ECD Migration & BELA Bill: update by Ministry

Basic Education

20 October 2020
Chairperson: Ms B Mbinqo-Gigaba (ANC)
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Meeting Summary

The Minister applauded the Department of Basic Education (DBE) for its significant progress in the ECD migration from the Department of Social Development (DSD) plus the Basic Education Laws Amendment (BELA) Bill in spite of delays due to the COVID-19 lockdown.

DBE aims to have the ECD migration policy shift by April 2021 and the programme shift by April 2022. The DBE Diagnostic Report, considering all resources connected to ECD, has been validated and is in the process of finalisation for release.

DBE provided its response to key pertinent public comments on the BELA Draft Bill. It is now being consulted in Nedlac and the Nedlac report is awaited on points of disagreement which include: Clause 4: Admission to public schools; Clause 7: Code of conduct; Clause 8: Random search and seizure and drug testing; Clause 13: Merger of schools; Clause 22: Withdrawal of functions of the governing body; Clause 37- Dispute resolution; Clause 39: Regulations. After Nedlac, the Bill will need a Socio Economic Impact Assessment System (SEIAS) report. The Bill will be passed to the Heads of Education Departments Committee (HEDCOM), the Council of Education Ministers (CEM), Forum of South African Directors-General (FOSAD) and then to the Social Cluster Cabinet Committee. After which it will be sent to Cabinet for approval before being tabled in Parliament.

Members were concerned about the DBE's administration capacity for ECD, funding for social workers, ECD centre attendance rates impacted by COVID-19, registration of ECD centres and training for unqualified ECD practitioners, budget for migration of ECD practitioners from a stipend to a salary; data on number of unregistered ECD centres; and inaccessibility to ECD centres in rural areas.

On the BELA Bill, Members asked questions about home visits, exclusion from schools based on geographic range, school restrictions and exclusion based on African cultural practices, provision for disasters such as COVID-19; if the wording of clause 37 could be used to stifle legitimate protest; and the regulatory powers of the Minister

The Committee welcomed the suggested DBE workshop on the BELA Bill and ECD migration.

Meeting report

Minister’s overview
Minister of Basic Education, Angie Motshekga, said that the process of getting the BELA Bill finalised for submission to Parliament had been a long one. DBE will shortly be submitting the Bill to Cabinet for approval before introduction to Parliament for consideration. Stakeholders were consulted on important aspects that could have derailed the BELA Bill process. Prior consultation with the National Economic Development and Labour Council (NEDLAC) established that it was satisfied for the Bill to go to Parliament. The Bill has received public commentary which has been addressed by the Department.

Minister Motshekga reported good progress on the ECD migration which is at the stage of receiving input from both Directors-General. The Department is working closely with the Minister of Social Development, Lindiwe Zulu, during this process. Initially migration was hindered by the lockdown period, but after moving to Lockdown Level 1, it has regained its momentum.

ECD function shift from DSD to DBE: update
Dr Janeli Kotze, DBE Researcher, provided an update on progress made during the lockdown period. She said ECD is critical in preparing a child to thrive in primary and secondary schools. The Department recognises ECD as a strategic international and national focus. The national integrated ECD policy which provides the overarching multi-sectoral enabling framework, defines comprehensive ECD service packages, relevant role players and national ECD leadership. These roles will be fulfilled by parents, governmental departments and civil society. From 2002 to 2018 access to Grade R has increased dramatically. DBE aims to reach a point of universal access for Grade R for four and five year old children for learning opportunities. As of 2018, five year olds have near universal access to Grade R. The Department plans to increase access to Early Learning Programmes (ELP) over the next 10 years. Participation in ELP of children aged 0-6 dropped significantly by mid-August 2020 due to COVID-19.

The Government Technical Advisory Centre (GTAC) has been appointed to guide DBE and DSD through the function shift process. DBE has established several governance structures, such as the Inter-Departmental Steering Committee, Inter-Departmental Project Management Team and inter-departmental technical teams from DSD and DBE departments, to guide and coordinate the function transfer. These inter-departmental technical teams have been established and meet regularly to discuss criteria and contents of the transfer:
- Human resource management & labour relations;
- Finance and budgets;
- Movable and immovable assets;
- Data, information, monitoring & evaluation;
- Legislation, Policies, Contracts & Claims;
- Stakeholder Management & Communication.

DBE aims to have a policy shift by April 2021 and a programme shift by April 2022. The DBE Diagnostic Report, considering all resources connected to ECD through the six streams, has been validated and is in the process of finalisation for release. The 2019 proclamations were reviewed and revised, before DSD and DBE reached concurrence on the scope of the function shift. The final proclamations were sent to the provinces and Office of the Chief State Law Adviser (OCSLA), which were returned on 16 October 2020.

Basic Education Laws Amendment (BELA) Bill: update
Adv Shahili Misser, DBE Chief Director: Legal and Legislative Services, gave a progress report on the BELA Draft Bill since its publication for public comment in October 2017. The Draft Bill received over 5000 written submissions from stakeholders and the general public which resulted in amendments to it. Stakeholders included provincial education departments, Heads of Education Departments Committee (HEDCOM), the Council of Education Ministers (CEM), school governing bodies (SGB), teacher unions, home educators and all national departments in extensive collaborative meetings with specialists in the various fields.

Adv Misser presented a summary of the key pertinent comments made by stakeholders. It is currently in a consultative process with NEDLAC. A report will be generated to outline areas of agreement and disagreement between DBE and NEDLAC. This NEDLAC report is still awaited. The clauses that NEDLAC disagree on are:
Clause 4: Admission to public schools
Clause 7: Code of conduct
Clause 8: Random search and seizure and drug testing
Clause 13: Merger of schools
Clause 22: Withdrawal of functions of the governing body
Clause 37- Dispute resolution
Clause 39: Regulations

After the NEDLAC process is exhausted, the Bill will be sent to the Department of Planning, Monitoring and Evaluation (DPME) to obtain a socio-economic impact assessment system (SEIAS) report and to OCSLA for the pre-certification opinion. Later the Bill will be passed to HEDCOM, CEM, Forum of South African Directors-General (FOSAD) and then to the Social Cluster Cabinet Committee. After which it will be sent to Cabinet.

DBE Director-General, Mr Mathanzima Mweli, suggested that a Committee workshop be held to go into greater detail of both presentations.

Ms M Sukers (ACDP) noted that DBE is opposed to the disruption of schooling although she feared the sweeping wording of clause 37 could be used to stifle legitimate protest. She asked if there were existing common law or statutory law crimes that anyone who disrupts schooling can be charged with? What has the Department of Justice and Constitutional Development (DOJ&CD) said about this new crime that has been created? Will the Bill provide adequate protection for when a public school should be closed? The Bill has failed to provide protection of learners where independent schools are concerned. The best interests of the learner is paramount to DBE. Provincial Education Departments should prioritise keeping schools open and a fair process followed if a school is closed. Is DBE investigating this? DBE argued that home visits are in the best interests of the child, however the Bill of Rights requires DBE to investigate what less restrictive measures exist to achieve its legitimate ends? Has the Chief Directorate of Legal Services considered this? She suggested that DBE limit the unfettered regulatory power of the Minister.

She questioned the total number of ECD centres in the country. Has a socio-economic impact assessment been done on the proposed migration? If not, why not? If so, could the impact assessment be distributed to the Committee. DBE contended that home education programmes do not need to include comprehensive sexuality education (CSE). Is this still the intention under the BELA Bill? The Bill expands compulsory schooling to include Grade R. The President indicated in the February 2019 State of the Nation Address (SONA) that two years of compulsory schooling will be introduced before entering Grade 1. Over time the legislation will have to be amended to include Grade RR as part of compulsory schooling. Has DBE considered this?

Ms Sukers said the Children’s Amendment Bill, tabled before the Portfolio Committee of Social Development, covers a wide range of amendments including amendments on Partial Care Facilities and ECD. Has DBE considered these amendments in light of the imminent migration? What will DBE do to address longstanding advocacy concerns about the Bill? The Bill does not make mention of the effects of the proposed migration. What will happen when DBE inherits the ECD responsibility and identifies additional areas for legislative reform? Will a new legislative amendment process be initiated? Is this practical given the current amendments that will likely take years to pass into law?

Ms N Tarabella-Marchesi (DA) appreciated the progress made by DBE on the migration. She expressed concern about the reduced number of learners attending ECD centres. Has personal protective equipment (PPE) been provided in these centres to encourage learner attendance to increase? Is DSD or DBE responsible for providing PPE to ECD centres? Are private ECD centres provided with PPE?

DBE has had a longstanding problem of insufficient social workers incorporated into DBE to work in conjunction with teachers. Would it be possible to have social workers in schools before ECD is formally incorporated into DBE? Social workers should be included in the system. Children in rural and farming areas have not had access to qualified ECD centres before attending primary school. What are the ECD opportunities for the children of farm workers? ECD practitioners have highlighted problems about their salaries. Is there a plan to get ECD practitioners receiving a salary rather than a stipend? Some practitioners are paid salaries, although this does not include equivalent benefits to that of teachers.

Why has Grade RR not been considered for compulsory schooling in terms of the Bill? Failure to include this demographic could mean failure to build the foundation and ensuring ECD goals are met. She upheld the Director-General’s motion for a workshop. She noted that the concerns of school governing bodies (SGB) have been dismissed. Rural areas and townships have not been able to meet the standards for a functional SGB. The BELA Bill places great importance on SGBs in primary schools, but no practical interventions have been put in place to motivate rural SGB groups. The SGB should have requirements in the Bill to indicate necessary constructive interventions for it to complete its function and responsibilities. She advised that the SGB be given a stipend to motivate it to perform its function optimally. DBE should aim to revise the formula annually to create a budget for provinces that considers inflation and travel expenditure. Has the BELA Bill considered if another disaster such as COVID-19 were to occur? When is the Bill going to be tabled in Parliament?

Ms N Shabalala (ANC) appreciated both briefings. More time to deliberate on matters was needed.

Mr E Siwela (ANC) supported the motion for a workshop to discuss the BELA Bill. ECD migration has created great expectations among ECD practitioners that the migration process will bring relief to their financial grievances. Practitioners should be paid a salary by DBE instead of a DSD stipend, subject to detailed requirements. Many ECD centres are not registered with the DSD. DBE will have to review ECD centres so as not to leave unregistered centres behind during the migration. What would happen if a parent or guardian failed to ensure that their child attend ECD as required by law?

Ms Adoons agreed to the workshop as suggested by the Director-General. She asked DBE to improve on several items in preparation for the upcoming workshop. It is important to capture data on how many ECD centres are in the country. How many ECD practitioners at unregistered centres are qualified? She requested a progress report on how ECD practitioner training has been developing. The pandemic has illustrated DBE's speedy response in collaborating on issues affecting the country. Invitations to the workshop should be extended to Portfolio Committees on Justice, Social Development, Health and Police to build a single understanding of ECD aspirations. After losing time due to COVID-19, is it still possible for the ECD migration to be concluded by April 2021?

Ms N Mashabela (EFF) was concerned if the administrative capacity developed by DSD would be lost during the transition to DBE. Most of the ECD work by DSD includes the ability to administer thousands of ECD centres, ensure they are funded properly with social workers available to assist learners. Infants and children under five still require specialised care. In what way would DBE ensure that these functions are still provided in ECD centres? The amendments to the South African Schools Act (SASA) must include very strong provisions on admissions, particularly about limiting admission only to residents in the area. Most schools exclude learners that do not live within a particular geographical range. This should not be determined by schools and SGBs alone. No school should refuse admission merely on the basis that the learner stays far from the school. The clause in the BELA Bill should be strengthened on having African cultures respected in schools and to prevent learners from school exclusion due to practicing their beliefs. Schools must be centres of diversity and tolerance.

The Chairperson commended DBE for both presentations. She agreed that the workshop would be beneficial to this Committee and other relevant Portfolio Committees and should be arranged. In a previous Committee meeting, a concern arose about funds allocated per child for ECD. DSD provided R25 and DBE was intending to budget roughly R14. What is the updated status on this? Has an average amount been decided upon based on comments raised by the Committee in that meeting? Will there be a budget available for 0 - 4 year olds in the migration or is it limited to Grade R learners? Has a formal curriculum been arranged knowing 0 - 4 year old children are cared for in unaccredited ECD centres? Have the experienced, though unqualified, practitioners in unregistered centres been considered?

The Chairperson noted the Committee would need to publish the tabled BELA Bill for public participation. In the DBE consultations were there successful resolutions? Are there any fears that the Committee needs to be addressed on? Did DBE cater for people with specialised need in the consultations such as braille texts and sign language interpreters?

Deputy Minister response
Deputy Minister of Basic Education, Reginah Mhaule, welcomed the motion for a workshop to build an understanding of the BELA Bill. The finer details on the Bill will not be written in it, but rather it will be supported by manuals. The Bill will be amended as need be, though great concern must be had for creating amendments that might disturb the ECD migration process.

The departments forming part of ECD, including DSD, DOH, SAPS and Cooperative Governance and Traditional Affairs (COGTA) will be led by DBE. The migration will not change the stakeholders involved in ECD. All stakeholders will be involved in a collaborative process as they are now. DBE has started an audit of all ECD centres. In many provinces qualified ECD teachers for Grade R have been incorporated into the system, whereas the unqualified ones are still in the process of training. DBE is working towards aligning the qualification of ordinary practitioners of the 0-4 year olds. DBE has always been responsible for the ECD curriculum from Grade R upwards, even in DSD-run centres. DSD will remain responsible for the 0-4 year old cohort until the migration has been completed.

Director-General response
Mr Mweli said that home visits function to secure the best interests of the child as mandated by Section 29 of the Constitution and by SASA. The measures will be less restrictive to respect the privacy of parents while relentlessly ensuring that the interests of the child are paramount. The regulatory powers of the Minister will function to prevent affording too much authority to SGBs where they become a law unto themselves. There will be a careful balancing act at play between devolving responsibility to where matters are taking place in schools and giving Government power to exercise the authority of the State.

Grade R has become part of the compulsory school-going age to universalise the provision to allow Grade R to be included in primary schooling. He doubted that primary school-going age could be extended to 0-4 year olds during this migration. On PPE measures, it was required by direction of the DSD, excluding ages 1 – 2 years who are significantly less affected by COVID-19 and are subject to only basic hygiene protocols.

Social workers have been provided at district and provincial level as part of the Psychosocial Multidisciplinary Team servicing a cluster of schools for learners with special education needs. Learners and teachers in public schools received social workers as part of the Multidisciplinary Team as DBE does not have the resources to provide a social worker for each and every school.

Mr Mweli said that it was important DBE increase access to ECD centres, especially to children in rural and farming areas. DBE finalising the communications strategy will allow the Committee to manage expectations surrounding the migration process. Registered ECD centres that benefit under the DSD comprise 25% or fewer. This implies that the majority of learners are not in registered ECD centres receiving the services and benefits of working with a social worker.

Mr Mweli said that there are regulations and policies in DBE dictating recognition and salary remuneration of qualified teachers. Practitioners who do not meet the Relative Education Qualification Value (REQV) 13 requirements will not be remunerated salaries equivalent to that of teachers. For practitioners having experience without qualifications, recognition of prior learning could take place.

SASA imposes a penalty on parents who fail to comply with the compulsory school attendance regulations. On the requested data, various entities are being consulted to capture information on ECD centres and educators. The April 2021 timeframe for the conclusion of the ECD migration remains in force to provide a deadline on when planning processes are to cease and how.

The administrative capacity built by DSD over the years will be harnessed without being destroyed or overlooked. The Department should take a comprehensive review of education legislation to settle concerns about admissions and ECD schooling for children in rural areas. He agreed that schools should be centres of tolerance and diversity where students can practice their cultural beliefs without repercussions. Learners from age 0 - 4 years old are taught according to the National Curriculum Framework for Children from Birth to Four (NCF).

The Director General expressed satisfaction with the comprehensive consultation process with stakeholders. He agreed that the BELA Bill should be made more accessible to people with special needs, which can be done through using braille texts and sign language interpreters.

DBE responses
Ms Simone Geyer, DBE Deputy Director General: Planning and Monitoring, spoke about the audit and census to be conducted by DBE after migration. The function is held by DSD on a non-digitised system to register and display an accurate number of ECD centres. The 2014 audit indicated towards 1 900 centres in the country. However, the recent Vangasali campaign indicates far more unregistered centres. DBE has been working with DSD to set up a digitised system in support of DSD until the proclamation for DBE to take over after migration. DBE has systems in place to improve the current conditions and capacity based on how education is structured at a provincial and national level. DBE has set qualification standards for REQV qualified teachers. The Department of Higher Education and Training (DHET) has been consulted on how to translate the experiences and training of the practitioner group into a qualification or a diploma.

DBE intends to provide a basket of services to ECD centres that consists of a range of posts with proper conditions of service attached, clear job descriptions, roles and functions provided for in the centre. Practitioners employed on a stipend could receive appropriate remuneration and an indication of post descriptions such as care-givers, cleaners, cooks and specialised practitioners. The registration process under DSD is in the process of being simplified and aligned to the systems. The digitised system will allow ECD school administrators to upload information about the learner directly to the public school system. The nutrition programme will be extended to ECD centres in a smooth transition to provide nutrition services in the same way as is currently happening in schools.

Budgets and availability of funding were not mentioned in the presentation. DSD currently allocates R17 per learner as funding which could be further discussed in the workshop.

Dr Kotze, DBE researcher, responded to queries on the Children’s Amendment Bill. DBE is aware of DSD amendments to Chapter 5 and 6 of the Children's Act, which is under the jurisdiction of DBE. DBE is working closely with DSD to align the ECD proclamation and Children's Act amendment processes.

Adv Misser appreciated the valued role that public commentary played to ameliorate the BELA Bill. The Bill was drafted considering alignment with existing legislation and the Constitution. Drafting principles have been taken into account to ensure that the Bill creates legal certainty devoid of vagueness. The Bill does not infringe access of learners from realising their Section 27 constitutional rights. The Promotion of Administrative Justice Act (PAJA) is encapsulated in the Bill whereby notice is given on the right to make representations. The Bill also states that the existing programmes are transferred so as to protect the rights of learners in schools. Section 19 of SASA addresses the capacity building of governing bodies which is already enshrined in the Bill.

COVID-19 was not addressed in the Bill due to the extensive variations of directions that were published in the Government Gazette. The NEDLAC process was delayed due to COVID-19 which deferred the tabling of the Bill, which is still awaiting response from the Office of the Chief State Law Adviser. The Bill is also awaiting the Socio Economic Impact Assessment System (SEIAS) report from DPME; then to go through the Social Cluster Cabinet Committee and Forum of South African Directors-General (FOSAD). The Bill is hoped to be tabled in Cabinet in November or December 2020. The Department is examining the implications of the Children’s Amendment Bill on DBE.

Deputy Minister Mhaule thanked the Department although she felt a response to the concern about rural and urban SGBs was absent. After SGB elections occur, the SGB members undergo training through modules on financial management and governance. SGBs are trained to create policies that adhere to the Constitution. On the question about legislating on disasters such as COVID-19 in the BELA Bill, she replied that temporary circumstances cannot be entered into a permanent Act otherwise it will need amendments or removal. The Minister will address disasters separately in directives with the Minister of Cooperative Governance.

The Committee considered and adopted the 16 October 2020 minutes.

The meeting was adjourned.

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