The Universal Declaration of Human Rights was adopted in 1948 in response to the atrocities before and during the Second World War. Against this background, Article 26(3) provides that “parents have a prior right to choose the kind of education that shall be given to their children.”
This provision reflects the principle that the state should not have a monopoly over the education and formation of children, in order to prevent a state from abusing its power by shaping its population according to state-prescribed values that may lead to atrocities.
This principle also finds expression in section 28(b) of the South African Constitution, which gives children the right “to family care or parental care ...”. The Children’s Act of 2005 places a duty on parents to provide care to their children, and this care includes “guiding, directing and securing the child’s education and upbringing”. Such a legal framework should ensure that parents remain in control of the content transmitted to their children. In such a legal order, teachers act in the place of parents. This is captured in the Latin phrase in loco parentis.
Growing State Control over the Curriculum
The 1995 White Paper on Education was written during the transition from apartheid to a new democratic dispensation. It expressed a vision of democratic participation and the limitation of unnecessary state interference. In the subsequent development of the education system, however, the state’s influence over the content of education gradually expanded. Education has increasingly been used to transmit state-prescribed values rather than to empower parents.
In 2002, a national curriculum framework was introduced. This curriculum was introduced by Minister Kader Asmal and places significant emphasis on transmitting state selected constitutional values instead of knowledge and skill. In 2010, assessment was added to the framework, and the combination became known as the Curriculum and Assessment Policy Statement (CAPS). Since 2019, comprehensive sexuality education has been introduced. There was considerable opposition to the introduction of sexuality education. The response of the Minister of Basic Education at the time was that parents who disagreed with the sexuality education could choose home education or send their children to an independent school that offered a curriculum other than CAPS.
In 2024, the well-known BELA Act was enacted. This Act limits the powers of governing bodies of public schools, increases the penalty for operating an unregistered independent school, and prescribes that home education programmes must be aligned with the national curriculum. In 2025, changes to the history curriculum were announced. In 2026, there were reports of initiatives to introduce a comprehensive Palestinian lesson plan in South African schools.
These developments show how, over time, the state has increasingly determined the values transmitted to the next generation.
From the Minister’s response, it is therefore clear that parents who use public schools cannot expect such schools to act in loco parentis. Because the state prescribes the content of the curriculum, the teacher is ultimately accountable to the state for what is taught. The teacher is therefore more a representative of the state than a representative of the parent. Teachers thus act more on behalf of the prevailing state ideology.
The Department of Education is guided by section 29(2) of the Constitution, which provides that children in public schools may receive education in their mother tongue, but does not require that such education respect the values of the parents. Parents who wish to transmit different values to their children may choose independent schools or home education at their own cost. Parents may determine only the language in which state-prescribed values are transmitted, but not the values themselves.
For many parents, passing on their religious beliefs to their children is a core aspect of parenthood. In Deuteronomy 6 it is written: “... and these words which I command you today shall be in your heart. You shall teach them diligently to your children.”
A Christian Parent's Experience
A Christian parent I know once disagreed with the values contained in the state’s sexuality curriculum. He therefore sent his child to an Anglican school. According to its website, the school is based on historic Christian roots and an Anglican ethos. According to the historic Anglican ethos, children in such schools should be taught in accordance with the Ten Commandments, the Lord’s Prayer and the Apostles’ Creed. According to the Ten Commandments, sex outside marriage is wrong, and marriage is understood as a relationship between a man and a woman. Looking at the website, Christian parents should be able to send their children to such a school with peace of mind, without fearing that the state’s sex and gender education will be transmitted to their children.
What the parent discovered, however, was that the school his child attended, as well as many other Anglican schools, transmitted different values to children. Children are taught about homosexual relationships, that gender is a social construct, that people can choose their own gender, and how to practice safe sex without contracting HIV/AIDS.
The parent expressed his dissatisfaction that a school was transmitting values to children that differed from those it purported to uphold. While his Facebook posts usually receive only a handful of comments, this post attracted 870 comments and was shared 55 times. Most of the comments either attacked or defended his Christian values. Almost no one commented on the fact that parents have the right to transmit their values to their children, regardless of whether others agree with those values. Almost no one was concerned that a school could mislead parents by transmitting values different from those published on its website.
This parent’s experience illustrates that independent schools do not necessarily respect the values of parents. And when parents object, they often find little support.
The Brazilian Experience
Many parents choose home education in order to transmit their values to their children. In this area too, the state is beginning to restrict parental freedom. Section 51 of the recently introduced BELA Act provides that home educators must use a home education programme that “predominantly covers the acquisition of content and skills at least comparable to the relevant national curriculum determined by the Minister”.
The tension between parental authority and state-prescribed values is not unique to South Africa. In Brazil, a court recently ruled that home-educating parents who failed to teach sex and gender education to their children were guilty of child neglect. Such court cases can also influence South Africa, because section 39 of the Constitution provides that, when interpreting the Bill of Rights, “a court, tribunal or forum may consider foreign law”.
The law therefore contains few limitations preventing the Minister of Basic Education from forcing home-educating parents to follow the state curriculum.
History shows that when the state increasingly obtains exclusive control over the content of education and the role of parents is weakened, the risk of ideological influence increases. That is precisely why the right of parents to choose the education of their children was expressly included in the Universal Declaration of Human Rights after the Second World War. Because education also played a prominent role in the struggle against apartheid, the 1995 White Paper envisaged less state control over education, precisely to help prevent a repetition of the atrocities of apartheid.
Reclaiming Parental Responsibility and Authority
Although there are several provisions in international law and in the Constitution that protect the right of parents to choose the education of their children, this right is in practice undermined by other sections of the Constitution, the Schools Act and foreign court judgments. However, there are still opportunities to reclaim parental control over education.
First, parents should take note that there are good reasons to argue that CAPS is not enforceable. The national curriculum was promulgated in the form of the Curriculum and Assessment Policy Statement. It is not an Act or a regulation. In the 2001 case between the Department of Education and Harris, it was found that policy cannot be enforced in the same way as Acts and regulations. Only Acts and regulations can be enforced. It will therefore be difficult to compel parents and schools merely to comply with policy prescriptions.
Secondly, Cape Home Educators recently submitted a proposal to Parliament’s Joint Constitutional Review Committee to amend the Constitution so that education taking place outside institutions is explicitly recognised. This proposal indirectly gives more rights to parents. If the proposal receives sufficient support and is accepted, it could serve as a catalyst for greater freedom in education.
If the law holds parents responsible for the upbringing and education of their children, but the state increasingly determines which values are transmitted to those children, a tension arises between responsibility and authority. The question is whether this balance is still in accordance with the original intention of international and South African law.