THE ROLE OF LAW IN PROMPTING PARENTS TO PARTICIPATE ACCOUNTABLY WITH EDUCATION PARTNERS

Bearing in mind the previous Gauteng Education MEC’s recent indication that “discipline starts at home,” our article focuses on what South African law has contributed during the past 20 years to prompt parents participate accountably with partners in public school education, and how case law has defined parent accountability in this regard. Examples of relevant legislation would be those which assign the ultimate responsibility for learner conduct to parents, and call for a harmonious relationship between parents and educators. In line with the South African Schools Act’s requiring that parents partner with the State, educators and learners in accepting responsibility for their children’s schooling, this article highlights the need for a shared vision of the way forward. The importance of having such a shared vision to bring these disparate stakeholders’ aspirations together around the common goal, namely to develop all learners’ talents and capabilities, is underscored. The authors argue that factors such as reciprocal blame and a lack of cooperation are among the problems that hamper the full realisation in practice of the legislative provisions pertaining to parental accountability. Our article identifies solutions to this challenge, such as parents’ setting upright examples by behaving in an accountable manner, and recommendations, such as empowering parents for their roles as partners in education.


Introduction
The above quotation from the 2009 State of the Nation Address clearly points towards expecting parents 2 to accept relevant joint accountability for turning schools into firstrate settings. Moreover, Mokonyane 3 refers to a collective accountability that learners, teachers, and parent communities have towards safeguarding excellence in teaching and learning. At least two questions arise: Where do these references to accountability come from? Why would accountability be seen to make a significant difference?
In order to address the first question, the functioning of a legal system needs to be analysed. The supremacy of the Constitution of the Republic of South Africa, 1996 (Constitution) has brought about a fundamental change in the way the noation functions, in that the usual business has been turned on its head and has become decisively transformed business, 4 with the Constitution always demanding first focus.
In this regard, under the section of the Constitution on founding values, accountability is specified as being safeguarded by a multi-party system of democratic governance. 5 Moreover, accountability is implied where fulfilling constitutional obligations is imposed, 6 and being subject to accountability 7 is set out as equivalent to being entitled to fundamental rights, as features of citizenship. 8 Sadly, the equivalence between accountabilities and rights is often overlooked in practice, leading to an inclination to inflate the latter while snubbing the former.
The second question requires reflection on democracy's not only needing to be the exact and envisioned result of living according to the rights and accountabilities specified by the Constitution, but that "making accountability matter" 9 must also be an obligation of both the democratic State and of civil society. To the same degree that government is perceived as failing society, so too civil society fails the State when it does not embrace the skills and channels that are available to it to make accountability matter. 10 Thus, when wrong things happen, society will bear most of the blame for not having knowledgeable, involved, attentive and responsive citizens.
In a nutshell, civil society taints the purpose of democracy when the imposed constitutional obligations and the accountabilities of citizenship are not fulfilled.

Problem statement and objectives
As early as thirty-five years ago, concern was expressed about the twisted relationship between family units and schools, in that schools considered parents to be an irritation and parents considered schools to be hostile places in which they had no valid interest. 11 What was needed was "shared responsibility" between family members and schools to generate answers to the intractable problem of exactly how to deliver education, so that public schools could be made the locus of accountability. 12 If all learners behaved as expected, the stress level of meeting the expected standard of performance by the educators would decrease, leading to a mutual understanding that, if both parties worked at meeting the expectations, schooling would advance. 13 While reflecting on the role of law in nudging parents toward dancing accountably with education partners, the aims of this article are to:  present a clarification of concepts;  investigate parental accountability concerning school-related matters by commenting on international law, considering explicit constitutional pointers, and indicating applicable statutory and subordinate indicators; and  examine and review relevant case law in order to gauge the current position of courts on parental accountability.

Research framework
Supported by Green and Browne,14 Rapley 15 and McMillan, 16 this paper follows a documentary design with a comparative perspective: the authors chose accessible documentary resources and, by way of having an investigative approach, strove to gain insight and assess the investigated documents by comparing and evaluating both primary and secondary sources. In addition, what was implicit or not printed was equally important to what was printed and how a specific concept was extended. 17 cognisance of the values underscored by the majority of a society's inhabitants. 18 South African law always necessitates cognisance being taken of the supreme Constitution, which governs the constitutionality and thus the legitimacy of all other legislation and conduct. One must realise, however, that the law creates a legal and administrative framework for the standard of behaviour required from people and consequently holds accountable those who do not comply. The law cannot fulfil legislative provisions -for this, people must take responsibility.

Accountability
In general, accountability is showing responsibility to someone or for some action, being answerable, being obliged and willing to accept responsibility for one's actions, being able to understand and react within one's circle, and taking action founded on one's sense of answerability to oneself and others. 19 Accountability is also described as the obligation of individuals or organizations to account for their activities, to accept responsibility for them, and to disclose the results of one's actions in a transparent manner. 20 An all-purpose, consolidated definition of accountability 21 would be appreciating the effect of one's activities, accepting blame for one's choices, and proposing means by which to mend the harm caused by one's actions.
In legal terms, Van der Walt and Midgley 22 point out that accountability amounts to having the mental capacity to recognize the nature and consequences of certain behaviour and the capability to take preventative or avoiding action. Having the ability to know right from wrong and the ability to act accordingly -vital traits leading to a sense of accountability -are personal traits that signify the attainment of a certain level of maturity and mental development. 18 Kleyn and Viljoen Beginner's Guide 2-3. With specific reference to parental accountability, the High Court of In re XN 23 referred to section 231(2) of the Children's Act 38 of 2005 in determining whether a prospective adoptive parent was indeed fit to adopt a child and therefore to take responsibility for such a child. This was to be assessed solely in terms of the best interests of the child. 24 Emphasis was placed, in accordance with the legislation, on the fact that such a person must be fit and proper to be entrusted with full parental responsibilities and rights in respect of the child, and be willing and able to undertake, exercise and maintain those responsibilities and rights. Such parental responsibilities and rights, as alluded to in J v J, 25 include the right to have a child with them, to regulate his/her life and to decide all questions concerning education, training and religious upbringing. Such rights should, as stated in PD v MD, 26 always be exercised jointly by parents in the best interests of the child.
Holding parents accountable would therefore imply expecting them to accept responsibility for positively participating in all school-related activities. It must be acknowledged, however, that accountability as a constitutional value is by its very nature universal and timeless, requiring constant attention. 27 In this regard, cognisance must be taken of the fact that it is not only parents who have a responsibility towards their children, but that they also need to demand accountability, transparency and responsiveness from the Department of Basic Education, especially when their child's right to a basic education is not being realised. The challenge of parental accountability lies in its being not only a thought-provoking puzzle, but also problematic to unravel. It demands that one think outside the box.

Background
It was Bronfenbrenner 28 who indicated the origins of the estrangement between parents and learners as related to an overall collapse since World War II of the institutions that were crucially responsible for the growth of young people: the school, the family, the neighbourhood and the community. Siman 29 underscores the heart of the problem as lying in the fact that many parents of 12-17 year-old teenagers have become ineffective forces in their children's lives.
A USA report for the White House Conference on Children 30 tabulated rising rates of youthful drug abuse, delinquency and violence The main concern arising from the data was that society imposed pressures and priorities on families that allowed no time or place for the performance of meaningful activities and the development of meaningful relationships between children and their parents, effectively downgrading the role and functions of parents and preventing them from doing things that would allow them to be guides and companions to their children. Children were consequently growing up without access to valuable parenting attributes such as emotional support, insistence on high standards of behaviour, guidance in their development of a sense of autonomy, and the explicit, two-way communication that has been proven to assist children to develop an instrumental competence distinguished by the balancing of societal and personal needs and responsibilities.
Unexpectedly, 41 years ago the opinion was offered that for families that could cope, the rats were gone, but the rat-race continued. 31 The prevalence of the rat-race is especially evident in contemporary South Africa, as judges Bertelsmann and Tolmay pointed out in 2013 in the matter of S v CKM, 32 where they expressed the opinion that most of the children who come into conflict with the law appear to have suffered parental neglect, as indeed was the case with the 14-year old boy in the case, anonymised as CKM. Judge Erasmus similarly reminded the appellant and respondent 28 Bronfenbrenner "Roots of Alienation" 659. 29 Bronfenbrenner "Roots of Alienation" 661-662. 30 Anon "Profiles of Children" 78-79. 31 Anon "Children and Parents" 242.
in J v J, 33 two divorced parents involved in a school placement quarrel about their 12- year old son, that children cannot fail to be aware of and influenced by what is happening between their parents. Such parents would therefore be well advised "to show some reasonableness in their dealings" and also to hold the best interests of the child in regard rather than their own. 34 Correspondingly, in Swanepoel v Fourie 35 the court relied on the fact that section 30 of the Children's Act 38 of 2005, which deals with co-holders of parental responsibilities and rights, makes no reference to the right of any person to have children. The application of the parent for custody of his child was accordingly dismissed on the basis that he had barely shown an interest in his child in the past and had not visited her for almost three years. Moreover, the court expressed the thought that there was no merit in speculating about the future -the best interests of the child 36 would always be given the highest priority.
One of the solutions to the problem of the failure of familiar involvement in a child's development would be to introduce changes in the system of educating the young so that they could become open, not only to societal principles, but also to experiencing the implementation of these principles through observing examples and personal participation, 37 which would result from involving youths in honest accountabilities.
This is especially necessary in South Africa, where the Children's Act 38 recognises the need for children to often assume the role of a parent in child-headed households.
The evidence indicates that young people acquire the capacity to cope with difficult situations when given the opportunity to take on consequential responsibilities in relation to others and when they "are held accountable for them", 39 thus developing children's qualities as persons and their patterns of social response.
This approach is consistent with the decision taken in S v M. 40 The majority of the court recognized the approach that children are individual rights-bearers rather than mere extensions of their parents or miniature adults waiting to reach full size -that they are not destined to sink or swim with their parents. Judge Sachs endorsed the fact that every child has his/her own dignity and distinctive personality. It was accordingly held that section 28 of the Constitution presupposes that the sins and traumas of parents should not be visited on their children. In this regard it was emphasised that all children have the right to express themselves as independent social beings, to imagine and explore in their own way, and above all to learn as they grow how they should conduct themselves and make choices in the wide social and moral world of adulthood. These remarks were subsequently referred to and Singh, Mbokodi and Msila 44 similarly indicate that the principle of parental participation in education is frequently juxtaposed to problematic practice, such as problems that arise from the social class (the socio-economic status) of parents. These factors cannot be ignored, as parental involvement may be prejudiced by advantaging wealthier parents while prejudicing parents from the working class. Such an imbalance was clearly identified by these authors in historically disadvantaged secondary schools, where most of the parents lack the literacy levels essential to productive participation.
In addition, many of these parents are unemployed, consequently reducing their opportunity to negotiate from a position of strength.
Parents remain the primary care-givers and little can be achieved unless they become and remain directly involved in their children's development. 45  protection from maltreatment, neglect or degradation, and the prevention of other forms of child abuse. It is important to recognize that over and above the rights afforded to everyone, children's interests have been given independent appreciation in section 28 of the Constitution, which is appropriate for children's needs and interests. The duties that these rights impose operate within an uneasy triangular relationship between the child, the parents and the State. The primary duty of care rests on the parents, and it passes to the State only when the parents are unable to perform their duties. Children's rights would therefore mostly apply horizontally between the child and parent before applying vertically between the child and the state. The result hereof, as set out by the High Court in Wheeler v Wheeler and underscored by an author, 49 is that the twentieth century has been characterised by a vivid shift in the law regarding the relationship between parents and their children, from the emphasis being placed on the rights and powers of parents to the emphasis being placed on their responsibilities and duties towards their children. This is due to more weight being assigned to a child-centred approach with the interests of children at the forefront.
With regard to children's rights and the best interests of the child in particular, that section 31 of the Constitution protects cultural identity, 51 children's rights and parental accountability should be interpreted taking cognisance of these cultural differences.
This article now addresses its second and third aims by considering international law, the Constitution, and applicable legislation and its subordinate indicators, while indicating how these indicators of parental accountability are reflected in case law.
Bearing in mind that legislation such as the Schools Act is not even remotely perfect, Serfontein 52 points out that it lays a foundation for education partners to collaborate and agree to share accountability. Moreover, Serfontein argues that, like other principles, accountability remains a complex ideal that will have to face up to challenges.

The role of international law
This article's interpretation of the role of law in convincing parents to partake accountably in their children's education is fortified by the formulation of the right in international law, which we are bound by section 39(1)(b) of the Constitution to consider. The African Charter on the Rights and Welfare of the Child (ACRWC) provides that "[e]very child shall be entitled to the enjoyment of parental care and protection and shall, whenever possible, have the right to reside with his or her parents", while the United Nations Convention of the Rights of the Child (UNCRC) guarantees every child's right "to know and be cared for by his/her parents", and "to preserve his or her identity, including ... family relations as recognised by law without unlawful interference".

Explicit indicators in the Constitution
Providing for majority rule as well as the protection of minority and individual rights, the Constitution can be pronounced to have originated not only from "the native 51 Culture includes the whole complex of distinctive spiritual, material, intellectual and emotional features that characterise a social group. Songa "Theorising Children's Rights" 151.
African soil, but indeed from the soul of the land". 53 Section 1, which is described as influential, 54 indicates four fundamental, associated values, of which the fourth is that of the democratic government's being aimed at ensuring accountability (responsibility). 55 We submit that section 3(2)(b), which subjects all citizens to equal duties and responsibilities, if read together with section 28 (1) Section 28(2) requires that a child's best interests have paramount importance in every matter concerning the child. The plain meaning of the words clearly indicates that the reach of section 28(2) cannot be limited to the rights enumerated in section 28(1) and section 28(2) must be interpreted to extend beyond those provisions. It creates a right that is independent of those specified in section 28(1).
In the words of the Constitutional Court in the case of S v M, 61 "the paramountcy principle does not necessarily override all other considerations". This principle instead "calls for appropriate weight to be given in each case to a consideration to which the law attaches the highest value, namely, the interests of children who may be concerned". 62

Legislation, subordinate indicators and parental accountability
Legislation is a forceful legal source. In principle, it binds society at large. 63 The legislative authority often provides the executive authority with the necessary power to promulgate subordinated or delegated legislation in order to ensure that the unique needs of modern society are effectively addressed. 64

Schools Act
In the preamble of the Schools Act, 65 the notions of advancing society's "democratic transformation" and of promoting parents' acceptance of responsibility for the In this regard, Bester 79 indicates that even if misconstructions happen between parents and their children occasionally, the children would be naive to think that their parents will never understand them. At the same time it is a fallacy that children's circumstances are so complex and exceptional that their parents would never be able to understand them. Such misconceptions will have to be reformed within the family structure, if they exist, since they cannot be addressed at schools only. Parents may even need empowerment or counselling in this regard, particularly in serious situations where the self-centred nature of youths gives rise to thrill-seeking behaviour or conflict with their parents.

Policy on Learner Attendance
As a subordinate indicator, this policy not only calls on parents to ensure learners' regular and punctual attendance of school as prerequisites for an educated nation, 80 but also indicates that learners need to "accept and act" on their own accountability for punctual, regular attendance. 81 This is reminiscent of the regulation that indicates parents' duty to support their children's regular school attendance. 82

Code of Conduct for Learners (Code of Conduct Guidelines)
The The Code of Conduct Guidelines propose an educator-learner relationship based on "mutual trust and respect", 97 that is built on both parties understanding the significant roles of intervention and collaboration, 98 and that indicates the possibility of a link being established between educators and learners so that disagreements can be settled amicably. 99 In this instance, learners and educators are held partly accountable 100 for solving disputes, which suggests the need for parents to support the educators and guide their children to partake in a mutually trusting educatorlearner relationship in order to advance education.
Indicating that concern about school discipline is not something new, Curwin, Medler

National Education Policy Act 27 of 1996
The prominence of section 3.4(h), which makes provision for compulsory school education, can never be overemphasised. The practical realisation thereof, however, depends on the direct involvement of parents who should make sure that their children do indeed attend schools. This requires parental involvement in their children's learning processes as well as supervision and assistance with homework and lots of encouragement and motivation. It also requires of parents to attend parent-teacher meetings, and together with schools to set high performance standards for their children. 108 Section 3.4(n), on the control and discipline of learners at education institutions, indicates that no learner should be subjected to corporal punishment and/or any psychological or physical abuse at any education institution, and parents therefore need to act appropriately in cases where such inexcusable practices occur.
While a sound dose of spontaneous behaviour must be encouraged, setting limits is equally important. 109 The necessity of such limits is underscored by the perception that freedom without limits often results in worry, hostility, a lack of restraint and a weak sense of responsibility. Children who grow up lacking limits do not cultivate the ability to face frustration and therefore fare poorly in relationships, at school, and eventually at work. Yet imposing unwarranted limits is not encouraged, as they hamper personal growth, weaken children's self-regard, and thwart their development of an inner sense of accountability. Children who experience excessive control and who are constrained may struggle with learning to think for themselves and become

South African Council for Educators Act 31 of 2000
In terms of this Act, a Code of Professional Ethics was developed that sets out the ethical standards that must be satisfied when educators register with the South African Council for Educators.

Code of Professional Ethics
Item 3.3 under the sub-heading Conduct -the educator and the learner 114 points to learners' accountability for developing a set of values in line with the fundamental rights contained in the Constitution. Item 3.14 clearly recognises the need for a partnership between educators and learners, is therefore supportive of learners' responsible participation in their own education, and thus clearly implies that their parents need to be accountable in supporting and guiding them in this regard.

112
Bester 2011 Acta Academica 146. Having considered the relevant legislation and subordinate indicators on parental accountability with short references to applicable case law, the focus now turns to the third aim of the article, which is to examine case law specifically to gauge the position of the courts on parental accountability.

Children's Act and case law indicators pertinent to parental accountability
Before accountability can be addressed, it is necessary first to "clarify the rights and obligations of each of the parties". In M v Minister of Police 115 the High Court made it clear that the right of a child to family care or parental care is a constitutional right, 116 thus deserving constitutional protection and enforcement. With regard to the ambit of the right to parental care, the High Court underlined the fact that it extends beyond the need for financial support; there is a never-ending list of parental care duties that are to be executed to assist a child in preparing for life's challenges. 117 This is mainly due to the fact that the duty of a parent to support a child is no longer ruled by the common law, but by statute. 118 In referring to the fact that section 1 of the Children's Act 119 does not provide for a need "to show love and affection to the child" as one of the duties that a parent must perform (despite its importance), the High Court explained that actions on behalf of appropriate to the child's age, maturity and stage of development. To this, section 1(f) adds guiding, advising and assisting the child in decisions to be taken by the child in a manner appropriate to the child's age, maturity and stage of development.
Under these circumstances, Judge Mothle indicated that the Children's Act expands the content of the right to parental care beyond the basic need for financial support.
The need of children and the corresponding duty of parents are not limited to financial matters. Teaching a child to eat, to dress, to tie shoelaces, to use ablution facilities, to walk, to talk, to respect, to express appreciation, to do homework and perform household chores is important, and so is being present and supportive of the child during his/her participation in sport and art activities. 121 As such, it was decided that parental care duties could be referred to as parental guidance, advice, assistance, responsibility, or simply parenting or child nurturing. The primary task of parents is thus to make children feel at home in the world and to prepare them for the demands of life which will be made on them. 122 With specific reference to parents fulfilling their duty towards their children's education, parental guidance is closely linked to parent-teacher cooperation. 123 However, in practice the contrary is often found. Research conducted by Ngidi and refer to the common-law concepts of "custody" and "access", but rather to "parental rights and responsibilities". The latter are defined as those responsibilities that refer to the right to care (custody) for the child; to maintain contact (access) with the child; to act as a guardian of the child; and to contribute to the maintenance of the child. 134 With reference to the statutorily endorsed educational partnership involving the State, the parents of learners, educators, learners and members of the community, the This, as in the matter of Ex Parte: Saincic, 142 is unfortunately frequently not the case.
In this instance the High Court realised that the young child in question was indeed the innocent victim of the adults' inability to subject their own interests, wishes and emotions to those of the child. Serious concern also existed regarding the father's parental style and skills, as well as the unstable composition of his personality. The fact that the father insisted on the custody of his child and refused to share this responsibility with the grandparents after his mother had been murdered, on the basis that he wanted to "win" the court case at all costs, was regarded as a clear indication of the father's putting his own interests before that of his child. It also indicated according to the court a misconception on the father's side regarding the role of a responsible and accountable parent.
As the main guardian of minors, the High Court regarded itself to be bound, regardless of the father's wishes and even the child's wish to be with his father, to consider only what was in the best interests of the child under the prevailing circumstances to ensure his future well-being.

Conclusion and points of contention
The two research questions, namely where references to accountability come from and why accountability is regarded as making a significant difference, were addressed by indicating that the South African legal framework makes provision for shared responsibilities and collective accountability by all education partners in the matter of the education of the young. The importance of parental accountability was highlighted against the democratic principles of cooperation between these partners, and • referring to significant case law throughout, to measure the current position of the courts on parental accountability. It was found that the courts are willing to interfere and demand accountability from all education partners, especially from parents. Although it became apparent that parents are slowly but surely coming to the fore to ensure that the State is held accountable, it was also evident that much must still needs to be done pertaining to parents realising and giving effect to their own accountability.
Case law has indicated that high standards are being set for adults who aim at adopting a child and thus undertaking the right and responsibilities towards children which, among others, include accepting responsibility for their positive and constant participation in all school-related activities. At the same time, emphasis was placed on the need for parents to demand accountability from the State concerning their children's right to a basic education.
In addition, case law emphasised the important fact that adults do not have the right to have children, thus implying that those who indeed have children should aspire to be accountable for them in the best manner possible. This, according to the Constitution, entails always acting in the best interests of those children to which parental interests should be subjected.
The reciprocal apportioning of blame, a lack of mutual cooperation, socio-economic factors and illiteracy, as well as numerous cultural determinants were amongst the problems identified as hampering the full, practical realisation of the legislative provisions pertaining to parental accountability. The solutions proposed under these circumstances are that parents should: • take the forming of a partnership with the State and educators seriously, thus accepting joint accountability for the education of their children; • recognize and take up the responsibility of guiding and educating children to be accountable for their own destiny; • set upright examples for their children by behaving in an accountable manner; • become aware of the consequence of the Constitution, namely that parents no longer control or dictate the lives of their children, but that emphasis is placed instead on parents' rights and obligations towards their children; and • accept a child-centred approach, always placing their children's interests above their own.
In order for these solutions to be implemented practically, the following recommendations are put forward: • Parents must be empowered to perform their roles as partners in education.
• Mutual respect between education partners must be evident, with educators being especially aware of the valuable inputs of parents as the primary caregivers.
• Parents must be made aware of the enormous impact on their children of parental examples, circumstances and household arrangements, since the State cannot repair each dysfunctional family. At its best, the State can make efforts to create conditions to protect children from exploitation and maximise the opportunities given to them to lead productive adult lives.
Although a clear legal standard has yet to be defined to determine the parameters of parental accountability, case law has indicated that the courts have been indicating the need for parents to become more actively involved in the education of their children. The fuzzy edges, cracks and divisions between schools and homes must be elided in order for quality teaching and learning to take place, and to advance the development of exemplary citizenship in the nation's schools.