Basic Education Laws Amendment Bill [B36-2010]: Consideration of submissions

Meeting report

Opening Remarks
The Chairperson welcomed the Department of Basic Education (DBE), Members and a new Cope Member, Ms Nolitha Vukuza-Linda, to the Portfolio Committee.

Response by the Department of Basic Education on the submissions on the Basic Education Law Amendment Bill (BELA)
The Department of Basic Education had analysed the submissions on the Basic Education Laws Amendment Bill and had issued responses to all the submissions. The submission from Mr W James (DA), which had also been considered by DBE, would be discussed in the meeting and a decision would be made as to whether it would be included or not.

Mr A Mpontshane (IFP) suggested that DBE only discuss the submissions where changes had been made by DBE. These could be followed clause by clause by the Members.

Members agreed with this suggestion.

Mr Chris Leukes, Director: Legal Services; DBE, presented the responses by the Department. There were no changes to Clauses 1, 2,3,4,5,6,7,8 and 10.

Clause 9
In Clause 9 h (i), the DBE proposed that after the word ‘school’ the following words be added: ‘after school as contemplated in chapter 4 of the South African Schools Act’ and in Clause 9 (j), ‘any committee or delegation’ should be omitted and replaced with 'the Finance Committee'

Mr James believed that the principal should not be made responsible or part responsible for the financial affairs at public schools. It was not in the interest of the learner that the principal be distracted from his/her core function of managing the curriculum. He therefore suggested that the clause should be deleted completely.

Ms N Gina (ANC) argued that the principal should not be left out of the Finance Committee of the school. The curriculum was one of the responsibilities of the principal.

Ms N Vukuza-Linda (COPE) asked if the principal could be a member of the Committee and also be overseen by other structures. The principal should have a sense of what was being spent at the school and at the same time not simply have carte blanche over finances.

Mr K Dikobo (Alt) (AZAPO) believed that the real concern appeared to be that several court cases in the past had been lost by the DBE because the principal said that the School Governing Bodies (SGBs) were responsible for the funds. However, the SGB drew up a budget and the principal managed the budget for implementation. The daily expenditure was done outside meetings of the SGB and thus the principal could not be removed from accountability.

Mr James said that the proposed legislation was that the principal 'must assist'. His concern was that in poorly run schools where SGBs did not function properly, the principal would have to carry the full burden of the finances at the school and not have time for the curriculum. In terms of policy, he believed that the SGB should have the burden of financial management.

Mr Leukes said that the intention was not for the principal to take over the finances of the school; however he/she should be a member of the Finance Committee and part of the decision-making process. Finances impacted on the work of the principal and the education of the learner and if the SGB was poorly run, there would be no resources available for implementation by the principal. As the delegate of the Head of Department in the SGB, in a professional capacity, the principal would be accountable and report to the Head of Department on the finances of the school.

Ms F Mushwana (ANC) argued that rather than the principal assisting the SGB, the SGB should assist the principal in taking care of the finances, as per the requirements for the job as principal of a school. Some SGBs may not have the capacity - therefore should not have all the power - to take care of finances. Since principals had to report to circuit managers, there was no foreseen problem with the principal having the responsibility of being accountable.

Ms C Dudley (Alt) (ADCP) maintained that the principal must be involved and that the clause should not be changed.

The Chairperson noted that everyone was in favour of keeping the principal in the Finance Committee.

Mr James said that while he agreed that the principal was accountable, he felt that as a means of protection of the principal, there should be a limit to how far the principal was drawn into the financial affairs of the school.

Mr Dikobo pointed out that it appeared that there was protection of the principal. Should the principal become aware that there was a problem with finances, he or she was obligated to report that problem to the Head of Department. Collective Agreement on the duties of principal included the duty of financial management.

Mr Mpontshane said that invariably when principals had too much power, they had their fingers in the kitty. If this was not picked up by the SGB, the school would be run down indefinitely by the very person who also reported to the Head of Department.

Mr Leukes said that there were checks and balances in terms of the financial affairs of schools. Financial statements were submitted to the Head of Department and irregularities could be referred to the Auditor-General for investigation. However, the challenge could be on the side of compliance of officials in the Provincial Departments whose mandate was to scrutinise the financial statements for incidences of mismanagement.

Ms Gina advised that the principal should not be given the power to choose the Auditor-General.

The Chairperson asked the DBE to take note of the comment made by the Member.

Clause 11
Mr Leukes said that in the clause 11: ‘No party-political activities may be conducted at a school or during school activities’, the prohibition should not be limited to school activities as school activities included a wide range of social and cultural activities outside normal school hours. The intention was to protect school time, and this could be done through making reference to the provision in the South African Schools Act (SASA). DBE proposed that the words ‘school time’ should be followed by: ‘as determined by the School Governing Body in terms of section 20 (1) (f) of the South African Schools Act’.

Mr James said that the agreement had been that teaching time had to be protected and that was non-negotiable. However, trade union activity was also political interference and thus the DA proposed that no party political or trade union activity should be conducted during school time.

Ms Dudley said that she was satisfied with DBE’s proposal and also that put forward by the DA, that no party-political nor trade union activity should be allowed.

Mr Dikobo asked if use of the word ‘contact time’ would be a better word than ‘school time’.

Mr Mpontshane said that his party supported the DA submission as one did not differentiate between Trade Unions and political parties. Recently a trade union wanted to congratulate schools that had done well but the programme and speakers were from one political party.

Ms Gina said that banning of trade union activity during school hours would not do justice to the education system. They should not disturb the contact time of teacher and learner, but the hours of trade union activity could be flexible around the seven school hours.

Ms Vukuza-Linda said that school was about teaching and learning, not a place for trade union activity and thus she supported inclusion of the prohibition of trade union activity.

Mr Dikobo said in pursuit of establishing the Bill, rights should not be taken away. Each teacher was allowed 8 hours per annum to do such activities as trade union activity. The problem appeared to be that these hours were not monitored by principals and inspectors.

Mr James added that it was important to decide if the rights of the child were more important than the labour rights of adults. Schools were not being managed by principals, but by trade unions. It was important to take back managerial prerogatives for schools so that they were properly run by educators of the school. The grounds of the school could be used for a variety of purposes for the enhancement of the learners and the school, but not for labour rights of adults.

Mr Leukes said that in terms of the current Collective Agreement, as mentioned by Mr Dikobo, teachers were allowed eight hours of time off teaching to attend trade union activities. If the prohibition of trade union activity was included in the Bill, it would impact on the Collective Agreement.

Mr Mpontshane asked how in the past, when teacher unions abandoned their classes and used school time to campaign for an aspirant president, the DBE dealt with trade unionism. There appeared to be no protection against that type of activity.

Mr Steve Ramafoko, Legal Administration Officer: Legal Services; DBE, replied that the problem in that case was not one of law, but was a systems problem and did not warrant legislative measure. Educators were definitely out of order and had committed misconduct, as they had abdicated their responsibility and should have been charged according to Section 18 of the Educators Employment Act. The circuit management charged with oversight of principals had to play their role in future to ensure that these problems did not recur.

Adv Anthea Gordon, Legal Advisor: Parliamentary Legal Services explained that an unwanted consequence may flow from the inclusion of prohibition of trade union activity during school time. Strikes and lock-outs were part of labour legislation and if they took place during school time, they would be dealt with in a different legal environment altogether. If educators embarked on collective industrial action during school time, as determined by the SGB, this proposed Basic Education legislation would have consequences.

The Chairperson concluded that the Committee would concur with what the DBE had proposed.

Clause 12
Mr Leukes said Clause 12 dealt with school property and how it was used. The concern was that the clause may hamper SGB fundraising activities in terms of Section 36 of SASA. DBE believed that the best way of controlling the use of school property would be to bring in ‘approval by the Member of the Executive Council’. Already, schools loans applications had to be approved by the MEC.

DBE proposed: Clause 12 (4) (a) ‘A governing body may, with the approval of the Member of the Executive Council–
(i) lease, burden, convert or alter immovable property of the school to provide for school activities or to supplement the school fund of that school; and

(ii) allow any person to conduct any business on school property to supplement the school fund.

Approval by the Member of the Executive Counci (MEC) would cater for unwanted, noisy or disruptive types of activities. The words ‘potentially dangerous’ were removed from (4) (d), as school sport was potentially dangerous and yet should not be banned. DBE proposed that (4) (d) would be replaced by: ‘A governing body may not allow any activity on school property that is hazardous or disruptive to learners or prohibited by this Act.

The main concern of Clause 12 (a) (2) was that by getting permission from the MEC for Finance, the process would be delayed too much. DBE proposed omitting the words: ‘given with the concurrence of the MEC responsible for finance in the relevant province’.

Mr Dikobo agreed that it was cumbersome for schools to have to get permission from the MEC for Finance. Having an MEC for Education was sufficient.

Members concurred.

Mr Leukes said that there were no changes to Clauses 13,14,15,16,17 and18.

Clause 19
DBE suggested that section 19 (iv) be deleted as it was currently in the Bill and be reformulated in the following way: ’may manage a Continuing Professional Teacher Development (CPTD) system of the Department of Basic Education’.

Mr Dikobo suggested that CPTD not be followed by the words Department of Basic Education, as CPTD was a product of a stake holder.

Mr Leukes supported Mr Dikobo’s suggestion. SACE currently did not have capacity to do in-service training and its functions would be to develop and manage CPTD.

Ms Vukuza-Linda asked why the wording was changed from ‘must promote’ to ‘may manage’.

Mr Leukes replied that the concern was that SACE did not have the capacity to run with the CPTD and the financial implications thereof and therefore it was necessary to include flexibility.

Ms Vukuza-Linda asked if it was worth having a clause when the ‘may’ may actually be ‘may not’ and the objective was left to chance.

Mr Ramafoko explained that SACE could be taken to court for failing to fulfill the obligation of having resources available. The word ‘may’ provided flexibility for SACE.

Ms Dudley questioned whether SACE’s dependence on resources and possible inability to fulfill its financial obligation was worth highlighting and if it was relevant in the Bill, when the real issue was teacher development.

Ms Gina added that whether there were resources or not, it appeared that DBE was losing focus of CPTD.

Mr Mpontshane asked for clarity on who initiated and who managed in-service training.

Mr Dikobo said that it was not the duty of SACE to do CPTD but it would accredit and allocate points to teacher programmes and organisations that wanted to perform CPTD.

Adv Gordon added that ‘may’ or ‘must’ - in terms of whether SACE having an obligation regarding budgeting constraints - related to state obligations. If the Committee decided that SACE ‘must’ manage, then it would be helpful to qualify that obligation with ‘within SACE’s available resources’.

Mr Leukes agreed that the suggestion by Adv Gordon to include ‘within available resources’ would safeguard the wording ‘must manage’.

Mr Leukes continued that there were no changes to Clauses 20, 21, 22 and 23.

Mr James then added that the definition of ‘loan’ was outdated and should be amended to be in keeping with the modern definition of loans.

Mr Leukes said currently there was a provision in the Act for schools to access surplus funds with the permission of the MEC.

Mr James commented that the exercise of getting permission from the MEC may be burdensome for the MEC.

Finally, the Chairperson said that Members were satisfied with the definition of ‘parent’. She concluded that the DBE would be ready with the amendments the following day so that the Committee could debate clause-by-clause on the Bill.

The meeting was adjourned.