Education Laws Amendment; Adult Basic Education & Training Bills: informal consideration

Meeting report

EDUCATION PORTFOLIO COMMITTEE
22 August 2000
EDUCATION LAWS AMENDMENT BILL; ADULT BASIC EDUCATION AND TRAINING BILL: INFORMAL CONSIDERATION

Relevant Documents:
Adult Basic Education And Training Bill [B42 - 2000]
Education Laws Amendment Bill - [B48 - 2000]

Chairperson: Professor S Mayatula

Dept of Education delegation: Director General, Thami Mseleku; Deputy Director General, Nasima Badsha; Chief Director: Higher Education, Ahmed Essop; Director: Legal Services, Advocate FB Boshoff; Director: Higher Education Management Support, Sarette Boshoff; Deputy Director: Adult Basic Education and Training, Morongwa Rumarumo.

SUMMARY
The ANC proposed a number of amendments to the Adult Basic Education and Training Bill and the Education Laws Amendment Bill which the other parties were amenable to as they only sought to bring about more clarity to certain provisions of the Bills.

On the Education Laws Amendment Bill, the parties agreed that co-opting parent members on the basis of race was not the right way to go about the issue of representation in school governing bodies. The Committee therefore agreed to delete the clause 5 providing for the co-option of minority parent members.

Formal consideration of the Bills follows on 24 August 2000.

MINUTES
Mr R van den Heever said the ANC's proposal is that the informal stage of the Higher Education Amendment Bill, in the interests of better preparation, be postponed until the Committee resumes meeting on 15 September, and that the formal stage be in the week that follows (19 September). The Chairperson reminded members that on 12 September 2000 there will be briefing by the Council on Higher Education.

Education Laws Amendment Bill
The Committee went through the different clauses of the Bill as follows:
Ms van Wyk (NNP) said there were reasoned arguments for and against the Bill in the hearings. Has the Department looked at the inputs of the different stakeholders and if so could they say what they think of those inputs.

The Chairperson responded that the Department, like the stakeholders that made inputs at the hearings, can be called to make representations before the Committee but the Department's role is only to guide the Committee(and not lead it) on what the implications of the submissions would be. It remains the Committee's duty to legislate.

Long title - accepted.

Clause 1
Mr J De Beer (UDM) proposed that it be inserted after the word "labour" the words "in the Education Labour Relations Council".

Mr Mseleku, DG: Education, said "organised labour" is already defined in the principal Act to cover the amendment proposed by the member and he does not think it necessary to repeat it here. The Clause was accepted without changes.

Clauses 2 and 3 - accepted.

Clause 4 - Ms van Wyk said the NNP does not support the addition under (k) of the words "determined by the Head of Department" because it undermines the authority of school governing bodies. She proposed that the addition be deleted.

Mr Boshoff, Head Legal Services: Education said the addition is important to bring certainty as to the authority. The school governing body can still attack the conditions determined by the Head of Department on the basis of unreasonableness or unfairness.

Ms van Wyk proposed that there be a stage whereby the Committee gets further elucidation on the Bill and discuss it before the formal stage.

The Chairperson said members have to accept that the parties cannot always agree on everything, the informal stage is for the parties to air their proposals on the Bill and if they cannot convince each other there is no way in which they can do so even if another stage may be set. The formal stage would follow where there is no discussion expected on the Bill but parties would be voting on the different clauses.

Clause 5
Mr LM Kgwele (ANC) said his party rejects clause 5(b) dealing with racial composition and would like it deleted.

Mr M Mangena (AZAPO) and Ms van Wyk (NNP) welcomed the proposal to delete the subclause.

Mr R Ntuli (DP) supported the deletion of the clause. However he noted that there are schools predominantly run by White governing bodies and although he agrees that the principle of co-opting is not suitable, a way has to be found to address the issue of representation in school governing bodies.

The committee agreed that the whole of clause 5 be scrapped.

Clause 6
Ms van Wyk said her view is that a list of specific regulations should not be carried in the Bill.

Mr Mseleku said clause 6(b) and (c) are broad enough to cover other areas on which the Minister may make regulations. However, clause 6(a) is important because of the nature of the problem around schools at the moment where people are being raped or killed on school premises.

Mr De Beer asked whether the clause, in providing for safety measures, is broad enough to cover funding.

Mr Mseleku said the Minister would do the funding in terms of the national norms and standards but what the clause provides for is for regulations to be made on safety measures.

Clause 7 - accepted

Clause 8
Mr Kgwele said the ANC would like to have the words "in a temporary capacity" inserted after the word "transfer" in subclause (e).

Mr De Beer asked if clause 8(2) could not refer to existing institutions.

Advocate Boshoff said transitional arrangements in terms of the Further Education and Training Act allow for an existing governing body to continue functioning until a new governing body is constituted.

Ms van Wyk said she thinks that parents must have a say on the issue of temporary appointment as this might end up going on for a long time. She suggested that the word "may" should replace "must" in clause 8(e).

Mr Kgwele said the use of the word "may" would result in uncertainty in legislation.

Advocate Boshoff agreed with Mr Kgwele saying that there should be no uncertainty in legislation. He added that there is no authority in the Schools Act giving the parent community entitlement to appoint educators.

Clauses 9 and 10 - accepted.

Clause 11
Mr Ntuli proposed that, in section 17(1) before the word "An", it be inserted that "unless mitigating circumstances exist".

Mr Moonsamy (ANC) emphasised that the teaching profession is a noble one and there is no place in it for rapists and murderers. Mr Kgwele added that it is time to send out a clear message to perpetrators that their actions will not be tolerated. Although the provision makes dismissal mandatory it still provides that an educator has to be found guilty of the specified offence and the procedural requirements of a disciplinary hearing still have to be followed.

Ms van Wyk asked why the clause makes it a serious misconduct only when a teacher has sexual relations with a learner in the school where they teach and not when the learner is in a school just down the road.

Advocate Boshoff said in considering Clause 11, it is important to also look at Clause 12. The issue of a teacher having sexual relations with a learner in the same school they teach in has resulted in severe reactions in the community because of the special relationship between a teacher and a learner. It has necessitated sending a clear message to educators that if found guilty there would only be one sanction, dismissal. He said he cannot imagine any type of extenuating circumstances for raping a learner or beating a child to pulp that necessitate the inclusion of the words "unless mitigating circumstances exist". Having sexual relations with a learner in another school would still be misconduct but is addressed under section 18.

Clause 12
Mr Kgwele said the ANC has a number of proposals on the clause:
- In section 18(1) to exclude "An" and insert "Misconduct refers to a breakdown in the employment relationship and an". He said this is to make it clear that not every contravention of any Act of Parliament, regulation or legal obligation should amount to misconduct. For instance, a teacher might have committed a traffic offence and as a result seem to have committed misconduct.

Mr De Beer said the UDM supports the proposal.

- Mr Kgwele proposed under section 18(1) to omit paragraph (a) and to substitute"
"(a) fails to comply with or contravenes this Act or any other statute, regulation or legal obligation relating to education and the employment relationship".

Ms van Wyk asked it is proper that acts of contravening the law other than relating to education or employment relationship be condoned.

The Chairperson said this is covered under subclause (dd).

- Mr Kgwele proposed under section 18(1)(f) before "prejudices" to insert "unjustifiably".

Mr Ntuli said he fails to understand how it can be found to be justified for an educator to prejudice administration, discipline and efficiency of the Department.

Mr Kgwele said for instance where there is a strike that meets all the procedural requirements of a legal strike, the Department would have been prejudiced but it would be justified.

Mr C Aucamp (AEB) said section 18(1)(h) may be fair but he does not think 18(1)(m) preventing someone from doing remunerative work after working hours is fair.

Mr Mseleku responded that this is actually a general provision in the Public Service Act. What it means is that employees should first seek permission of their employers before doing remunerative work. This is to ensure that there is no conflict or interest or that the work that the employee undertakes does not adversely affect their duties.

Ms van Wyk said section 18(1)(o) is a ridiculous provision to include under the Bill as it would be impossible to enumerate all actions that would fall under misconduct. Mr Aucamp said that he thinks section 18 is generally over-regulated.

Mr Ntuli agreed that sleeping at work without authorisation amounts to a neglect of duty, but it reflects the condition of education in South Africa which is in a bad state.

- Mr Kgwele proposed under section 18(1) to omit paragraph (k) and to substitute:
"(k) unfairly discriminates against other persons on the basis of race, gender, sex, pregnancy, marital status, ethnic and social origin, colour, sexual orientation, age, disability, religion, conscience, belief, culture, language, birth, family responsibility, HIV status, political opinion or other grounds outlawed by the Constitution."
He added that these provisions are as outlined in the Employment Equity Act and the Constitution.

- Mr Kgwele proposed under section 18(1) to omit paragraph (v) and to substitute:
"(v) prevents other employees from exercising their rights to freely associate with trade unions in terms of any labour legislation"

- Mr Kgwele proposed under section 18(1)(cc)(ii) after "Schedule 1" to insert "and in accordance with section 7 of the Employment Equity Ac, 1998 (Act No. of 1998)

- Mr Kgwele proposed before the existing section 18(1)(4) an new subclause to read"
"(4) An educator may only be dismissed for an act of misconduct referred to in subsection (1) if the nature or extent of the misconduct warrants dismissal."
"(5) An educator may be dismissed if he or she is found guilty of -
(a) dishonesty;
(b) victimising an employee, of among others, his or her association with a trade union;
(c) unfair discrimination;
(d) rape;
(e) murder;
(f) contravening section 10 of the South African Schools Act, 1996 (Act No. 84 of 1996).
The existing subclause (4) to be renumbered accordingly.

Clauses 13, 14 and 15 - accepted.

Clause 16
- Mr Kgwele proposed a new paragraph 2(2) to read:
"(2) The performance of educators must be evaluated according to performance indicators agreed upon by the parties to ELRC". The current paragraph 2(2) and other sub-items to be renumbered accordingly.

- Mr Kgwele proposed in the place of paragraph 2(5) to insert:
"(5)(a) Before transferring or demoting an educator or termination of his or her services for poor performance, the employer must convene an enquiry in order to give the educator the opportunity to make representations in response to the allegations against him or her, which shall include the right to-
(i) call, examine and cross-examine witnesses;
(ii) bring all relevant documentation to the attention of the person presiding over the enquiry, and have access to documents produced in evidence by the employer;
(iii) be represented at the proceedings by a co-employee or trade union representative;
(iv) have an interpreter present if the educator so requires;
(v) lead all relevant evidence, including evidence in mitigation of sentence, if necessary

(b) The provisions of items 5, 7, 8 and 9 of Schedule 2 apply to these enquiries, read with the changes required by the context."

Mr De Beer supported the proposal.

- Mr Kgwele proposed in paragraph 3(3)(a) before the words "The employer" to insert"
"Subject to section 7 of the Employment Equity Act, 1998 (Act No. of 1998)"

- Mr Kgwele proposed in paragraph 3(8) to insert:
"(a) Before acting in accordance with item 36, the employer must convene an inquiry in order to give the educator the opportunity to make representations in response to the allegations against him or her, which shall include the right to-
(i) call, examine and cross-examine witnesses;
(ii) bring all relevant documentation to the attention of the person presiding over the enquiry, and have access to documents produced in evidence by the employer;
(iii) be represented at the proceedings by a co-employee or trade union representative;
(iv) have an interpreter present if the educator so requires;
(v) lead all relevant evidence, including evidence in mitigation of sentence, if necessary

(b) The provisions of items 5, 7, 8 and 9 of Schedule 2 apply to these enquiries, read with the changes required by the context."
(Renumber the remaining sub-items accordingly)

- Mr Kgwele proposed in paragraph 3(b) under Schedule 1 before the word "Minister" to insert "
"After consultations with the trade unions"

- Mr Kgwele proposed in paragraph 7(13)(c) to omit "posted" and to substitute:
"received by the educator as indicated by the post office"

- Mr Kgwele proposed under FORM E NOTICE OF APPEAL after the word "enquiry" to omit "and the record of the hearing"

The rest of the provisions of the Bill were accepted.

Adult Basic Education And Training Bill
Chapter 1 - accepted.

Chapter 2
Clause 3 - accepted.

Clause 4
- Mrs MA Njobe (ANC) proposed that clause 4(e) be substituted by:
"access to school facilities by all interested parties;"

Clauses 5 and 6 - accepted.

Chapter 3
Clause 7- accepted.

Clause 8
- Ms Njobe (ANC) proposed in clause 8(2)(e) after the words "disabled persons" to insert "where applicable".

- She proposed in clause 8(2)(f) after the word "training" to insert "where applicable".

- She proposed in clause 8(6)(a) after the words "subsection (2)" to omit "may" and substitute "must".

Clauses 9, 10 - accepted.

Clause 11
Mr Mangena wanted to know if under clause 11(2) people other than educators cannot be accommodated.

Mr Mseleku said registration in the South African Council for Educators (SACE) is structured to cover such situations and people who are not educators fit under the category in clause 22 of the SACE Act.

Mr Mangena asked, having regard for unemployed teachers, whether the public centres for adult learners would be able to zoom in on teachers that have no jobs rather than working teachers.

Mr Mseleku said there is a strategy to accommodate unemployed teachers but it will depend on the requirements of a particular public centre (whether it suits it to employ part time or full time teachers) and its budget.

Mr Aucamp asked whether provision is made in the Bill for a new public centre to have a governing body.

Mr Mseleku responded that this has been an omission and with the permission of the Committee, the Department would like to look at a formulation to provide for interim governance for new public centres.

Clauses 12, 13, 14, 15, 16, 17, 18, 19 and 20 - accepted.

Chapter 4
Clause 21
Mr De Beer said he is worried that the Bill says funds for Adult Basic Education and Training will come from provinces while funds meant for educational purposes in provinces have not been applied for that purpose. He asked if the funds will really find their way to ABET if channelled thorough the provincial budget.

Ms Njobe said the problem is not so much that funds are from provincial budgets, but with the method used to distribute the funds. A province may decide that ABET is not a priority in its programmes.

Mr Mseleku said while he understands the concerns raised by members, and while ABET is a constitutional right, the Constitution makes it a provincial competency. What can be looked at is agreements between the National Department and provinces (which unfortunately cannot be legislated) so that money can be set aside for ABET.

Clauses 22, 23, 24, 25 - accepted.

Chapter 5
Clauses 26, 27, 28 - accepted.

Clause 29
Mr Aucamp asked whether regarding private centres, governing bodies are not still applicable because private centres also perform a function in the public interest.

Mr Mseleku said in most instances a board of directors in a company may decide to establish a private centre for its employees and the governing body there would be the board itself. Government cannot regulate the governance as long as learners are protected. What it can do is assist with establishment of the centre.

Clauses 30, 31 - accepted.

Chapter 6
Clauses 32, 33 - accepted.

Clause 34
Ms Njobe said the ANC feels there is no clarity in the line of reporting carried in the provision. She proposed that after "made" the words "to Minister" be inserted.

Chapter 7
Clauses 35, 36, 37, 38, 39, 40, 41 - accepted.

Chapter 8
Clauses 42, 43, 44 accepted.

The meeting was adjourned.