GUIDELINE FOR TUTORS: LEGAL POSITION OF HOME EDUCATION IN SOUTH AFRICA - Last updated: October 2017

 
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GUIDELINE FOR TUTORS:
 LEGAL POSITION OF HOME
EDUCATION IN SOUTH AFRICA

 Last updated: October 2017
CONTENTS

  DISCLAIMER 											1
  HOME EDUCATION IN SOUTH AFRICA 							2
  THE ROLE OF A DISTANCE EDUCATION PROVIDER 					                                      2
  DIFFERENCE BETWEEN SCHOOLS AND TUTOR CENTRES 				                                    2
  REGISTRATION OF AN INDEPENDENT SCHOOL 						4
  ACCREDITATION BY UMALUSI 									8

The information in this document was correct at the time of publication (July 2017).
For updates, please email info@impaq.co.za.
DISCLAIMER

This document is to inform tutors of some of the pertinent legal aspects associated with providing support to home-
educated learners and their parents. The content of this document is intended to be a guideline and is not to be used
for reference purposes. Facts may differ from case to case and these guidelines should not be applied to any specific
situation. Impaq will not be liable for any action by any party using these guidelines. Impaq advises that you always
seek your own legal advice in respect of all matters discussed in this guide.

Furthermore, Impaq is a provider of products and services and is not a public or independent school and therefore
does not register learners in terms of Section 51 of the South African Schools Act no. 84 of 1996 (“the Act”). Impaq’s
products and services are in alignment with requirements of the national curriculum (CAPS), through which a home-
educated learner may achieve certainty of compliance with the national curriculum standards. The registration of the
learners for home education in terms of Section 51 of the Act remains the responsibility of the parent.

This document is only applicable to the Republic of South Africa and is not written for any other country.

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Home education in South Africa
This document must be read together with another document written by Impaq entitled Legal Position of Home
Education in South Africa which serves as a guide to parents about the legal framework applicable to home education.
This document is written with the assumption that you have read our guidance to parents.

The South African Schools Act no. 84 of 1996 (“the Act”) allows parents to elect to educate their own children as an
alternative to the children receiving education from a public or independent school. In terms of the Act, home education
is a form of education rendered by a parent to their own child, at the residential home of that child. Parents may use
Impaq’s products and services to render home education to their children. Parents who educate their children may use
tutors and extra classes to assist in the education of their children, however, the parents remain responsible for their
children’s education.

It is important to note that a tutor should not control the direction and supervision of learning for a home-educated learner
– this remains the responsibility of the parent. The focus of this document is to highlight the difference between official
education received from a school and the typical operating model of a tutor business which is distinct and different to
that of a school.

The Department of Basic Education (DBE) and Provincial Education Departments (PEDs) have a duty to protect a
learner’s right to receive an education and ensure that such education conforms to the minimum norms and standards
required by law. It is important to ensure that the services that a tutor provides comply with the legal framework and that
a tutor does not present themselves as something that they are not.

 The role of a distance education provider
A distance education provider such as Impaq does not accredit any tutor or learning centre. Registration by a tutor with
Impaq is nothing more than a contractual agreement to facilitate the use of particular products and services and bears
no weight whatsoever with regard to registration or affiliation as a school. Moreover, registration of a tutor with Impaq
bears no weight whatsoever with regard to registration or affiliation with the DBE or PEDs.

Home-education parents remain responsible to register their children with a PED and similarly, if a tutor is registered
with Impaq, it only means that the centre is registered for a particular set of products and services from Impaq.

 Difference between schools and tutor centres
A tutor or learning centre (“a tutor centre”) is an academic learning centre that is not registered as a school and provides
additional education services as an independent business. The educational services rendered by a tutor centre are
legitimate and lawful, provided that such services are distinct and separate from the functions of a school and do not
infringe on the responsibilities of a school as provided by law.

To establish whether a tutor centre is functioning as a school, it is necessary to establish the legal framework regarding
a learner’s right to receive “official education”. For the purposes of this guide, the term “official education” is education
offered in terms of the Act by a registered school (be it an independent or public school) or by a parent to his/her child,
in the form of home education.

Every child is legally required to receive some form of official education. This is required from the first school day of the
year when a learner turns seven until the last school day of the year when the learner reaches the age of fifteen or the
ninth grade, whichever occurs first.

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A learner who falls within the aforementioned period of compulsory official education may still attend a tutor centre,
provided that such learner is registered with a PED to receive education at home and actually receives official education
from his/her parent or legal guardian. Home-educated learners may attend tutor centres provided that the tutor centre
does not substitute the primary responsibility of the parent as the educator of the child.

It must be emphasised that a tutor centre is not a school. The main differences will be highlighted and discussed in the
table below. The emphasis is that a tutor centre offers additional supplementary education services, and these services
are separate and distinct from official education.

It is advisable that the differences in the table below are taken into account and considered by a centre as guidelines:

                       Tutor centre                                                       School
 A tutor centre does not provide official education to a child
 but rather supplementary and additional education in the
                                                                 A school provides official education to its learners.
 form of tutorials or extra classes.
                                                                 This means that the school is responsible for the direction
                                                                 and supervision of teaching and learning for their learners
 This means that a parent is still responsible for the direction
                                                                 and must be registered with a PED.
 and supervision of teaching and learning for the child and
 must be registered with a PED.
 A tutor centre’s services are rendered on a contractual A school’s educational services are rendered on a
 basis between the parent and the tutor centre.          statutory basis in terms of the Act.

 A tutor centre should not name itself or the business that
 it conducts a “school”, nor should it refer to its business A school names itself and the business that it conducts
 as a school. The tutor centre should also not create the as a “school”.
 impression that it is a school.

 A tutor centre should not charge “school fees” as it is not a
 school. Typically, tutorial services are quoted at an hourly A school can charge “school fees” as it is registered to do
 rate and some extra classes are bundled as packages that so by a PED.
 parents can purchase to access discounts.
 A tutor centre should not call its tutors “teachers” as
 educators outside of schools are typically referred to as A school normally has teachers who provide teaching to
 tutors. Teachers may, however, perform tutorial services learners enrolled at the school.
 outside of schools.
 A tutor centre should not perform official assessments
 of learners and may not represent itself to do so. A tutor
 may at a parent’s request support in the administration
                                                             A school performs official assessments of its learners and
 of assessment and provide services to parents such as
                                                             determines whether a learner should progress to the next
 invigilation and marking. Tutors who provide these services
                                                             grade or not.
 should be qualified and competent to do so. The parent of
 a home-educated learner determines whether the learner
 should progress to the next grade or not.
 A tutor centre may not issue education qualifications to
 learners using their services and may not represent itself to
 do so. Education qualifications refer to official qualifications,
                                                                   A school issues different forms of education qualifications
 registered in accordance with the National Qualifications
                                                                   to its learners based on its accreditation status.
 Framework by the South African Qualifications Authority.
 Only accredited providers are authorised to issue registered
 qualifications.
 A tutor centre should not require compulsory attendance
                                                         The Act prescribes compulsory attendance at a school.
 to tutorial or extra classes.
 A tutor centre is not required to group learners into classes
 based on grade or academic achievement. A tutor centre A school typically groups learners according to strict
 has the freedom to determine the manner in which it groups guidelines for each grade or academic achievement.
 learners.

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The above table is not an exhaustive list of the differences between a school and a tutor centre but aims to give a
guideline to tutor centre owners of what they should and should not do. It is advisable that a tutor centre ensures that it
does not function as a school. When a tutor centre operates as a school, it should register as a school with a PED. A
tutor centre may not register learners for home education with a PED on behalf of the parent, as this is the obligation of
the parent. The services typically provided by a tutor centre do not constitute home education (or another form of official
education) and therefore the Act does not apply to a tutor centre.

    Registration of an independent school
If a tutor centre wants to operate like a school, Impaq strongly advises that the owners register the tutor centre as an
independent school.

The Constitution of the Republic of South Africa Act no.108 of 1996 establishes the right for everyone to establish and
maintain, at their own expense, an independent educational institution that does not discriminate according to race,
is registered with the state, and maintains standards that are not inferior to those in public institutions. The Act further
provides guidelines to PEDs and individuals on the establishment of independent schools with the appropriate Head of
Department (HOD).

At a very high level, opening an independent school typically involves complying with the requirements of three
government bodies, namely:

•     Local municipality – you would need to ensure that your property has the right zoning, health certificates,
      emergency disaster management certificates and other requirements of your local municipality before starting with
      the registration process. You will need all these documents to apply with the Department of Social Development
      (DSD) and PED.

•     Department of Social Development (DSD) – if your tutor centre services any learners aged six years or younger,
      you will need to apply with the DSD as a partial care centre, and you will need this approval for the PED application.
      This is not a short process as you need to visit the relevant DSD district office in your area and enquire about the
      application process and forms (some districts have different requirements). They will require documents such as
      police clearances, Form 29 and 30 (national child protection register check), teacher qualifications and municipal
      documents such as health certificates, zoning and so forth, in order to complete the application. This process can
      take 6 – 18 months to complete, depending on what you have in place.

•     Provincial Education Department (PED) – once you have received your DSD approval, you will be able to complete
      your application with a PED. Again, it is recommended that you visit the PED’s offices to confirm the process,
      forms and requirements, as these may change from time to time. Please note that some provinces only accept
      applications during specific months in the year. This process can take 12 – 36 months to complete, depending on
      what you have in place.

The procedure to open an independent school varies across the provinces. It is important that you consult all three
bodies of government to find out the exact requirements and confirm the appropriate sequence to get the various
documents in.

Please contact the relevant HOD in the PED of the province where your tutor centre is located for further details about
the process of registering as an independent school.

See an example of the process from the Gauteng Department of Education below:

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Extract of Gauteng Department of Education Guidance on Independent Schools

   PROCEDURE TO OPEN INDEPENDENT SCHOOLS

    Who may open an Independent School?

   According to the Constitution of the Republic of South Africa, Section 29 (3), everyone has a right to establish
   Independent Educational Institutions. Section 45 (1) of the South African Schools Act states that: “Subject to
   this Act and any applicable provincial law, any person may, at his or her own cost, establish and maintain an
   Independent School”.

   Procedure to be followed in opening an Independent School:

   •   The application for the registration of an Independent School is submitted to the Director for Independent
       Schools at Head Office, 111 Commissioner Street, Johannesburg, on or before 1 April preceding the year in
       which the school wants to operate.

   •   All applications must be accompanied by the required documents as outlined in Annexure A of the Provincial
       Gazette Extraordinary 308 of 2013, General Notice No. 2919 of 2013.

   •   The Director for Independent Schools conducts a desktop assessment, evaluates the site where the school
       is intended to operate and then makes a recommendation.

   •   The application is then sent to Systems Unit at Head Office.

   •   A submission is then generated and circulated to all senior managers for recommendation and then to the
       Head of Department (HOD) who will then approve the application or turn it down.

   •   If the application is approved, an EMIS registration no. is obtained from EMIS.

   •   The school and the relevant district office is then informed of the registration of the school in question.

   •   If the application is rejected by the HOD, then the school is informed of the rejection and the reasons thereof.

Here are a few matters to consider before deciding to register an independent school:

Value proposition to parents:
You must ensure that you have a clear value proposition that sets your proposed school apart from others in the
area and/or which meets an existing need in the local community. Some schools pride themselves on their sporting
facilities and opportunities, some focus on alternative learning models, and others provide an affordable solution
to a community in need. It is important to clearly understand what value your proposed school will provide to the
local community.

Curriculum and learning model:
Independent schools are free to choose any curriculum. These are typically linked to a qualification in the final
grade. Most schools in South Africa adopt the national curriculum (CAPS) and provide either a Grade 7 report that
leads to the NQF 1 qualification in Grade 9, or the National Senior Certificate in Grade 12. Some schools offer other
curriculum options such as Cambridge, which leads to obtaining the IGSCE and higher qualifications.

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Capital requirements and facilities:
After determining the value proposition and learning model to be used by your proposed school, it is important to
define what capital is required to prepare the school to deliver learning, including what facilities are required to
support learning. The capital requirements for most low-cost independent schools typically range from R5 – R30
million, while independent schools that deliver a premium offering such as vast sporting facilities can cost up to
R100 million to set up.

Fees and cost structure:
Based on the value proposition and financial model required to run the school, it is important to set the fees that
parents must pay. Drawing up a financial model that clearly outlines the revenue, costs and breakeven point for the
proposed school is a critical step before deciding to open an independent school.

Recruiting a principal and teachers:
It is important to define the profile of the principal and teaching staff that are required to deliver the value proposition
and learning model for the school. Recruiting a principal and teaching staff can take many months to complete
and most provinces require an indication of who the principal and teachers will be ahead of opening the proposed
school.

Project plan:
Once the decision has been made to proceed with opening and registering the proposed school, it is important to
draw up a detailed project plan. Such a plan may have the following suggested structure:

Independent school: High-level project plan                Responsible         Month 1     Month 2 Month 3       Month 4     Month 5
                                                           person              1 2 3     4 1 2 3 4 1 2 3     4    1 2 3    4 1 2 3     4
1. Project planning
  Project management (weekly progress checks)
  Define school value proposition
2. Marketing
  Develop marketing plan (incl. open days)
  Implement marketing activities
3. Finance readiness
  Financial model (including capital requirements)
  Company structuring and registration
  Prepare financial systems and school governance
4. Facility
  Procure property
  Apply for zoning (if required)
  Upgrade property (including required certifications)
  Prepare building for first day of school
5. Recruitment
  Principal
  Teachers
  Receptionist & admin staff
  Other
6. Academic readiness
  Develop academic model
  Teacher onboarding & training
7. Operational readiness
  School registration - Local municipality
  School registration - Department of Social Development
  School registration - Provincial Education Department
  School infrastructure set-up
  Uniforms

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The procedure to open an independent school varies across provinces. It is important that you consult all three
bodies of government to determine the exact requirements and confirm the appropriate sequence to get the various
documents in place.

Please contact the relevant HOD in the PED of the province where your school will be located for further details
about the process of registering an independent school.

                   Contact
    Office                            Phone                       Email                  Physical address
                   person
                                                                                       Steve Tshwete Education
                   Education
                                  (041) 508 8302 /                                     Complex
Eastern Cape     social support                      freddie.rossouw87@gmail.com
                                     508 8100                                          Zone 6
                    services
                                                                                       Zwelitsha
                                                                                      Free State Provincial
                                                     Please contact telephonically to
                   General        (051) 404 4744 /                                    Government Building
Free State                                            get the email address for your
                   enquiries            4622                                          55 Elizabeth Street
                                                                 region.
                                                                                      Bloemfontein
                                                                                       Room 1312
                                                           Mazengelonke.Mdingi@        13th Floor
Gauteng            M. Mdingi      (011) 355 0650
                                                              gauteng.gov.za           111 Commissioner Street
                                                                                       Johannesburg
                                                                                       247 Burger Street
KwaZulu-
                  L. Mhlongo      (033) 392 1109                                       Anton Lembede Building
Natal                                                Linda.Mhlongo@kzndoe.gov.za
                                                                                       Pietermaritzburg
                                     Tzaneen:
                                   015 812 2491
                                                     Please contact telephonically to
                                     Vhembe:                                          District offices for Tzaneen,
Limpopo         Various offices                       get the email address for your
                                   015 962 2883                                       Vhembe, Waterberg
                                                                 region.
                                    Waterberg:
                                   014 558 0206
                                                                                       Government Boulevard
                                  (013) 766 5552 /   masangomadoli@wit.mpu.gov.
Mpumalanga       K.C Masango                                                           Riverside Park Building 5
                                    5349 / 5115                za
                                                                                       Mpumalanga
                                                                                       Quality Assurance Building
North West      M. Monoametsi (018) 397 3001/88       mmonoametsi@nwpg.gov.za          861 Modiri Molema Drive
                                                                                       Montshiwa
                                                                                       9 Hayston Road
Northern
                  N. Gumede       (053) 830 1600      nonogumede18@gmail.com           Hadison Park
Cape
                                                                                       Kimberley
                                                                                       Room 9-26 9th Floor
                                                           Makhosandile.Ndzuzo@        Grand Central Towers
Western Cape      M. Ndzuzo       (021) 467 2611/3
                                                            westerncape.gov.za         Lower Parliament Street
                                                                                       Cape Town

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Accreditation by Umalusi
The obligation to apply for accreditation

Registered independent schools must apply for accreditation with Umalusi according to the manner determined by
the Council. This is according to the General and Further Education and Training Quality Assurance Act No. 58, 2001,
section 23 (4) (c). This is only required if the school intends to offer the CAPS curriculum and qualifications that lead up
to the National Senior Certificate (NSC). Schools that offer another curriculum and qualification are not required to apply
for accreditation with Umalusi.

Purpose and category of schools

The purpose of such accreditation is for an independent school to be quality assured as having the capacity to offer the
national curriculum at the required standards. All schools offering the national curriculum need to satisfy the requirements
of the various levels in the schooling phase that lead up to the NSC (NQF level 1: Grades 1 – 9; level 2: Grade 10; level
3: Grade 11, and level 4: Grade 12). This implies that all registered schools offering Grades 1 – 12 (or part of thereof,
e.g., a primary school) are required to apply for accreditation.

Criteria and fees

Applications for accreditation should take place within 2 years of the approval of the registration of the school with the
relevant PED and be able to account for the following elements:

•     School ethos
•     Leadership
•     Management and communication
•     Teaching and learning
•     School results

Umalusi requires that the teachers who are appointed at these schools must be registered with the South Africa Council
for Educators (SACE).

For updated information on fees and criteria, please consult Umalusi. Currently the fees payable to Umalusi for
accreditation range between R29 000 for a primary school and R57 000 for a combined school. These fees are payable
to Umalusi in two portions – the first during application and the second just before the site visit takes place.

Accreditation and the relationship with distance education providers

The accreditation of a school is a transaction between the school and Umalusi and does not form part of the relationship
between the school and a distance education provider. Making use of a distance education provider such as Impaq
does not exempt a school from applying for accreditation. Please consult the Umalusi website for further information
regarding the required documentation and relevant information workshops.

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