Basic Education Laws Amendment Bill deliberations; Department of Basic Education on Notice of intervention into Eastern Cape Department of Education in terms of Section 100 of the Constitution: briefing

Meeting report

Presentation: Department of Basic Education Directorate: Legislative Services; Basic Education Laws Amendment Bill
Mr Bobby Soobrayan, Director-General (DG), Department of Basic Education (DBE), said that the Basic Education Laws Amendment Bill (BELA) amended the South African Schools Act of 1996, the National Education Policy Act of 1996, the Employment of Educators Act of 1998, the South African Council of Educators Act of 2000 and the General and Further Education and Training Act of 2001. The Bill had technical and substantive amendments and sought to align the above-mentioned legislative framework with the new education dispensation. The new education dispensation was the splitting of the education system into Higher and Basic Education.

Mr Chris Leukes, Director: Legal Services, DBE, said that clauses 1 to 3 of BELA dealt with the technical amendments to the National Education Policy Act. The amendments were also geared towards the splitting of the education system into Higher and Basic Education. Clause 4 dealt with technical amendments and dealt with the definition of Minister, which was now the Minister of Basic Education. There was a need to make the definition of parent more certain. The new definition of parent now included adoptive and biological parents. The Bill also provided for a definition of loan in order to bring certainty where previously there was none. The definition was also brought in to deal with contracts entered into by schools. Clause 5 amended Section 5A of the South African Schools Act and provided for a process in which the Minister of Basic Education consulted with the Minister of Finance on prescribing the Regulations on the minimum norms and standards for school infrastructure. The reason for this was to bring the legislation in line with the Public Finance Management Act (PFMA). Clause 6 was inserted as a result of Nkosi vs Vermaak where a parent of a learner took the particular school to the equality court because Afrikaans was offered at a higher level and isiZulu was not. The equality court found that the school had discriminated on the basis of language. Clause 7 aimed at empowering a Member of the Executive Council (MEC) to ensure that a suitable sanction was imposed against a learner after an appeal was upheld. This was to strengthen the powers of the MEC.

Clause 8 was inserted in order to facilitate for a third and distinct category of a public school. The new category would focus on talent including performing art, sport and creative art. Clause 9 gave extended financial responsibility to the principal in order to protect school funds and property against abuse by governing bodies. The principal should report any financial mismanagement. It should be noted that the principal would play an advisory role and the governing body would decide whether to take the advice or not. Clause 10 dealt with the identification of governing body associations or other appropriate training authorities for the purpose of training governing bodies and building their capacity. This did not prohibit the provincial authority from providing the necessary training to governing bodies; the clause was an additional measure and option that was available to the Head of Department (HoD).  Clause 11 was inserted to guard against political activity during school time. Clause 12 was to allow the governing body to enter into a loan or overdraft agreement with the written approval of the MEC. The requirement in this clause was that if the governing body wanted to lease, burden or alter immovable property it would have to first get the permission of the MEC.

Clause 13 was an extension that accommodated the identification of additional no-fee schools by the MEC. Clause 14 was to clarify the concept of contractual and delictual liability in respect of the state following the decision in Bastian Financial Services v General Hendrik Schoeman Primary School. There was a need to ensure that any financial obligation undertaken by a school was managed b preventing the sale in execution or the attachment of assets belonging to a school. Clauses 15 to 18 had technical amendments to certain provisions contained in the Employment of Educators Act and the General and Further Education and Training Act. Clauses 19 and 20 dealt with the amendment of the South African Council of Educators Act. The clause provided that the South African Council of Educators Act must manage the Continuing Professional Teacher Development system. Clause 21 was a technical amendment that facilitated the split of the previous Department of Education. Clause 22 was the saving provision aimed at ensuring that the current legal position as identified in item 1.7 of the Schedule to Proclamation No. 44 of 2009 was not limited, amended or repealed by the Bill. 

Discussion
Ms B Mncube (Gauteng, ANC) referred to clause 9 and asked what would happen if the principal was implicated in financial mismanagement. Was the Department of Basic Education intending to advertise via tenders? Would unions also be excluded under clause 11 because their work was political by nature and what about churches and other non-political organisations?

Mr M de Villiers (Western Cape, DA) referred to clause 8 and asked why maths and science were excluded. Was there a specific reason why the word ‘and’ was used and not must under clause 9(j)?

Ms R Rasmeni (North West, ANC) referred to clause 11 and asked if the activity of teachers in a particular union would also be prohibited.

Mr T Mashamaite (Limpopo, ANC) referred to clause 10 and asked who determined the identification of governing body associations.

Ms M Boroto (Mpumalanga, ANC) referred to clause 11 and said that Members of Parliament were expected to appear before schools to address learners on the days that schools opened; was this also political activity that was excluded under this clause.

Mr Leukes replied that principals were statutorily obliged to report matters of financial mismanagement. Disciplinary action could be taken if principals failed to report mismanagement under the Employment of Educators Act. On the issues raised in terms of clause 10: norms and standards would be drafted that would set out the detail on how governing bodies would make use of the training available to them. Unions and churches were excluded from the provisions of clause 11. Unions were excluded because it would be unconstitutional to place a prohibition on them. Union activities were also not considered as political activities. The schools envisaged in clause 8 were focus schools and maths and science would fall under this provision. It would still be set out in more detail under norms and standards as to who would identify governing body associations. Members addressing schools during opening days were not a political group.

Mr Soobrayan added that Members of Parliament could go to schools but they should not engage in promoting their political parties etc.

Ms Mncube followed up and referred to clause 12. Could it be clarified if this applied to Section 21 and Section 22 schools?

Mr Leukes replied that a school was not allowed, for example, to lease school property without the permission of the MEC.  This was to stop abuse and protect the financial affairs of the school. This applied to all schools.

Mr Soobryan said that very often legislation entailed practice and compliance with the spirit of the law. Clause 12 was to ensure that the MEC applied due diligence in ensuring proper assessment whether a school could repay a loan it entered into.

Mr Mzoleni Mrara, Chairperson of the Education Portfolio Committee, Eastern Cape Legislature, said that the issues around loans for schools as well as tender processes seemed to point out that schools were being commercialised. Has the Department tampered with the structures of the education system? Members of Parliament as well as politicians within communities were adopting schools as part of a new initiative, how would the Department safeguard against political interference in this regard? A principal was the Ex Officio of the governing body, how would this be balanced with the new financial obligations placed on him/her in the Bill? Poor schools would definitely take advantage of the provision that allowed for loans, how would an MEC turn down an application where there was a dire need for funds, especially since the MEC as a politician would have a responsibility to bring hope and change in the communities?

Ms Borote said that she was concerned whether or not the real problems were being curbed in the schools.

Mr Soobrayan replied that the issues raised by Mr Mrara were important. One had to guard against the commercialising schools; however this was not the intention of the Department. Tenders and loans had been part of the education system for a while already. The intention behind the amendments was to address the problems plagued by the Department of Basic Education. The tendering in this instance was in the context of when a school was trying to extend training provided for governing bodies. Trainers were recruited through a tender process. Loans were a risk insofar as poor schools were concerned but they should never be used to get out of financial trouble. The Department had to be vigilant of the fact that poor schools might see loans as a way out of financial trouble. A Member of Parliament adopting a school did not fall foul of the provisions in the Bill as this was supporting a school as opposed to a Member using that relationship to promote their party during school hours. Political activity was a problem, not supporting the school. There was a risk of misinterpretation as a principal was indeed Ex Officio. The fiduciary responsibilities of the governing body were collective and not just the principal’s responsibility.

Mr Leukes added that in terms of Section 36 of the South African Schools Act, the Department was allowing schools to supplement their school funds. The MEC was being given wider powers so that schools had to approach him/her for permission to contract because at the end of the day they were juristic persons.

Presentation: On the Intervention in the Eastern Cape Department of Education
Mr Soobrayan said that the Eastern Cape Department of Education (ECDOE) has been plagued by many problems over the years. These included: dramatic over-expenditure of the budget for the compensation of employees because the province failed to effectively comply with policies, standards and norms related to educator post provisioning; failure to provide textbooks and stationery to Section 20 schools (that would be schools for which the Provincial Education Department (PED) supplied textbooks as opposed to Section 21 schools that procured their own; the sudden suspension of the scholar transport programme; termination of the school nutrition programme and failure to implement the school infrastructure development progrmme. The problem of educator provisioning has plunged the ECDOE into an untenable situation. The Department did not have the capacity for a turnaround strategy. Given the recurring nature of the problems any effort to bring about a sustainable turnaround of the department must effectively identify and remediate all of the critical and systemic underlying problems. 

It must be noted however that there were good things that had happened in that province. The number of candidates who qualified for admission to study for a Bachelor degree increased from 13.9% to 16%; there was an overall improvement in the matric pass rate, which was 7%; and the province performed better than 4 other provinces in the 2007 Systemic Evaluation. Following consultations with the Premier of the Eastern Cape, Ms Noxolo Kiviet; the MEC for Education Mr Mandla Makupula; the ruling party and the Education Ministry, all parties agreed that urgent intervention was required too remediate the situation faced by the ECDOE. President Jacob Zuma committed to giving serious consideration to providing a sustainable intervention in the ECDOE. The Minister of Basic Education, Ms Angie Motshekga, was obliged to take steps required to ensure a sustainable turnaround of basic education in the Eastern Cape. It was important to stress that the Section 100 intervention provided by the Constitution did not just happen overnight; there had been years of support moderate intervention and implementation of multiple corrective measures. Cabinet directed that Section 100 of the Constitution be used in order to provide the required constitutional and legal authority for this intervention.

The aims of the turnaround strategy were two fold: firstly to stabilise the education system and secondly to address decisively the administrative, management and systemic challenges over a longer period.  The Ministry was of the opinion that the intervention must result in the creation of long-term capacity in the department and a sustainable turnaround of education service delivery in the province.  The duration of the intervention would last three to four years. The key objectives of the intervention were: to arrest and deal with immediate challenges in respect of appointments of teachers and allocation of teachers; school nutrition; scholar transport; infrastructure and Learning and Teaching Support (LTSM) amongst others.  The progress to date was that the Ministry of Basic Education had visited the Eastern Cape; the DBE had appointed a technical team comprising of senior officials to develop a problem analysis and intervention plan; and the DG led a technical team which held a meeting with Senior Officials of the ECDOE. The turnaround strategy would be based on the ECDOE’s own turnaround strategy.  A framework of the intervention was in the final stages of development and would be used to formulate a protocol that would inform content, processes, institutional mechanisms and definition of roles and responsibilities.

Discussion
Ms Mncube thanked the DG and said that the Committee supported the intervention. When would the Department regularly brief and update the Committee or National Council of Provinces (NCOP) on the progress of the intervention?

Mr Mashamaite was unsure if the intervention was late or had been instituted expeditiously. The ANC should intervene timeously and be on top of things.

M Mrara emphasised that the intervention was welcome and it had been long overdue. The dilemma in previous years was that there would be a power struggle between a Minister and the Premier. This kind of intervention had been requested under the former Minister of Education, Professor Kader Asmal, but the Premier blocked it at that time. 

Ms Rasmeni commented that the Committee should have a detailed report on what happened in order for there to be proper oversight. This would also assist in identifying similar problems for other provinces. Corruption and fraudulent activities were not mentioned under objectives in the presentation. Could there be clarity on this please. An early warning mechanism should be developed to detect these kinds of problems in future.

Ms D Rantho (Eastern Cape, ANC) said that it was a pity that the Constitution did not prescribe a time frame before an intervention could be instituted. Was the Department going to appoint new teachers or were the temporary teachers going to be made permanent?  Could the Department inform the Committee as to how many mud schools were there? What were the interventions of the Department concerning stationery, which was delivered in the province but did not reach the schools?

Mr Soobrayan thanked the Committee for its support. The Constitution provided that the NCOP could review the intervention in order to ascertain whether it was achieving its objectives after 180 days. The Department would have to provide the Committee with plans, strategies and updates for it to be able to properly assess the intervention. The time frame for the duration of the intervention was three to four years and would be reviewed regularly. Fraud and corrupt activities were covered in the presentation; they fell under leakage. There were 395 mud schools. Temporary teachers who had the requisite qualifications would be placed in positions. 

The Chairperson thanked and excused the Department adding that the Committee would be expecting the regular feedback.  The Chairperson moved on to the next issue informing Members that the Committee was waiting for the formal referral on the intervention from the Chairperson of the NCOP.

Ms Mncube said that Members had been warned and advised to not specify dates for the Provincial legislatures in terms of briefings relating to Bills. A case in point was that a complaint had been received on this very issue on two separate Bills. The complaint was that the Gauteng provincial legislature had been given specific time frames in which to deal with the Bills.  There was another complaint received on Friday from the Gauteng provincial legislature. The Whip had tried to intervene and said that the provinces should not be given prescribed time frames in which Bills should be considered.

The Chairperson said that she did not recall prescribing time frames and specific dates to the provincial legislatures for the consideration of Bills. The ANC still had issues that it had to deal with. The Chairperson had requested to have a meeting with the Chief Whip to iron these out. The Committee Secretary would brief the Committee on what happened.

A Member (Free State, ANC) said that the Free State had a similar problem as Gauteng. There was a Chairpersons’ forum in which it was discussed that the NCOP was not considerate and would just prescribe time frames for the provincial legislatures even though there were programmes already in existence.

Mr Mzuyanda Dlanga, Secretary of the Committee said that Members were correct in their view that the programme of the Committee should not prescribe to the provincial legislatures what they should deal with and when they should deal with it. The Committee’s programme should indicate the period within which the members of the provincial delegations should brief the provinces, which would then finalise when they wanted to be briefed. When the programme was sent out there was no indication of any dates; there was only an indication of the period within which members of the provincial delegations should brief the provinces. The Secretary of the NCOP called and he requested that dates should be specified so this created an imposed obligation for specific dates. The Chairperson of the NCOP was always informed that the briefing was on the 23 of March to 31 March. In a way an obligation was enforced for the current dates to be specified; the Secretary of the NCOP was the one who had requested these dates.

The Chairperson said that the matter was still going to be discussed and resolved so Members should be patient.

The meeting was adjourned.