Education Laws Amendment Bill: discussion

Meeting report

EDUCATION PORTFOLIO COMMITTEE AND EDUCATION SELECT COMMITTEE: JOINT MEETING
20 October 1999
EDUCATION LAWS AMENDMENT BILL: INFORMAL CONSIDERATION

Documents handed out
None

SUMMARY
The committees informally considered the Education Laws Amendment Bill [B44-99] in light of the public hearings on 19 October 1999. The committees went through the Bill clause by clause, presenting questions, concerns, proposals and party positions. Members of the Department of Education attended to answer questions and explain the Department's position on various issues.

MINUTES
Chairperson, Professor S.M. Mayatula (ANC), explained that the purpose of the meeting was to go through the Bill 44-99 informally, discussing all clauses, without making any final decisions.

Mr van den Heever (ANC) made a formal proposal of a motion of desirability. This motion was seconded. The Chairperson then began addressing each individual clause;

The Preamble of B44-99
There were no comments or questions. However, Advocate Gaum (NNP) pointed out that the committee might have to revisit the Preamble if significant changes were made to the bill.

Section 1 of B44-99
Advocate Boshoff, of the Department of Education proposed that the word "written" in sub paragraph (e) be replaced with the word "taken" to allow for the possibility that exams may be typed or taken orally. He also proposed that in subsection (i) the word "school" be replaced with the word "further education." The Department will draft the proposed new language.

Section 2 of B44-99
No comments

Section 3 of B44-99
No comments

Section 4 of B44-99
No comments

Section 5 of B44-99
Adv. Gaum (NNP) noted that this clause excludes college rectors and asked that the Department explain its reasoning. Adv. Boshoff explained that this bill is not relevant to higher education.

Section 6 of B44-99
Mr. van den Heever (ANC) noted that the definition of "educator" in this bill is not the same as in the Employment of Educators Act. For example, the latter includes professional therapy staff and educational psychological services in the definition, while Bill 44-99 does not. He wondered whether the two should be consistent and asked for clarification from the Department. Adv. Boshoff explained that it is not unusual to find different definitions of the same term in different acts, but added that the Department would have no problem with adding therapists and psychologists in the definition in this bill.

Adv. Boshoff also stated that the Department has a problem with the fact that the current definition of "educator" would allow a soccer coach whose only job was to coach soccer after school to be considered an educator for purposes of this bill. He proposed, therefore, adding to the end of the definition of "educator" the words "excluding a person who is exclusively appointed to perform extracurricular services." The committee was in agreement. The Department will draft the new language.

Section 7 of B44-99
Mr. van den Heever (ANC) asked the Department what motivated this clause, which involves the Head of Department (HOD) in the decision as to whether to suspend a student pending the HOD's decision as to whether to expel a student from school. Adv. Boshoff responded that under current law, a School Governing Body (SGB) has the right to suspend a student for serious offences without involvement from the HOD. However, under the Constitution, the HOD has the responsibility to protect a learner's right to access to education. Therefore the HOD should have some involvement in the decision to suspend a student. Adv. also noted that under current law, there is no consistency or coordination in the decisions of various SGBs. Involvement of the HOD would alleviate this problem.

Adv. Gaum (NNP) raised several concerns, including a concern that under the amendment, the HOD would be making two decisions - first about suspension, then about expulsion, and a concern that the SGB should have the right of appeal against a decision of the HOD. Adv. Boshoff responded that the role of the HOD in making two decisions - first a temporary one and then a permanent one - would be the same as that of any employer about a employee, and therefore not a violation of due process. In addition, the current legislation already provides for a right of appeal by the learner and/or his or her parents.

Mr. Mpontshane (IFP) proposed an addition to the clause, adding a subsection (c) which would say that for serious offences, an SGB may suspend a learner pending the decision regarding expulsion for more than the 5 days already allowed. Adv. Boshoff responded that the law already allows for this in certain circumstances.

Mr. van den Heever (ANC) stated that the ANC is satisfied with Section 7, and emphasised that because the HOD has the responsibility to make sure students have access to education, the HOD should not be excluded from the decision making process regarding suspension.

Adv. Boshoff stated that under current law, there have been "dicey problems" - for example, in a situation of a racial nature in a school courtyard, there is no consistency as to how such a situation is handled by SGBs. Giving the HOD a say would provide consistency.

Adv. Gaum (NNP) noted that while learners and parents have a right of repeal, the SGB itself does not. He also stated that the NNP would like to see criteria in the bill detailing when a student may be expelled.

A member of the ANC asked that the Department revisit this section in light of the concerns raised at this meeting. Another member of the ANC suggested that criteria for expulsion should be placed in regulations, rather than in the bill itself.

Section 8 of B44-99
Mr. van den Heever (ANC) stated that the ANC supports the idea that an MEC should provide reasons for a decision to merge two or more public schools, and that the bill, as currently drafted, does not require that. Adv. Boshoff stated that Section 32 of the Constitution and the Education Act already require that reasons be given, but that the Department would not be opposed to adding such a provision to this bill.

Mr. Vadi (ANC) expressed concern that the bill does not address the length of time an interim governing body should exist when schools are merged. Adv. Boshoff stated that the Department has learned from experience that when it puts in a specific time frame, there are many problems if that time frame cannot be met. Sometimes, it is just impossible to comply with a time frame. Also, it would be difficult to predict an appropriate time frame at this point. He stated that the Department would not have a problem with adding wording such as "within the shortest time possible."

Adv. Gaum (NNP) stated that there should be criteria specified in the bill for when mergers of schools would occur, and that there should be public hearings. He also advocated for mediation or arbitration in the event of a dispute.

Adv. Boshoff responded that in practice, specifying criteria for merger creates a minefield. He gave examples of situations in the Northern Province where school mergers were attempted and the schools were taken to court. He stated that the issue of school merger can become very emotional, and that it is impossible to determine whether a merger is in the best interests of the learners, because different learners have different interests. The Department is trying, instead, to focus on operational issues, such as situations where one school is at half capacity, and another is at less than half capacity.

Adv. Boshoff responded to the suggestion that there be public hearings by saying that public hearing had been ruled out because of the cost. He noted that school merger does not take away any rights, it is just a matter of trying to manage resources in a better way. He also noted that the new amendments do allow for a consultative process in that they give SGBs the opportunity to make presentations.

With regard to the issue of requiring mediation or arbitration, Adv. Boshoff stated that those processes cost money and that 90% of schools would not have the resources to contribute their share of such costs. On the other hand, there is nothing to prevent parties from entering into mediation or arbitration if they so choose.

Both Adv. Gaum (NNP) and Mr. van den Heever (ANC) expressed concern about the provision of Section 8 that states that all assets and liabilities of the schools that are merged must vest in the (new) single school. Both noted that this might place an undue burden on the new school. Adv. Boshoff responded that the purpose of the act is to minimize liabilities as far as possible, and that, under existing law, the State would ultimately be responsible for liabilities the school cannot meet.

Section 9 of B44-99
Adv. Gaum (NNP) expressed concern about the fact that this section of the bill would allow a HOD to take unilateral action to close a school (in an emergency) without consulting with, or even informing the SGB. Mr. Seremane (DP) proposed adding the words "in consultation with" the SGB. Adv. Guam proposed adding the words "after consultation with" the SGB. Mr. van den Heever stated that the ANC would oppose use of the words "in consultation with" and asked to hear the Department's view of adding "after consultation with."

Adv. Boshoff responded by emphasising that this section refers only to emergency situations when the lives of learners or staff are endangered or there is a danger of bodily injury or damage to property. He stated that in emergencies, it is acceptable to move away from the normal legal principles, and that the intention of this section was to provide for an easy process to intervene in an emergency. Consultation would be a problem in an emergency.

Mr. Seremane (DP) modified his proposal to say "in consultation with one or two members" of the SGB. Another member of an opposition party supported the proposal to include consultation because the closure of a school is such a major event. A third member of an opposition party stressed that consultation does not imply agreement, but rather common ownership of a decision. A member of the ANC expressed the opinion that "in consultation" does imply agreement, and would tie the hands of the HOD.

Adv. Gaum (NNP) asked whether, in certain cases, the closure of a school would amount to a lockout. Adv. Boshoff responded that a lockout would not be an issue in this type of situation, and that the Labour Relations Act deals with lockouts.

Adv. Gaum (NNP) objected to the use of the term "closure" and suggested substituting something like "suspension of teaching and learning." Adv. Boshoff replied that the use of the term "closed" is very common - as in when schools are "closed" for holidays, whereas the term "suspension" is linked to misconduct. He suggested that everyone knows what you are talking about when you say the school is "closed."

Mr. van den Heever (ANC) suggested that where the section provides that the principal must inform the SGB or parents and educators of various events, it might be wise to add someone else, in case the principal is incapacitated. Adv. Boshoff agreed to add "or person designated by him."

Section 10 of B44-99
Adv. Gaum (NNP) expressed concern that Section 10 allows schools to provide adult basic education, but that there is no funding for such classes. Adv. Boshoff responded that the bill is not an attempt to bring adult basic education into the schools, but merely allows schools to provide such classes if they choose to. The Department is working on a bill related to adult basic education, which will be introduced in Parliament next year.

Section 11 of B44-99
Mr. van den Heever (ANC) stated that the ANC has concerns about the provision in this section which gives voting rights to parents who are co-opted members of an SGB. He noted that such a provision does injustice to the status of legitimacy of the governing body, and that co-option lends itself to abuse. There is a danger of ending up with a governing body made up of "the principal and his buddies." He noted that the submission by SADTU recommended by-elections, and that the ANC would like to consider that suggestion.

Mr. Mpontshane (IFP) suggested marrying co-option with by-elections and proposed that bi-elections be held within three months, or perhaps six months of co-option. Adv. Gaum (NNP) agreed with the suggestion of a time limit.

Adv. Boshoff agreed that it is important to maintain the democratic nature of SGBs, and said that the Department would support such a change and draft a revision of Section 11.

Adv. Gaum (NNP) stated that he liked the idea, presented in one of the submissions the previous day, that parents should have the right to a vote of no confidence in an SGB. Adv. Boshoff stated that a vote of no confidence would be a political issue. Chairperson Mayatula suggested that SGBs could provide for a vote of no confidence in their own constitutions.

Section 12 of B44-99
A member stated that this section would allow the principal of a school for learners with special education needs to also become the chairperson of the SGB. The member opposed this possibility. Mr. Mpontshane (IFP) agreed with this objection. Adv. Boshoff agreed to amend this section to rule out this possibility.

Section 13 of B44-99
No comments.

Section 14 of 44-99
Adv. Gaum objected to the provision in this section that the State is not liable for any damage or loss resulting from activity within the public school undertaken to raise funds for the school, especially considering that the government forces schools to engage in fund raising activities. Adv. Boshoff responded that some schools run huge enterprises with huge risks. If these activities are not related to education, the provinces cannot be asked to accept the risk of being overwhelmed by possible liabilities.

Section 15 of 44-99
Adv. Gaum (NNP) noted that Section 15 provides that if an SGB does not make a recommendation regarding appointment within a two month period, the HOD has the right to make the appointment. He stated that in some cases, the SGB may make a deliberate decision not to make an appointment because none of the candidates is acceptable. It is the position of the NNP that this should be a valid recommendation. In addition, he noted that in some circumstances, two months may not be a long enough period of time, for legitimate reasons. Adv. Boshoff stated that the Department feels two months is a reasonable period of time, unless there is an emergency situation. In that event, normal provisions could be suspended and more time allowed. The Department does not want to put in provisions that would allow for exceptions and make the decision making take longer.

Section 16 of 44-99
Mr. van den Heever (ANC) raised the question of whether this provision allowing for the temporary transfer of and educator amounts to secundment. Adv. Boshoff explained that the transfer could only be within positions governed by one employer, whereas secundment involves transfer between two employers.

Adv. Gaum (NNP) objected to the provision of this section which allows an HOD to temporarily transfer an educator to another school without consultation with the SGB and without any requirement that the decision should be guided by the curricular requirements of a particular school. He also felt that the bill should state a maximum period for the temporary transfer and that the HOD should be required to give reasons for the transfer both to the educator and to the SGB.

Adv. Boshoff stated that this bill is in line with the labour law that requires that an employer must be fair and reasonable and must give an employee a chance to express his or her concerns and opinions. Also, with regard to a maximum time period, the Department would prefer to deal with each situation on a case by case basis to allow for the individual circumstances of each situation.

Section 17 of B44-99
Mr. Vadi (ANC) stated that the ANC is happy with this section, but would like to be sure that it is binding on all educators. Adv. Boshoff responded that the Department is agreeable to making this section applicable to all educators.

Section 18 of B44-99
No comments.

Chairperson Mayatula stated that the meeting for Friday, 22 October had been cancelled, and that the committees will meet again on Monday 25 October at 2 p.m. He then adjourned the meeting.