Education Laws Amendment Bill [B33-2007]: briefing by Department

Meeting report

EDUCATION PORTFOLIO COMMITTEE
21 August 2007
EDUCATION LAWS AMENDMENT BILL [B33-2007]: BRIEFING BY DEPARTMENT

Chairperson: Prof S Mayatula (ANC)

Documents handed out:
Education Laws Amendment Bill [B33-2007]
Memorandum on Objects of Education Laws Amendment Bill (see Appendix)

Audio recording of meeting

SUMMARY
The Committee was briefed on the Education Laws Amendment Bill which consisted mainly of amendments to the National Education Policy Act of 1996 and the South African Schools Act of 1996.

The most significant of these amendments were:
- The insertion of a clause allowing for the establishment of a body to be known as the National Education and Training Council, that would act in an advisory capacity to the Minister.
- A clause defining the basic minimum infrastructure and capacity for public schools was inserted, in order to set a benchmark for schools across the country.
- The insertion of definitions for a dangerous object and illegal drugs, as well as the procedure for the search and seizure of dangerous objects and illegal drugs, plus drug testing at schools.

Questions on the obligation of the Minister to consult with this body were discussed. The legality and efficacy of the procedures and the inadmissibility for schools to initiate legal proceedings as a result of such procedures was discussed at some length. The rest of the amendments consisted mostly of technical insertions and corrections.

MINUTES
Adv Eben Boschoff, legal advisor to the Department of Edcuation, took the Committee through the proposed amendments to the National Education Policy Act of 1996 and the South African Schools Act of 1996. The most significant of these amendments were:
· The insertion of a clause allowing for the establishment of a body to be known as the National Education and Training Council (NETC), that would act in an advisory capacity to the Minister.
·  A clause defining the basic minimum infrastructure and capacity for public schools was inserted, in order to set a benchmark for schools across the country.
· The insertion of definitions for a dangerous object and illegal drugs, as well as the procedure for the search and seizure of dangerous objects and illegal drugs, plus drug testing at schools.
The rest of the amendments consisted mostly of technical insertions and corrections.

Adv Boschof said Clauses 1 and 3 had to be read together as they were linked. While the 1993 interim Constitution had been in effect in 1996, educational legislation had had to be negotiated and there had been more focus on constituencies and mandates from constituencies. Many structures had became advisories and this caused difficulties. Dealing with this was the domain of Parliament and not the Department. Last year Parliament had decided to take the Further Education and Training Council out of play, as it was not being effective. The amendments had also dealt with the promotion of administrative justice and the Minister’s obligation to follow process. This meant having public hearings and consultations. Some pieces of legislation had been causing difficulty in this regard and had been streamlined by the amendments. Bodies were there only to give advice to the Minister. The amendments were worded in easily understood language and allowed for easy implementation.

Starting with Section 11 of the National Education Policy Act the insertion allowed the Minister to establish a National Education and Training Council (NETC).

Amendment of section 6 of the Education Labour Relations Act of 1993 which had been repealed, was merely a technical amendment which should have been corrected long ago.

Clause 4 had to be read with clauses 6 and 7, which introduced a new concept into legislation, which needed to provide a definition for a dangerous object. Violence in public schools had escalated dramatically and legislation was needed to support schools in dealing with this and to bring legislation in line with safety regulations promulgated a few years ago. A wider definition was required than had previously been used. In some instances even scissors had been used to inflict bodily harm. The definition therefore proclaimed any object dangerous if used for the purposes of inflicting bodily harm and could be considered as such, unless it served its purpose as a legitimate educational object.

Clause 4 referred to the definition of illegal drugs, which also was more direct than previous definitions.

Clause 7 described the procedure for the random search and seizure and drug testing at schools.

Prof Myatula suggested that members be given the opportunity to ask questions before continuing.

Mr G Boinamo (DA) asked whether this meant that the need for consultation with people on the ground would be neglected.

Mr AM Mpontshane (IFP) asked if the word “may” instead of “shall” did not mean that the Minister was not compelled to consult and that the public was reliant on her goodwill.

Adv Boschof replied that provisions in the Promotion of Administrative Justice Act (PAJA) directed the Minister to enter into consultation on any policy that might have a negative impact on any citizen. There were enough legislative mechanisms available to ensure the opportunity to be heard. The word “may” also did not mean the directive could simply be ignored by the Minister.

Adv Gaum said it seemed to him that as long as the Council existed, the Minister would have to consult with it, but that the Council only existed through the Minister’s discretion. The next Minister could do away with the Council and then the obligation to consult would fall away as well. He asked whether the Minister decided who was on the Council.

Adv Boschof replied that the NETC membership had to reflect the national stakeholders in the education system, even though the duties were described by the Minister.

Adv Gaum said that this would preclude the Minister from consulting people on policy and that there was no other legislation where the Minister was expected to do so.

Adv Boschof replied that PAJA legislation still allowed for consultation where any policy was seen to have a negative impact on the public. It would have to be published, public hearings would have to take place and process would have to follow its due course.

Adv Gaum insisted that PAJA related only to limited aspects of policy.

Adv Boschof said that in any matter there would have to be aspects of it that related to the impact it would have on the public and in this aspect one could find recourse in PAJA.

Ms PR Mashangoane (ANC) suggested that in clause 3(a)(1) the word “expert” be inserted before bodies.

Adv Boschof replied that these were actually not expert bodies but would be constituted of people with an educational background.

Adv Gaum asked why the term “temporarily” had been used in Clause 4, defining dangerous objects as any article which could “render a person temporarily paralysed or unconscious”.

Adv Boschof replied that the word had to be read together with the entire sentence which defined a dangerous object as any object “that may be employed to cause bodily harm”. The word had been used to indicate that even if the loss of conciousness or the paralysis was only of a temporary nature, the object in question would be defined as a dangerous object.

Adv Boschof continued with Clause 7 and said it had to be read together with all the other regulations already in place. The constitutional aspect of this clause had been taken into account with due consideration to avoiding victimisation and loss of dignity. The clause covered random search and seizure and drug testing at schools. The definition of the word “random” in the dictionary made reference to it having no reason or method, while in the context of this amendment the word had a slightly different meaning. A search or seizure would not be simply random, but as a result of reasonable suspicion and would then be conducted among a certain group of learners. The reasonable suspicion might relate to a specific person or area while the randomness of the search would extrapolate that search to a wider area and a wider group of learners.
The definition of ‘reasonable’ in the term “reasonable suspicion”, was measured as what an ordinary or average person would consider reasonable.

The amendment had also inserted the term “legitimate educational purposes” for defining and limiting what dangerous object or illegal drugs could be brought onto the school premises. A search would be conducted in such a way that a body search would be the last option and staff would start with the least invasive procedures first. Should the principal find a firearm, this would have to be documented and delivered to the police. The clause went on to define the procedure to be followed in the event of the suspicion of illegal drugs being used on the school premises. This would involve drug testing and taking urine samples, using devices and procedures prescribed by the Minister and done in privacy, by a teacher or principal of the same gender as the learner and in view of a witness. The learner, however, must not be able to see the witness.

Adv Boschof said the clause had to describe an internal process aimed at an internal outcome, which was disciplinary action, counselling and ensuring safety in schools. He said random searches had to mindful of protecting the dignity of the learners and to cause them as little embarrassment as possible.

Mr Boinamo said that this requirement could cause problems in court where such evidence as provided by the witness could be thrown out of court, because in essence the witness did not really see what was going on in the search. He said the provision did not make sense and that both the searcher and the witness should be able to clearly see what was going on in the process of the test.
 
Adv Gaum agreed with this. He said the protection of privacy was already being infringed upon during the search or test and it seemed advisable to ensure that the witness did see fully that which he or she might be expected to provide evidence of at a later stage.

Mr R Ntuli (ANC) said the clause was obviously meant to spare embarrassment to the person being tested for drugs, because they would have to provide a urine sample and the witness could then simply witness this from the back.

Prof Mayatula commented that one could not be a witness to anything unless one had really witnessed it.

Adv Gaum asked what proportion of the school could be subjected to a random search and questioned whether it had to be the principal only that could conduct the search. He asked why there was no option to initiate criminal proceedings as a result of the evidence obtained during such random searches.

Adv Boschof said that any group of learners could be subjected to a random search, if a reasonable suspicion existed that among them there were those in possession of illegal drugs or dangerous objects. This could possibly be a whole class. He pointed out that provision had been made for someone other than the principal, being able to conduct searches in section 8A(4) (a) (ii).

Extensive research on the subject and international experience of these matters had revealed that when such instances had landed up in court they were ruled against because of the constitutional infringement of rights. The process therefore was structured to have an internal outcome and evidence could not be considered admissible in other processes. Using evidence that had been obtained in one process could not be used by the school to enter into criminal proceedings. This did not preclude other individuals from taking matters further.

Adv Gaum asked why such evidence would not be considered admissible.

Adv Boschof said that even though the state prosecutor might use the evidence, world-wide experience had shown that in such cases the evidence would not be considered admissible due to the infringement of constitutional rights.

Adv Gaum asked what could be done if it had been revealed in a search that there was a drug dealer at the school and that the drugs were handed over to the police. Surely then there would have to be a follow up by the police

Adv Boshoff said that individuals involved or negatively affected by the event could press charges but the school as a legal entity could not initiate proceedings, since the process of search and seizure was permitted in so far as it resulted in the objective of ensuring the safety of learners and the school.

Mr Boinamo asked for the reasons for this.

Adv Boschof replied that cases in the United States of America, Malaysia and Europe had not been successful for the reasons he had already stated. They were not constitutional as they denied the right to privacy. This process of random searching was intrusive, especially where children were involved and therefore the section had been structured to keep in mind the best interest of the learners. The objective of the process was clearly outlined and involved disciplinary action and counselling. These clauses were in line with similar legislation world-wide.

Prof Mayatula said teachers should not be expected to become police. This legislation was there to serve them in keeping schools clean from harm.

Mr Van den Heever said that it seemed that it was the duty of staff to hand evidence over to the police. It seemed that the principal had no latitude in deciding whether or not to hand over the evidence obtained in the search and whether or not to involve the police.

Mr Boinamo said that in the act of searching the children, the teachers were already taking on the responsibilities of police, so they might as well go further and be in a position to press charges where necessary.

Prof Mayatula commented that the principal acted as a father would to his children.

Adv Boschoff said the intention of the clause was to ensure that unlicensed firearms or illegal drugs would find their way to the police and this was a process to ensure that.

The State Law Advisor present said that the intention of the clause was to ensure and improve the safety and security of schools and learners, not to place the responsibility or function of law enforcement in the hands of educators. This clause obviated the need of going through the process of getting a search warrant, but it’s limitation of rights were that evidence procured in this process was only for the purposes of ensuring safety in the schools.

Mr Boinamo questioned the perspective as touted by the chair that children who behave like criminals should be treated as such and not with kid gloves.

Prof Mayatula said the principal would need a search warrant if it were not for these clauses and therefore in order to allow for this short circuiting of the lawful process whereby a child could be searched and whereby any group could be randomly searched precluded taking the matter to court.

Adv Boshoff commented that nothing in essence stopped schools from actually obtaining a search warrant and following due process, but within the scope of this amendment Bill, the outcome for which these amendments were purposefully written, aimed only at ensuring the safety of schools and learners.

Adv Boschoff continued to Clause 5, which dealt with the norms and standards for basic infrastructure and capacity in public schools. This was an attempt at standardising the minimum requirements of what should constitute a school. This had not really been defined until now. Issues with regard to capacity had also been defined within this clause. This would assist in helping courts deal with these issues as there had been a lot of confusion around this in the past.

Clause 11 referred to the insertion of Sections 58B and 58C and related to the identification of under-performing schools. This standardisation of norms and standards for schools would also assist in determining the reasons behind such underperformance. They would also regulate the relationship between the Minister and the MEC. Section 58C related to the compliance with these norms and standards and the reporting thereof by the MEC no later than 30 September each year. Section 58B referred to the measures to be taken in the event of such underperformance.

Mr B Mthembu (ANC) asked why the word “may” and not “must” had been used in defining what the Minister could prescribe as minimum uniform norms and standards. This meant the discretion was still up to the Minister and it would not ensure compliance across the board, as was the intention of the clause.

Adv Boshoff said this had been a point of contention when writing the clause, but it had to be taken into consideration that in order to fulfil these norms and standards, time and resources were needed and that presently these standards could not be fulfilled across the board. Therefore in order to ensure that the Minister would not be challenged on this and for practical reasons, it had been decided to use the word “may”. At least the clause defined what the standards were and what had to be attained at minimum level.

Adv Gaum referred to Section 58C and commented that it did not include any mechanism for follow-up or compliance, whereas Section 58B seemed to be worded more strongly, stating action to be taken in instances of non compliance. He suggested that some time period for compliance be inserted.

Adv Boshof replied that it was initially important to ensure implementation and that other legislation such as Section 8 of the National Education Policy Act. The Intergovernmental Relations Framework Act (IGFA) would also take care of compliance as it dealt with accountability and resources.

The State Law Advisor said it had been their concern to keep separation between provinces and open inclusion.

Mr Boinamo asked if those schools which had capacity and facilities beyond the minimum norms and standards, would be penalised.

Prof Mayatula said that the section clearly stated that these were just minimum standards set. He mentioned that in his constituency there were still a vast number of schools that were functioning without electricity.

Adv Boschof said that the IGFA would be implemented to ensure the provision of these services and that there was an agreement between role-players to start alleviating the situation. Again, it was important that these minimum requirements and standards had been set.

Adv Boshcoff discussed Clause 8 which referred to the role of the principal. It clarified the fact that a principal was performing under the control and authority of the Head of Department (HoD) and that he or she was only a member of the governing body in an ex officio capacity, and therefore it was the role of the principal to be the eyes and ears of the HoD. This clause intended to bring greater certainty to the function and role of the principal, in their representation of the HoD and their participation in the processes of the governing body. The principal could therefore not be a prime witness or perform on behalf of the governing body, but had to act on behalf of the HoD and the Minister.

Mr Boinamo said that this could bring about a situation where the principal was being prevented from giving evidence against the HoD or Minister.

Adv Gaum said clause 8(c)(iv) did not stipulate what would happen if the date of 30 June were not adhered to by the principal. He questioned whether it was healthy to place the principal in a position where they could be at odds with action instituted by the school against the Department and whether it was constitutional to prevent the principal from giving evidence on behalf of the governing body against the Minister, MEC or HoD.

Ms C Dudley (ACDP) asked if the 37 submissions from stakeholders referred to at the end of the Bill were available.

Mr Mpontshane asked for clarity of duties of other stakeholders.

Adv Boschof replied that the intention of the clause had not been to muzzle the principal, but that as any employee elsewhere was expected to show loyalty to their employer, so also the principal had to represent the Department, the Minister and the MEC. It had to be understood that the principal was only a member of the governing body ex officio which meant he was a member by virtue of his position as a public servant. This clause was not there to prevent the rule of law but to clarify the role and position of the principal.

Mr Mpontshane pointed out that the principal could also be a member of a union.

Mr I Mfundisi (UCDP) pointed out that the clause did indicate that a principal could still be required to give evidence by a court of law.

Adv Boschof said Clause 9 provided for insertions in section 20 of the Act in order to empower the HoD to take the necessary steps in addressing the incapacity of a principal or educator to carry out his or her duties.

Adv Boschof briefly went through the remaining amendments, all of which were technical amendments.

The meeting was adjourned.

Appendix:
MEMORANDUM ON THE OBJECTS OF THE EDUCATION LAWS AMENDMENT BILL, 2007
1. MAIN OBJECT OF BILL
The Bill seeks to amend the following Acts:
1.1 National Education Policy Act, 1996 (Act No. 27 of 1996) (the NEPA);
1.2 South African Schools Act, 1996 (Act No. 84 of 1996) (the SASA);
1.3 National Student Financial Aid Scheme Act, 1999 (Act No. 56 of 1999) (the NSFASA);
1.4 South African Council for Educators Act, 2000 (Act No. 31 of 2000);
1.5 Adult Basic Education and Training Act, 2000 (Act No. 52 of 2000); and
1.6 General and Further Education and Training Quality Assurance Act, 2001 (Act No. 58 of 2001).

2. MAIN FEATURES OF BILL
2.1 Technical amendments
The Further Education and Training Act, 1998 (Act No. 98 of 1998), was repealed by
section 58 of the Further Education and Training Colleges Act, 2006 (Act No. 16 of
2006), thus all references to the former Act in other legislation need to be deleted.
Similarly, the Public Accountants’ and Auditors’ Act, 1991 (Act No. 80 of 1991), was
repealed by the Auditing Profession Act, 2005 (Act No. 26 of 2005).

2.2 Substantive amendments
Minister’s consultative function
The Bill seeks to amend section 5 of the NEPA so as to avoid a measure of
overlapping with section 11 of the NEPA. The effect of the amendment would be that
paragraph (a) to (f) would be deleted. Those paragraphs refer to bodies that have to be
consulted when policy is determined. Trade unions and representatives from the national
governing body association engage with the Minister in other forums, such as the
Education Labour Relations Council and the Forum for National Governing Body
Associations. Trade unions also meet the Minister on request to discuss policy on labour
issues. In addition, the Department always provides the unions and the national
governing associations with policy and legislation for comment before these documents
are finalised.

Norms and standards
The Bill seeks to provide for the Minister to prescribe national minimum norms and
standards regarding school infrastructure, capacity and matters such as learning and
teaching support materials. This will ensure not only that schools provide quality
education, but also that there is uniformity throughout the country.

Dangerous objects and illegal drugs
The Regulations for Safety Measures at Schools did not adequately address the
mischief that they were designed to remedy—that is, to stop the proliferation of
dangerous objects and illegal drugs at schools. It was therefore necessary to strengthen
these Regulations by way of allowing random search and seizure and drug testing at
schools. The new provisions provide clear guidelines about circumstances under which
searches and drug testing should be conducted.

Principal’s functions
The SASA expressly lists the functions and obligations of the school governing body,
but fails to do so in the case of the principal. To remedy this shortcoming, the proposed
section 16A clearly spells out the functions and responsibilities of the principal of a
public school. This is intended to create legal certainty regarding the functions and
responsibilities of the principal vis-à-vis those of the governing body.

These functions and responsibilities have also been linked to the Employment of
Educators Act, No. 76 of 1998 (the EEA), and the Personnel Administration Measures
of 1999 (the PAM), to make it clear that the principal is officially representing the Head
of Department when he or she is acting as a member of the governing body.

Governing body
The Bill also seeks to require governing bodies of public schools to support the Head
of Department when dealing with a principal who lacks capacity for performing his or
her duties effectively.