Pestalozzi Trust

Some misrepresentations about the Trust have arisen, especially from the ranks of idelologically driven politicians and government officials who have a political agenda. These misrepresentations mislead many homeschoolers and member of the public. Four of the misrepresntations are addressed here.

We are not an unbrella that shelters lawless people.

Some people think – because many officials ell them so – that the Pestalozzi Trust encourages people to break the law.

The contrary is true. We are in fact there to help our member families to protect themselves against officials who break the law.

But do officials realy break the law?

Indeed – officials are human, after all. But there is more.

In countries such as the USA, where home education has long been legalised, many court cases about home education arise from officials who act ultra vires – who esceed their legal powers[[i]].

Most officials are not malicious – but they are uninformed. Resrach in the USA found that those officials who must administer the law on home education are generally ingorant about two matters: the law that they must apply and the home education to which they must apply it (Boothe et al 1997:41). Our own experience shows that it is no different in South Africa.

Research further indicates that many officials simply do not know the general principles of law that restrict their powers [[ii]]. The case of Harris in the Constitutional Court confirms our own experience that officials – and even the minister – do not understand that policy documents are not laws and that they cannot be enforced as if they are laws.

Almost all the officicials we deal with are under the impression that the minister and government officials have the power to issue policy and procedures that can be enforced by law. If this ere true, it would mean that officials make the law – which is clearly contrary to the consitution. That would make parliament and its elected representatives superflous.

(Note – when authorised by law, the minister can make “subordinate” laws, but only in the form of duly authorised regulations. Policy is not regulations and therefore not law, and it is therefore no crime not to comply with policy requirements.)

Authorities in the field of administrative law have pointed out that this kind of ignorance in government officials is the single greatest cause of human rights abuses. [[iii]]. It is, therefore, a matter of concern that internationally, a very large persentage of court cases that reach consitutional courts deal with education issues. [[iv]].

Important examples of polticians and officials unlawfully exceeding their powers include:

a)                 The nationa policy on the registration of home learners, as interpreted by education departments, purports to require that parents educat their children according to the “Revised National Curriculum Statement” (the national curriculum, also known as “Curriculum 2005” or “outcomes based education”). Since this is a policy and not a law, it is not enforceable [[v]], but education officials insist that it is indeed the law and demand that parents undertake to educate their children accordingly, and to have them examined to see that they comply.

And, sadly few officials are keen to be informed about the real limits of their lawful powers. They don’t like it at all.

The problem, of course, is that many parents choose home education precisely because they do not want their children educated according to all the prescriptions of the government’s curriculum.

b)                 In nearly all provinces, education officials insist on visiting and inspecting the homes of home learners. This practice is not authorised in any law. Indeed, any law that purported to authorise such intrusion into the privacy of the family would be directly in contravention of the Constitution, as the Constitutional Court determined many years ago already in the case of Mistry[[vi]]. It is also known that the educational adviser to the education minister warned provincial education officials that they are not authorised to visit the homes of home learners. Nevertheless, such visits are almost universally demanded.

Educationally, there is no need for such visits or inspections. All the information about the education of home learners that officials can lawfully demand can be obtained in much less intrusive ways. And legally the Constitution requires that, if less intrusive options exist, they are compelled to use the less intrusive ones.

There is a danger when officials inspect home education. There is almost no education official who has any training or experience of home education. All their training and experience relates to school education only

The result is that education officials, like new homeschoolers, extrapolate their ideas about home education from their knowledge of school education. Just like new homeschoolers, they aolso tend to apply those schoolish ideas to home education. New homeschoolers learn, after about two or more years of bumps and bruises, that there are fundamental differences between school education and home education. Officials do not get this experience and their schoolish espectations continue to reflect in their advice and in the reports that they write.

This phenomenon can cost a family dearly, should such education officials ever be required to testify in court about what they had observed in the family’s home.

Often, parents are persuaded that such visits are necessary to ensure that home education is not used as a cover for the exploitation or abuse of children. The legal fact is that education officials, no matter how well-meaning and zealous in their task, are not trained or professionally competent to diagnose abuse, neglect or exploitation. That is the professional vield of welfare officials.

And, as the court records in all countries show, the field of family law is strewn with the wrecks of families torn asunder by the removal of children based on ignorant and uninformed opinions of unqualified officials. In some jurisdictions more than 60% of these traumatic interventions were subsequently found to be unlawful.

After all: If the lawmakers agreed that this aspect is so important, and that education officials could perform this task, they would have explicitly authorised it in law as the Constitution requires when it is justifes to intrude on the fundamental right to pivacy in such a manner.

The is a large number of other examples of officials exceeding their powers with respect to home education. All af them lead to conflict between homeschooling families and education officials sooner or later.

Ar our members forbidden to register their children for home education with education departments?

No. On the contrary, the Trust strongly advised its members to report to the education departments, until a few years ago. As a result, however, of the increase in unlawful requirements that the education departments make before they will issue a registrations, the Trust can no longer do this.

The Trust’s job is not to prescribe to its members how they should educate their children or how to arrange their relationships with the authorities.

The Trust’s job is to inform it members so that they can make informed decisions about these matters. After that, the Trust supports the right of its members to make their own decisions on these matters, and helps them to manage the legal consequences of their decisions. Because, due to the unlawful manner in which education departments administer home education, all decisions that parents make about home education have potential legal consequences.

We are not an alternative to the education department.

Most new homeschoolers think that membership of the Trust is and alternative to registration with the education department. That one either registers with the education department, or one joins the Pestalozzi Trust.

This is not correct. Indeed, the Trust and its forerunners have worked for the laws that provide for registration.

And in fact, about 15% of our members are indeed registered with education departments. When members want tot register with education departments, we will help them if they experience difficulties in getting registered.

And, when registration with the education department starts to impakt negatively on the best interests of their children, we help them again. For it is preciesely those homeschoolers who register with the education departments who come into conflict with officials sooner or later. The families who generally do not have problems are the 90% or more who do not register with the education departments.

What we do have to warn our members and others about (because that is our job) is that the education departments make many unlawful demands as preconditions for registration. We are also compelled to point out that it can never be in the best interests of children to be educated in accordance with unlawful prescriptions.

What is also true is that we have legal advice that, while the education departments set so many unlawful preconditions, we can no longer recommend that homeschoolers  register with the education departments.

Should we make such recommendations, we run the risk that our members can sue us when the disadvantagious effects of registration start to impact on their children.

We are not a profit making organisation.

Some officials (e.g. in the Free State and North West) seem to enjoy trying to persuade homeschoolers that the Pestalozzi Trust is a profiteering group that exploits the public.

The opposite is true: the Trust is a registered public benefit organisation that is esempt from income tax preciesely because its uses its income to achieve aims that are considered by law to be to the benefit of South African society.

Indeed, most of the Trust’s work is done by unpaid volunteers. Even the paid officers of the Trust are paid for only about one third of the work they do for the Trust.