Western Cape Provincial School Education Amendment Bill: MEC briefing & legal opinion

Education (WCPP)

28 August 2018
Chairperson: Ms L Botha (DA) (Acting)
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Meeting Summary

Western Cape Provincial School Education Amendment Bill [B1-2018]
The MEC for Education in the Western Cape response to public comments on the Bill
Legal Opinion of the WCED in response to the Legal Opinion of Adv Andre Le Roux

Federation of Governing Bodies for South African Schools (FEDSAS) v Member of the Executive Council for Education, Gauteng and Another (CCT 209/15) [2016] ZACC 14; 2016 (4) SA 546 (CC); 2016 (8) BCLR 1050 (CC) (20 May 2016)

The Acting Chairperson said that although members of the public are allowed to sit in on the meeting, no input from members of the public would be allowed. Members of the ANC questioned this ruling. The meeting was adjourned twice to allow the Committee to deliberate. The Acting Chairperson’s ruling stood and the members of the ANC left the meeting. 

The MEC for Education in the Western Cape briefed the Western Cape Provincial Parliament’s Standing Committee on Education on her response to public comments made on the Western Cape Provincial School Education Amendment Bill. Based on submissions received there has been a lot of distorted information from the media. The Western Cape Education Department has an obligation to act in the best interests of children. The Province is allowed to legislate differently in terms of the Constitution.

The MEC cited the growing gap between the finances of poorer and wealthier schools as one of the key reasons for the collaboration schools’ model. Funding from public sources is not enough to address the income gap between these schools and funding from private sources is the only available source of funding left to utilise. They are trying to create sustainable long-term relationships with donors. She emphasised that governing of public schools will not be handed over to private donors but rather. the composition of School Governing Bodies will be 50/50 representatives from private donors and parents or other members. In their pilots they have seen improvements in educational performances of learners as well as an improvement in cultural involvement in schools.

The MEC said the provision dealing with alcohol in the Bill is a rational one. There will be strict regulations in schools governing the alcohol provision to protect learners. The School Governing Body would have to take responsibility for an exception on the alcohol provision. The Bill makes it illegal to sell and consume alcohol on school premises unless permission is sought from the Head of Department and the School Governing Body. If School Governing Bodies fear the negative consequences of the exception they should not ask for the exception.

The Western Cape Education Department and the Department of the Premier responded to the legal opinion submitted to the Committee from Adv Le Roux. The basis of the Western Cape’s response is that while there are conflicts between National and Provincial legislation the Constitution allows Provinces to legislate differently. While the collaboration school model is different, it is not in violation of the Constitution as the Western Cape Education Department is of the view that the collaboration model is a different type and an add on to the types of schools made by Constitutional provisions. On the intervention facilities the Western Cape Education Department is of the opinion that it will not violate the Constitution since learners will receive the same quality of education as they would in their schools. The Bill cannot set out in exact detail the programmes and strategies to be used in these intervention facilities. The alcohol provision is a rational provision since the Bill provides for an exception to the general prohibition. Safeguards are in place to prevent abuse of this exception.

The Committee was supposed to ask the MEC and the Western Cape Education Department questions regarding the Bill. Given the time constraints and the newly completed legal opinion from the Department, legal questions were postponed until a later stage when Members of the Committee has had an opportunity to study the two conflicting legal opinions.

Meeting report

Election of Chairperson

The Committee Secretary said that the Chairperson Mr B Kivedo (DA) had tendered an apology, and in terms of the WCPP’s Standing Rule 77(2) the Committee needs to elect a new Chairperson. She opened the nominations for an acting Chairperson.

Mr R Mackenzie (DA) nominated Ms L Botha (DA).

Ms Botha’s nomination went unchallenged and she was elected as the acting Chairperson.

Introduction and opening remarks
The Chairperson welcomed all delegates from the Western Cape Education Department (WCED) and members of the public. All delegates and members of the public were asked to introduce themselves.

The Chairperson said the Committee meeting stems from the Western Cape Provincial School Amendment Bill [B1 – 2018] and to date the Committee has conducted six public hearings. Following the public hearing the Committee deemed it necessary to engage the WCED further in order to get more clarity on the content of the Bill. Today the purpose of that meeting is for Members of the Committee to tend their questions to the MEC for Education in the Western Cape, Ms Debbie Schafer. This Committee meeting although open to the public is not open for public input and questions.

Mr T Olivier (ANC) asked for clarification on the Chairperson’s statement that the meeting is not open to input from members of the public. The understanding was that this meeting is open to members of the public to ask questions.

The Chairperson said they had gone on extensive public hearing with the Bill. The Committee has had opportunities for both oral and written submissions up until 24 August 2018. For the purposes of this meeting there will be no opportunities for members of the public to give input, they are merely observers for this meeting.

Mr Olivier asked the Chairperson to provide the legal ruling on that. The understanding was that this Committee is open to the public. He was not comfortable with the decision unless he was provided with the rules and guidelines of this Committee.

Mr C Dugmore (ANC) said that at the first public hearing in Caledon members of the public asked for both the MEC and the Premier to be present so that the public could pose questions to them. We were all under the impression that the MEC would attend the last public hearing. There was a request from the public for the MEC and the Premier to be available because at the end of the day we were dealing with a situation where we felt that officials had to defend a Bill which many opinions regard as unconstitutional and against the provisions of the South African Schools Act in many ways. The normal procedure as Committees is that if the meeting is open, members ask questions and if there were time members of the public can ask questions. He did not see any point in deviating from that process. Those are generally the rules and the conventions followed. Since we do have two hours for this meeting, she proposed as a compromise that if there is time there should not be any problem for members of the public to ask questions. He appealed to the Chairperson, and was sure the MEC was not concerned about questions coming from the Public as this is the environment that we are in. Otherwise this meeting needs to be closed to the public.

The Chairperson asked for the meeting to be adjourned for 5 minutes and for members of the Committee to stay behind to talk certain issues through.

Meeting resumes

The Chairperson thanked the WCED and members of the public for their indulgence as they had been out of the meeting for more than the allocated time. The presentations would begin.

Mr Olivier asked the Chairperson to report her ruling to members of the public.

The Chairperson said as she had indicated when the meeting started initially, this meeting stems from the recommendation from the Members of the Committee to have this meeting with the MEC and the WCED. In light of the six public hearings they have had, and the oral and written submissions made by the public and organisations, the lifetime for public input on the Bill came to an end on 24 August 2018. This meeting is to allow the MEC and the WCED present as per the agenda and there will be no input and questions from the public. For this meeting the public has observer status.

Mr Olivier wanted to raise an issue.

The Chairperson said that she will not go into a dialogue with Mr Olivier as they are already 40 minutes over time.

Mr Olivier wanted to ask a question.

The Chairperson said she will not give Mr Olivier an opportunity to speak.

Mr Olivier asked if Members of the Committee could vote on the Chairperson’s decisions because they disagreed with the Chairperson’s decision.

The Chairperson apologised to the WCED and to the public and the Committee left the meeting room again for a few minutes.

Mr Dugmore asked the Chairperson to allow members of the public to witness the Committee’s processes.

The WCED and the public left the meeting room.

Meeting Resumes

Mr Olivier and Mr Dugmore left the meeting room.

The Chairperson thanked everyone and offered her apologies.

Briefing by MEC

Ms Debbie Schafer, MEC for Education in the Western Cape, said based on the submissions received there was a lot of information from the media around the Bill and a lot of it has been distorted, and she had prepared a lengthy submission. Ms Amanda Torr from Legal Services would respond to the legal opinion that was given to the media.

Ms Schafer said a lot of noise has been made by the same groupings of people who have gone from hearing to hearing and there has been a lot of miscommunication and misinformation regarding this Bill. She emphasised that at the end of the day what they are here to do is act in the best interest of the children. Section 28(2) states that a child’s best interests are of paramount importance in every matter concerning the child. In terms of education that means that the interests of the child must be put first, ahead of those of the educator or any other party involved in the provision of education. If the interests of teachers or any other party were ahead of the interests of the learners the provincial government will be acting unconstitutionally. The state simply does not have the public resources to continue to fulfil its constitutional mandate of the progressive realisation of socioeconomic rights. The only way that the state can continue to fulfil its responsibility is to harness the full extent of National skills and resources for the public good. This is the premise of the National Development Plan which states that government cannot alone provide a decent standard of living; it requires determined and measurable actions from all social actors and partners across all sectors of society. The reality of the matter we face is that pro-poor funding and financing is simply not enough. It is incumbent on the government of the Western Cape to take deliberate and measurable actions to ensure the provision of quality education for children. Specifically, the Western Cape government must ensure that a child in a quintile 1 school has the same educational rights as a child in a wealthy school. In real terms the provincial education budget is shrinking. A review on public expenditure on education in the Western Cape for 2016/17 shows that children in the poorest quintile do receive the highest state allocation but this is not enough to overcome the massive differences in total income between non-donor funded schools and donor funded schools. In effect the revenue gap between poorer and wealthier schools is now entirely determined by the private contribution of school fees by wealthier parents. Pro-poor funding is now in place to the extent that the state can afford it. The only way the state can narrow the income gap between poorer and richer public schools is to harness private sources of funding for schools where parents cannot afford to pay fees. The schools that need extra financing are of no interest to full profit investors and commercial operators. They simply would not be able to make any money which is their primary objective. The only way they would be able to make money out of this venture is through corrupt practices which we will not tolerate as the DA-led Provincial government. The only sources of revenue that are available to close the gap are sources that seek no profit and that means community contributions, philanthropic foundations and the statutory post-profit socioeconomic development obligations of private companies. These new revenue flows must be reliable, predictable and sustainable. We cannot have a situation where money to poor schools comes and goes depending on the whims of donors. They must find a way to build sustained long-term partnerships in which all partners continue to remain vested. This will require building partnerships into the public-school system. However, it will be naïve to imagine that non-profit, philanthropic foundations or Socio-Economic Development (SED) funding will continue to flow if their money shows no results in terms of improved outcomes in poorer schools. Similarly, companies willing to direct their SEDs into schools must be able to demonstrate real benefit in terms of children doing better.

The reality is that despite pro-poor funding of schools, school under-performance and community poverty still go hand in hand. The inequalities of the past still constrain us. Children enter the schools without the benefit of preschool education and teachers leave for better schools as soon as soon as they can. School leadership and governance is often weak as rival interest groups try to dominate school governing bodies. In other words, the answer to the problem is not just money anymore but it is undoing patterns of inequality that mean that children are less able to learn, less teachers are willing to teach, and school leadership is often weak and contested. This is the basis for collaboration schools; to put in place an affirmative process in schools serving the poorest communities to bring new funding into the system and ensure that such funding is used effectively to improve school outcomes. We must be clear that in the short to medium term there is no more money to change the pattern of learner outcomes in public schools in the Western Cape, or any other province in South Africa.

Given this reality there are only three possible ways that the educational prospects of children in the Western Cape can improve through the public education system.
First is expanding access to preschool education which is not the mandate of the WCED.
The second is improving the quality of public education, prioritising foundation phase education and her Department is already working hard to achieve this.
The third is to forge long term partnerships with investors and other partners whose primary goal is to better the lives of children.

She wanted to be clear that these are not exclusive options; on the contrary they will be giving our children the best chance of success when all three of these options are implemented. Even in the long term they cannot assume that they will receive more funding for schools and that means they must do better with the money they have, and that means reducing inefficiencies in the system. One of the biggest inefficiencies in our system is having to teach many children the same content twice because they fail. Generally, failure rates are highest in the poorest schools which make it even more imperative that we urgently find ways to improve successful throughput in these schools. There is one more option for parents if they have a little bit of money and that is to take their children out of underperforming schools and put them in low fee independent schools. There are some low fee independent schools that are subsidised by the WCED as provided for in Subsection 4 of section 29 of the Constitution.

There are risks with this model. The first is that it encourages the flight of slightly better off families out of the public-school systems and these families may end up spending more of their household income on schools that may not be any better than government schools, thus reducing their ability to save and grow wealth. More directly, it reinforces the notion that government schools are for children who cannot afford to go anywhere else, and that will ultimately damage the reputation of public schools and result in more good teachers leaving government schools. The second risk is that the subsidy-based model reduces the security of tenure of teachers. They have sort to address this risk in the collaboration schools’ model by ensuring the same funding for post provisioning in collaboration schools as we would in any other public school. The third risk is one already experienced in KwaZulu-Natal, which is that state subsidies to independent schools come under pressure when Education Departments experience a cash crunch. While the WCED manages this risk well it should be recognised that the collaboration schools’ model is deliberately designed to obviate this risk as these schools remain part of the government system. She emphasised that they are not handing over public schools to private players, they are trying to create sustainable partnerships within the ambit of public schools. If they reject the model of collaboration schools they are effectively saying that there is no room for true partnership in which the parties concerned are mutually accountable, and that all they want from investors and other partners is their money. However, that is not the basis for sustained long term partnership in which every partner remains invested. It would imply that the only strategy at their disposal is incremental improvement in the quality of education, using their own resources and fickle short-term funding provided by third parties who want to do good but have no obligation to stay the course. They want people to be invested in every sense of the word and they are dealing with people who really put their money where their mouths are. Between all the different partners and additional R 150 million has been invested into the public system through this project to date. If they choose to walk away from true partnership then it behoves every Member of this Committee to go to schools in Bonteheuwel, Kuils River, Worcester and Langa and to tell the parents that their children will not benefit the enhanced funding and better school performance that collaboration schools will bring despite the fact that they all unanimously voted for the partnership. In effect they will be saying to parents that we do not believe that they know what is best for their children even though deficiencies in the schools their children attend are staring both them and all of us in the face.

In the bundle to be handed out she would show the Committee just in the last two years the improvement in learner outcomes already in these schools and it is quite substantial. The Committee can look at it at their leisure. One school actually went down quite badly and although it is a worry it is understandable because there was a huge fire in Hout Bay last year which affected many people and there were some other issues there. One school in particular, Langa High School, where they have had decreasing Matric results every year went up by about 15% last year at the end of the year even though there were a few issues with that operating partner. The community really is starting to see the benefits.

She understood that there have been a number of submissions to the Committee from Jakes Gerwel Technical High School, some of which were also sent to the WCED for their information. This is another school that has been run on the collaboration school model but it is essentially a hybrid because they also raised much of the money to build the school themselves and effectively donated a huge piece of beautiful farmland to do it. They are not part of the original funded group but people in the community had seized the opportunity provide by this new model. She cannot believe that anyone who reads these submissions would want to stop this Bill from proceeding. They also included information in the pack regarding this school as well as some pictures of the building. The passion and commitment of the people who conceptualised this school has resulted in a beautiful new school focusing on enabling the learners to get skills and real opportunities from when they leave school. It is being better managed and governed as a result of this model which is bringing in new funding as well as expertise that did not exist before and it is changing our whole community for the better. It is healing racial divisions and it is even reportedly bringing more people to Bonnievale thus improving the economy.

In addition to these statistics regarding academic outcomes, she also had reports from the officials in her Department about how this model is changing cultures in communities. For example, a few weeks ago in an area where they traditionally have low parental involvement there were 600 parents at a meeting at 08:30am on a Saturday. This is really unheard of in that area. The issue is that save for the exception in the Bill where the Provincial Minister can declare a school a collaboration school, no existing school can be forced to become a collaboration school. It is the choice of parents. In the two schools where they have had the most resistance and scepticism they both voted overwhelmingly to continue with this model after one year of operation. In the provision it allows for the Provincial Minister to declare a school a collaboration school after considering certain factors, she has seen an objection to the possibility that they may use School evaluation reports and school evaluation authorities to convert schools into collaboration schools, so what? If a school has been performing really badly for a long time, as has been the case in at least one of our collaboration schools, why should they not use a report to make a difference in improved education in that school. In the school she has mentioned there have been physical and academic improvements after becoming a collaboration school even after such a short time. So, what is the objection that they actually want to improve education? This model is creating opportunities for people who do not have them and is assisting us in the face of diminishing staffing. It is enabling additional resources such as social workers which are so desperately needed in many of our communities to be employed there. They also have safeguards in place, written agreements with the funders and operating partners. It is beyond her comprehension why anyone would want to prevent this from continuing. The Schools Act does not provide that no other types of schools may coexist in the South African system. People seem to think that it is a major news item that conflicts with the Schools Act. It is allowed to conflict with the Schools Act as the Constitution allows for it to do so.

The educators are protected by the Labour Relations Act. They know when they apply for the position what they are agreeing to. There is nothing preventing them from joining unions, so why are the unions opposing this? They believe in the freedom of choice and if teachers are prepared to work under this regime there is no reason to her mind why they should be forced to work under a system that the unions of a particular sector wish them to. They already have School governing Board (SGD) posts in the system anyhow at many of their schools. The only difference is that in this model a new collaboration school will have all SGD posts which make it easier for them to be managed at a more localised level. Performance management is the key to accountability and government has accountability as one of our core values.

As far as the school evaluating authority is concerned, Ms Schafer had a detailed report from her team in the Department which is in the bundle compiled by their team and led by Mr Salie Abrahams, Chief Director for Business Intelligence Management, in the WCED. It sets out what they are doing in their transforming school accountability project. They have had very little objection from teachers to this new way of doing things. In fact, she has reports that they find it very helpful. The report they are submitting sets out the immense amount of work that has been done already in anticipation of and in preparation for this Bill being passed, and the very positive outcomes they have already achieved. This is designed to improve the system, it is not to target teachers as some people are alleging. It is to help teachers teach better so that learners can learn better, but it is not confined to teachers either. They will also through an evaluation pick up other things that may be problematic, including the performance of departmental staff.  The primary focus is developmental and to improve transparency and accountability in schools and in the system as a whole. They have also found some places where teaching and learning is not taking place and the only reason they found this out is because of this new system. In one school she is aware of they knew the evaluation was happening and was going to be done at a particular time and they still were not prepared, despite knowing, and showed no concern about it either. If that is what they have achieved through the school evaluation authority she makes no apologies about that whatsoever. Nobody who is willing to work and improve themselves in their school needs to fear this model and she is very encouraged by the reception they have had in schools where they have piloted this project. She is even more encouraged by the fact that another province is showing interest based on what they have seen and heard about their pilot. This could change the education landscape in South Africa. This is not a constitutional body or a Chapter 9 institution and it does not require the same level of independence. The current system of whole school evaluation which nobody seems to have a problem with at all has no independence whatsoever.

Ms Schafer said on the intervention facilities; intention of these facilities is that people will be given additional therapeutic assistance while still receiving an education on a temporary basis, and with the agreement of their parents, at a facility which is removed from the surroundings which may be contributing to their problematic behaviour. They are hoping this will provide for the learner to be reintegrated into their schools after receiving this assistance which will hopefully decrease the dropout rate which is one of our main objectives. It is intended to be a short-term intervention to assist people to remain in schools.  

Ms Schafer said she is really dismayed by the opportunistic misrepresentation of these provisions. It is common knowledge that many schools across the country have events at schools where alcohol is served to adults or wine is sold at wine auctions for example. She takes the point that they should not legalise something just because it is happening already and she agrees that they should not do so for that reason. But they also need to be realistic and sensible. Some adults like to drink alcohol at events and if a school wishes to allow this subject to strict conditions that protect learners, why should they not? The current law purports to prohibit alcohol at any school activity which even includes adults off school premises. The Bill makes selling and consuming alcohol on school premises illegal unless permission is sought from the HOD the SGB or principal for a staff function. The SGB is an elected body that is responsible for the governance of schools. They need to take that responsibility seriously and not apply for this permission if their community does not want it or if they feel there will be negative social consequences. It does not mean the choice should be taken away from other schools who wish to do so. They completely agree with the principle of not allowing shops or pubs selling alcohol at businesses every day of the week located near schools. She has recently refused permission for a club to share premises with school property, specifically for the reason that alcohol is sold there at a time over which they have no control at all. The distortions that have been created and perpetuated by Members of this Committee are extremely concerning to her. She believes there has also been a written submission to this Committee from about 80 schools supporting this provision. So, there is widespread support for what they are actually doing. What really gets to her is hypocrisy. One of the biggest noise makers and purported opponents on this issue is the ANC. In the bundle she would hand out the Committee will see an advertisement by the ANC for a fundraiser taking place at a high school in Stellenbosch and at the end it says bring your own XYZ. These people are opposing the alcohol provision in the Bill and we all know what that means and it cannot only mean non-alcoholic beverages. So, to come now and take a moral stand is disingenuous.

Ms Schafer addressed the issue of her refusing to go to public hearings, and she cannot speak on the Premier’s behalf, what she can say is having been in the National Assembly and now here she has never seen an executive authority attending public hearings of a legislative committee. It is unheard of in her opinion, and she stands corrected. She is not here to grand stand but to make a real difference in education and we are making a difference in education. She thanked the Committee for the opportunity.

Ms Amanda Torr’s response to the legal opinion made by Adv Andre Le Roux to the Committee
Ms Amanda Torr, Legal Advisor, Office of the Premier, responded to the legal opinion given to the Committee by Adv Le Roux.

Ms Torr said Adv Le Roux raises three issues of concern in the Bill. The collaboration schools and the donor funded schools, the alcohol provision and the intervention facilities.

Ms Torr said on alcohol and collaboration schools provision the conclusion reached is that there is a conflict with National Legislation with regard to the schools and particular the South African Schools Act (SASA) relating to the composition of the school governing bodies and section 23 of SASA. Similarly, Adv Le Roux concludes that there is conflict in effect with the alcohol provisions and in particular the regulation made at National level which prohibits alcohol at school premises and school activities. Having reached the conclusion that there is a conflict, the opinion does not express a view as to how section 146 of the Constitution will be applied. Section 146 of the Constitution applies that in the event that conflict in areas of concurrent competence Provincial legislation prevails unless any of the conditions in 146(2) and 146(3) are met. The conclusion reached is that a view will not be expressed because Adv Le Roux is not aware of the view of the National Department of Education, he does not have information on how the Department views the position, and from a reading of section 146(6) of the constitution such a debate may in any event be academic. Section 146(6) of the constitution provides as follows: a law made in terms of an Act of Parliament or a Provincial Act can prevail only if that law has been approved by the National Council of Provinces. Adv Le Roux concludes that that provision must be interpreted to mean that a provincial Act, in other words a primary legislation, must itself be approved by the NCOP before it can prevail over a National Law. This is incorrect in her opinion, and this is both clear from the wording of section 146(6) of the Constitution as well as the provisions of section 146 as a whole, and it is also the view taken in at least one academic commentary which is authoritative in this case and in the absence of any case law. The reason why, in her opinion, it is quite clear that section 146(6) of the Constitution does not require a Provincial Act to be approved by the NCOP is on its clear wording it states, “a law made in terms of an Act of Parliament or a Provincial Act” meaning the law made in terms of either the National Act or in terms of the Provincial Act meaning subordinate legislation which is most commonly regulations. This is clear from the context of the provision as a whole that the other provisions referred to Provincial Legislation when they speak of the conflict. It is commonly known that legislation refers to both Acts, primary legislation as well as subordinate legislation, most commonly regulations. This has been confirmed in numerous cases. Bronstein further states in Constitutional Law of South Africa as follows,” the general rule is that subordinate legislation validly made in terms of empowering legislation, it becomes part of that legislation for the purposes of section 146.

Ms Torr said on the issue of the consultation with the National Department of Education, the Department is required to consult with DBE and has done so. In this regard the Bill was initially advertised by the Department, comments were submitted late by the DBE but they were carefully considered and changes were made to the Bill following those comments. The Bill was subsequently finalised and introduced into Parliament, however requests were received from the National Department for further consultation and they essentially agreed to retrieve the Bill. Meetings were held between the National Minister and the Provincial Minister as well as between the legal teams. Flowing from those consultations further amendments were made to the Bill and in particular the alcohol and the collaboration schools’ provisions. It should be emphasised that agreement is not the legal requirement, consultation is the legal requirement otherwise it would strip the provinces of their legislative competency.

Ms Torr said it is a measure on the part of the Provincial Government to specifically target woefully under-resourced schools, to invest added resources into those schools, to target schools in accordance with its beneficiary criteria but subject to the voluntary cooperation of the schools to participate in such a programme and ultimately to seek to improve the quality of education to schools that are in dire need of such far reaching, specifically targeted intervention measures.

The provisions of the proposed section 12(c) holds, “If the governing body of a collaboration school shall comprise 50% of representatives of the operating partner with voting rights and 50% of other members of the governing body with the proviso that the Provincial Minister may on good cause shown that the collaboration schools shall comprise more than 50% of the other members of the governing body. In the event of an equality of votes it is provided that the matter must be decided in a general meeting of parents.” Importantly, this provision does not provide for an operating partner to decide the matter on its own without reference to other members of the governing body. It is noted that this provision, in other words providing for the default provision to be 50/50 between the operating partner and the other member of the governing body was included pursuant to the comments of the National Department of Education.

Ms Torr said provision is made for the transfer payments from the WCED to the collaboration schools for the employment of educators in accordance with the terms and conditions of employment determined by the governing body. It is important to emphasise that an existing public school cannot be forced to become a collaboration school. The proposed section 12(c) provides that the Provincial Minister may only make that declaration once the agreement envisaged in 12c (2) has been concluded. The Minister is also required to apply her mind to the criteria in the proposed subsection 1. These criteria are clear and ascertainable and they provide that the Minister may only make that declaration in the best interests of education after considering all relevant reports. The other critical aspect to emphasise is that there is provision for public comments before a school is converted into a collaboration school and this includes members of the community, parents and anybody else. These are sufficient safeguards.

Ms Torr said SASA does not exhaustively cover the field of education. Section 12 recognises three categories of public schools, these are; ordinary public schools, public schools for learners with special education needs, and public schools that provide education with a specialised focus on talents including sports, performing arts or creative arts. SASA envisages two separate models for the membership of governing bodies, in other words in effect of ordinary public schools the provisions provide for the parent majority but in the sector of public schools for learners with special needs this is not a requirement. So SASA itself recognises that there are circumstances in which a parent majority is not necessarily required. SASA does not place any express impediment or constraint on a provincial government establishing or maintaining a type of public school that does not fall within one of the categories mentioned in SASA. So far as the preamble does refer to norms and standards regarding education, that in itself cannot be interpreted as enough to strip a province of its legislative competence. Their argument is in fact that there is no conflict when SASA is viewed in that manner. These schools integrate into the existing system in a complementary manner as an additional type of school. It is not necessary for the Committee to make a call on whether there is a call or not, our view is that it is an additional type of school and an add on to the existing system, and it integrates in a complementary manner. Even if a conflict does arise, none of the provisions of section 146(2) a- c or 146(3) of the Constitution apply. In the event of a conflict between National and Provincial legislation, section 149 makes it clear that legislation which does not prevail is not in any way unlawful or unconstitutional and it is only on the decision of a Court. The allegations that it is simply unconstitutional by reason of a conflict are not correct.

In terms of the Section 146 analysis, there is limited case law as to how exactly how a Court would interpret these provisions. The constitutional case of the Federation of Governing Bodies for South Africa vs MEC Education for Gauteng the court said:

“The foremost contention of the applicant is that provincial legislation that conflicts with national legislation is unconstitutional and is required to be struck out.  The applicant adds that the Regulations and particularly regulation 5 read with regulation 8 have caused a conflict between national and provincial legislation.

I think not.  This contention ignores the provisions of the Constitution and the Schools Act.  Education is a functional area of concurrent national and provincial legislative competence.[24]  Parliament may legislate on education and a province too.[25]  In turn, the Premier and MECs in a province exercise authority by implementing provincial legislation.[26]  The legislative competence of a province cannot be snuffed out by national legislation without more.  The Constitution anticipates the possibility of overlapping and conflicting national and provincial legislation on concurrent provincial and national legislative competences”.

 

Looking at the more exact provisions of 146(2) and 146(3), it is clear that none of the conditions in 146(2)c 1,2,3,4 or 146(3) can be said to apply. These provisions deal very specifically with for example; the maintenance of national security, economic unity, the protection of the common market in respect of the mobility goods and services, capital and labour, the promotion of economic activities across provincial boundaries and the protection of the environment, and provides the national legislation prevails over provincial legislation if the national legislation is aimed at preventing unreasonable action by a Province that is prejudicial to economic health of security interests of another Province or the country as a whole, or impedes the implementation of National economic policy. None of these provisions can seem to apply. It is also the provisions which deal with, the National legislation deals with the matters which cannot be regulated effectively by legislation enacted by the respected Provinces individually, and the National legislation deals with a matter dealt effectively requires uniformity across the Nation and the National legislation provides that uniformity by establishing norms and standards, frameworks and national policy to those provisions. Further, c (5) provides National legislation prevails if it is necessary for the promotion of equal opportunity or equal access to government services. However, these provisions cannot be interpreted to require exact equality as this would totally defeat the purpose of the Constitution conferring legislative competence on Provinces in respect of education. This was confirmed by the Constitutional Court in the Mashaba judgement where it was held as follows;” It is inherent in our Constitutional system, which is a balance between centralised government and federalism, that on matters in respect of which the Provinces have legislative powers they can legislate separately and differently.” That will necessarily mean that there is no uniformity. Furthermore, there is academic commentary which also confirms that exact equality is not required. This in fact does promote substantive equality as it can be more effectively be achieved by allowing provinces to legislate. Similarly, the same argument would apply to donor funded schools. In respect to both of those provisions it is not necessary to come to any kind of exact conclusion. Their opinion is that there is no conflict and that is the correct interpretation. If that not true, there is absolutely no consideration which would mean that National legislation should prevail. This is a matter of education policy and it does not deal with matters requiring uniformity across the nation.

Ms Torr said the alcohol provision is a rational provision which provides for an exception to the general prohibition. It is narrowly circumscribed and the Minister needs to take account of the alcohol harms policy of the Western Cape. Safeguards are in place to prevent abuse. The approval can be withdrawn on an urgent basis and in addition the HOD must make guidelines regarding the presence of learners. This was an issue which was added after consultation with DBE as well. Another change made following that consultation was made clear in the Bill. It is an exception which can coexist with the prohibition. The application of 146(6) of the Constitution as the law currently stands, will effectively mean that if enacted the Provincial Bill would prevail. The prohibitions are not criminalised in the regulations, this Bill specifically makes provision for any contravention.

Ms Torr said on the intervention facilities, Adv Le Roux’s opinion concludes that, “The provisions in the Bill in this regard constitutes an unlawful delegation of the plenary law-making power. In essence, that these provisions do not give sufficient detail to what exactly these institutions are.”  The context of the Bill as a whole is very important in construing exactly what is required in terms of the Minister in making regulations in terms of the Bill. In addition, the constraints and the context of the primary legislation, the Constitutional Court also emphasised the scope and discretion and powers may vary and at times they will be broad particularly where the factors relevant to the decision are so numerous and varied that it is inappropriate or impossible for legislature to identify them in advance. Discretionary powers may also be broadly formulated when the fact is relevant to the exercise of the discretionary power are indisputably clear. It appears that the main complaint regarding the impermissible delegation of plenary law-making power relates to the model of youth care used in intervention facilities as well as where the intervention facilities will provide residential care, as well as what type of education children in intervention facilities will have access to. With regard to the therapeutic programmes and intervention strategies, it cannot be any clearer than that. What exactly those programmes and strategies are going to be are numerous and varied. The Bill cannot set out detail exactly what they are going to be. With regard to the education that must be provided to the learner while at an intervention facility it is clear that this must be at least be to the standard that the learner would have received which they attended. The exact manner in which this education must be provided pertains to the execution and not the substance of the Bill.

The Whole School Evaluation Policy at National Level and the 2003 collective agreements regulates evaluation. Section 8 of the National Education Policy Act (NEPA), with regard to whole school evaluation, provides that the Department shall undertake the monitoring and evaluation contemplated in subsection 1, the analysis of data gathered by means of education management, information systems or other suitable means in cooperation with Provincial Department of Education. The National Department must undertake its functions in this regard by means of analysing data gathered by various suitable means, and importantly these means are not necessarily limited provisions set out in the whole schools’ evaluation policy, and furthermore the National Department’s functions must expressly be undertaken in cooperation with the WCED. Insofar as there are differences in approach it is clear that this is permissible as policy cannot be rigidly binding and that has been emphasised in numerous court cases. Policy cannot have the effect of law and it cannot bind decision makers rigidly.

Insofar as the collective agreement may deal with whole school evaluation, this agreement does not have the status of subordinate legislative and it cannot strip the Province of its powers to legislate in an area where it has competence.  Insofar as the collective agreement purports to deal with matters of education policy it strays beyond legitimate labour issues and this is not a legitimate issue for collective bargaining. Differences in approach are permissible.  

Discussion

The Chairperson thanked Ms Torr for the presentation

Ms Schafer said she wanted to correct one detail in the presentation. It was not the Minister or DBE’s proposal that it would be 50/50 but they changed it from a majority to 50/50 after hearing their concerns regarding a non-majority of parents. They thought it fair to have a 50/50 composition.

The Chairperson asked if Adv Le Roux wanted to make an input.

Adv Le Roux said he did not have the benefit of receiving the opinion in advance. He had noted quite a few issues, some he would probably agree with and some he will probably not agree with. But not having an opportunity to apply himself to it he thinks he would rather revert to the Committee. Given the time constraints he was not sure he would have the opportunity to comprehensively go through his opinion. Otherwise it can be done at another time.

The Chairperson said she will take guidance from Members of the Committee. She is cognisant of the fact that 40 minutes were lost with the earlier deliberations.

Mr Mitchell proposed that the briefing by Adv Le Roux be postponed to another meeting.

Mr Mackenzie thanked the MEC and the WCED for their input.  He asked that Ms Torr be present when Adv Le Roux presents his opinion to the Committee.

Mr F Christians (ACDP) agreed with Mr Mackenzie. It is only fair that the Committee gets the opinion in advance and Adv Le Roux has had a chance to go through the opinion of Ms Torr. He would like Adv le Roux to respond first and to have the WCED here when the Committee deliberates the final Bill.

The Chairperson asked if Mr Christians agreed with Mr Mitchell and Mr Mackenzie that the Committee’s questions on the legal opinion of the WCED are posed to the WCED before the response of Adv Le Roux.

Mr Christians said the Committee did not have sight of the legal opinion of the WCED. It would be unfair to pose questions when he did not have clarification on the two different legal opinions. He asked for clarification on the legal opinions before engaging with the legal opinions.   

The Chairperson said they called this meeting to have the MEC and the WCED to do the presentations so that that the Committee could ask the questions that it has.

Mr Christians said that they have had the MEC speak and the legal opinion. He asked for clarification on the legal opinion received by the Committee. He did not know there would be a legal opinion from the WCED that would so comprehensively differ from Adv Le Roux’s opinion. The Committee is sitting with two legal opinions and he ids not know what to ask the WCED.

Ms Schafer said they had only just finished their legal opinion today. She felt it was important given that the confidential privileged legal opinion which was done for this Committee found its way into the media to give their side of the story and their understanding of the law. She did not think there would be any clarity since they did not agree on the matter. They are pushing on the boundaries on the Constitution like no other Province has done. They are a different political party in control of the Province compared to the rest of the country. She is confident their legal opinion will prevail in terms of the Constitution which provides very specifically that Provinces are allowed to make legislation that is different to National legislation. They are allowed to be different and the Constitution allows that will prevail unless those other conditions are complied with. There will be no agreement but Ms Torr will make herself available if the Committee has other questions.

The Chairperson asked the Committee to pose those question Members of the Committee had over the public hearing period. The questions derived from the legal opinions would be pursued at another time.

Mr Christians said he only missed one public hearing and he is unsure of some of the questions that will be asked. He was more comfortable with having Adv Le Roux brief the Committee before responding. Adv Le Roux is the legal advisor for this institution and Mr Christians will trust when Adv Le Roux briefs the Committee.

Mr Mackenzie said he would send his questions in writing. He asked for the legal advisors from the WCED to be present when Adv Le Roux briefs the Committee.

Adv Le Roux said that he would not want to take a position that there is no possibility of his legal views getting closer to the WCED’s or otherwise. It often happens that legal professionals share ideas on case law and have a conversation.  He does not think that the two legal opinions differed that much. As a point of departure, they are on the same page as far as concurrency and the principal that ordinarily that Provincial legislation would prevail is concerned. The proposal is that they make a good faith attempt to see if they can learn anything from the two legal opinions.

Mr Mackenzie said he was of the view that in future the WCED puts Adv Le Roux’s last point in their brief as well because in point 20 they say that “I am of the view that the conflicts cannot be resolved by reasonable interpretation.”

Mr Mitchell asked for clarification on the NCOP rules and the legislative process of this Bill. It is a fundamental legislative issue that the Committee has an obligation to make known.

Mr Torr said that Section 146(6) of the Constitution is a very strange provision in a sense and it has never been applied and no one has ever referred regulations to the NCOP for approval. As far as she is aware the NCOP rules do not make any provision for it. It is only National Legislation that goes through the NCOP process if it is tagged as a section 76 Bill. On a strict interpretation an Act does not need to go through the NCOP but regulations do have to.

Mr Mitchell asked if this Bill becomes an Act will the regulations in the Bill go to the NCOP.

Ms Torr said that she was not aware.

Adv Le Roux confirmed with confidence that Section 146(6) of the Constitution has never been applied by National Government or Provincial Governments. Although it has never been used he said he can imagine it serves an important purpose which is to ultimately decide what laws should or should not be applied to citizens.

The Chairperson thanked the WCED and MEC for their presentations. The WCED will send the Committee a written summary of the experiences on the school evaluation authority.

The Chairperson thanked members of the public for their indulgence and their time.

The meeting was adjourned.

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