The constitution, parents and comprehensive sex and sexuality education in South Africa

Abstract

The Basic Education Laws Amendment Bill (BELA Bill) announced in the government gazette on 6 December 2021 has caused a great degree of controversy in the basic education sector and controversy around the proposed amendments to the minister’s powers in making regulations. The latest in a series of amendments to the South African Schools Act 84 of 1996(the Schools Act), enacted to: “redress past injustices in the education system… to effect the transformation of society to combat racism and sexism and all other forms of discrimination…” In terms of section 61 of the Schools Act, the minister may make regulations concerning a national curriculum applicable to public and independent schools. In terms of section 41 of the BELA Bill the minister of education has additional powers in terms of the Minister’s authority to create regulations on the management of leaner pregnancy as well as the creation of a national education information system and provides for the imprisonment of anyone who contravenes provisions of regulations created under section 61. The controversy concerning the BELA bill is that South Africans have received the Bill as promoting comprehensive sex education in schools which they find inappropriate. From the above, the Bill does not speak directly to sexual education, there is room for the interpretation of the Bill to be interpreted to include sexual education in the authority of the Minister to promulgate regulations. The addition, of being liable to imprisonment opens the door for teachers who wish not to teach a comprehensive sexual education curriculum raises some validity to the concerns raised. In addition, it places a competing interest on what is it that parents wish for their kids to know and understand about sex and sexuality, juxtaposed against what is it that a responsive education curriculum would require their children to understand about sexuality and sex.