Basic Education Laws Amendment Bill: briefing with Ministry

Meeting report

The Chairperson welcomed the Minister, Deputy Minister and Members of the Committee to a briefing by the Department of Basic Education (DBE) on the Basic Education Laws Amendment (BELA) Bill.

She thanked the Members for the oversight held in the provinces in the past two weeks. Hard work had been done to ensure schools started the year on a good note. Being on the ground had allowed the Committee to see the state of affairs in person.

She reported that schools had returned almost back to normality and learners were receiving the quality attention the Committee wanted to see them get.

Minister’s Overview

Ms Angie Motshekga, Minister of Basic Education, said that the BELA Bill had been long in the making and was ready to be processed. She explained that the delays in its processing were due to going back and forth on the matter. Although the Bill was not perfect, she was glad to have reached this point of consensus and that soon it would be put through. The Bill could not be further delayed, as it included important amendments. All outstanding issues regarding the Bill would be dealt with at a later stage, once it had been put through.

BELA Bill Presentation

Adv Shalili Misser, Chief Director: Legal and Legislative Services, DBE, presented the latest version of the BELA Bill to the Committee. The Minister had identified the review of all basic education legislation as a strategic priority for the DBE. The draft amendment bill proposed to amend the South African Schools Act (SASA) and the Employment of Educators Act (EEA).

Legislative Reforms

Adv Misser said that the reason for the legislative reform was to create certainty and cure mischief in the education sector. This was being done through:

- Incorporating the latest court judgments that protect and give effect to the Bill of Rights, including issues related to languages and school admissions;

- Providing financial and public accountability frameworks for school governing bodies (SGBs) and provincial departments to ensure the principles of good governance and the prevention of financial mismanagement;

- Systems improvements in terms of admissions for undocumented learners. This included the introduction of the national Intergovernmental Committee and provincial Intergovernmental Committee. The provincial Intergovernmental Committee functions to assist public schools that refer cases of learners with outstanding required documents. The committee would be responsible for acquiring these documents in respect of these learners.

The national Intergovernmental Committee monitors and evaluates the progress of the provincial intergovernmental documents for learners, and provides the systems where necessary. It was expected that this mechanism would fast-track the obtaining of documents for undocumented learners. It would comprise various key departments.

- Providing additional regulatory powers of the Minister and enhancing the decision making and oversight powers of Heads of Departments (HODs) and Members of the Executive Council (MECs);

- Addressing provincial contextual needs, including central procurement, home education and dispute resolution;

-Clarifying certain existing positions for technical and substantive adjustments, and inserting provisions that were not provided for in existing legislation, as well as strengthening enforcing mechanisms for offences and penalties.

Stakeholder consultations

The Bill was published for comment in October 2017, and more than 5 000 written submissions were received from stakeholders and the general public. All nine provincial education departments were consulted. The draft amendment bill was circled to all national departments for comment, and the written comments were consolidated into the draft amendment bill.

On 27 and 28 January 2020, the Minister gave key stakeholders such as the SGBs, teacher unions and home education an invitation to a meeting to discuss and deliberate that particular version of the Bill. After receiving further comments, the Bill was further amended. The draft was then finalised.

The Bill was presented to the Committee on 5 May 2021. The draft bill was also presented to the National Economic Development and Labour Council (NEDLAC) on 23 April 2020 by the DBE. The final report from NEDLAC was in October 2020.

A socio-economic impact assessment was conducted with the Department of Planning, Monitoring and Evaluation (DPME), and all recommendations of the report were incorporated into the Bill. The draft BELA Bill was based on the preferred option from the Department and was supported by the Socio-Economic Impact Assessment System (SEIAS) report.

The following financial implications were identified:

• Costing for procurement of competent assessors for home education;
• Provision of personnel by provincial departments to consider language and admission policies;
• Provision of educators and infrastructure for Grade R learners.

Cabinet Committee approval

On 9 November 2021, the BELA Bill was presented to the Cabinet Committee. It was proposed that the word "abolished" must be used in reference to corporal punishment and that educators, principals and SGBs were accountable and responsible for learners in their care.

On 24 November 2021, Cabinet had approved that the BELA Bill be presented before Parliament with all necessary amendments. On 20 December, the Bill and Memo were submitted to Parliament by the Office of the Chief State Law Advisor for purposes of certification, and they would provide the DBE with the proofs as soon as they received them.

Clause by clause analysis

Adv Charles Ledwaba, DBE, took the Committee through a clause by clause analysis of the BELA Bill.

(Please see presentation for more detailed descriptions of each clause.)

Ms Phumelele Ngema, Parliamentary Legal Advisor, said that the Joint Tagging Mechanism confirmed that this was a s76 Bill, which was an ordinary bill affecting the provinces. She said that currently the DBE was involved in the National Assembly processes, guided by National Assembly Rule 286. The DBE had publicised the Bill through a gazette, which was in line with s28(6)(2). The Committee was entitled to still make its resolution if it deemed public comments on the Bill would be appreciated and was willing to do its own publication and submission of the Bill.

She said that the briefing by the DBE had been held that day, so the Committee must decide on the way forward in terms of the consideration and calling for public comments, as well as how this would be performed. Deliberations would proceed once all submissions and comments had been received by the Committee.

She added that the matter was of concurrent legislative subject matter which was why it fell under s76.

Discussion

Ms D van der Walt (DA) asked whether the financial impact of the Bill had been assessed. Did National Treasury (NT) have funding available for the provinces for additional classrooms and educators? Many of the current Early Childhood Development (ECD) educators had the impression that they should be compensated accordingly if it became compulsory for Grade R learners to attend school until age 15. When would this funding become available, as it was currently not available to learners? How would the Bill affect the private ECD sector?

Regarding language policies, she asked how schools who refused to add additional languages, even when they were not at capacity and there were no other options for learners, would be dealt with. There were currently no measures for a HOD in these circumstances. She said this interfered with the powers of the SGBs.

Recently, a MEC in Gauteng had announced that all language policies had been scrapped and new language policies would be put in place. This meant that schools were without any policy in the interim. She asked how this could be avoided, and the right to education in the language of their choice could be upheld.

Ms Van der Walt had a particular interest in talented schools, due to the high norms and standards which may not be feasible. She asked where the money would come from. She asked why the powers of the MEC had been transferred to the national Department without any reason given. She argued that a lack of uniformity was not sufficient reason to centralise the power to a Minister. She asked for the real reason behind the change.

She also sought more clarity on all the financial matters mentioned.

Ms M Sukers (ACDP) appreciated the acknowledgement that the Bill required further work. She commented that the Bill was controversial after seeing the amount spent on it in the past month. It was of concern that the Bill did not take into account the recent developments in the education sector.

Ms Sukers said that for home educators, there were several procedural, substantive and practical flaws in the Bill which had made them unprepared for the presentation to Parliament. It had been reported to her that no response had been issued from the DBE. She asked for an explanation of the alleged flaws and why no response had been given, and when the Department had conducted research into home education.

She asked for the socio-economic impact assessment to be sent to the Committee for review and expressed concern that the Bill must not negatively impact the ECD sector. How did the DBE plan to ensure that by the time the Bill became law it would be possible to provide compulsory education from Grade R? Within what timeline could this be expected?

Ms Sukers said that the Bill did not contain the principles reflected in the Children’s Act, as s3 criminalised non-attendance at schools. This was a multifaceted problem that had been previously brought up. This could increase, rather than reduce, instances of conflict, which went against the Children’s Act. The requirement of the voice of children being heard was not met in the Bill. She asked for the DBE and experts in children’s law to demonstrate to what extent the BELA Bill took cognisance of the Children’s Act.

She questioned why no provision was made before provincial departments closing an independent school.

Dr W Boshoff (FF+) referred to the centralisation of powers and said that turning community schools into state schools went against the aims of the DBE, especially when referring to codes of conduct and language policies in schools. When looking at the recent school disputes, he felt the noose was being tightened to enforce a specific language policy within schools.

On unregistered independent schools, he asked the Minister whether it was possible to have collaborative hosting between two or three families conducting homeschooling together. He indicated that according to the DBE, this would be considered an illegal unregistered independent school, and would have to be closed. The Minister had said she regarded homeschooling as an ally department in delivering schooling at this critical stage. He asked what the reasons were for not including the outcomes after the Minister had been approached by organised homeschooling associations.

Regarding the employment of educators, Dr Boshoff said that there was unfinished business concerning the four-month report. This gave the impression that there was a poor legal framework for the report not being completed. Why was this not referred to in the Bill?

On the 12-month incarceration for learner non-attendance, he said that this would deter people from creating home schools, and create undue repercussions for families in adverse financial situations who could not send their children to school. He emphasised the need for public participation processes to ensure that all relevant input was considered. Many Members had received messages from organisations whose input had not been considered yet.

Dr Boshoff said that a lot of work remained before the Bill could be sent to the provinces.

Mr B Nodada (DA) said that no details had been provided on the socio-economic impact assessment conducted, and asked for a report on it. Establishing a national Intergovernmental Committee was a grave concern, as it would take funding and time away from provincial departments. This excused the Department of Home Affairs (DHA) from doing its job. He asked why a new committee had to be established to handle these affairs, and why the DHA was unable to fulfil this job. How could the DBE justify the additional administrative burdens and expenses when provinces were already short of funding?

Regarding homeschooling, Mr Nodada asked whether online school policies and scope should be incorporated in the amendments of the Bill.

On admissions appeals, he asked about the 40-day turnaround timeframe and suggested that a better timeline for this would be 30 days. Did the DBE think this was administratively possible?

He asked what provisions had been made available for parents to conduct online assessments for learners receiving homeschooling.

Regarding amendment of s59, Mr Nodada asked why the MECs were excluded from school communications, even though they were responsible for deciding on appeals. What consequences were there for schools that could not provide the mentioned information and within what timeframe would this take place?

Mr T Letsie (ANC) said that there had been numerous problems with communities, SGBs and schools not taking care of the infrastructure at schools. He asked whether the Bill should include some accountability measures to hold SGBs and educators responsible for the infrastructure of the schools. This would alleviate some of the maintenance and replacement costs placed on government.

How would the Committee effectively hear the views of people within the DBE, considering the extensive public participation processes? He also questioned the impact of this moving forward.

The Chairperson acknowledged that the meeting was the first instance of the Committee dealing with the Bill. She said that the Bill would not be perfect, though it must move forward now that it had reached this stage. The DBE was commended for the processes embarked on, although she required clarity on numerous issues.

She highlighted that the general public and stakeholders had submitted just shy of 5 000 comments on the Bill, with 144 petitions that objected to certain clauses. She asked whether the 5 000 comments could contribute as a sample towards the number required in the public participation processes.

On 19 February 2019, a task team consisting of DBE representatives from Gauteng, Limpopo and the Western Cape had started the process of examining the submissions. She asked why the other provinces did not form part of the task team, and what they were doing in this regard. What had been the common concerns from the public regarding the Bill? Did the DBE foresee a court process raised by people dissatisfied with the Bill?

Under Clause 22, the requirement of the HODs to inform the SGBs in writing created an assumption that all SGB members were able to read and write. The way to communicate with SGBs should be corrected. She also feared that this could distract HODs from their other important matters.

The Chairperson asked whether the Bill was published in Braille and if there were enough sign language teachers to communicate the Bill. In an extreme situation, where the Bill could not be passed, what would the consequences be for the Committee and the sector in general?

Minister’s response

Minister Motshekga appreciated the comments and legal explanations provided by Parliament. She said that the Bill had been in the making since 2017. It had been published for comments and the DBE had met with key stakeholders who had expressed views on the Bill. The clauses were issues that had needed to be corrected or clarified within the sector for a long time.

After receiving public comments, she had met with the homeschooling association, teacher unions, parents' associations and professional bodies from special schools, numerous times. Due to the large volume and contradictory requests, some of the recommendations from these groups were not implemented.

The Minister explained that basic education was compulsory, which required every student to be registered -- even for homeschooling. Registration and audits enabled students to obtain the material used for assessments. The responsibility rested with parents to ensure that the education choices for their children were legally compliant.

Regarding public hearings, the Minister clarified that questions related to appointments and promotions were related to the Employment Act, and must not be conflated with the BELA Bill.

On SGBs, she had met with SGBs on numerous occasions to detail which powers remained within their jurisdiction. Norms and standards were a national responsibility that had to be referred to on an ongoing basis.

Concerning liquor sales at schools, the DBE had sought legal advice on the rights of schools to sell liquor on their premises. When schools rented out their buildings for adult functions or had adult staff staying on the premises, they had the right to sell liquor.

The DBE felt confident of the progress made with the Bill before going through the parliamentary processes. The Bill had been consulted by MECs, the Council of Education Ministers (CEM) and the provinces to ensure everyone had clarity on the progress. She said the Bill could not please everyone, exemplifying this by saying that the right to mother-tongue instruction was not feasible in certain provinces. Rights would have to be balanced with practical limitations.

The Minister said that the Bill was now in the hands of the parliamentary processes. Even though this had been a long process, Parliament could not be rushed to do the work -- it would be expected to follow the appropriate processes and seek legal counsel.

Department’s response

Adv Misser said that there were large financial implications that had been discussed with National Treasury (NT) to ensure funding. The funding would be allocated to the different provinces specifically regarding the Grade R infrastructure.

Concerning ECD, the amendments provisioned in the Children's Act were currently being looked into. There had been some hindrance in processing the bill, as it was with the Portfolio Committee on Social Development. The Department of Social Development (DSD) had left the sections concerning ECD to the DBE when the function transfers on 1 April. The ECD functions were being addressed in a separate amendment in terms of the Children’s Act.

On criminalisation, she said that the penalty provisions in the Bill would cause conflict, which went directly against the purport of the Children’s Act. That was not the intention of the Bill. As for parents found guilty of not sending their children to school, this served to enhance the schooling and attendance of learners. It was not intended to target any groups. It was intended to ensure learners had access to their schools and were not hindered by certain groupings that would not like these learners to be at school.

Concerning independent schools, Adv Misser said that the section did not require amendments. The owner of an independent school, in terms of the current section, was required to make representations to comply with the Promotion of Administrative Justice Act (PAJA).

She said the SEIAS report would be made available immediately after the meeting.

There were minimal cost implications for mechanisms to aid undocumented learners, as the DBE used existing resources available within the Department. It rather required time and the establishment of a committee.

The dispute resolution clause and the involvement of HODs was the internal remedy that had to be followed. Matters would be discussed with the HOD, and where a stalemate was reached, the MEC became the relevant body for the appeal.

Adv Misser agreed that the Bill did not take into account the securing and protecting of school infrastructure. On public concerns and future litigation, it was up to individuals as to whether they would like to litigate. The common themes found were related to alcohol.

The Minister said there was a zero-tolerance approach in respect of learners accessing alcohol on school premises.

Opposing comments had been received against the powers given to HODs regarding their being the last resort for approval of the admissions and language policy at the expense of the SGBs and management of the public schools. This was to ensure that the admission and language policy complied with existing legislation.

Comments had been received regarding the code of conduct of the SGB, seeking to exempt learners from complying with the school code of conduct. The submission felt that this authority should lie with the principal instead. The power to exempt learners from the school code of conduct was a responsibility of the governing body, not the principal.

The prohibition of corporal punishment made it clear that it was now abolished.

Some comments had raised concern relating to the amendment dealing with the merging of schools. The existing law in the SASA did not address issues relating to the nationalisation and redeployment of educators. It was being addressed, and it would be referred to in the bill itself.

Power was given to the HOD to centralise procurement after consultation with the governing body. Commentators had opposed this and felt that it should rather reflect ‘in consultation’ with the governing body. The amendment had been written in.

Some commentators felt that the BELA Bill provided insufficient reasoning as to why the withdrawing of functions of the SGB was being done. It had been explained that this was because by putting such reasons in the Bill, it would restrict the HODs from exercising their discretion to withdraw functions of the governing body. The proposed provision complied with the PAJA, which provides for a due process where all interested parties would be allowed to make representations. The reasons would be provided for the decision taking by the administrator.

Comments were received regarding the Bill's empowerment of the HODs to make an independent assessment of the finances of a school by employing forensic auditors. The views expressed were that it was not necessary, though the DBE held that it was important to ensure there was no mismanagement of school funds and the school governing body.

Adv Misser gave an assurance that the issue of the HOD needing to inform the SGB in writing would be looked into. The Bill was yet to be published in Braille, though there were sufficient resources to have it published in Braille.

Adv Ledwaba urged caution regarding the control of school infrastructure by the governing body. The current SASA commission had the responsibility to control and manage school property, so that power already lay with the governing body.

Referring to s5, he said that the national Intergovernmental Committee had the role of providing oversight, while the provincial structure was involved in facilitating the documentation for admission. There were already court judgments mandating that learners must not be excluded from schooling, based on a lack of documents. Learners needed to have the correct documentation.

Further discussion

Ms Sukers asked whether learners were consulted on the closing of independent schools. She asked what happened when provincial education departments received court orders to close down schools serving poor learners who could not afford a legal defence.

Minister Motshekga responded that independent schools must be registered through the provincial departments. Where schools were not registered, they were operating illegally and would be closed. When schools were registered, there were obligations on the provinces to inspect and check the curriculum and the safety of learners. Where any of the conditions mentioned were not met, the province would have the power to close them.

There was an instance in Gauteng where a 17-year-old was running a high school with all sorts of issues. She said that it was common in poor areas to see schools in garages. The state had a duty to close schools that were not compliant, such as illegal garage schools. The law protected independent schools so long as they were in alignment with the requirements.

Dr Reginah Mhaule, Deputy Minister, said that not everything could be covered in the BELA Bill. It was now in the hands of the Committee and certain things like timeframes would be difficult to include in the Bill.

Ms Sukers asked for clarity regarding timelines for ECDs, due to the implications of the Bill. She also asked when last the Department had commissioned research into home education.

Minister Motshekga reinforced the sentiments of DM Mhaule, stating that the policies would be held in another document. This made it difficult to supply timelines, as the Bill provided a broad statement that other legislation or documents would support.

She had met the homeschooling associations more than three times. She felt that there had been no new developments in the sector, though it had been growing and taking on different forms over time. These schools had all had conflicting comments on amendments to the Bill. There were limits to what the state could do, and comments were implemented where it was feasible or consensus could be reached.

The Chairperson said that the Bill was now the responsibility of the Committee. Going forward, the Committee must open the Bill for public comments from all stakeholders. Those with issues with the Bill would have to identify and present them before the Committee verbally.

Due to the Bill referencing the SGBs and parents, the Committee must hold public hearings on the grounds. She asked that the Committee Members familiarise themselves with the clauses in the meantime.

 

Adoption of Committee minutes

 

The minutes of 25 January were adopted.

 

The meeting was adjourned.