Submission on the Education Laws Amendment Bill, 2002 and Higher Education Amendment Bill, 2002

15 May 2005
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Comment on the Education Laws Amendment Bill, 2002


Higher Education Amendment Bill, 2002



Was the anti-apartheid struggle in vain? It appears increasingly that freedom is being equated with the mere absence of apartheid, rather than the absence of oppressive government per se.


For concepts like democracy, freedom, liberation, empowerment, rule of law, due process, GEAR, African Renaissance, MAP and NEPAD to have any meaning the South African and other African governments have to walk the talk. They have to remain true to these precepts and faithfully implement them. Desire is not enough. Real concrete changes have to be made. These changes have to increase personal and economic freedom.


Did South Africa have a struggle for freedom or a struggle for power? Have black South Africans become the victims of amandla (power) or the beneficiaries of nkululeko (freedom)? Many people make the false assumption that erosions of liberty do not affect the poor or black South Africans, particularly because protests are first heard from the affluent or whites. But if some members of society lose some of their liberty, all have lost, even though they may not realise it.


The kinds of centralised planning and stifling controls being introduced by the Department of Education amount to a conscious choice to deny black South Africans true freedom, and if this type of governance is implemented pervasively it will condemn them to enduring poverty. Personal and economic liberty, always and everywhere, results in prosperity, and its absence, always and everywhere, results in oppression and poverty. The evidence is now so overwhelming that the matter can no longer be a subject for informed debate.


One of the many paradoxes of the new South Africa is that the government has repeatedly announced generalised policies to promote personal and economic freedom such as GEAR and NEPAD but while some departments have implemented far-reaching reforms in the right direction, others march resolutely in the opposite direction. Imaginative reforms have given South Africa one of the freest agriculture sectors in the world, a flourishing private housing market for low-income communities, and thousands of black South Africans have had their apartheid land tenure upgraded to full ownership. In sharp contrast, other departments and most local authorities have intensified stifling controls at the direct expense of the poor and in direct contradiction with proclaimed government policy.


The Department of Education appears to be intent on banning all choice in education and all educational diversity and innovation. Its latest particularly distressing plan is to curtail the academic freedom even of universities by prescribing common curricula and qualifications. A free society would move in precisely the opposite direction where education policy would be devolved to regional and local levels, where private education would be private, and where parents and students would have freedom of choice. In a free world, educators compete by offering innovative, diverse, and better education to people who purchase it with their share of the governments education budget and whatever private funding they wish to add.






The sections of the Bill listed below are authoritarian in nature and appear to be designed to erode the choices of parents, students of all ages, lecturers and teachers in all educational institutions, and owners of all educational and training institutions. The proposals are unwise as they ignore the mounting evidence that good educational results are not produced by imposed curriculums, reduced choices, a lack of competition between suppliers, and a lack of diversity in educational offerings. Most importantly, it is not the way to improve the opportunities for advancement of the poorest and most needy members of our society. Authoritarian prescriptions do not uplift a nation and the following sections therefore need to be reconsidered:


Admission age, curriculum, assessment and regulations


South African Schools Act, 1996

1.1            The proposed section 5 (4), which prescribes the minimum admission age for learners entering public schools.

1.2            The proposed section 6A, which provides that the Minister must (accent added) determine a national curriculum and a “national instrument” (not defined) for assessment of learner achievement in the Republic.

1.3            The proposed section 45A, which prescribes the minimum age of admission for learners entering independent schools.

  1. The proposed section 61, which empowers the Minister to make regulations –


“(d)      to prescribe a national curriculum applicable to public and independent schools;

(e)       to prescribe a national instrument for the assessment of learner achievement;

  1. to prescribe the age norm per grade in public and independent schools;
  2. to provide for norms and minimum standards for school funding.”



Further Education and Training Act, 1998

  1. The proposed section 38A(1)(a), which provides that the Minister must determine a national curriculum;
  2. The proposed section 38A(1)(b) which provides that the Minister must determine a national instrument for the assessment of learner achievement;
  3. The proposed section 47(2)(b) which states that the Minister may prescribe a national curriculum applicable to public and private further education and training institutions;
  4. The proposed section 47(2)(c) which states that the Minister may prescribe a national instrument for the assessment of student achievement for public and private further education and training institutions


Adult Basic Education and Training Act, 2000

  1. The proposed section 18A(1)(a), which provides that the Minister must determine a national curriculum statement;
  2. The proposed section 18A(1)(a), which provides that the Minister must determine a national instrument for the assessment of learner achievement.
  3. The proposed section 18A(2), which provides that the Minister must determine the curriculum and instrument contemplated in 18A(1) must be applicable to public and private centres.
  4. The proposed section 41, which empowers the Minister to make regulations consistent with the Act and relating to –

“(d)       a national curriculum applicable to public and private centres;

  1. a national instrument for the assessment of learner achievement for public and private centres;

(g)        any matter applicable to public and private centres as contemplated in section 3 of the National Education Policy Act, 1996 (Act No.27 of 1996.”


The above mentioned proposed legislation will:

  • Empower the Minister to dictate standardised curriculums for all private and public schools and all private and public further education and training institutions.
  • Empower the Minister to dictate standardised “instruments” for the assessment of learner achievement in all private and public schools and all private and public further education and training institutions.
  • Take away the right of parents and educators in private and public schools to decide on the school readiness of individual children for entry into schools or to shift children to grades that better suit their capabilities.


That these clauses are being proposed must mean that the Minister intends to use them. If he does so, he will interfere with the democratic right of the citizens of South Africa to freedom of choice over the education of their children. Also with the democratic right of young adults to choose freely from a variety of institutions competing not only on content and quality, but also on being innovative in subjects offered. He will remove choices available to schools and other education institutions to decide for themselves how to assess the capabilities of their students. And he will interfere in the crucial process of evaluating the readiness and progress of children and deciding what grades are appropriate for their capabilities.


Looking behind the proposed legislation and regulations an observer may be forgiven for suspecting that the intention is to:

  • Abolish the Independent Examination Board
  • Prevent foreign universities and other educational institutions from offering courses and examinations in South Africa
  • Prevent private schools and other education institutions from being more responsive to the needs of learners, offering higher quality and better content and so out-competing government-owned and government-funded institutions


If these are the objectives, they show a total lack of respect for the democratic rights of South Africans and a lack of respect for individual citizens. They also indicate a tendency to treat children as state property and adults as its captives rather than as the final arbiters, as voters, in the affairs of the state. There appears to be a lack of appreciation that the people own the state and not the state the people.



Centralised control of education places strict limitations on what may be taught and how it may be taught. Invariably a curriculum is imposed which dictates not only what subjects must be taught but also the detailed contents of the subjects. The most serious problem with the imposition of such a curriculum is that there is no way of establishing the “truth” or the “optimal method” of conveying that truth. There is also no selection method that could successfully determine an “optimal content” for a curriculum that would be suitable for more than a small fraction of the students on whom it is imposed.


In the United Kingdom an attempt was made to establish a basic syllabus that would allow schools a great deal of flexibility in deciding what to teach and how to teach it. The national curriculum that resulted caused much frustration and anger amongst educationists and proved to be what a British educationist Dr James Tooley described as a “bureaucratic monstrosity”. Five years after it was imposed, Sir Ron Dearing was appointed to slim it down and simplify testing. His proposals met with a storm of protest from all sides and the government eventually decided to place a five-year moratorium on any additional changes.


Dr Tooley argues that a national curriculum neither raises standards nor promotes equality of opportunity. What is needed for both is improved teaching techniques and targeted resources. Problem schools, he maintains, need specific solutions, and a national curriculum does not help them in any way. Using probability theory he demonstrates that a committee charged with setting a national curriculum is highly likely to make at least one mistake, and perhaps more. These mistakes are then implemented in all schools and are much more difficult to reverse than errors at the individual school level. He concludes that decisions regarding the curriculum should be taken at the school level where the decision-makers are continually interacting with pupils and are aware of the multiplicity of their experiences. They can respond quickly if either problems or opportunities arise, and can more successfully innovate, learn from successful experience elsewhere, rapidly reject failed experiments, and adapt to the particular needs of individual students. The comments of Dr Tooley are equally applicable, and perhaps even more valid, in respect of tertiary education and training.


Teaching methods are crucially important, and prescriptions regarding method are as counter-productive as prescriptions regarding curriculum. Prescribing a method of teaching or an evaluation system on a vast scale is problematical. If it is not successful, it will have a detrimental effect on the country for generations. The development of many private-enterprise alternatives should therefore be encouraged.


If private-enterprise educational establishments, including schools, learning centres, tertiary education facilities and training facilities, were allowed to develop without interference, parents and students would demand that they focus on turning out young adults with income-earning skills. As literacy, numeracy and communication skills are essential to income-earning, these basics would be a fundamental part of parents’ demands. Myriad skills-training courses could then be on offer, covering a vast spectrum of income-earning possibilities. As most people today have many distinctly different careers during their lifetimes, students could acquire multi-disciplinary skills. On the other hand, they could specialise at an early age, as a modern young Mozart would probably insist on doing. 


Some educationists may contend that parents do not have enough knowledge to guide their children in the selection of subjects. Illiterate parents, especially, would be at a disadvantage. Yet illiterate people find their way around large cities, purchase items ranging from property to everyday necessities, and run businesses. They have to compensate for their illiteracy by being astute in obtaining guidance from people around them. In a society in which private enterprises provide most of the education, there would be place for agencies that provide information on education and other learning centres. Parents would consult ratings such as the “Top National Schools” list prepared by the Sunday Times, and they would also solicit information from parents of children already attending the schools they are considering. School leavers would consult similar guides dealing with tertiary education and training.


What may prove worrying is the possibility that schools and training institutions may make invalid claims about their capabilities. Naturally, any institution that professed to offer what it patently could not deliver would lay itself open to criminal prosecution for fraud. Just as the media are very involved in monitoring the services provided to consumers in other fields, they would probably monitor very closely the services provided by education institutions. Extensive publicity for both good and bad institutions would be of great value to parents and students.



The days of choosing a career in one’s youth and remaining in it until retirement are over. Most people make numerous career changes during their working lives, yet conventional schooling persists in the myth of a-career-for-life. The only feasible way in which young people can be introduced to the vast number of potential careers available to them in the modern world is to allow the development of a multiplicity of competitive learning centres. These could vary from one-room one-instructor establishments to more formal centres with numerous instructors. The creation of a friendly statutory and regulatory environment is all that is necessary to spur the development of flourishing educational establishments providing much-needed education and training services to the young. Such a course of action would bring about a rapid improvement in the educational standards and capabilities of the South African population.


Anyone preferring to pursue a purely academic education would have more choice under the proposed system than is presently available. Entrance to university could depend on passing the existing examinations. On the other hand, South Africa could follow the USA in developing tests similar to their Scholastic Aptitude Test (SAT). The proposals contained in this submission are aimed at securing a greater number of educational choices for children, creating a highly competitive learning environment in which children’s abilities as well as their hopes and dreams are taken seriously, and making teaching once again the demanding but well-paid and highly respected profession it used to be.



The proposed legislation appears to be aimed at imposing greater bureaucratic control over education in South Africa. Existing legislation is already a barrier to entry which prevents some educational enterprises from entering the education field altogether, and prevents those that do enter it from utilising the best methods available worldwide for teaching literacy, numeracy, communications skills, specific income-earning skills and other subjects. This is unfortunate. If more enterprises were involved in education, competition would impose greater discipline on education providers and ensure that they supply a high-quality service. Moreover, a larger variety of providers would give parents and their children greater choice and increase their chances of finding a learning environment that is most suitable for the special needs of the individual child. Some skills-training organisations may wish to employ children as part of the skills-training process, and the prohibitions on such employment should be removed to encourage this.


The present funding system emphasises the school and the teacher instead of the pupil. Studies have shown that increased government funding is generally used to pay escalating administration and other costs rather than being spent on improving the quality of education. Private education organisations spend far less per child on administration.


The government’s plans for improving schooling in South Africa will not rapidly reduce the gap between the skilled and the unskilled. The reason is very simple: the proposals say nothing about utilising the skilled to train the youth, yet a massive transfer of skills is precisely what South Africa needs to develop a highly trained workforce. Without it, any education plan is doomed to fail.


Learning to think entrepreneurially – i.e. to recognise opportunities for profit when they arise – should be an essential part of every child’s education. The best way to teach this is on the job in an entrepreneurially-oriented private enterprise, but children are not given the opportunity to acquire such experience as part of the learning process.



The “Knowledge Revolution” of the 18th and 19th centuries came to be known, somewhat unfortunately, as the “Industrial Revolution”, the accent on industrialisation obscuring the great leap forward in literacy, knowledge and skills that was made by people who, in previous generations, would have remained illiterate.


In England and America, the countries that led the revolution, schooling was voluntary and provided almost exclusively by private enterprises. Most children attended school, and according to economic historian EG West, levels of literacy in those years compared favourably with current literacy rates. All pupils paid fees, including those attending church schools. The so-called “dame schools” were the backbone of the English system. These schools generally consisted of one room in the teacher’s house set up as a classroom, an arrangement that was convenient for all concerned.


An important aspect of the knowledge revolution was the flood of “how to” publications that appeared on the market. People with special skills wrote manuals on every conceivable subject, imparting knowledge to the general public that had previously been reserved to the fortunate few who were members of guilds. Increased literacy enabled many people to acquire skills and lift themselves out of the grinding poverty in which their ancestors had toiled for centuries. This is a good example of the role that private enterprises can play in transferring knowledge cheaply and effectively to large numbers of people.


As private enterprise is able to deliver higher quality services at lower cost than government is capable of doing, it is probable that a voucher system could be implemented within the existing education budgets, especially once unnecessary layers of bureaucracy are removed.



Parents in a free society have the right to choose freely from alternative education options that they believe are most suitable for their children, and education suppliers have a concomitant right to offer the choice of services that children and their parents demand. Parents in a free society also have the right to determine at what age their children will commence their schooling. Similarly, adult students have a right to choose from a range of education and training options offered by competitive suppliers and those suppliers have an equal right to offer the education and training desired and demanded by their customers.


Both the proposed bills intend to trespass on the rights of parents, children, adult students and education suppliers. They plan to prescribe to the customers and owners of private institutions what they will be compelled to do and what they may and may not do. Some measure of government prescription may be justified regarding the management of public schools, as long as it does not infringe on the inalienable rights and freedoms of the individual in a free society, although even here centralised and authoritarian decision-making is having disastrous consequences worldwide. However, there is no justification whatsoever for government to prescribe to private institutions. There is even less justification for government to prescribe to students and their parents who pay their own hard-earned money for a better quality education, improved choices, and the right to manage their own lives and provide their children with superior care.


Inner-city children in the USA who have been given vouchers to attend private schools of their choice have markedly improved their educational results. Poor children in India, who attend private schools as a result of their parent’s sacrifices, outperform their peers who attend government schools at no cost. All over the developing world, low-income parents who wish to provide their children with better education opportunities than they themselves experienced are choosing the private education option. If South Africa wishes to become a competitive nation it should not swim against the tide. It should dispense with all authoritarian measures, especially in the education field, and encourage a vibrant, competitive education environment, providing maximum choice and diversity.



The problematical sections as listed in this submission should be excised from the Bill.


Prepared by:

Temba Nolutshungu and Eustace Davie


Free Market Foundation

Comments on Submission on the Education Laws Amendment Bill, 2002 and Higher Education Amendment Bill, 2002