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EDUCATION AND RECREATION SELECT COMMITTEE
29 October 2002
EDUCATION LAWS AMENDMENT BILL: NEGOTIATING MANDATES
Chairperson: Mr D M Kgware
Negotiating mandates of the nine provinces (email firstname.lastname@example.org)
These minutes were compiled by Ms Jillian Pillay: Committee Secretary
The following persons were in attendance:
Adv E Boshoff, Director: Legislation, Department of Education;
Ms F Omar, Assistant State Law Adviser: Office of the State Law Adviser;
Mr T Mbangeni, Principal State Law Adviser: Office of the State Law Adviser.
The Chairperson welcomed members, special delegates and members of the press and public. In order to facilitate the process the Chairperson requested members to indicate the clauses of the Bill that their province wanted clarity on or had made an amendment to.
Negotiating mandates for Education Laws Amendment Bill [B 31B - 2002]
Kwazulu - Natal: Supports the Bill subject to clarifications and amendments.
Eastern Cape: Supports the Bill subject to clarifications.
Western Cape: Confers on the Western Cape's delegation in the NCOP an open mandate, however comments were made on specific clauses of the Bill. The Western Cape's permanent delegate was not in attendance so the Chairperson requested Mr Tolo to read out their mandate.
Gauteng: Supports the Bill and dissenting views have been included.
Northern Province: Supports the Bill.
Mpumalanaga: Supports the Bill subject to clarifications and concerns.
Free State: Supports the Bill subject to amendments.
North - West: Supports the Bill with the proviso that the considerations raised are attended to and addressed.
Northern Cape: Supports the Bill.
The Chairperson allowed Adv Boshoff to comment and provide clarification on the concerns raised by the provinces.
Adv Boshoff explained that regarding the issue of "consultation" there is no contradiction. This is to ensure communication between the Head of Department and the School Governing Body.
Ms Creecy sought clarity on clause 5, subsection 4 regarding the prohibition of initiation practises. Is this not a contradiction to the clause?
Adv Boshoff explained that it has been included to ensure the safety of the victim. If the learners says that they refuse to participate then that needs to be respected and the feelings of the learner has to be taken into account.
Ms Creecy expressed concern that if the child says he/she wanted to participate and allowed him or herself to do it.
Adv Boshoff indicated that it is important to note that subsections 1-3 sets out the framework and subsection 4 clearly states "in considering" the conduct, which counters the argument.
Adv Boshoff explained that clause 4 deals with the intermediary.
It is up to the person who is presiding to make the decision. If a whole array of people are involved in the procedure it could lead to problems. The intermediary is part of the decision making process of the disciplinary hearing. He added that it could be disruptive to have a "parent or guardian" involved as this could lead to a situation of the intermediary being the " referee and the player". Adv Boshoff expressed that a parent is clearly related to the interests of the child and this could cloud their judgement. In this instance the governing body would be objective in making a decision under the circumstances.
Regarding the budget the Act provides that the budget must be explained at the school's annual general meeting. The difficulty experienced is that the budget was previously handed out at the meeting leaving parents with little time to make informed decisions regarding the budget. It was considered sending out the budget to parents 14 days before the meeting but this involves a huge administrative and cost factor to the department. The main concern is for the parents to receive the information and they could discuss it with an expert in the community. Adv Boshoff explained that the main intention is not to create debate but merely provide the information.
Regarding section 11, which is a measure in the Act to handle these types of scenarios. This is dealt with in an administrative effort and is in keeping with the Public Finance Management Act.
North - West
Adv Boshoff explained that the age norm has been lowered to 30 June of the year of admission. Lowering the age group has financial implications for the provinces and if it is further lowered it will fall outside of the prevailing international norms. The aim of lowering the age group is:
not to open the floodgate for learners.
a strategic decision to avoid high risk challenges without going against values and norms in education.
to allow flexibility for example in the cases of exceptional children being admitted.
Regarding the curriculum and assessment to replace "must" with "may"; Adv Boshoff explained that it deals with the norms and standards of public schools. Standards are set nationally and uniformly. It is crucial that the basic/minimum standards be adhered to and are applicable to all provinces.
Adv Boshoff added that the Minister would determine the curriculum statement and not the content.
Initiation practises taking place out of the school environment does not fall within the Schools Act. The Schools Act has limited scope in that it deals with schools. Adv Boshoff explained that this legislation cannot regulate the conduct of learners outside of the school.
Adv Boshoff indicated that inserting a code of conduct poses problems. He said the common question asked what is the value of it? The nine provinces are setting out codes of conduct for the School Governing Bodies in their respective provinces. This is unique to a province as the level of sophistication differs. In the provinces there are codes of conduct for learners, teachers, public servants and they have the necessary knowledge and know how on how to deal with the uniqueness of the code of conduct in a particular province, hence the Department opted not to do it.
On replacing "governing body" with "stakeholder", Adv Boshoff explained that it would not make much sense as the language used in the Bill is "governing body". This maintains consistency throughout the Bill.
Adv Boshoff explained that this was done to make it as close as possible to the Higher Education process. It was meant to be user friendly as people are dealing with it. Adv Boshoff added that it would not be easy and possible to control. The original certificate is the important one.
Adv Boshoff indicated that he did not see a problem with using both the words "and" and "or" as they both seem to work. It is a decision for the Committee to make.
On clause 13 to delete "1998" Adv Boshoff explained that the English text is the correct one. He did indicate that he is subject to correction by the State Law Advisers.
Mr Tolo on a point of order noted that the Committee needed to confine itself to the official text.
Agreed to by the Committee.
As a result of this Adv Boshoff indicated that he would not proceed with the amendments proposed that deal with the Afrikaans version of the Bill.
Agreed to by the Committee.
Adv Boshoff explained that the word "furnish" is currently being used in Higher Education legislation and it is consistent with both pieces of legislation. He added that "provide" does have a similar meaning so it would not make a difference.
Adv Boshoff explained that the explanatory memorandum is not part of the legislation. What is contained in the Act is the crucial one.
The important aspect is that the Bill has been amended to make it clear that the Minister will determine the curriculum statement indicating the minimum outcomes and standards of the curriculum and not the detail.
Section 6A (1) (b) is linked to the ability to transfer learners between provinces. Adv Boshoff explained that uniformity is needed across the country. This is to balance the complex and important issues.
Adv Boshoff further noted that this is not a new approach and this position has been developed and requested through the Council of Education Ministers (CEM). The reason is that national standards are needed. He stressed that one province is clearly not inferior to another in providing education. The intention is to ensure uniformity and standards that are applicable across the country.
Section 146 (2) is not to create a power base for the Minister. Provinces have brought this to the CEM. He added that the framework is crucial and it is prescribed. After the ruling of the Harris case it was realised that regulations were needed for it to be enforceable.
Amendment of section 61 (e) the monitoring and evaluation of education. Adv Boshoff explained that it is a collective effort. He stressed that it should be read in conjunction with the prescriptions of the NEPA. It has been done in consultation with CEM and not in isolation.
On clause 2, Adv Boshoff explained that a one-year grace period has been granted in order that budgetary implications may be catered for. This is to prevent undue pressure on the budget. Provinces will have to make provisions for possible financial implications.
The Chairperson allowed members to ask questions of clarification.
Ms Jacobus sought clarification if in Act 84 of 1996 the definition of "parent" includes "guardian"?
Adv Boshoff explained that the definition of parent is included in the Schools Act. This includes both the biological parent and the legal guardian, who is performing the role and function.
Ms Swartbooi requested Adv Boshoff to address the amendment proposed by Kwazulu-Natal to clause 30.
Adv Boshoff explained that ABET legislation was introduced because there was lack of legislation for adult education in the provinces. This was done in an attempt to get adult education started hence regulatory authority was given to provinces and for MECs to deal with these.
This ABET Act is different as compared to other legislation were regulatory authority rests with the Minister.
Adv Boshoff explained that there is no need to split up the powers, as it would not serve a purpose, as both the authorities can make the regulations. If either of the authorities utilise this function they need to do it within the framework of the Act.
Mr Tolo sought clarification on clause 12 that agreement has not yet been reached. Would this not bring about confrontation between the Department of Education and the Unions and is this excluding the possibility of negotiations? Mr Tolo suggested that the word "or" being inserted to accommodate both and if there is no agreement the Minister may proceed with the prescriptions.
Adv Boshoff noted that during the deliberations with the Portfolio Committee on Education it was raised. It was accepted that this would be the language used. The Minister is party to the agreement. This was formulated with the consent of the unions and accepted by them.
Mr Quail referred Adv Boshoff to the dissenting views expressed in the mandate of Gauteng and asked what were the reasons for rejecting the proposed amendments during the Portfolio Committee's deliberations?
Adv Boshoff explained that it was not up to the Departmental Officials to decide why certain amendments proposed were rejected as the Department offered advice that was technical in nature. The politicians took a specific view and it was the political processes that made the changes. Regarding the issue of the curriculum concerns were mainly expressed by the ACDP, and all parties did not support it.
Mr Quail asked if the Independent Examinations Board would be allowed to continue?
Adv Boshoff explained that this bill does not deal with the Board. Its existence is dealt with in the GENFETQA legislation.
Rev Chabaku commented that the word "initiation" needed to be clearly explained.
The Chairperson allowed the State Law Advisers to comment on the issues raised.
Mr Mbangeni expressed that most of the issues raised were policy in nature and that the Department was best suited to answering the concerns.
The Chairperson announced that the:
Final mandates for the Education Laws Amendment Bill [31B - 2002] will be discussed on 5 November 2002.
Finalisation of the Higher Education Amendment Bill [30B - 2002 will be on
5 November 2002.
Education Laws Amendment Bill [31B - 2002] and the Higher Education Amendment Bill [30B - 2002] will be debated on 7 November 2002 in the Council.
The Committee adjourned at 11:00.
Mr T H Sogoni (alternate member)
Mr R Z Nogumla
Mrs E C Gouws
Mr L Suka (Special Delegate)
Ms S N Ntlabati
Rev M Chabaku
Ms B Creecy (Special Delegate)
Mr D L Quail (Special Delegate)
Ms L Jacobus
Mr D M Kgware (Chairperson)
Mrs P R Mashangoane (visiting member)
Mr J O Tlhagale
Mr N M Raju
Ms G N Swartbooi (Special Delegate)
Mr B J Tolo
Apologies were received from Mr J Horne and Mr F Adams.
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