Basic Education Laws Amendment Bill [B36-2010]: briefing; Further submissions on “Quality Education and Access to Education”

Meeting report

Basic Education Law Amendment Bill (BELA)
Mr Bobby Soobrayan, Director-General: DBE, explained that the Bill amended specific provisions of the legislation, those being: South African Schools Act 1996 (SASA); National Education Policy Act (NEPA); Employment of Educators Act 1998 (EEA); South African Council for Educators Act 2000 (SACE Act); and the General and Further Education and Training Quality Assurance Act 2001 (GENFETQA). The technical and substantive amendments aimed to align these Acts with the new education dispensation which came about during the 2009 when DBE was split into two distinctive independent Departments. The Bill was presented to Cabinet on 27 July 2010.

Mr Chris Leukes, Director of Legal Services: DBE, outlined the clause-by-clause exposition of the Bill as per the handout: Department of Basic Education Directorate: Legislative Services on BELA (pages 4-18).

Discussion
Mr N Kganyago (UDM) asked for clarification on the qualification of a learner versus a student.

Mr Leukes answered that Clause 3 took out the word ‘student’ to make provision for the split in the Department as it was generally used in the Higher Education Sector. Higher and Further Education was no longer part of Basic Education.

Ms A Mda (COPE) asked for the background which informed the drastic amendment (Clause 9) whereby the principal had the power to decide on matters relating to the finances of the school.

Mr J Skosana (ANC) asked for clarity on the difference between the current and proposed advisory role of the principal to the School Governing Body (SGB) on financial matters.

Mr Leukes answered that the SGB would still have powers to decide on financial matters of the school. The purpose of Clause 9 was not for the principal to have all power over the SGB but to assist the SGB in financial affairs and thereby bring the principal into the decision-making process and thereby take responsibility for financial decisions of the school.

Mr Steve Ramafoko, Senior Legal Administration Officer, added that principals were members of SGBs and were not taking over the financial responsibility of the SGB. They had the responsibility to report to the provincial Head of Department on the finances of the school and they would be charged if there were financial irregularities. 

Mr Mpontshane (IFP) asked whether Clause 8, where there was a third category of schools, included the concept of special education.

Mr Leukes replied that the third category of public schools included special talent, and the second category spoke to special education.
 
Mr Mpontshane asked for clarification on what type of political activity was prohibited within the premises of the school (Clause 11).

Mr Leukes replied that the term ‘political activities’ was broad. As set out in the Amendment Bill, no party-political activity was permitted at school during school time. ‘Activities included, but were not limited to: campaigning; conducting of rallies; distribution of pamphlets and fliers; and hanging or putting up of posters and banners. A school may not allow the display of material of a party-political nature on its premises unless such party-political material related to the curriculum at the school’.

Ms C Dudley (ADCP) said that that Clause 11 did not appear to cover union activity and believed that there should be some kind of regulation restricting union activity during school hours and the role of the principal in union activity.

Mr Soobrayan responded that Union activity was covered by Labour Law; Employment of Educators Act; and Collective Agreements. Currently, principals had the right to join unions and participate in union activity within the provision. It was perhaps necessary to look at a special dispensation for principals. Union activity was strictly regulated but at times of intense strikes, the question was how to ensure that the provisions were applied.

Mr Z Makhubele (ANC) asked DBE to clarify whether the circumstances of schools around the entire country had been audited with respect to indigenous languages, unfair discrimination and how they related to the implications of the Nkosi vs Vermaak case which was inserted into the Bill (Clause 6).

Mr Ramafoko said that the purpose of the Amendment was not to deal with the medium of instruction but to address parity and equalization in languages as a means of providing subject options at public schools. If a school offered Afrikaans as an additional language, it could not offer Afrikaans at level two and IsiXhosa or IsiZulu at level three.

Mr Skosana asked what the difference was between government officials training SGBs versus those tendering as a company to train SGBs.

Mr Leukes answered that the Bill did not advocate government responsibility of training of the SGBs but gave the Head of Department further options, by law, to engage SGB Associations to train the SGB.

Ms N Gina (ANC) asked how DBE would close the gap between SGBs incompetence with financial matters and the principal’s role of protecting the SGB from spending on the other hand.

Mr Skosana asked DBE to explain how schools reimbursed funds - schools typically did not have the financial muscle or means of regenerating funds to reimburse the loans - and whether DBE or the school was held accountable for reimbursement of loans.

Mr Leukes answered that in the past, the SGB could approach a financial institution and apply for a loan and the purpose of Clause 12 and the link between that provision and Clause 9 was to safeguard the interest of government as well as to ensure that schools did not overburden themselves financially. The Bill gave the MEC and Head of Department greater control over school finances and the new definition of ‘loan’, which now included all credit agreements, would allow for better regulation of loans.

Mr Soobrayan added that when a school applied to the MEC for a loan, the MEC rigorously assessed the financial capacity of the school to meet the demands of repayment. Thus, the loan application could be declined if financial capacity was lacking. A loan agreement made without permission from the MEC meant that the school could be charged for operating outside of the law.

Ms Malgas asked how the loan was perceived in terms of the Public Finance Management Act.

Mr Soobrayan said that any government department which applied for a loan had to have permission from the MEC responsible for finance in that province. Clause 9 protected the State in terms of its exposure to financial obligation and in terms of the Constitution, where if a creditor sought to attain assets from a school, the learners would not be deprived of their schooling.

Ms Malgas asked how focus schools affected current schools which already had a particular focus in their syllabus.

Mr Soobrayan replied that a school which currently focused on drama could become a focus school. A focus school was one which could attract learners because of its excellence. The new legislation would provide for
different norms and standards at focus versus ordinary schools and allow for provision of funding within the curriculum.

Mr Mpontshane asked if a ‘no-fee’ school could have its status reversed if it had been identified without the required statutory authority (Clause 13).

Mr Soobrayan replied that all schools which in the past had been identified as satisfying the national requirements for ‘no-fee schools’ had not exceeded the minimum norms and standards for ‘no-fee schools’. The gap was that the ‘no-fee’ category was not defined, nor uniform, in terms of law.

Ms Gina asked if focus schools catered for learners who struggled with the curriculum.

Mr Leukes replied that the learners who had disabilities were catered for at special needs schools and not in the third category, focus schools, which focused on a particular talent.

Mr Soobrayan added that this was an important question in terms of categorization of learners and funding for schools and required further attention.

Mr Smiles asked for clarity on whether there were four or three categories of schools. In his opinion, there was the public ordinary school; the special school for special needs; the special school for learners with learning barriers; and the public ordinary school with special focus.

Mr Beukes replied that there were currently two categories of public schools recognized in terms of the law: ordinary public schools and a public school with special education needs. The third category was public schools with provision of education with focus on talent.

Mr Smiles asked whether the MEC consulted with the SGB before the MEC implemented a suitable sanction against a learner (Clause 7).

Mr Leukes said that although not spelled out in legislation, the MEC did consult with the SGB and that parents, learners, or the school could appeal to the MEC against sanctions made by the Head of Department.

Mr Skosana suggested that the issue of financial matters should be watched closely with regard to conflict of interest between the principal and SGB and also with regards to the problem of reimbursement.

Mr Soobrayan replied that indeed the situation would be kept on the radar and that the purpose of the amendment was to provide checks and balances between the principal and the SGB.  A loan was not a means of getting a school out of debt. There were two criteria for a loan to be approved by the MEC: the application had to be credible and the school had to have the capacity to repay the loan.

Closing Remarks
The Chairperson asked DBE to make a concerted effort to address the White Paper VI on Inclusive Education. She asked if Members wanted public hearings on the Basic Education Laws Amendment Bill.

Mr Skosana said that public hearings were important and should be conducted.

Ms Dudley seconded his proposal and added that as ‘the People’s Parliament’, it was important that the subject be opened to the public, schools, parents and so forth, for discussion.

Mr W James (DA) said that although submissions had already been received, he supported organized and well-directed public hearings at times which did not clash with the existing parliamentary schedule.
 
The Chairperson said that South African Democratic Teachers Union (SADTU) and National Association of Professional Teaching Assistants (NAPTA) had not offered input on Bill but that all School Governing Bodies had responded.

Before closing the meeting, the Chairperson allowed Mr Smiles to address DBE on non-appointment of temporary teachers in a rural school in Venterstad, Eastern Cape, which had caused the school to be closed and 111 learners from grades 1, 2 and 3 to be without teachers. This problem was not isolated to Venterstad, but was occurring in other provinces and was a matter of public importance. DBE owed the school more than R150 000 from the previous years’ allocation.

Mr Mpontshane said that a statement by the Member of a political party on a matter of public importance in the Eastern Cape was opening a space for bringing in matters of public interest by other parties to the meeting.
 
The Chairperson said that DBE would not be required to respond to the Member but that a letter from the school would be taken to the National Council of Provinces.

Mr Skosana said that he believed that it was unprecedented procedure to discuss these administrative matters and issues with the attention of DBE when issues in the provinces needed to be processed before forwarding them to DBE for consideration. 

Mr Makhubela believed that the defined expectation of the meeting should not be altered.

The Chairperson thanked the Members and DBE and closed the meeting with DBE.

Record of written submissions on Quality of Basic Education and Challenges thereto
Mr Lewellyn Brown, Content Advisor: Portfolio Committee of Basic Education said that of the
223 oral and written submissions, 150 submissions had been addressed. He proceeded to outline the submissions.

Ms Gina appealed to the Chairperson that the presentation should be dealt with differently. The Committee had engaged and progressed with many of the important submissions and the DBE had already moved on some of the submissions. She proposed that the Content Advisor and Researcher should highlight and provide a consolidated report on the outstanding submissions to the Committee which needed be addressed before the public hearings.

Mr James supported the proposal.

Mr Makhubela asked for a report on outstanding focus areas so that stakeholders could be aware of submissions that were already covered under legislation, which submissions had been addressed by DBE and which had progressed, as well as which submissions required discussion and resolution by the Committee.

The Chairperson concluded that a consolidated report should be submitted to the Committee. The meeting was resumed to adopt minutes of the previous two meetings.