Education Laws Amendment Bill ; Adult Basic Education & Training: negotiating mandates

EDUCATION AND RECREATION SELECT COMMITTEE
5 October 2000
EDUCATION LAWS AMENDMENT BILL [B 48B-2000]; ADULT BASIC EDUCATION AND TRAINING BILL [B 42B-2000]: NEGOTIATING MANDATES

Relevant Documents:
Education Laws Amendment Bill [B 48B-2000]
Adult Basic Education and Training Bill [B 42B-2000]
Negotiating Mandates of provinces

Chairperson: Mr D M Kgware

SUMMARY
The provincial representatives presented their negotiating mandates. Their queries and concerns were responded to by Advocate Boshoff, legal advisor to the Department.

MINUTES
The Chair welcomed Advocate Boshoff. Each province went through its suggested amendments and requests for clarification for each Bill. These items were responded to by Adv Boshoff.

Education Laws Amendment Bill [B 48B-2000]
Each province presented its negotiating mandate:

1. Kwazulu Natal went through its submission, asking for clarity on the definition of "illegal possession" and whether offenses apply both in and out of school premises.
2. Gauteng was concerned about the Bill's possible disclosure discrimination against people with HIV/AIDS.
3. Northern Cape supports the Bill with no amendments.
4. Western Cape had no written submission at the time of the meeting.
5. Free State supports the Bill with no amendments.
6. Northern Province supports the Bill with no amendments.
7. Eastern Cape supports the Bill with no amendments.
8. North West Province supports the Bill in principle but outlined several queries relating to safety at public schools, sexual relationships between learners and educators from other schools, money-lending schemes and discipline.
9. Mpumalanga supports the Bill with no amendments.

Adv Boshof responded to these queries:

Kwazulu Natal:
As to clause 11 amending section 17 of the Employment of Educators Act, 1998, section 17(1)(e) "illegal possession" is the most important part of the section. The intention is to avoid the sale and possession of illegal drugs. The problem of a person being "under the influence" of a substance is dealt with at section 18(1)(p). For example, a person can be "under the influence" of glue (s)he has sniffed, although this is not an illegal substance in itself, so this is covered by section 18(1)(p) and not 17(1)(e).

KZN representatives had questions concerning things such as alcohol in the boot of an educator's car, or alcohol in the cupboard of the teacher's room. Adv Boshoff responded that the key is that the educator is an adult, so there are no prohibitions on the possession of legal substances. If an educator were to be "under the influence" of alcohol while at school, this would be contrary to the provisions of the Bill. Adv Boshoff reminded the provincial representatives that each scenario is different.

As to the query of whether the "assaults" referred to in section 18(1)(r) have to occur in or out of school property, Adv Boshoff pointed to the stem of the clause that points to these sections coming into operation when there is a "breakdown in an employment relationship". Where assault takes place, therefore, is inconsequential.

Gauteng
To the HIV/AIDS disclosure, Adv Boshoff pointed out that this is covered in Schedule 1, clause 3(3), "procedures in respect of ill health or injury".

North West Province
Adv Boshoff said if money-lending schemes, s 18(1)(w), have the approval of the employer, it is alright. The purpose of s 18(1)(w) is to avoid the abuse of authority.

The province also suggested referring to "enrichment schemes", rather than "money-lending schemes". Adv Boshoff said this wording was uncertain and problematic, since schools have to fund raise to supplement fees. Also, "enrichment" can have a wide meaning and refer to more than just money; for example, education is aimed at enriching people. Adv Boshoff thought the term "money-lending" scheme covered the intention of the provision.

Mr Panday (member of the Standing Committee on Education, KwaZulu-Natal) asked if the money-lending scheme is for the benefit of another, is it legal? Adv Boshoff pointed out that the language used in this Bill is consistent with that of other Acts. Money-lending activities are regulated by another Act, not this one. This Bill is about employment relationships.

As for safety and security at public schools, Adv Boshoff said the intention of clause 6 is to bring consistency so that all schools in South Africa will have uniform safety regulations.

In response to North West province's suggestion that the prohibition of sexual relationships between educators and learners be extended to include all schools, so that such a relationship would be prohibited even when the educator and learner are part of different educational institutions, Adv Boshoff noted that this covered by s 18(1)(dd), "commits a common law or statutory offence". This would include statutory rape. Adv Boshoff added that the legislation is not insensitive to such situations.

Adult Basic Education and Training Bill [B 42B-2000]
Each province presented its negotiating mandate:

1. Kwazulu Natal went through its submission, requesting clarity on any previous ABET legislation, trusts, fees and a question about the protocol of clause 34(b), which allows the Head of the Department to report directly to the Minister and skip the MEC.
2. Gauteng had a series of queries.
3. Northern Cape had two concerns: management of the public centre and the employment of educators. They wanted to know if the principal of the day school would also be responsible for the management of the centre and if teachers of the day school would be employed at the public centre.
4. Western Cape had no written submission at the time of the meeting.
5. Free State supports the Bill with no amendments.
6. Northern Province suggested that the number of co-opted members in s 8(5) be limited.
7. Eastern Cape supports the Bill with no amendments.
8. North West Province had queries about the definition of "failure to perform", and the remuneration of a governing body of a public centre
9. Mpumalanga supports the Bill with no amendments.

Adv Boshoff responded to these queries:

Kwazulu Natal
Adv Boshoff said, as far as he is aware of, there has been no previous ABET legislation. It is acknowledged by the Constitution at 29(1), which acknowledges the right to basic education, including adult education.

As for trusts, Adv Boshoff indicated clause 3(4) that acknowledges tribal authority and indigenous law in terms of immovable property and trusts. Therefore, he said a public centre on trust land is seen to be on public land, although it is acknowledged that it is part of a trust.

In terms of fees, Adv Boshoff indicated clause 23, which gives the possibility of raising fees through the governance structure.

As for the protocol of clause 34(b), Adv Boshoff responded to KZN's complaints that the powers of the MEC were stripped by this provision by responding that the provision was found to be the best option and is indeed Constitutional.

Gauteng:
Adv Boshoff responded to a selection of the technical queries that Gauteng had highlighted:
As to the merger and closure of centres, clause 3 gives a specific provision to for merger and closure, so closure must be formal.

Northern Cape:
As to concerns about the management of the public centre and the employment of educators, Adv Boshoff pointed to s 5 of the Employment of Educators Act. If the principal of the day school also managed the public centre, he said overtime would have to be paid and there would be labour complications. He agreed that it was not a good practice for a principal to have two posts.

Northern Province:
As to the number of co-opted members, Adv Boshoff said provinces can prepare their own notices in terms of this Act, as allowed for by clause 9(g). It is left to the provinces to determine the numbers of co-opted members in their own regulations. This issue is specific to provinces so it is hard to deal with this at the national level.

North West Province:
Adv Boshoff said "failure to perform" at clause 14 is consistent with the usage in the South African Schools Act. The responsibility is to keep a school running, based on objective criteria.

As for reimbursement, clause 16 says there is to be no reimbursement to members of a governing body for any of the functions performed by that individual.

The Chair thanked Adv Boshoff for his explanations and adjourned the meeting.