Districts and District Support: proposed policy; ‘Sub judice' rule: briefing

Basic Education

18 February 2013
Chairperson: Ms H Malgas (ANC)
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Meeting Summary

The  Department of Basic Education gave a presentation on the proposed policy on the role and responsibilities of education districts. Attention was given to the legislative authority of the Minister who in terms of section 3 of the National Education Policy Act, 1996, had  the legal authority to determine policy. Education districts had no original powers or functions prescribed by law, but rather operate in terms of national and provincial legislation and provincial delegation. 

With regard to the mandate and scope, education district offices played a pivotal role in ensuring that all learners had access to education of a progressively high quality, since district offices were the link between Provincial Education Departments (PEDs), their respective education institutions and the public. The policy would therefore provide a framework for the organisation and staffing of education district offices and the delegated authority, roles and responsibilities of district officials for the institutions within their care. 

The rationale behind the policy was that many districts were unable to  fulfil their core functions due to a variety of factors which included the problem of too many education institutions within a district and problems with the delegation of authority to name a few. The policy would provide for a uniform nomenclature as well as the norms and standards for district and circuit size, taking into account local circumstances such as poverty and the distance of the district office from the school.

The limitations of the policy were also outlined. The main point being the fact that the district development policy would not assist in eliminating the deep-rooted socio-economic issues of inequality among the communities in which they serve. The roles of district offices, district boundaries as well as circuit boundaries were discussed. With regard to the provision of support, coordination and monitoring of districts, Provincial Head of Departments were identified as accountable and responsible for the performance of their districts.

The second briefing by Parliamentary Legal Services and the Justice Department  was on the ‘sub judice’ rule. Both made reference to section 67 of the National Assembly rules and agreed that ‘sub judice’ was part of common law doctrine. Its main purpose was to maintain the fair administration of justice, which meant that that “no member of the National Assembly shall refer to any matter in which a judicial decision was pending”. Adv Gordon dealt primarily with issues pertaining to Parliament, while Adv Rudman elaborated on criminal proceedings in court.

However, after the advent of South Africa’s constitutional democracy, the rule had become the subject of much debate. It was argued that the crime had no place in a judicial system where cases were decided by judicial officers and in which the right to freedom of expression was constitutionally protected. The rule therefore raised difficult questions about to the appropriate balance to be struck between the right to freedom of expression, including freedom of the press, and the interests of the proper administration of justice.

Meeting report

In her opening remarks, the Chairperson said she wanted to know about the level of support that the Department provided  to education districts throughout the country.

Policy on the organisation, roles and responsibilities of education districts
Mr Themba Kojana, Acting Deputy Director-General (DDG) of Teacher Education Human Resources and Institutional Development, Department of Basic Education noted that the Minister, Deputy Minister and the Director General relayed their apologies.

Mr Kojana began by directing attention to the different challenges faced by districts which the proposed policy sought to address.  District size, the distance from the schools they serve, performance management and the lack of proper and adequate personnel support were some of the challenged that the proposed policy would address. Norms and standards would be devised to regulate all districts. He looked at defining what constitutes a district and its rules and responsibilities.

In terms of process, on the 5 March 2012, the Minister had published a call for public comments on the policy on the organisation, roles and functions of Education Districts in Government. A number of inputs were received from the following stakeholders: teacher organisations, provincial education departments, the Department of Basic Education, non-governmental organisations and higher education institutions, and all comments submitted were in support of the draft policy. The Committee had the responsibility of dealing with the legal aspects of the policy, such as determining the legal authority of the Minister in determining policy, the functions of a circuit in determining policy, and the redrafting and clarifying  of other aspects of the policy.

Mr Kojana noted that the Minister of Basic Education had the legal authority to determine policy in terms of section 3 of the National Education Policy Act (NEPA) 1996. In terms of section 5 of NEPA, the Minister was required to determine policy after consultation with the appropriate consultative bodies or with the Council of Education Ministers. In each province, the power to demarcate, name and organise education districts vested with the MEC for Education. The MEC also determined the districts’ public service staff establishment in term of the Public Service Act,1994, and the Employment of Educators Act of 1998.

He said that education district offices had a pivotal role to play in ensuring that all learners had access to education of progressively high quality, since district offices were the link between Provincial Education Departments (PEDs), their respective education institutions and the public. The proposed policy therefore provided a national framework for the organisation and staffing of education district offices and for the delegated authority and roles and responsibilities of the district officials for the institutions within their care.

The rationale for the policy was that many district offices were unable to fulfil their core functions due to the following factors:
▪ Too many education institutions in the district,
▪ The respective delegated authority, roles, relationships and lines of accountability of provincial head offices, district offices and education institutions were not clearly formulated, understood or exercised,
▪ Some district offices did not had delegated authority to plan and develop their programmes, manage their own budgets and recruit or deploy staff members in their own offices or in education institutions, and
▪ Post-provisioning was uneven and did not reflect the responsibilities entrusted to district offices

The scope of the policy therefore provided: a uniform nomenclature, the roles of education districts, the norms for district and circuit size taking into account local circumstances, district and circuit organisation and function, delegation authority and district staffing.

The limitations of the policy were it  would not be able to address some of the deep-seated socio-economic inequality issues within the communities in which the districts operate, also on its own, the policy could not provide the conditions to ensure that all schools function well.

District offices supported by their circuit offices, had four main roles: planning, support, oversight and accountability and public engagement. Priority must however be given to the schools which were in more need of  district services. National norms regulate the respective size of an education district and circuit and ensure the effective delivery of services and appropriate span of control. An education circuit office must therefore be responsible for no less than 15 and no more than 30 schools, while and education district must comprise of no less than five and no more than 10 education circuits. There were however factors which needed to be taken into account in the establishment of such norms, such as geographical, staff and financial implications.

Mr Kojana argued that with regard to the support, coordination and monitoring of districts, Provincial Heads of Department (HoDs) were accountable for the performance of their district education offices. HoDs had to therefore ensure that district and circuit offices were progressively organised, staffed and resourced to undertake the functions envisaged in this policy, a clear communication channel between provincial head and district offices were essential. Delegation was also highlighted as another important area in district effectiveness, more especially in the areas of human resource management, school governance and financial management.

With regard to staffing district offices, the MEC in a province determined staff establishments for district offices subject to the PSA and EEA. The main purpose in establishing district post provisioning was to ensure that districts in all provinces have at least the minimum staffing level required to support schools. However within each district, two contexts and circumstances need to be taken into account. First was the distance that district officials need to travel to schools and second was poverty. Schools serving poor communities required additional support to ensure quality education. Districts were therefore receiving support to improve their planning, implementation and monitoring responsibilities. As a point of reference, the Department was conducting provincial and district road shows meeting with Subject Advisors, Circuit Managers and Teacher Development officials to share information on a variety of issues which include DBE intervention strategies, roles and responsibilities of Subject Advisors, of Circuit Managers and HoDs.

Mr Kojana said that there should be a common understanding about what a district improvement plan (DIPs) should entail as they supported what happens in the classrooms. Schools therefore need to provide annual academic support to assist the schools in meeting their DIPs.  An analysis of the DIPs  submitted demonstrated that a DIP should entail an alignment of the Ministers’ Delivery Agreement and Action Plan for 2014. There should also be a clear understanding of provincial priorities, strategies and targets. Districts should use the
National Senior Certificate (NSC) and Annual National Assessments (ANA) results as the basis of their planning; they should also identify the causes of poor performance.

The Department had developed monitoring tools in consultation with the districts for each term of the school calendar, and the Department, PEDs and districts would use the same monitoring tool for schools during school visits: the district improvement template. Teacher centres (TCs) and their use also needed to be strengthened to support the functioning of districts. Teacher centres were regarded as strategic structures/ sites that play a key role in providing support to teachers for effective curriculum delivery at the local level. In 2012, the Department commissioned an audit of all TCs in the nine provinces with a view of enhancing the functionality of these TED structures. The results of the audit showed that there were 112 TCs in the country which varied in terms of resourcing, size and level of functionality. The province with the highest spread of TCs was Gauteng with 17, and the Western Cape having the lowest with 0.

Providing support for the TCs, Vodacom had sponsored nine Information and Communication Technology (ICT) centres which would be linked to the 112 centres in districts. The programme involved ICT connectivity and teacher development support, this would enable the 112 TCs to be linked to the Digital Classrooms and give teachers the opportunity to download teacher support material such as lesson plans, information on content subjects and teacher support guides. The Department would also be collaborating with UNISA on an initiative funded by the Department of Higher Education and Training (DHET) aimed at resourcing 35 TCs with ICT equipment for teacher support.

Mr Kojana concluded that education district offices were the indispensable local hub of service provision to education institutions in a province and their role in education policy documents and departmental programmes was well recognised. The proposed policy was therefore designed to enable all district offices to perform according to the Department’s expectations.

 The Chairperson requested that the Department provide the Committee with its strategic, operational and annual performance plans for the proposed policy.

Profiling of districts
Ms Carol Nuga-Deliwe, DBE Chief Director: Policy Support, stated that the Department was working on compiling profiles of all 86 districts in the country; profiles had general information on each district, basic information and district characteristics as well as the schools by phase, such as school enrolment trends and school size. The profiling tool also looked at the distance of the district office from schools; the profiles indicated that very few districts offices were within 10km of the schools which had implications for transport, financing etc. There was also information about learner quintiles, which gave a sense of the socio-economic status in the districts annually. The profiling tool also gave an indication of school performance and matric results, water and sanitation were also socio-economic factors that the profiling tool gave an indication of, Census data for 2011 was also used to make sure that the data was as accurate as possible, and a matrix that compared a district with the rest of the districts was also used.

Discussion
The Chairperson requested information about the website that the school profiling data was available on.

Mr C Moni (ANC) made reference to the limitations of the policy which clearly outlined that the policy would not be able to eliminate ‘deep-seated socio-economic problems among the communities’ and wondered about the relevance of the proposed policy. Clarity was requested about the difference between support teams and district operations teams, also more information about the makeup of digital classrooms, especially about what they entailed in rural areas.

Mr Z Makhubele (ANC) reiterated the issue raised by Mr Moni about how the policy failed to contribute to the eradication of poverty in the community it served. Quality education comes from providing equal access to education. A definition of human resource development was requested as well as a specific organogram.  An enquiry was also made about the role that the Department played in providing policy provisions and enforcements that ensure that challenges and contestation from teacher unions did not affect the implementation of policy.

The Chairperson asked for an explanation about the definition of human resource development and what it entailed, and wondered whether it entailed the education of educators. Also a point was raised about the challenges of delegation of power from the provinces to the districts.

Ms F Mushwana (ANC) raised a concern about the proposed policy, stating that it was supposed to improve the status of current norms within the districts, however due to the large number of schools that a circuit manager visited, it seemed as though the circuit manager would not be able to visit all the schools within a month, which would be a problem for monitoring.

Mr A Mpontshana (IFP) stated that districts form a very important link in the education system. However from policy proposed and the statistics given by the department, there seemed to be no improvements in the state of districts around the country. A definition of ‘support teams’ was requested. The fact that the policy did not make reference to how the Department would be working with the already existing structures and policies was highlighted as a concern. Finally, the authority and role of teacher unions at district level was reiterated as a point of concern.

Ms A  Lovemore (DA) also raised a concern about teacher union involvement and how they understood the outlined proposals of the National Development Plan, specifically relating to the unionisation of appointments and the need for the appointments on merit. A question was raised about the status of the policy once it was adopted, and whether it would be enforceable by law. A concern about the lack of appointments of qualified teachers by the department was raised, and a suggestion was made to include these figures in the profiling of districts.

The Chairperson asked for the difference between qualified and unqualified teachers.

Ms A Mashishi (ANC) asked for clarity about how often the department would be conducting road shows and more information about how the public would be engaged further. A question was raised about how often would the department be providing additional support to poor communities in order to contribute to the creation of about 5% additional posts.

Mr D Smiles (DA) asked about the roles of district officers, and whether the department had considered bringing in capacity building as one of their roles. It was suggested that the department consider including technical and special schools in its norms and standards, so that each district could at least have one of each.

Ms C Dudley (ACDP) made a comment about teacher centres, stating that such sites play a key role in providing support.

Ms N Gina (ANC) asked about the functioning of the circuit manager and who the schools would be reporting to in the circuit office. He enquired about the role of subject advisors and whether the department would have a sufficient budget for them. A question was raised about the distribution of teacher centres throughout the department. The department was asked to provide an indication of what it was doing to ensure good coordination of its existing policies.

Mr W Madisha (COPE) asked for clarity on the role of districts in ensuring coherence in teacher development, as there were a large number of teachers who were incompetent.    

Mr Kojana responded that road shows and teacher centres were not part of the policy, but were one of the enabling tools in strengthening teacher development within districts.

With regard to delegation and functions at the level of the districts, the districts’ role was three-fold; providing support for personnel, raising accountability levels and disseminating information to and from the schools.

Mr Kojana responded that human resource management talked to the power of appointing any person or on the promotion and transfer of any educator at the district level, instead of waiting for the province to make a determination; whereas human resource development talked to the development of educators. Administratively, the district had the power to discharge any educator on matters relating to discipline and misconduct or incapacity to carry out duties efficiently and it could delegate on financial matters.

On the limitations of the policy, the department took into account existing policies in drafting the roles and responsibilities of the district’s policy. On the nomenclature, the functions of the circuit manager were not limited to issues of school functionality, but include the management of curriculum delivery.

On the enforceability of the policy, DBE consulted various organisations in the public sphere, keeping in mind the already existing policies. It was agreed that the profiles of the districts need to include aspects such as the levels of qualifications of teachers in various districts. The department agreed to look into the matter.

Mr James Ndlebe, DBE Director: School Management and Governance, replied that the teacher development branch of the department was responsible for teacher development centres and that an audit which addressed some of the issues raised had just been completed . The audit looked into the number of teacher centres, their location, capacity and resources at their disposal, the role and responsibility they played etc. Teacher centres were the hub of teacher development, they had therefore been revitalizing them. The outcomes of the audit indicated that there were still many challenges with teacher centres which included challenges of infrastructure, staffing and management. DBE would be having discussions and devising actions plans to address these issues. It was acknowledged that teacher centres were not in all districts and were not all easily accessible, but with the outcome of the audit the department would be devising actions plans for these.  The main vision that the department outlined for teacher centres was that of self directed learning for teachers, as online assessment tools for teachers was readily available.

Mr Kojana responded to the conditions of service matters such as the job descriptions of subject advisors, the draft job description for office-based educators had been drafted and were currently under refinement and discussion, and the department would submit it to headcom for approval. With regard to the department’s engagement with the public, the public had been engaged through various stakeholders such as school governing bodies for example. The response to the question on road shows was that the purpose was to clarify roles and responsibilities and to give a diagnostic report on ANA to provinces and districts so that it could be used for the development of learning, by both schools and districts. An assessment-based approach was therefore important.

Mr Mareka Monyokolo, DBE
Curriculum Development, responded to the question raised about the department’s organogram, stating that the department did not devise a new organogram for the proposed policy but had rather used the generic one accepted by the education sector. With regard to delegation, and the proposal to add capacity development to human resource management, the response was that teacher and capacity development were in fact included in the human resource management package. With regard to road shows, provinces would be given an opportunity to advise and engage with the department, with a monitoring programme implemented at a later stage.

Mr Ndlebe replied to the question about circuit managers not being able to address issues on education development, stating that the department would be explicitly outlining the roles and responsibilities of the district and circuit managers so that they had a sharp understanding of curriculum policy and practice. They would then efficiently provide sufficient support to the schools for them to achieve their educational outcomes, as the curriculum was at the heart of education.

Mr Mareka replied to the question on ‘teams’ stating that the term indicated that schools need to be supported as teams when it came to curriculum development and support  because the circuit supports a maximum of 30 school, the circuit manager may not be able to visit all  schools within a month, in which case a circuit team would then identify the schools which were in dire need of support, and given priority over others. A district therefore needed to prioritise.

The Chairperson reminded Mr Kojana about the questions which had not yet been responded to such as the one on the norms and standards for technical and special schools, the difference between qualified and non-qualified teachers and that on digital classrooms.

Mr Kojana responded that digital classrooms ensured ICT connectivity even in rural areas, so that all learners could have adequate access to information. A qualified teacher was when a teacher had earned a qualification to teach, an unqualified teacher was one which had not yet attained the relevant qualification but was being assisted by the department to earn a qualification. With regard to norms and standards for technical and special schools, the response was that norms and standards flowed directly from the policy and the department had not made clear distinctions on the norm and standards for different schools.

Briefing by Legal Services on the ‘sub judice’rule      
The Chairperson stated that in one of their committee meetings with the department, there had been a need for a common understanding of the ‘sub judice rule’.

Adv Anthea Gordon, Parliamentary Legal Advisor, began by posing the question whether Members understood what was meant by the sub judice rule

Mr Mpashana responded that a sub judice matter was “at the court” and could not be discussed.

Ms Lovemore added that a sub judice matter could not be discussed in a manner that might influence the outcome of the court proceedings.

Adv Gordon explained that the sub judice rule was about the prejudice that comes from speaking about a matter that was still under court proceedings. Therefore when a matter was in court; no person should do anything that infringes on the fair administration of justice. In the context of Parliament, the National Assembly makes internal rules. I term s of the National Assembly rule book, section 67 states that “no member of the National Assembly shall refer to any matter in which a judicial decision was pending”.

Currently, Parliament had the Sub Committee on the National Assembly Rules, which was busy revising and updating the rules as some of them might be outdated. With regard to the sub judice rule, the most important element was that the motives for ‘prejudice’ must be clear in order for a matter to be declared sub judice. This therefore speaks to the common law understanding that “we are not entitled to speak about a case that might prejudice the outcome”.

Discussion
Ms Lovemore asked what was meant by ‘before a court’.  Reference was made to the case between Equal Education and the Department of Basic Education.  To have the minister promulgate minimum norms and standards for infrastructure, a settlement agreement was reached before the court proceedings and when it reached court, the settlement agreement was made an order of court. When was a matter sub judice in a case like that?

Mr Mpontshane asked who was competent to declare that the case was ‘sub judice’?  Was it just a magistrate or a parliamentary committee chairperson as well?

Mr Makhubela asked how prejudice could be proved before a court.

The Chairperson asked whether the public could be called to give evidence on an issue mentioned in Parliament and whether a committee member could be brought to court to speak on matters they spoke about in a committee meeting.

Adv Gordon responded that ‘before court’ means that there was a case number for a criminal arrest in a criminal matter. Internal disciplinary matters within Parliament therefore were not sub judice. With regard to the person competent to declare a matter sub judice, the Committee Chairperson was competent. Matters could be referred to Parliament’s Legal Office for clarity and advice and at a higher level, a judge could declare a matter sub judice. The public could be called to give evidence in Parliament. Section 58 of the Constitutions protects Members as they have freedom of speech in the House and were free of prosecution for the things they say in committee meetings. In terms of Section 16 of the Powers and Privileges Act of Parliament, provision was made to allow Members to call an outsider to give witness and this person was immune to prosecution unless it was perjury.  However every case should be handled differently and there should not be a blanket approach to the sub judice rule.

Ms Lovemore agreed that section 67 applies to National Assembly debates, which means that it applies to committee meetings. Members had the opportunity to ask any questions to the Minister in writing, the question asked was whether Members could ask questions about a matter that was before a court in those letters.

Adv Gordon responded that Parliament’s Legal Services Office sometimes received such questions and the questions were assessed about whether or not they were sub judice. Therefore the Table Staff in collaboration with the Legal Services staff determine the status of a matter.

Ms Mashishi asked whether rule 67 applied to both the National Assembly and the National Council of Provinces (NCOP). Who determined the level of prejudice of a matter before a court?

The Chairperson raised a question about the freedom that people had to express themselves, and when this freedom was an infringement on the sub judice rule. He noted the frequency that the Department of Basic Education was taken to court. This infringed on the ability of DBE to implement policy. Therefore there needed to be a clear separation of powers between the courts and the role and responsibilities of the Committee.

Adv Gordon responded that with regard to who determines the prejudice of a matter, the Committee could for example ask the Department to demonstrate in writing why a matter was sub judice and forward it to the Parliament’s Legal Services Office which would make the final decision about whether or not a matter infringed on the fair administration of justice.

Briefing note to the Portfolio Committee on Basic Education on the Sub Judice rule
Adv Deon Rudman, Legal Consultant for DBE and
Deputy Director General: Legislation, Department of Justice, drew attention to the fact that Adv Gordon’s presentation dealt primarily with the administration of the sub judice rule within Parliament. He stated that a briefing note had been prepared which sought to explain how the sub judice rule applied to criminal proceedings in court. He acknowledged that the briefing note in many respects overlapped with Adv Gordon’s presentation.

The sub judice doctrine was part of the common law on contempt of court. Its stated purpose was to maintain the due administration of justice. The rule prohibited the publication of material that may prejudice the administration of justice in relation to pending court proceedings. The crime of contempt of court would be committed if any person published, in writing or made verbally known, information or comments about a case which was pending which may tend to prejudice the outcome of the case. A statement was regarded as prejudice if it accepted facts, as set out in that statement or publication, influencing the outcome of a case.

However, after the advent of South Africa’s constitutional democracy, the rule had become the subject of much debate. It was argued that the crime had no place in a judicial system where cases were decided by judicial officers and in which the right to freedom of expression was constitutionally protected. The rule therefore raised difficult questions about to the appropriate balance to be struck between the right to freedom of expression, including freedom of the press and other media, and the interests of the proper administration of justice.

The meeting was adjourned.

Appendix:
National Assembly  rules

67. Matters sub judice
No member shall refer to any matter on which a judicial decision is pending.

RSA Constitution
Privilege

58. (1) Cabinet members, Deputy Ministers and members of the National Assembly—
(a) have freedom of speech in the Assembly and in its committees, subject to its  rules and orders; and
(b) are not liable to civil or criminal proceedings, arrest, imprisonment or damages  for—
(i) anything that they have said in, produced before or submitted to the  Assembly or any of its committees; or  (ii) anything revealed as a result of anything that they have said in,  produced before or submitted to the Assembly or any of its committees. 
(2) Other privileges and immunities of the National Assembly, Cabinet members and  members of the Assembly may be prescribed by national legislation.
(3) Salaries, allowances and benefits payable to members of the National Assembly are  a direct charge against the National Revenue Fund. 
  

Powers and Privileges Act of Parliament
Privilege of witnesses
16. (1) Subject to subsection (2), the law regarding privilege as applicable to a witness summonsed to give evidence or to produce a document before the High Court of South Africa applies to the examination of a person in terms of section 15.
(2) A person who is being examined under oath or affirmation in terms of section 15 may be required to answer any question put to him or her in connection with the subject 25 of the enquiry, and to produce any document that he or she is requested to produce under that section, despite the fact that the answer or the document would incriminate him or her or would tend to expose him or her to criminal or civil proceedings, or damages.
(3) Evidence given under oath or affirmation by a person before a House or committee may not be used against that person in any court or place outside Parliament, except in 30 criminal proceedings where the person concerned stands
trial on a charge of perjury or a charge contemplated in section 17(1)(c) or (2)(d) or (e)

 

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