Adult Education & Training; Education Laws Amendment; Higher Education Amendment Bills: briefing

Meeting report

EDUCATION PORTFOLIO COMMITTEE
15 August 2000
ADULT EDUCATION AND TRAINING BILL, EDUCATION LAWS AMENDMENT BILL & HIGHER EDUCATION AMENDMENT BILL: BRIEFING

Documents handed out:
Adult Education And Training Bill
Education Laws Amendment Bill - draft copy
Higher Education Amendment Bill - draft copy

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, Sanette Boshoff; Director: Adult Basic Education, Gugu Nxumalo; Deputy Director: Adult Basic Education and Training, Morongwa Rumarumo; Director: Educator Provisioning and Conditions of Employment, Pieter Morkel; and Education Officer: Educator Provisioning Section, Judy Odendaal.

SUMMARY
The Education Laws Amendment Bill seeks to increase the representation of trade union members in South African Qualifications Authority from two to three. It enables the MEC to expropriate property in terms of section 58 of South African Schools Act rather than the Expropriation Act which sets stringent procedures. It provides that the Head of Department is responsible for interim governance of a new public school until a governing body is constituted in terms of the Act. The Bill provides that where a governing body is not representative of the racial composition of learners of a school it must co-opt two parents with voting rights from that part of the learners' community that is not represented.

The Bill amends the Employment of Educators Act by introducing the notion of serious misconduct and setting out instances where dismissal of an educator is mandatory.

The Adult Education and Basic Education and Training Bill seeks to give effect to provisions of section 29 of the Constitution which gives everyone a right to basic education including basic adult education. It provides for the establishment of public adult learning centres and for registration of private adult learning centres. It provides for governance of adult learning centres, who has responsibility for providing facilities for the learning centres, financial management and quality assurance and promotion.

The Higher Education Amendment Bill gives the Registrar of higher education institutions discretion whether or not to register an institution even if it meets set criteria. The Bill also allows for a distinction to be drawn between foreign and local institutions that apply for registration. This, the Department says, is to balance the human resource needs of the country and quality assurance on the one hand, and the right to register a private higher education institution on the other.

MINUTES
The Chairperson announced that on 12 September 2000 there would be a briefing by the Council on Higher Education. On 19 September 2000 there will be a formal report on the trips to Northern Province, Australia and New Zealand.

Advocate Boshoff explained that the copies of the Education Laws Amendment Bill and the Higher Education Amendment Bill before the Committee were not final versions of the Bills but certified copies. He emphasised that the content is correct and only technical amendments would be corrected in the final versions of the Bills to be printed by Government Printers. The reason for the delay in distribution of final versions was the backlog in the Government Printers' office.

Mr Mseleku pointed out that each of the Bills stems from policy matters the Department felt needed attention.

Education Laws Amendment Bill
Mr Mseleku said the aim is to amend the South African Qualifications Authority Act, 1995, the South African Schools Act, 1996, the Employment of Educators Act, 1998, and the Further Education and Training Act, 1998. The need to amend these statutes arose from a new development in the area of policy and difficulties experienced in implementation of legislation.

Clause 1 - amendment of section 4 of SAQA Act
This clause is as a result of the fact that at the moment representation of trade union members remains two which makes it difficult regarding that there are 3 big federations representing educators. The amendment is to change representation from 2 to 3 members.

Clause 2 - amendment of section 14(1) of South African Schools Act
The amendment relates to expropriation of property in terms of section 58 of the South African Schools Act instead of the Expropriation Act which has more stringent requirements.

Clause 3 - amendment of section 16 of South African Schools Act
The original Act did not cater for governance of a new public school prior to the election of its governing body. The Clause allows for an interim governance (by Head of Department) of a new public school until a governing body is constituted in terms of the Act.

Clause 4 - amendment of section 20 of South African Schools Act
In terms of the Act schools are juristic persons run by governing bodies. At the request of the Head of Department the governing body may allow reasonable use of school facilities under fair conditions for educational programmes not conducted by the school.

Clause 5 - amendment of section 23 of the South African Schools Act
Mr Mseleku said it would be important for members to seriously discuss this clause and see whether it in fact does what it purports to do. The Department has been receiving complaints that parents feel excluded by school governing bodies because they are in the minority.

The clause provides that where a governing body is not representative of the racial composition of learners of the school it must co-opt two parents with voting rights from that part of the learners' community that is not represented.

Clause 6 - amendment of section 61 of the South African Schools Act
Mr Mseleku said this amendment relates to broad regulations the Minister may make regarding safety measures. The Department is busy working on regulations relating to access to schools. This is as a result of reported incidences of rape, killings, etc in schools. The Minister may also make regulations on any other subject to achieve the objects of the Act.

Amendment of the Employment of Educators Act
Mr Mseleku said he expects trade unions to have an interest in these amendments. He said what triggered the Minister to propose the amendments is the growing number of educators involved in unbecoming conduct relating to learners. He referred to incidences in Gauteng where such court cases took too long and there was no clarity on the outcome of the proceedings.

The Bill clearly specifies conduct for which one would be dismissed if found guilty. The Department has considered certain acts against children are unconstitutional and should be dismissable. Schedule 1 details the code and procedure for dealing with misconduct, incapacity, poor work performance and ill health.

Clause 11 - substitution of section 17 of Employment of Educators Act
The clause introduces the notion of "serious misconduct" whereby the Department is saying that if an educator is found guilty, such person must be dismissed. This clause relates mostly to matters affecting rights of learners. An illustration was made of the fraudulent report cards in the Western Cape and the culprits were teachers who got some perks in return. The rest of the provision relates to sexual assault on the learner, sexual relations with learners at a school where the teacher is employed, physical assault to learners, drug abuse, causing learners to use, courier or sell intoxicating or stupefying substances.

Clause 12 - substitution of sections 18 and 24 of Employment of Educators Act
These provisions on "general misconduct" appeared in the principal Act and this list is an attempt to be comprehensive while not purporting to be exhaustive.

Clause 13 - substitution of section 25 of Employment of Educators Act
The clause allows for appeals by an educator to the Minister and Member of the Executive Council for decision.

Clause 16 - addition of schedules to Employment of Educators Act.
Schedule 1 lays down procedures to deal with poor performance of educators providing even for termination of employment. This is important in assisting the employer to deal with problems of poor performance. The rest of the clause deals with procedures in respect of ill health or injury.

Mr Mseleku said all the provisions of the Bill carry the spirit embodied in the Labour Relations Act. Schedule 2 provides disciplinary procedures and sanctions which are also in line with the previous legislation.

[He noted that the Bill before the Committee is the certified copy and under the heading "Appeals" in schedule 2, the reference to the Public Service Commission in clause 9 (f)(i) and (ii) will not appear in the final version of the Bill.]

Discussion
Q) Mr R Van den Heever (ANC) requested that given the short period within which the Committee has to pass the Bills, the Department should identify all technical amendments and come with them in the next meeting for rectification. He queried in clause 12 whether "boarding" rather than "discharge" as relating to ill health is not more suitable.

A.) Mr Mseleku said the word "discharge" is consistent with other legislation and should not have a negative connotation in the sense of being fired when relating to ill health.

Q.) A member asked regarding serious misconduct under clause 11 if "may" instead of "must" seriously changes the content of the provision.

A.) Mr Mseleku said "may" is different from "must" in that the latter introduces a mandatory sentence if an educator commits a specific act. He said he cannot think of circumstances where being found of being guilty of sexual assault on a learner would be justifiable.

Q.) He questioned the mention specific incidents (such as bribery, assault, etc) instead of broad principles in the provisions.

Q.) Advocate Gaum (NNP) asked if under section 17 it is appropriate to use "must" and whether labour law does not make sufficient provision for dismissal.

A.) Mr Mseleku said the Bill signals specific acts that cannot be tolerated and which warrant mandatory dismissal but there are broad principles that capture other areas as well.

Q.) Regarding the guidelines on dismissal Adv Gaum asked why there are closed lists instead of general provisions.

A.) Mr Mseleku said clause 11 has to be specific and narrow as it provides for mandatory dismissal and there has to be certainty as to which acts fall within it. Advocate Boshoff added that the list has to be specific as due to the severity of the sanction, it cannot be left open. He also pointed out that under schedule 2 item 3(2)(b) provision is made for Minister to add to the list.

Q.) Under clause 5(b) relating to racial composition of governing bodies, relevant legislation says governing bodies must be representative of each sector. Adv Gaum asked if it is wise to go so far as to legislate for this. Should it not be put as a guideline that school governing bodies take racial representation into account.

A.) Mr Mseleku said the provision is put in the Bill because of complaints that democratic processes are used to exclude parents of minority racial groups from participation in school governing bodies. The Department feels it is important for the Committee to discuss whether this is the correct route to follow.

Q.) Ms Njobe (ANC) said that the Deputy Minister recently visited a school where a person was shot and said schools are to be fenced to make them safer. She asked if it is correct for the Department to say the Bill has no financial implications in the light of the provisions of clause 6 and what the Deputy Minister said.

A.) Mr Mseleku said the Bill only provides for the Minister to make regulations regarding safety measures in schools which is merely an enabling framework. He mentioned that Cabinet is currently looking at issues of backlog in infrastructure in schools.

Q.) She asked if a teacher has sexual relations with a learner from another school, would he have done nothing wrong?

A.) Advocate Boshoff said this would still amount to misconduct but is not covered by the Bill since the formulation of the clause seeks to protect the immediate nature of the relationship between the teacher and a learner in the same school.

Q.) Mr Molewa asked, in respect of ill health, if an educator recovers, would this person have any chance of being readmitted to work. Regarding assault, would for instance a teacher have a chance of admission as educator in an adult education and training centre. Should the specific acts that are dismissable not be extended to acts that an educator commits in the community such as rape.

A.) Advocate Boshoff said regulations in terms of Employment of Educators Act provide that where an educator's health has improved to such an extent that it is possible to continue with her/her profession, that person may be considered for appointment. Mr Boshoff said that criminal acts that an educator commits outside the school such as rape would be covered by the South African Council for Educators (SACE).

Q.) A member asked whether the provision regarding poor performance deals with a situation where an educator has been attending union meetings and this results in poor work performance.

A.) Mr Mseleku said where an educator engages in union activity at the expense of work performance that would be a problem of management rather than legislation. When an educator goes to union meetings it has to be ensured that there is continuity in the performance of his or her duties at school.

Q.) Advocate Gaum asked regarding misconduct for having a sexual relationship with a learner, if there should be any distinction between learners of 16 and those of 17 and 18 years.

A.) Mr Mseleku said because of the special nature of the relationship between teacher and learner a sexual relationship between the two in the same school still amounts to serious misconduct even if the learner is 18 years old.

Adult Basic Education and Training Bill
Advocate Boshoff said the Bill addresses a fundamental right in terms of section 29 of the Constitution. It sets out the framework for dealing with adult basic education (ABET). He mentioned that the Department has taken lessons from other pieces of legislation already in operation and tried to simplify implementation and identify authorities.

Chapter 1 - definitions and application of the Act

Chapter 2 - public centres
Clause 3 deals with the establishment of public centres. The obligation is on the provincial Department through its MEC to establish a public centre. The national Department has an obligation to provide facilities for the establishment of public centres. The Department has opted to make public centres juristic persons to ensure they function as unit with specific status to advance interests of learners.

Clause 4 deals with provision of facilities for use by public centres. This is linked to the South African schools Act in that the Head of Department must request the governing body of a public school to allow reasonable use of facilities of the school by the public centre if no facilities are available to be used by the latter.

Clause 5 deals with merger of public centres. Subject to certain requirements the MEC may merge two or more public centres into a single centre.

Clause 6 provides for closure of public centre.

Chapter 3 - governance of public schools
The chapter provides for governance of public schools by a governing structure. The chapter provides for manner, size and procedure of constituting a governing body of a public centre. The Department has also opted for a provision whereby a single governing body may act for more than one public centre. The Chapter also lists functions of governing body in a public centre. An important provision regards employment of staff in that this can only take place if it is on the annual budget.

Responsibility is on the Head of Department to assist with the enhancement of capacity of the governing bodies. Failure by governing body to perform its functions leads to its dissolution by the Head of Department and a new body being constituted. A public school is obliged to admit learners without unfairly discriminating against them. Provision is also made for disciplinary measures for learners.

Chapter 4 - funding of public centres
The chapter allows for norms and standards to be set at national level for funding of public centres. The rest of the chapter provides measures to monitor control in financial matters and obligations pertaining to that and where there is failure to comply with the Act, sanctions.

Chapter 5 - private centres
The chapter provides that anyone may establish and maintain a private centre. For a private centre to operate legally it requires registration in the provinces in line with the South African Schools Act. The chapter allows for subsidy to private centres within the national norms and standards.

Chapter 6 - quality assurance
The Chapter provides for quality assurance and promotion in adult basic education and training to be done in terms of South African Certification Council Act, 1986. A annual report on quality of adult basic education and training has to be made by National Advisory Board for Adult Basic Education and Training (NABABET) in respect of the whole country and the Head of Department in respect of the relevant province.

Chapter 7 - general
The Chapter provides for general issues relating to public centres such as providing information required by person to exercise and protect their rights. A clause similar to one in Further Education and Training Act is also included providing for investigation of serious maladministration.

Provision is also made for change of name of public centre by governing body with approval of MEC. The provision on offences focuses on registration of institutions especially private centres if not there is a sanction against them. The chapter also limits the liability of the State and delegation of powers. Lastly the chapter deals with the issue of regulations.

Chapter 8 - transitional arrangements for existing centres, structures and bodies.

Discussion
Mr Cassim (IFP) said the Bill does not deal with the need to get literacy to the people but instead with governance of ABET centres. He expressed concern that adult learners had not been consulted to see if these centres would not proliferate in areas where they would never be reached by learners. He said the Bill needs to set time frames and say what the financial implications of providing ABET would be.

Mr Mseleku said one would need to understand what legislation does differently from policy. The Bill provides enabling framework for provision of ABET. It seeks to legislate establishment of public centres, their governance, funding, etc. If the Department does not legislate on these issues it would not be realising the right to basic education.

Literacy cannot be addressed through legislation but through policy and strategy. Mr Mseleku said he does not think time frames and how many learners are to be accommodated by ABET could be legislated on but the framework for dealing with literacy could.

Mr Cassim said he finds it worrying that Parliament is seen to be passing too many laws after which it sees itself as having fulfilled its obligation to the community at large. As public representatives parliamentarians have to ask what objective they want to reach by passing a law. Legislators have to find a way in which they weld together policy and framework in legislation. Time frames are important to see to it that things are done in an efficient manner.

The Chairperson reminded members that this briefing was not the time for deliberations on the Bills.

Higher Education Amendment Bill
Mr Mseleku said the issue that largely confronts the country in Higher Education relates to private higher education institutions. He said there has been a lot of emerging problems in this area. While on the one hand there is a constitutional right to register private schools this has to be balanced with the need to ensure access to public education.

Clause 1
Adv Boshoff said that the clause addresses the issue of juristic persons applying for registration. The Department has realised that a certain type of entity is needed to cope with the demands of the sector. The entity favoured is one formed in terms of the Companies Act where the governing structure is separate from shareholders. A foreign juristic person would also have to be recognised or registered as an external company in terms of the Companies Act.

Ms Nasima Badsha went through the remaining clauses of the Bill as follows:
Clause 2
The White Paper on Higher Education promotes partnerships in higher education to address inefficiencies and duplications. In some instance cut-hroat competition has been seen whilst in some there has been very interesting partnerships. The country has witnessed a proliferation of satellite campuses and traditionally residential campuses offering distance education that led to a drop in quality of education.

The Bill provides that policy must be in the interest of the higher education system as a whole and that the Minister must in developing policy consult the Council on Higher Education.

Clause 4
The clause deals with financial management in public higher education institutions. The Department has been working closely with higher education institutions that found themselves in financial difficulty for a number of years. Ms Badsha observed that contrary to popular belief, this is not limited only to historically Black institutions. The Bill seeks to ensure that the Department does not come into the picture only when the institutions are already in trouble.

The provisions have been framed such that they do not detract from roles of institutional councils. Institutions have to raise loans with full consent of council but above a certain level and when doing major investments permission of Minister is required. This also applies where a public higher education institution undertakes immovable infrastructural development or purchasing or long term leases of immovable property.

Clause 6
In 1999 an amendment was effected to ensure that the use of words such as university, etc was excluded from names of institutions. However, the ingenuity of human nature has necessitated another amendment to capture use of names which are derivatives of words "university", "technikon", or "higher education college" that might mislead the public, such as "varsity", etc.

Clause 7
There has been concern about developments in the process of registering private higher education institutions. Clause 7 extends the discretion of the Registrar of private higher education institutions. Presently there is no requirement to distinguish between local and foreign institutions that seek to register. There is currently an influx of foreign institutions into the country which might cause problems. The Bill allows for a distinction to be made between local and foreign institutions. At the moment the Registrar must register all institutions that meet certain criteria. The Department is proposing that this be changed to say the Registrar "may" register institutions to allow for discretion on Registrar's part even if set criteria met.

In definition of higher education institutions, the Department is emphasising that for an institution to offer higher education it has to comply with certain criteria listed in legislation.

Mr Mseleku pointed out that in the Memorandum under "Consultation" the list shows organisations that gave input on the Bill but does not include all those that were consulted. He said the final version would show all the consulted stakeholders.

Discussion
Q.) Advocate Gaum (NNP) asked regarding clause 2 whether the Department seeks to give the Minister powers he does not have at the moment.

A.) Mr Mseleku said currently the Minister has power to set conditions relating to funding in public higher education institutions but not private. But there could be programs offered by public higher education institutions which are not funded by Government and the Minister does not have a say in them. Authority to realise goals of the Minister is in terms of the Act and what enables the Minister is in policy and in the White Paper.

Q.) Regarding clause 5, are institutions obliged to give information that the Minister may require? What is the international norm in this regard?
Regarding clause 7 why use "may" if criteria met?
Regarding clause 8 is the purpose to protect local institutions?

A.) Mr Mseleku said the Department is saying that meeting criteria should not per se establish a right to registration especially foreign institutions as this would make a mockery of trying to regulate size, shape, etc of private higher education institutions. As a country our human resources should expand in a certain way. Other countries are very strict about what kinds of institutions open in their territory. The route that the institutions are obliged to give Minister information he/she may require is exactly what is done in other countries.

Mr Mseleku said it is important that competition must not impact negatively on provision of public higher education. Currently the Department is trying to develop a format which alerts the Department of potential danger in the financial management in higher education institutions.

The meeting was adjourned.