a new dispensation on education in South Africa. The new legislative framework was preceded by several White Papers that fostered participation, and fierce debate on what the new education landscape, and its regulatory framework should entail. These include the 1995 White Paper on Education and Training,6 (White Paper 1) envisioning a unified, and non-racial education, and training system to replace the fragmented apartheid system, and it acted as the central foundation for the new legislation. Education White Paper 2: The Organisation, Governance and Funding of Schools7 (White Paper 2) built on White Paper 1 and translated its principles into concrete proposals for school governance, funding, and organisation. Subsequent white papers shaped the broader policy, and legislative environments, and include Education White Paper 5 on Early Childhood Education8 (White Paper 5) and Education White Paper 6: Building an Inclusive Education and Training System9(White Paper 6).

To give effect to the constitutional right to a basic education, the NEPA,10 and SASA11 was enacted and amended over time. These acts can be regarded as the primary legislation governing basic education. However, numerous other acts apply to the school context and should be kept in mind in the governance, and management of schools. These include the Children’s Act12 which provides implementation prescriptions for this, and other legislation related to children,13 the basic principles applicable to realising children’s rights, and it supplements the constitutional rights14 of children contained in section 28 of the Constitution,15 and provides guidance on child protection,16 participation,17 and children’s responsibilities.18 Other important legislation includes the Child Justice Act,19 Promotion of Administrative Justice Act,20 Protection of Personal Information Act (POPIA),21 Choice of Termination of Pregnancy Act,22 Cybercrimes Act,23 Protection from Harassment Act,24 and the Public Finance Management Act25 to mention a few context-specific acts that are applicable to the education context. Labour laws are also an integral part of the realisation of educators’ labour rights, and include legislation such as the Employment of Educators Act,26 Basic Conditions of Employment Act,27 Occupational Health and Safety Act,28 Labour Relations Act,29 and the South African Council for Educators Act.30 This is not an exhaustive list of legislation applicable to the education context, but merely an indication that the field of education law entails more than the primary legislation, discussed below. It is prudent to recognise that education is a national as well as a provincial competence, and that there is also provincial legislation that should be considered.31

3.2.1National Education Policy Act

NEPA32 commenced on 24 April 1996, providing the Minister of Education with the authority to set national policy on education matters in line with specific democratic principles,33 such as extensive consultation with specific educational bodies34 which include the Council of Education Ministers,35 and the Heads of Education Departments Committee.36 In addition, NEPA guides the effective implementation of national education policy,37 and mandates the continuous monitoring, and evaluation of the education system.38

In doing so, NEPA established a framework for uniform standards across provinces, ensuring coherence on many crucial issues such as curriculum development, teacher qualifications, and resource distribution.39 Moreover, it was instrumental in consolidating the fragmented apartheid-era system into a coordinated national structure,40 thereby promoting equity, and consistency in educational delivery.41 By centralising policy authority, NEPA reinforced the state’s constitutional responsibility to guarantee quality education42 across diverse social, and geographic contexts,43 while simultaneously ensuring that education policy is aligned with democratic values of equality, and non-discrimination.44

Over time, judicial interpretation has clarified the scope, and limits of ministerial powers under the NEPA, underscoring its role in shaping education governance. For instance, in the Juma Musjid case45, the Constitutional Court emphasised that while private actors may provide education, the state bears the responsibility to ensure learners’ rights are not compromised, thereby reinforcing the NEPA’s mandate for uniformity, and fairness. Similarly, in Equal Education v Minister of Basic Education,46 the High Court addressed the failure to implement minimum norms, and standards for school infrastructure, ruling that the Minister’s delay violated learners’ constitutional rights.47 These cases illustrate how the NEPA continues to serve as a vital legislative instrument, harmonising national education standards while safeguarding learners’ rights. Thus, NEPA remains central to the transformative project of education in South Africa, ensuring that policy decisions advance both access, and quality in line with constitutional imperatives.

3.2.2South African Schools Act

SASA48 stands as a pivotal piece of legislation in the post-apartheid era, designed to dismantle the fragmented, and racially stratified education system, and replace it with a unified, democratic framework. By introducing compulsory schooling, prohibiting discrimination, and establishing SGBs, SASA sought to embed participatory governance at the heart of education.49 Moreover, it balanced state oversight with community involvement, ensuring that schools became inclusive spaces aligned with constitutional values such as equality, dignity, and non-racialism.50 In this way, SASA represented a decisive break from apartheid’s exclusionary practices, affirming education as a constitutional right accessible to all learners regardless of race, gender, or socio-economic background.

Nevertheless, the implementation of the SASA has consistently been tested in the courts.51 These cases demonstrate that the SASA is not static; rather, it evolves through judicial interpretation to ensure that its provisions remain consistent with the transformative vision of the Constitution.52

3.2.3Basic Education Laws Amendment Act

The BELA Act,53 signed into law in December 2024, represents one of the most ambitious reforms in South African education since the dawn of democracy. Despite politically loaded debates, and advocacy by numerous groups before the enactment of the BELA Act,54 it is prudent to be mindful that despite the prominence of the BELA Act it remains an amendment act and is not a standalone act. It merely amended the SASA55 as several other acts have done over the years, leaving the SASA as the primary statute governing schools.56

By introducing compulsory Grade R attendance, the Act seeks to strengthen early childhood development and ensure that learners begin their schooling journey on a more equal footing. In addition, it enhances accountability measures for parents and revises the governance powers of SGBs, particularly in relation to admissions, and language policies. Consequently, the BELA Act57 reflects the state’s commitment to progressively realise the constitutional right to education by expanding access, standardising governance practices, and addressing persistent inequalities that have long undermined the system.

The BELA Act recalibrates governance structures to align with constitutional imperatives of equality, and inclusivity. In this way, it represents both continuity, and change: reinforcing the transformative vision of education while adapting governance to contemporary challenges in pursuit of a more equitable system. Together, SASA,58 NEPA,59 and the BELA Act60 illustrate a common commitment to transforming education into a constitutional right that is inclusive, equitable, and responsive to democratic values. While SASA laid the foundation for participatory governance, and compulsory schooling, NEPA ensured national coherence in policy, and standards, and BELA expanded access through compulsory Grade R, and recalibrated governance to prevent exclusionary practices. Despite differences in scope, all three Acts converge on the principle that the state bears the ultimate responsibility to guarantee meaningful access to quality education, while communities, and parents play supportive roles. Collectively, these legislative milestones underscore that education in South Africa is not merely a policy objective but a transformative tool for social justice, and nation-building.61