Basic Education Laws Amendment Bill [B36-2010]: public hearings

Basic Education

14 February 2011
Chairperson: Ms H Malgas (ANC)
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Meeting Summary

The Portfolio Committee received oral submissions on the Basic Education Laws Amendment Bill [B36-2010] from the Federation of Governing Bodies of South Africa, the Governor's Alliance, the National Professional Teachers Organisation of SA, South African Democratic Teachers Union, South African Council for Educators, Suid-Afrikaanse Onderwysersunie, South African Catholic Bishops' Conference, and Equal Education.

Issues raised included the need to improve on the definition of loan, parent, school time, school activities, political activity, party-political activity, party-political materials and potentially dangerous. There was also a need to clarify the clause on additional official languages as subject options and the cost implications; the job description of the Principal; why the definition of ‘loan’ was necessary and why reference to payment of staff was in the same sentence; the appeal process for expulsion of a learner; and the distinction of existing public schools from public schools with special focus.

It was a concern that control of financial matters at a school would be in the control of the Department of Basic Education while the Principal would be held accountable. Furthermore, the School Governing Body associations were sidelined from the consultation process on financial matters, while it was likely that Principals did not have the necessary knowledge on financial matters

Also raised was the issue of restriction of the use of school facilities or property by external parties and how this would damage the schools’ ability to raise funds; why the Department of Education funded South African Council for Educators (SACE) for promoting in-service training; whether educators at Adult Learning Centres would continue to fall under the jurisdiction of the SACE Act; the problem of double jurisdiction occurring when the Minister of Higher Education used personnel who fell under the jurisdiction of another branch of Government; and finally, the use of must to commit the Minister to determine minimum uniform norms and standards within a reasonable period.

Members asked for clarity on the possible conflict of interest between the School Governing Body and Principal with regard to financial matters; whether the labour rights of adults were more important than the constitutional rights of children to access education with regard to party-political activity interference at schools.

Meeting report

The Chairperson noted that Members had received the submissions and therefore it was not necessary to discuss all the content that was presented on the handouts.

Federation of Governing Bodies of South Africa (FEDSAS) submission
Mr Paul Colditz, FEDSAS Chief Executive Officer, said that although FEDSAS supported the principle that there should be no unfair discrimination in respect of the offering of official languages as subject options (Clause 6), the State rendered no funding support as an incentive to acquire adequate teaching skill and materials to promote the offering of more languages as subjects. While the School Governing Body (SGB) had to ensure that all languages were taught at the same level, lack of financial support would lead to reluctance of SGBs to promote the offering of additional subjects and would have a negative impact on multilingualism.

Regarding Clause 7, FEDSAS proposed that an appeal process be introduced whereby SGBs could be given an equal right to appeal to the Member of the Executive Council (MEC) against the Head of Department’s refusal to expel a learner.

FEDSAS proposed that there was no need to change the regime of existing public schools which had specialised focus and which necessitated that the Minister determine separate norms and standards for funding and governance of those schools (Clause 8). This would cause fragmentation of the envisaged single and unitary schooling system. The Amendment to Section 12 (3) to draw a more appropriate distinction of existing schools was outlined (see submission).

Clause 9, which sought to add to the functions and responsibilities of the school Principal, started with the word ‘assist’ but then proceeded to qualify such assistance to include ‘the provision of information relating to any conditions imposed or directions issued by the Minister, MEC or Head of Department in respect of all financial matters of the school.’ The implication would be that the Department of Basic Education (DBE), through the Principal, would sideline SGBs in the financial affairs of schools and in the most extreme interpretation, put entire control in the hands of DBE and hold the Principal accountable and under disciplinary council. FEDSAS believed that this was unacceptable and further questioned whether the DBE could competently issue direction on financial matters.

Clause 11 prohibited party-political activity during school time but ‘school time’ was not defined in South African Schools Act (SASA). FEDSAS recommended that ‘school time’ should be replaced by ‘school activities’, which was clearly defined in Section 1 of SASA. To eliminate misinterpretation, party-political activity should not be conducted at a school or during school activities at any time, within or outside the school premises.

Clause 12(b) sought to introduce restriction of the use of school facilities or property by external parties to 12 months at a time. This would damage the schools’ ability to raise additional funds to improve education through the innumerable positive school and community activities which took place at schools and would deter potential long-term investors. For example, schools in Limpopo and Mpumalanga ran a bakery and had fruit and vegetable gardens to provide food for their learners. Overflow was sold to the community and money saved was used for improvement of education in the school. The Deeds Registry Act provided sufficient protection for landowners with regard to the leasing of property and thus there could be no jurisdiction for the provision.

As far as Clause 12(d) was concerned, FEDSAS recommended that ‘potentially dangerous’ be changed to ‘hazardous or disruptive’ to allow sporting activity which was potentially dangerous to be allowed at schools.

Mr W James (DA) asked if FEDSAS was suggesting that Clause 9 would result in conflict of interest between the SGB and Principal on financial matters.

Mr Colditz replied that in the internationally accepted norms and standards of good governance there was a relationship between all governance, and all decisions made should be in the best interest of the school. However, Section 16 A drove a wedge between the Principal and SGB. If there was a problem with SGBs ability to handle finances, the correct point of departure would be to address that ability, not legislate sanctioning of a member of the SGB. Section 19 made provision for the Head of Department’s obligation to improve the competence of the SGB by training them adequately. Thus, if there was a problem, the Head of Department was not providing sufficient support to the SGB to do its job. The Principal should not be undermined.

Mr James asked if FEDSAS opposed political interference or party-political interference.

Mr Colditz said that FEDSAS was opposed to any political interference in school activity, including politicised union activities at school. He acknowledged that it was difficult to define political activity without reference to a political party and from a legal perspective the term party-political activity would be the more relevant term.

Ms N Gina (ANC) suggested that the agricultural business activities at schools were covered in Clause 12(c).

Mr Colditz said that regulation whereby the Minister had to prescribe particular business activities at schools every day and over weekends undermined SGBs initiative to supplement resources supplied by the State, as according to SASA’s provision. He questioned what impact the conducting of business had on the quality of education. Business activity which did not promote the quality of education was covered by (d) where no hazardous or disruptive activity was allowed and was thus covered. FEDSAS saw no reason for Clause 12(c).

The Governor's Alliance submission
Mr Eban Joubert, General Council Member: Governor's Alliance (GA) said that the definition of the word ‘loan’ was very broad and GA recommended the definition of ‘loan’ to read: ‘loan means any financial obligation based on an agreement that creates a liability for repayment by a school in favour of any person that must be paid in one or more installments’.

Recognised SGB Associations should be included as part of the consultation process as the regulation could have financial implications for the SGB. GA recommended that Section 5A(1) of SASA should read: ‘The Minister may, after consultation with the Minister of Finance, the Council of Education Ministers and recognised SGB Associations by regulation preserve minimum norms and standards for (a) school infrastructure (b) capacity of a school in respect of the number of learners a school can admit; and (c) the provision of leaning and teaching support material.

GA concerns were similar to FEDSAS with regard to languages - the cost implications for the SGB and the State and the potential impact on the SGB; on expulsion for serious misconduct - allowance for an appeal by the SGB to the Head of Department and/or the MEC and it was also important to have measures in place to protect the rights of the other learners enrolled at the school; and the distinction between ordinary public schools which had specialised focus and special schools.

Ms K Callahan, General Council Member: Governor's Alliance, reflected FEDSAS concern about was meant by the Principal ‘assisting the SGB’ in Section 16A(2)( h) and emphasised that the suggestion that the ‘Principal had knowledge of financial matters’ warranted further debate. GA questioned why the full responsibility of financial matters was being taken away from the SGBs. GA recommended that Section 16A (j) be deleted and Section 16A (k) to read ‘report any maladministration or mismanagement of school fund to the SGB and to the Head of Department. Also, Section 36(4) was restrictive and limited the powers and functions of the SGBs and its ability to supplement the school fund.

Section 19(3) and (4) required further input on the implication for SGB Associations with regard to training of member and non-member SGBs. GA also recommended clear definitions for ‘school activity’ and ‘party-political activity’ and Section 33A (1) to read ‘no party-political activities may be conducted at a school during any school activity’ (see submission).

National Professional Teachers Organisation of South Africa (NAPTOSA) submission
Mr Henry Hendriks, NAPTOSA Executive Director, presented recommended amendments and summarised NAPTOSA’s submission comments as the following:

▪ An additional definition was required to cover circumstances where the person(s) responsible for children were not the biological or adoptive parent, nor the legal guardian;

▪ Emphasis should be on the right of learners to access language and there should clarity on the intention around the language amendments;

▪ There was a need for greater clarity around the contexts that needed to be taken into account when determining sanctions against learners who appealed against expulsion;

▪ Consider the financial implications as there was contradiction in terms of norms and standards for school funding and this affected the training of SGBs and the payment for such training conducted by SGB Associations. NAPTOSA questioned the need for legislation of ‘norms and standards’ for school funding when it was a specific issue;

▪ Improve on the wording around the use of party-political materials in school - Section 33A(4). While NAPTOSA supported the use of party-political material for curriculum-related issues, it supported prohibition of party-political activity during school time;

▪ The intention of the stipulations in Section 36 (4) which restricted the use of school facilities to generate income for the school or to derive benefit for learners, appeared to be short sighted and would result in the unintended outcome of cutting the generating of income at schools;

▪ The procedure for obtaining approval for a SGB to enter into a loan agreement;

▪ The unintended consequence of lecturers at FET colleges not being registered with South African Council for Educators (SACE) - probably an unintended technical error; and why should DBE pay SACE for promoting in-service training when it was also a responsibility of DBE. Funding problems should not be dealt with as intended in the Bill and could have the unintended consequence of SACE being both player and referee and would also affect the endorsement of non-SACE professional development programmes.

Mr James asked what was meant by NAPTOSA’s objection to political interference in the activities of the school, as that would infer that NAPTOSA itself would also not be able to interfere in the affairs of the school.

Mr Hendriks said that all political interference, including party-political interference should not be allowed in schools.

Ms M Mushwana (ANC) agreed that a more comprehensive definition of official languages would eliminate confusion and enable all eleven languages to enjoy same service.

Mr Hendriks said that language should not be used to hinder the education of the learner and yet when using legislation, its intention should be clear and unambiguous.

Mr K Dikobo (UCDP) asked NAPTOSA to offer a proposal for solving the compelling argument around the funding of SACE.

Mr Hendriks said that NAPTOSA did not have a definitive proposal but suggested that the parties which were involved in SACE should offer a proposal based on creative discussions in forums.

South African Democratic Teachers Union (SADTU) submission
Mr John Maluleka, SADTU General Secretary, said that the definition of ‘loan’ should stand alone to provide clarity and that reference to payment of staff should be a separate sentence. SADTU would also welcome broadening of the term ‘parent’ - in South Africa a parent could be responsible for 16 children.

SADTU proposed that radical leadership by the Minister and SGBs would ensure that the official languages would be treated equally and one indigenous language be introduced at all schools.

The job description of the Principal had been ambiguous in the previous Act. SADTU proposed that once the Act was passed, the job description Amendment should be dealt with by the Education Labour Relations Council (ELRC) to ensure that Principals were able to perform the tasks for which they were responsible.

The Bill did not state what would happen should Trade Union activity be contravened by the school, members, staff, or any other person. It was crucial that this was clarified. SADTU was pleased that Trade Union activity was not considered party-political activity as SADTU’s organised and orderly activity did not disturb school activity.

SADTU understood in the Amendment of the SACE Act that on enactment of the Bill, educators at Adult Learning Centres would no longer be regulated by the SACE Act and would fall beyond the jurisdiction of the SACE Act. It was unclear whether this was the desired outcome of the proposed Amendment.

Mr James asked if SADTU considered the constitutional rights of children to access education more important than the labour rights of adults, or visa versa, when discussing political and party-political activity interference at schools.

Mr Maluleka said that the rights of the child were respected through improvement in teaching conditions and quality of teaching via projected outcomes of Trade Union activity. It was important that Trade Union rights were conceptualised and that it was understood that Trade Union activity supported the process of improved education for the learner.

Mr Dikobo asked if teachers at Adult Learning Centres were excluded as public servants and whether this would impose hardships on those teachers.

Mr Maluleka said that conditions such as literacy, skills and uniformity of service conditions did not require legislation but should be addressed at the level of the EDRC and other Adult Education units which dealt with Further Education conditions.

South African Council for Educators (SACE) submission
Mr Rej Brijraj, Chief Executive Officer: SACE, said that SACE represented the entire teaching profession in South Africa and was mandated to register all teachers as per minimum registration standards; promote and oversee the ethical conduct of educators; more recently oversee the professional development of educators (National Policy Framework for Teacher Education and Development 2007); and advise the Minister on matters pertaining to the professionalism of educators.

The strengthened mandate to oversee the professional development of educators had created misunderstanding. SACE could not take on the role of the DBE of providing for teacher development. SACE’s mandate was to develop and manage a Continuing Professional Teachers Development (CPTD) system to quality assure and endorse any teacher programmes. Together with DBE, SACE offered incentives for teacher development and a group of experts awarded professional development points for professional development activities and programmes. The original agreement with DBE was that DBE should assist SACE in funding its administrative functions. SACE was not seeking finances for provision and would acquire legal assistance to determine the correct wording for clarity on this section in the Bill.

Ms Tsidi Dipolo, Chief Operations Officer: SACE, added that the Bill talked to resources in general and not to SACE per se and there should also be clarity in terms of Further Education and Training (FET) and other Adult Education teachers continuing to be registered with SACE.

Suid-Afrikaanse Onderwysersunie/South African Teachers Union Submission
Huw Davies, Executive Officer: SAOU, said that it was not necessary to insert a definition of ‘loan’ as it was already defined in other legislation. Furthermore, the proposed definition did not make sense as far as a connection between the loan and a reference to the payment of teacher’s salaries in the same sentence. SAOU recommended that the manner in which the Bill had been worded should be reconsidered.

SAOU believed that Clause 6(b) on ‘non-discrimination of the official languages’ was misleading. If non-discrimination meant equal status, equal time and equal quality of teachers, the Act should stipulate that clearly. Also, SAOU believed that should the Bill be accepted as it was, it should apply to all schools in the country. However, since not all schools had been allocated a Section 21 function, the Bill would only apply to some schools in the country. SAOU further believed that offering first additional and any other official languages on the same level was not practically achievable and the Clause 6 (b)(d) should be revisited.

On Clause 7 amending Section 9, it was unclear how the SGB and Head of Department would revisit their completed work after expelling a learner from school when it was stipulated that the MEC must ensure that a suitable sanction was then imposed on the learner. This could give rise to confusion and legal uncertainty. SAOU believed it would be proper for the MEC to determine the suitable sanction after consultation with the SGB concerned and then to ensure the sanction was implemented by the SGB as contemplated by Subsection (10).

Clause 9 of the Bill concerning the Principal gave rise to two potential problems. The Principal in his own right became accountable for actions and disciplinary action against himself, as well as accountable for the performance of the SGB. SAOU believed that this was a kind of double jeopardy and that the clause be revisited.

The Amendment of Act 58 (2001) had to do with the substitution of the definition of Minister of Higher Education and Training in Section 21(c) being ‘insofar as the powers and functions relate to Further Education and Training Colleges and Adult Basic Education’. SAOU believed that many of the Adult Learning Centres were housed in schools which fell under Provincial Departments and many agencies used teachers in the schools to staff the agencies. If the proposed clause was passed, the problem of double jurisdiction would occur whereby the Minister of Higher Education was determining certain things in facilities and possibly using personnel who fell under the jurisdiction of another branch of Government. 

Mr Chris Klopper, Chief Executive Officer: SAOU, added that with regard to the Adult Learning Centres, if the intent was to transfer educators to the Department of Higher Education and Training, this was a matter which should have been discussed in the Education Labour Relations Council (ELRC)  in terms of ordinary labour relations. Presently the only Act which allowed employment of educators was the Educators Employment Act.

South African Catholic Bishops Conference submission
Mr Kenny Pasensie, Researcher: SACBC, said that the intention and practicality of the proposed Bill on the language policy was not clear. The SGB may not be adequately knowledgeable to make decisions on language. Also ‘same level’ in Clause 6(b), as previously mentioned, could be interpreted in different ways. SACBC recommended that the SGB be assisted by teaching staff when fulfilling duties as proposed by the clause.

Regarding Clause 7, SACBC was concerned about the lengthy process involved with expulsion appeals causing damage to both the learner and school. In the event where the MEC upheld the expulsion appeal, there was tension between school community and learner. SACBC recommended that Subsection (11) be reworded to commit the MEC to providing appropriate mediation, counseling or similar assistance to restore a satisfactory relationship between the learner and the school community.

On financial matters, Clause 9 assumed that all Principals were skilled to manage and deal with financial matters. SACBC recommended that all Principals and SGBs be given the necessary training to manage the additional role imposed on them by the proposed clause.

SACBC questioned whether the list of prohibited activities was broad enough and that a clause be added to Section 33A(2) to read: (e) the donation of equipment, sporting goods, learning materials or other gifts supplied by or through a political party or its associated bodies.

Mr Mushwana said that her understanding of SGBs was that there was a teacher and also a parent component and therefore these should have adequate skills to manage financial matters.

Mr Pasensie said that the SGB was indeed made up of teachers and parents and in cases where they could not fulfill their SGB duties they could make use of co-ops to ensure the necessary expertise to do so.

Mr Z Makhubele (ANC) said that it appeared that if Principals had expertise in financial matters there would no concern about Clause 9.

Mr Makhubele said that there was a fine line between someone making a donation out of the kindness of their heart versus the learners being politicised by the donation when the person making the donation claimed to be apolitical. If the activity was in the interest of school and not political, it should not be an issue.

Mr Pasensie said SACBC was mindful that this could happen and of situations where goodwill was hijacked.

Equal Education (EE) submission
Mr Dmitri Holtzman, Researcher: Equal Education (EE), said that EE represented high school learners and parents, the majority being from Khayelitsha  in Cape Town. After discussing key aspects on norms and standards of Section 5A of SASA, EE recommended further amendments so as to prescribe that the Minister of Basic Education must determine minimum uniform norms and standards within a reasonable period (see submission for the basis of the recommendation).

In closing, Mr Holtzman asked for permission to pose a question to the Committee. The Minister had the authority to adopt the norms and standards but as outlined in the submission, the Minister had failed to do so to date. He asked whether the Committee had called DBE to account for failing to respond to the deadline set by DBE itself and whether recognition of failure to respond on this important issue was more reason why SASA should be amended to ensure a positive obligation by DBE.

The Chairperson thanked the researcher for his input and said that his question was not part of EE input to the Committee and thus would be addressed at a later date.

Ms Mushwana said that norms and standards had to be approved by the Minister according to the school quintile level and should not be a challenge.

Mr Holtzman said that nowhere in the draft were norms and standards related specifically to quintile systems. They related to grading systems against which schools could be measured according to basic safety, minimum functionality and optimum functionality to determine how many schools per province fell above or below those standards. As far as he understood, the Provincial Department aligned the budget and infrastructure plans with schools proportionally on a year-by-year basis to improve their safety and functionality.

Mr Dikobo commented that the word ‘must’ was never found in the piece of legislation and there was no obligation for the Minister to respond. ‘May’ or ‘shall’ were used.

Mr James said that when the word ‘shall’ was introduced, there would be financial implications and it may cost a fortune. 

Mr Holtzman replied that the Section 12(b) that he quoted in SASA during his submission did in fact use the word ‘must’. He agreed that ‘must’ or ‘shall’ created a specific obligation for the DBE to fulfill, which is what EE was ultimately arguing for Section 5A. Even if the Minister chose to use the authority given to her in terms of the current Act, it would have financial obligations. The current Amendment contained in the Bill recognised that fact and was dealing with it by saying that the Minister could only adopt those norms and standards after consultation with the Minister of Finance. With respect, the impact of the recommendation by EE that a specific obligation be placed on the Minister was currently being cushioned by the suggested inclusion of the Minister of Finance through consultation, as the Bill sought to amend SASA.

Ms Vivienne Carelse, Deputy Director General: Strategic Planning and Reporting, DBE, responded that there had been key developments in DBE around the very matter contained in the submission. However, it was not the business of the current meeting. At the Committee’s request, DBE would present to the Committee and engage on the matter in detail.

The Chairperson said that Parliament’s role was to pass or to amend and had oversight on the Amendment of DBE’s Education Laws. Public participation was the cornerstone of democracy and it was important that the Committee listened and asked questions for clarity. All proposals would be revisited by the Committee before adding input to the clauses and deciding what would be in the Bill.
The meeting was adjourned.

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