Basic Education Laws Amendment Bill: way forward

Basic Education

15 February 2022
Chairperson: Ms Mbinqo-Gigaba (ANC)
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Meeting Summary

In a virtual meeting, a parliamentary legal advisor briefed the Portfolio Committee on the legal process for the Basic Education Laws Amendment (BELA) Bill which was tagged as a Section 76 Bill having both national and provincial competences. The Bill amended the South African Schools Act and Employment of Educators Act. It would be a lengthy process given the scope of the sector and need for proper stakeholder engagement.

The Committee decided on public engagement through print and digital media to alert the public to comment on the Bill. It was resolved that the month of March will be allocated to receive written comment on the Bill after which it will engage in public hearings. More detailed timelines were agreed to be established after receiving public comments.

Meeting report

The Chairperson noted that the Committee has not processed a Bill since 2011. The consideration of the Basic Education Laws Amendment (BELA) Bill will be a long process that requires much input and cooperation from the Committee. To gain clarity on the way forward, she asked the Parliamentary Legal Advisor to explain when the Bill would be tabled in Parliament, the expected timelines for public comments and hearings as well as deliberations.

Way forward on BELA Bill by Parliamentary Legal Advisor
Ms Phumelele Ngema, Parliamentary Legal Advisor, explained that Chapter 13 of the National Assembly Rules governs how to process legislation.

The BELA Bill is an Executive Bill that the Joint Tagging Mechanism (JTM) has classified as a S76 Bill. The JTM was called for advice and the Office of the Chief State Law Advisor presented a legal opinion indicating that the Bill deals with concurrent matters with a national and provincial competence and falls under Schedule 4 as it deals with education at all levels, excluding tertiary education.

A S76 Bill affects the provinces. The Bill is currently in the hands of the National Assembly and has been referred to this Committee. Once the Bill reaches the NCOP, they will engage with their own processes that differ from the S75 process.

The Rules do not specify timelines that the Committee or National Assembly should take in processing the Bill. However, the NCOP and the nine provinces must follow a three week cycle when processing S76 legislation. In the National Assembly, it is up to the Committee to take a resolution on the timelines guided by NA Rule 286.

The Bill is compliant with NA Rules 280 and 276, allowing the Committee to decide on its own process. The process begins with resolutions on the extent of public hearings and the mode of public participation which is a constitutional obligation imposed on both Houses of Parliament. Each House has an obligation to ensure that it hears the public, take into account the public comments, and should, where comments are valid and relevant, influence the decisions of the committee.

The Committee was encouraged to use various publicity methods to reach all audiences. Social media platforms may be used, although it must have a way to facilitate public comments. National newspapers are often used to display adverts communicating the message of the Bill. The call for public comment must be as detailed as possible outlining the contents and the purpose of the Bill. The purpose of the BELA Bill is found in s29 read with s28. Section 29 grants everyone the right to basic education, this includes children and adults.

The Committee had three available options. Public comments can be called through a notice and newspaper ads asking for participation and to indicate if one wants to make both a written and oral submission. Invitations are offered through press statements and advertisements. Some committees have opted to use radio broadcasts to explain the contents and reason for the Bill. This ensures that the public is notified that the legislation is currently before Parliament. Our democratic state necessitates public involvement, hence the extensive measures taken for sharing the Bill. The Committee may decide on its own manner of public involvement.

In the 8 February meeting, the contents of the Bill was detailed for the Committee. The BELA Bill is amending the South African Schools Act (SASA) and the Employment of Educators Act based on challenges found during investigations and oversight visits. The challenges require clarity, certainty and areas of enhancement. The Bill attempts to regulate School Governing Bodies (SGB) by outlining their responsibilities and functions. The BELA Bill will enhance the existing provisions of SASA in South Africa.

The BELA Bill requires every child must attend Grade R. Measures are set in place to ensure every parent and guardian cannot hinder a child from attending school. These provisions are intended to assist the principal, educators, parents and guardians in ensuring children attend schools and the requirements for acceptance are accessible.

The amendments to the Employment of Educators Act seek to enhance the powers of the Minister to make regulations and clarify matters. The Bill also deals with conflict between how parents and educators engage in business transactions with the school or the state. The Bill seeks to enhance and provide clarity on pre-existing concepts such as home-schooling, SGBs, drug usage and corporal punishment in schools.

Once the call for public comments has been issued, the Committee researchers will examine all written public comments before presenting them to the Committee. The Department of Basic Education (DBE), as the executive structure, will also receive these submissions before making its response on policy determination. The DBE can also deal with concerns raised by parliamentary legal services about the Bill after the hearings process, including the hearings within provinces.

The Committee then follows a clause-by-clause analysis of the Bill and the Committee provides its inputs. The state law advisor, parliamentary legal advisor and the DBE will work together to ensure all public and Committee proposed amendments are within the policy. A list of proposed amendments will be prepared.

Once these processes have occurred, or before, the Committee may decide on a motion of desirability. NA Rule 286(4)(i) and 286(6) speak to a motion of desirability on the subject matter of the Bill. The Committee must as far as possible follow the separate formal stages for processing the Bill. The motion of desirability must be taken by the Committee although it is not specified when it must occur during the process. The motion of desirability can occur anywhere after the initial briefing by the DBE to after the public hearings.

After these formal processes have occurred, a motion on the Bill will be made. The Committee may decide if the Bill will be overhauled from the one proposed by the Executive, taking into consideration public comments.

This could result in three different scenarios: The Committee can bring forth a list of amendments. Or the Committee could reject the Bill with a report indicating the reason for rejection. Or the Committee could prepare its own Bill. Thereafter the Committee decision goes to the National Assembly for approval known as the 'second reading'.

In summary, the Committee can decide now whether to pass a motion of desirability after the Department briefing or to wait until a later stage. The Committee also had to take a resolution on what form of public participation was used within an agreed timeframe. Elements such as the complexity and substance of the Bill and the number of stakeholders affected are taken into consideration when deciding on reasonable timeframes. The BELA Bill was a lengthy bill and substantial and a large number of stakeholders will be included in the process.

Finally, after the deliberations are completed, a Committee report will be prepared.

The Chairperson emphasised that this would be a lengthy process. After the Committee has called for public comments, the commentators would be invited to share their concerns before the Committee. The Committee may decide if submissions must be oral or written. The Chairperson said that, even though there are not specified timelines, the Committee must be reasonable and come to a consensus of a timeline for public hearings. The Committee would be guided by Rule 286.

Ms D Van Der Walt (DA) agreed that submissions should be called for and suggested that both written and oral comments should be allowed. In circumstances where individuals would be able to better comment on the technicalities of the Bill in person, they should be afforded the opportunity. Ms Van Der Walt agreed that the BELA Bill was a big one due to it involving stakeholder, parent and learner rights. With almost 24 000 public schools, proper public hearings must be conducted. A Bill involving so many people and pieces of legislation requires thorough written and oral public participation. Learners may also want to comment on the Bill.

Ms M Sukers (ACDP) agreed given the implications and impact of the Bill. She emphasised that verbal and written submissions must be allowed. She stressed the process of proper public participation given the process completed in the Children's Amendment Bill. It is imperative that public participation and hearings specifically must be conducted in an efficient manner.

Communities must be provided with the content of the Bill and be prepared with the necessary detail to make submissions on the Bill. With the Children's Amendment Bill, communities appreciated the opportunity to engage although the processes undermined effective public participation.

Mr B Nodada (DA) requested that today's briefing be provided to the Committee in writing. He asked if the Committee was looking at a specific timeline for the Bill to return to the Committee after including amendments from the public participation processes.

Mr P Moroatshehla (ANC) appreciated the emphasis on public participation in order to be reflective of South Africa's participatory democracy. He supported that public participation should be welcomed in both oral and written formats. The parliamentary legal advisor will assist the Committee in determining how submissions will be made. The Committee was unprepared at this stage to make a decision on timeframes.

Ms N Adoons (ANC) agreed that the Committee must put in the work to ensure the success of the process for all stakeholders. It is key that the Committee does not exclude anyone even in remote or impoverished areas to ensure they are aware of the opportunity to comment on the Bill.

Ms Adoons proposed that the Committee accept written comments as oral comments would elongate the public participation process. Oral submissions should happen exclusively within the public hearings.

On timelines, Ms Adoons felt that public hearings should be held in the parliamentary recess to give it the attention it deserves, without neglecting other parliamentary programmes. She asked what would happen in instances of litigation or a court order that prevent the Committee from continuing its work. Processing this Bill was long overdue.

Dr W Boshoff (FF+) suggested that the Committee embark on as extensive a public participation process as possible. The Bill was drafted five years ago and there have been many new developments in the education sector. This time lapse will probably be addressed by the public and stakeholders. For this reason, public participation is incredibly important.

He suggested that the Committee widen the scope to regulate on areas they perceive possible to happen in education, given the current developments in the sector. He encouraged the Committee to approach all provinces and districts for participation.

The Chairperson agreed that it is time to call for submissions. She advised that the Committee not try to establish timelines yet due to the size of the sector and not having sufficient information on how long it would take to acquire written and oral submissions.

She appreciated that everyone had an understanding of the way forward. This would be a transparent and efficient process. The Committee must work in a manner that does not leave anyone behind in terms of involvement.

The Chairperson asked Ms Ngema when the Committee could expect a written version of her briefing and she replied by 23 February.

Ms Ngema replied about litigation prohibiting the legislative process. In terms of the Constitution, NA Rules and jurisprudence, there is no room to litigate against Parliament while it is processing the Bill. It can only be done once both Houses have agreed that the legislative process has ended and the Bill is referred to the President. If the President has reservations, he must outline specifically if such reservations are procedural or content-related. In summary, until Parliament has taken a stand on either withdrawing the Bill or the legislative process is complete, litigation is unlikely to take effect. A court order cannot take place until either of these two requirements has been met.

Ms Ngema said that a S76 Bill means that this will be a long process. If the two Houses of Parliament do not reach a consensus on the Bill, there is a mediation process in order to reach an agreed Bill from Parliament. The Constitution provides that there is constant consultation, engagement and cooperation during the process of passing legislation before Parliament.

The Chairperson said the adverts should be in newspapers and on any other platform by 1 March 2022. The month of March will be used to receive public comments. Based on the number of public comments, the approach to public hearings can be determined.

Once this has been done, the Committee must meet again to agree on the way to embark on the public participation process, including public hearings. This Bill is substantial and involves a large sector. It would take very long to reach all the provinces and districts. However, that would be discussed at a later time.

Mr Lewellyn Brown, Committee Secretary, said print media adverts must be considered. It would need to be translated into the different languages and due to the length will need a large space in the newspaper which has cost implications. He will provide a technical report on this. The Committee would decide on the specific newspapers to target.

He shared a draft advert he had composed and said that adjustments could be made such as creating a separate email address for direct contact for responses to the Bill.

The Chairperson said the Committee support staff would obtain quotes for advertising the Bill from now until the end of February. Once there is agreement on the technical report, advertising will happen. The Bill must be published in all newspapers in all provinces.

Mr Moroatshehla agreed that the Committee must not rush the process so as to ensure it is legally compliant. The Committee Secretary can include everything in the technical report. The legal advisor must be consulted every step of the way.

The Chairperson said that this will be a slow process. The Committee Secretary will work on the advert and source quotes across all media houses.

The minutes of 8 February 2022 were adopted and the meeting ended.

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