Published by The Sunday Times on 24 July 2022
By Jane Borman (Equal Education Parliamentary Officer) and Ebrahiem Daniels (Equal Education Law Centre Candidate attorney)
Who should be punished if children are not in school, and how should they be punished? The law answers this question plainly — parents and caregivers. According to the South African Schools Act, children aged seven to 15 (or until they are in grade 9, whichever occurs first) must be in school.
If parents and caregivers provide no good reason for a child’s long absence from school, they can be sent to jail. The Basic Education Laws Amendment (Bela) Bill, now under consideration by parliament, doubles down on this approach by increasing the possible jail sentence from six to 12 months and adding the possibility of both a jail term and a fine.
In doing so, the department of basic education (DBE) attempts to use an oversimplified solution to fix a complex problem. Equal Education (EE) and the Equal Education Law Centre (EELC) are calling on parliament to get rid of this harmful provision in the bill and instead support parents and caregivers with the necessary help and resources to enable them to keep their children in school.
Of course, children must be in school. In 2020, after several months of hard lockdown due to Covid, EE and EELC advocated for the safe return of all learners to the classroom, because we know the implications of learners being out of school for long periods. Getting an education is essential in ensuring that children obtain the necessary knowledge and skills to empower them to realise their full potential.
The right to basic education is a fundamental human right and all of us — whether parents, caregivers or not — should be invested in ensuring that all children are in school. However, the approach taken by the DBE — of jailing and fining parents and caregivers and proposing increased jail time under the Bela Bill — is not only misguided and unjustified, but it does not work.
Many households across SA have to deal with overwhelming challenges in their daily lives. Households and communities across the country live in extreme poverty that was worsened by the pandemic and many struggle to make ends meet. For parents and caregivers, this presents real and sometimes insurmountable challenges to keeping their children in school, such as being unable to afford uniforms, additional learning materials and transport for their children to go to school.
“Before the government says that parents must go to jail, they must first know why parents struggle to get their children to school,” a parent member of EE living in the Western Cape told us. “Poverty is the main reason children struggle to go to school. Looking at the social grant that is given by the government to parents, it is too little. It is not even enough for food because life is expensive.”
Sometimes, failure by the DBE and provincial education departments to provide basic services in schools is the reason parents and caregivers are unable — or do not want — to send their children to school. In rural areas, the poor provisioning of state-subsidised scholar transport forces children to walk long distances, putting them in harm’s way, just to attend school.
In KwaZulu-Natal for example, EE learner members have testified to walking punishing distances to and from school, often over difficult and dangerous terrain — in severe heat or rain, and vulnerable to theft and sexual assault. In other instances, parents and caregivers become concerned about the overall safety of their children on school premises, due to poor infrastructure such as dilapidated plain pit toilets. Therefore requiring that parents and caregivers be jailed for extended periods of time is not only harsh but it does not address these underlying causes.
Even if a parent or caregiver is solely to blame for a child being absent from school, jailing them is not in the best interest of the child. Prolonged absence of a parent, especially due to imprisonment, may have serious psychological consequences for a learner whose life and home environment will be completely disrupted. Moreover, both a fine and a jail sentence for the same offence may worsen the very conditions that pull the child out of school in the first place. Punishing parents and caregivers with jail time, a fine, or both will inevitably affect mothers more, as women are invariably the primary — if not sole — caregivers.
EE and EELC are not blind to the possibility that parents and caregivers might be keeping their children out of school for reasons that cannot be justified. We are saying that criminalisation should not be the default response. A report by Unesco analysing ways of addressing learner absenteeism in 34 countries found no substantial evidence that a punitive approach works. Imprisonment and/or fines are also not the only available interventions for this issue.
The Unesco report highlights that SA’s penalty is excessive compared with most other countries. Even in cases where imprisonment is possible, many countries have other supportive ways and safeguards in place — such as connecting parents with services, substance abuse treatment, advice centres and family mediation — to secure a learner’s attendance.
The Bela Bill is an opportunity for the government to change SA’s school laws to reflect the reality and needs of our country, communities, households and children. By increasing the punishment for parents whose children are out of school, the DBE is missing an opportunity to tackle the actual issues that households face.