Legal Issues

UNLAWFUL HOME VISITS BY OFFICIALS

On a SA homeschool group on social media, a parent from the Western Cape who had applied to register for homeschooling, reported that she received an UNEXPECTED visit from an official from the Western Cape Department of Education on Friday 20 February 2015.

She allowed him to ‘inspect’ their homeschooling and apparently he was polite, interested and satisfied and then ‘approved’ the application for homeschooling.

However, by doing a home visit and not having the curtesy to make an appointment to do so, this official acted UNLAWFULLY and he violated the limits of his authority, giving other homeschoolers evidence and reason for LAWFUL NON-COMPLIANCE.

The following comments by Leendert van Oostrum about the legal issues are published with his permission,  so that new homeschoolers can learn more about their rights and their responsibility to protect their children’s right to privacy:

“Yes, the report by this mother can indeed be used as testimony in a court of law, to show that a family has “good cause” not to register with the education department. It is valid evidence that education officials break the law and exceed their powers in the following ways:

1. Entering a private home constitutes invasion of privacy. It can only be justified if the person doing so is in possession of a court order to that effect, or if someone in the house is in immediate danger. That applies also to police officers and social workers.

2. A constitutional right may only be invaded if there is a law allowing the invader to do so, and if the law is reasonable and justifiable. There is no law in existence that allows education officers to enter the home of homeschooling families. The kind Mr Van De Rede was, therefore, objectively breaking the law.

3. If, however, the parents invited the official of their own volition (i.e. without any coercion whatsoever, and with full information on their rights) to enter their home, the official is no longer breaking the law in doing so.

4. If the family allowed or invited the official to enter their home because the official brought them under the impression that he is legally empowered to enter it, he is guilty of intimidation as well as of invading their privacy.

5. Even if the official were empowered to visit the family home, doing so without “reasonable notice” is an infringement of the family’s right to just administrative action. The parent would be completely within her rights if she refused him entrance, telling him to make an appointment before he comes (in fact, most officials in the Western Cape do make appointments for home visits).

6. Of course, the parent may waive her right to reasonable notice. However, if she does so because the official created the impression – directly or indirectly, that he is not required to give notice, she can also claim that she was intimidated by the official, and charge him for invasion of privacy.

7. Interestingly, departmental officials are not allowed to visit a public or private school without reasonable notice. That means that this official (even if he was empowered to do home visits and even if he was empowered to do so without reasonable notice – neither of which is true) was also infringing the right to equality of all homeschooling families (not only this one) by discrimination against homeschoolers.

The most important consequence of a letter like this, however, is that it could be used in a court to prove that the parent failed to protect her children’s right to privacy against unreasonable infringement by the official. For failing to guard and protect the constitutional rights of her children a parent could, in principle be prosecuted and upon conviction be sentence to up to ten years in prison.

Anyone can lay a charge under the Children’s Act against a parent who does so.

The invasion of the children’s privacy comprises not only an invasion of their private space (their family home) but may also be the effect of giving him details about their education and upbringing.
The parent might argue that her own privacy was not invaded, because she chose to invite the official. However, she is also legally responsible to protect the privacy of her children.

The parent could also argue that she allowed the official to invade the privacy of her children because she was under the mistaken impression that she was legally required to do so (the plea that she erred in law) . This letter, however, constitutes evidence that she did no act by mistake – she testifies, against herself, that she had information that must have created in her mind at least the possibility that she was wrong.

Finally: whether the official made any demands as to curriculum or not is beside the point – if he acted beyond his powers in some respects on one occasion, there is nothing to stop him from doing so in other respects as well the next time. This is precisely what happened in the Free State. For years the officials did not make any demands as to the kind of curriculum of learning programme that parents should use. At one stage, they started to give “preference” to certain “approved” curricula. The “preference” became a requirement over time, and the last I heard, the department were requiring homeschoolers to use a “CAPS compliant” curriculum.
The point is this: The conduct of a government official is prescribed by the law. If the official acts in any way not prescribed by the law, the official is breaking the law, irrespective of how nice and friendly he is about it. Good officials comply with the law, even as they enforce it. Officials who break the law are corrupt officials and if we condone their corruption, we are just as corrupt ourselves.

And, before we know it, we have to hear that someone in a position such as that of Mr Van Der Rede has built him- or herself a house at departmental expense. How can we complain then?

If we condone the actions of Mr Van De Rede as reported here, we must also condone the actions of the owner of Nkandla.

Regards, Leendert”