BELA Bill: deliberations; with Deputy Minister

Meeting report

The Deputy Minister of Basic Education, Dr Reginah Mhaule, opened the meeting with a prayer.

The Chairperson relayed her apology on behalf of the Portfolio Committee to the people of South Africa for the events that transpired in the previous meeting. She acknowledged that the Committee members brought their own interests before the interests of those that they represent, the people of South Africa. She hopes that members would be able to differ constructively on the matters discussed in the current meeting, and provide guidance to the process.

In the previous day's meeting the Committee did not discuss whether it would be possible to have National Treasury present on the financial implications. The Committee secretary, Mr Llewellyn Brown, was requested by the Chairperson to write an invitation letter to National Treasury. She asked that National Treasury should be allowed space to present even if the Committee is in the middle of the process.

The Committee had dealt with the National Public Hearings Report in the previous meeting. The Chairperson said that the objections of the African Christian Democratic Party (ACDP) and the Democratic Alliance (DA) were noted and the content advisors and their team will work on these matters and bring back a response to the Committee.

The Chairperson referred to the clauses raised as having 'constitutional implications'. The Parliamentary legal advisors would guide that process and cautioned the Committee on how to approach the different clauses.

Mr B Nodada (DA) agreed with the approach proposed by the Chairperson. He suggested that if there are outstanding questions about the report, these should be submitted in writing to eliminate any discrepancies.

Ms M Sukers (ACDP) posed a question on the public submissions. She asked how the Committee would be able to keep track of the different clauses and the submissions made on specific clauses. DBE presentation did not respond to the submissions. She therefore asked how DBE response would be incorporated in the particular clauses. She agreed with the proposal from the Chairperson.

Ms N Adoons (ANC) echoed her support for the approach proposed by the Chairperson.

The Chairperson said that apart from the issue of numbers, there was also the issue around submissions.

Ms Sukers added that there should be a comprehensive matrix that accompanies the clause-by-clause deliberations of all the written submissions on that clause and it provides guidance for the Committee and the Department on the submissions made by the public on specific clauses.

The Chairperson called on the content advisor to advise on the matter.

Mr Dennis Bandi, Committee Content Advisor, said that if the request is to produce a matrix, the team could work on the request. The timeframe could be lengthy but could be decided on.

The Chairperson advised against the suggestion from Ms Sukers as it is an administrative matter. While acknowledging her request, the Committee needs to deal with the crux of the clauses.

Parliamentary Legal Advisor input on procedure
The Parliamentary Legal Advisor, Adv Phumelele Ngema, said that the process which the Portfolio Committee and the Department are currently embarking on is in terms of the National Assembly Rule 286: Process in Committees. This sets out the processes which have already taken place and those that are yet to happen. According to her understanding the Committee would be beginning its process of deliberations clause-by-clause of the Basic Education Laws Amendment Bill based on the inputs and the considerations of the public hearings in all its various formats. According to National Assembly Rule 286(4), the Committee (a) must inquire into the subject of the Bill and report on it to the Assembly; (c) if the Bill amends provisions of legislation, must, if it intends to propose amendments to other provisions of that legislation, seek the permission of the Assembly to do so.

The other processes, such as the Joint Tagging Mechanism (JTM), have already been done and it was concluded that it will be a Section 76 Bill and that is still in progress.

Adv Ngema spoke to Rule 286(4). After due deliberation, the Committee must consider a motion of desirability on the subject matter of the Bill and, if rejected, must immediately table the Bill and its report on the Bill to the National Assembly However, there are further processes if the motion of desirability is adopted which are being discussed in the present meeting. The legal team takes notes on the deliberations and will be taking directives for any proposed amendments. The Committee is dealing with existing legislation which means that there is a Principal Act which is already in place. The changes that the legislature will be doing is to change what is already in the statute, following from the power that National Parliament has. The current Bill is an executive Bill which is sponsored by the National Executive, and all the guidelines and policies will be coming directly from the executive.

The role of the legal advisors is to remind the Committee to keep in mind the existing provisions and how the introduced amendments are trying to make changes. Adv Ngema highlighted that there is a lot of contestation happening and one could be of the view that there is not much clarity in the existing legislation. The contestation is serious in terms of who has what power and the extent of said power. She stated that most cases often overlap and attempt to find a solution to the provisions that exist in the drafted statute. She highlighted the importance of section 29 of the Constitution which gives the learners and the adults a right to be educated and the obligations of the state. The submissions have been speaking to the role of the partners who need to ensure that these obligations are met.

The School Governing Body (SGB) finds itself in contestation with either the Principal or the Executive structures i.e. Minister, MEC or Head of Department (HOD) who are all there to guide the processes. The Committee and all its partners involved need to ask themselves what is referred to when one speaks of ‘the school’, is this the learner; or is it the educators, principals etc. The provisions have been interpreted to state that the roles have been outlined clearly. The draft legislation was put together to attempt to address all the issues confronted by the Department of Basic Education before the Bill was submitted to Parliament. If the Committee wants to make changes to sections 16 and 16A of SASA – which are the main provisions on the partnership – those sections do not form part of the Amendment Bill. If the Committee deliberations go as far as saying there is a need to make a decision that speaks to changes in this section, she highlighted the importance of public participation in ensuring that the voices of those that need to have the legislation enforced on their behalf see it to the very end.

Committee members should take into consideration these submissions and make the necessary changes if there are any, and the Committee will deliberate if it amounts to an A-List or a completely new Bill.

Adv Ngema concluded that each Committee sets out its own rules and these are merely a guideline on what shape the process takes.

Discussion
The Chairperson appreciated the comments from Adv Ngema.

Mr Nodada stated that when the process began the presentations were done by Parliamentary Legal Services and there is an indication that there are certain elements that need to be followed within the process, despite the approach decided on by the Portfolio Committee. He suggested that these processes need to be shared with the Committee for the purposes of ensuring that all the elements required have been followed. He asked the Legal Services team if the Committee would need to consider a sizable sample or analyse all the submissions (written, oral, public hearings) as a guidance to the process.

On including changes to section 16(a), he asked if there would be a need to take that decision to the National Assembly. He asked for clarity on the process that the Committee would need to take.

Mr P Moroatshehla (ANC) said that the Chairperson's remarks have served as an eye-opener. It is necessary to appreciate that Adv Ngema has not included any prerequisite that the Committee cannot continue with the clause-by-clause deliberations proposed by the Chairperson. He asked if the comments could be provided in writing to Committee members, to ensure that some of the concerns and questions raised by the Committee members are all noted.

Ms Sukers voiced her support for the suggestion made by Mr Nodada that Parliamentary Legal Services needs to outline the processes they referred to. She asked for clarity from Adv Ngema if the Committee could not potentially be accused of not meaningfully engaging with the public submissions, without the presence of a written comprehensive compilation of for each clause, that is, a matrix.

The Chairperson provided clarity on the role of the legal advisor, indicating that Adv Ngema is there to guide the process. She stated that the Committee members are fearing the unknown.

Parliamentary Legal Advisor response
Adv Ngema referred to the concerns around permission. She stated the importance of bringing information to the Committee and the legal team has not picked up on any provision, or any anticipation of such a process taking place. The Bill as it stands before the Committee is what has already been introduced to Parliament. Rule 286(4)(b) states that it is merely to contain the process and not go overboard, especially when dealing with an already existing legislation. Every submission made needs to be considered during the process. The request for National Assembly permission comes if the Committee foresees a section which may be impacted, however, it is not part of the introduced Bill.

She said that preparing a legal opinion as requested by the Committee members will not be an issue. She will submit it once it has been put into writing.

She referred to the question on public participation and the reports as raised by the Committee members. In doing the work of the Committee it is always good to have foresight, however, in line with some of the parliament prescripts it is obligated to facilitate public involvement to allow the public to voice their views. These are dependent on the resources and capacity, and any directives given by the Committee. To some extent it is an unfair exercise for one to take a view on, as the assessment on how things are done is normally quite subjective. She cannot agree that a matrix of submissions would be or would not be able to assist the process. The purpose of the submissions is to influence the end results and ensure that the people of the country have been heard and considered, and seen to come out through the decisions taken.

Chairperson's follow-up remarks
The Chairperson asked that the opinion be made available as soon as possible.

Mr M Manyi (EFF) said that the question from Mr Nodada on the written versus oral submissions made him quite nervous as he was not sure what the motive of the question was, given the illiteracy rate that the country is facing as a result of Apartheid.

The Chairperson stated that the requested opinion from the legal advisors would play a vital role in guiding how the process is to play out. The Committee should be dealing with politics outside of the main discussion.

BELA Bill: clause-by-clause deliberations
Ms Portia Mbude-Mutshekwane, Committee Content Advisor, proceeded to read out each clause:

Clause 1: Definitions
Mr Nodada proposed that the Committee should insert a definition of 'meeting', keeping in mind that during the pandemic the Committee was forced to do virtual meetings. It is important to insert this definition to establish what that particular provision would look like.

He suggested the insertion of a definition of 'special needs education' and what the provisions around special needs would be.

He asked for guidance on the definition of 'online schooling'. Clause 1(g) is very specific on what home education is, however, as seen in the past couple of years various forms of online schooling have come up in the country. There is no existing space in the South African Schools Act that speaks to online schooling. He asked if including this would invoke Rule 286(4) requiring a request for permission from the National Assembly similar to if one amended section 16A.

Mr Manyi noted the definition of corporal punishment speaks about measures that are degrading. He asked about African children that have to cross rivers to get to school. This has been normalised but is degrading and should be considered as punishment towards children. The fact that children have to be subjected to this should be criminalised. Children are barely able to go to school yet there is a focus on online schooling.

Ms Sukers referred to the definition of 'basic education'. The ACDP proposes that the definition should be redefined. Redefining basic education means pre-tertiary education and may include education in public schools, independent education, home education or other statutory recognised forms of education. She stated that in most cases other institutions do not follow the national curriculum such as the Montessori schools. The definition needs to be more inclusive.

She asked what about the nature of a body registered with the South African Qualifications Authority (SAQA). Is it a curriculum provider? Is it a school? She highlighted that the competent assessors do not include educational psychologists. The public hearings mentioned that special needs children also need to be accommodated, in terms of the necessary tutors and support they need. She asked if DBE would not consider adding the various international and local benchmark tests as a means of assessment.

The definition of 'home education' excludes children whose home environment is not conducive and they are doing the home education in a library or any other establishment most suitable for their studies. The definition also excludes single mothers that have external support for families in the same situation.

Mr Moroatshehla said that the concern raised about physical education possibly being misconstrued as corporal punishment needs to be placed into context. Physical education is an approved subject that forms part of the curriculum. It cannot be construed as corporal punishment. He highlighted that it is ambiguous and vague to include the word “cruel” and “degrading” in the definition. The ANC believes that guidelines are bringing alternative forms of punishment.

Ms Adoons referred to 'required documents' in clause 1. It does not make admission conditional to obtaining the required documents, and by including this provision the ANC envisages that every learner will be treated fairly and given a chance of dignity. The provision ensures that learners will not be treated unfairly by virtue of not having the required documents. The proposed amendment does not state that the relevant documents are a prerequisite for schooling, but instead it states that any learner whose parents or guardian do not provide the required documents during the application for admission shall nonetheless be allowed to attend school; and the principal of the school is to advise the parent / guardian to secure the required documents and alert the provincial inter-governmental committee. The acquisition of the relevant documents shall continue while the learner has been admitted to the school.

Ms M Moroane (ANC) agreed with Ms Adoons on 'required documents'.

Mr B Madlingozi (EFF) sought clarity on the exact age for Grade R.

Dr W Boshoff (FF+) suggested that under the definition of 'corporal punishment' a legitimate punishment definition should be added. A child who has misbehaved and is kept behind after school as punishment may complain that it is a huge discomfort.

Dr W Boshoff (FF+) suggested that collaborative home education should be considered, where about four to five families collaborate for educational purposes. This may lead to the establishment of an independent school.

DBE response
Mr James Ndlebe, DBE Chief Director: Education Management and Governance, introduced the DBE team and responded to each of the comments made by the Committee members.

He referred to the question raised by Mr Madlingozi on the age of Grade R learners and replied that Grade R starts at five years old and Grade 1 is six years.

The definition of competent assessor includes people who are qualified to offer education, and that is the reason they are admitted through the SAQA Act. This would not include psychologists because they are not teachers, but they serve as a support to the teacher.

He supported the suggestion made by Mr Nodada of adding the definition of 'meeting'.

DBE accepted the inclusion of 'special needs education' in line with the rest of the definitions suggested by the Committee members.

Mr Ndlebe indicated that at the time of drafting the amendments there was no provision for online learning, however, the Department is working on including online learning for the future. It would be packaged according to public and private schools; special needs schools; and homeschooling. The suggestion should be put into the Bill, as per Rule 286(4)(b) permission requirements.

The definition of 'corporal punishment' is limited to an interaction between a child and a teacher, the way a teacher chooses to discipline a child in the classroom or at school level. The issue raised by Mr Manyi is outside of the Department of Education, it is a broader discussion that requires the entire government to solve the issue of children crossing rivers to get to school.
The aim of the Department was to deal with abolishing corporal punishment. The public inputs clearly stated that DBE needed to come up with alternative means of punishment. It would be a guideline or regulations that teachers would be encouraged to follow.

Mr Ndlebe agreed with Dr Boshoff that establishing collaborative homeschooling between different families may lead to an independent school, although nothing prevents families or parents from coming together for these collaborative efforts. While the Department is not against the collaborative efforts it also wants to ensure that each parent has the responsibility and accountability of ensuring that their child receives an education.

He responded to Ms Sukers stating that while the clause indicates that the home is indicated as the primary place where a child can receive an education, it does not exclude other places such as computer labs where children could receive an education.

He indicated that there was no opposition to the required documents referred to by Ms Adoons, however, it is important to emphasise that the submission of these documents does not serve as a condition for the child to be admitted into the school. Once the child is admitted into the child it is a collective responsibility to ensure that the necessary documents are made available and a child is registered accordingly.

The Chairperson requested the Law Advisors to comment on the concern about requiring National Assembly permission for adding a definition.

Law Advisor response
Adv Ngema stated that clause 1 already forms part of the Bill and it deals with all the definitions that could be in the Bill. There would be no need to request permission as per Rule 286(4)(b) requirements.

Mr Shaun van Breda, State Law Advisor from the Office of the Chief State Law Advisor, responded to the concerns raised about the limited definition of 'basic education'. The term is a constitutional right and the courts are constantly interpreting these constitutional rights. Having a limited definition may be in conflict with a court judgment in respect of its interpretation. He suggested that the words ``it includes Grade R to Grade 12” could be included in the A-List.

On the definition of corporal punishment being too limited, he stated that the definition is consistent with the United Nations Child Rights Committee's definition of the phrase. The wording “includes, but is not limited to” covers the limitation.

Follow-up questions from Committee members
Mr Madlingozi highlighted that historically children started attending school at the age of seven, and it is no surprise that in the modern age children from as little as three years have already got critical minds. He asked if the age of five should really be the age that is considered. Can the starting age not be decreased to three/four years?

The Chairperson urged Members not to have follow-up questions at this stage and to allow due process to follow its course. She acknowledged that the EFF members were not part of the process at the beginning and she had provided clarity on the process to bring them up to speed. Unfortunately the clause could not be changed to incorporate Mr Madlingozi's proposal as the Committee is far ahead in the legislative process right now.

Mr Manyi acknowledged the explanation from the Chairperson; however, it may somehow amount to suppression. An issue was raised and the Member should be allowed to raise follow-up questions to close off the matter, as it was not a new matter being introduced. He suggested that for the purpose of saving time the clauses should not be read out in full, as Members have already received the documents and are aware of what will be read out.

The definition of corporal punishment speaks about measures that are degrading towards a child and therefore the reality of children having to cross rivers to get to school form part of those measures. The DBE response is that the child only matters once they enter the gates of the learning establishment, and what happens before the child gets to school is unimportant. There needs to be an integrated approach when dealing with matters related to children. This is an opportunity to fix the structural concerns faced by learners in those areas.

Ms Sukers said that as the ACDP they do not support the definition of 'basic education' as it stands, it should remain as it is in the Principal Act. On corporal punishment, she asked for clarity on provisions set in place for special needs children when they need to be constrained.

Mr Nodada asked for guidance from the Chairperson on how clause 1 will be wrapped up. Taking into consideration all the various inputs from Committee members and the law advisors. There needs to be a determination as to what will happen with the clause.

The Chairperson replied that when she hands over to the lawyers to respond, they have responded accordingly to the concerns. She asked the lawyers to advise on how the process needs to be consolidated.

The State Law Advisor said that after the deliberations they will prepare the draft amendments which will speak to what has been discussed by Committee members and DBE, and it will be turned into an A-List [Committee proposed amendments]. The A-List will be presented to the Committee for consideration and adoption, thereafter there will be a B-version Bill coming out of the Committee which will become the introduced Bill.

Dr Boshoff asked if the Members will be required to vote on the B version Bill clause-by-clause, or if they will be required to vote yes or no on the entirety of the Bill.

Adv Ngema responded that each clause is to be voted on.

DBE Task Team response
Adv Lynn Coleridge-Zils, Director of Policy Coordination, Western Cape Education Department (WCED), suggested that the definition of 'basic education' should be defined as “it refers to Grade R to Grade 12, or any other curriculum that is not inferior to the National Curriculum Statement”. This would cover the comments made by the Committee members.

She highlighted that the definition of corporal punishment is not limited to what is covered in the clause. She suggested that in terms of “forcing the child to do exercise…”, one should add “that is not part of the extramural curriculum” to strengthen it.

She agreed that the defintion of 'meeting' and 'special needs education' should be added. She noted that there are various forms of online schooling and the Committee also needs to take that into account.

Mr Chris Leukes, DBE Acting Chief Director of Legal Services, stated that physical education forms part of the curriculum and cannot be regarded as corporal punishment. He agreed with his colleague and suggested that this should be clarified in the definition. The phrase in the corporal punishment definition “not limited to” indicates that it is not a closed list, and these are merely examples listed.

Follow-up by Committee members
Ms Sukers said that her point about corporal punishment when it comes to special needs learners was not addressed.

The Chairperson explained that the matter would be addressed through the A-List process.

Mr Ndlebe responded to the concern saying corporal punishment is a deliberate act of inflicting pain on a child, whether emotional or physical. Physical education is not inflicting pain deliberately on a child, therefore it cannot be part of corporal punishment. There is a due process followed when a teacher is disciplined for enforcing corporal punishment.

Mr Ndlebe also addressed the concern about the starting age for schooling. Education starts at age zero. That was the reason the powers were given to DBE from the Department of Social Development to take care of all elements of education and not just to look after the needs of school children. There are programmes for all age groups; however, from the age of five a child needs to start attending formal education.

Mr Manyi proposed that Early Childhood Development should be incorporated into the process that is already underway, to avoid coming back to the matter in the future.

The Chairperson agreed with Mr Manyi and said that ECD was shifted to DBE in 2022 and the Bill never considered this matter. She asked the lawyers to consider the matter and put it into the proposed amendments.

Clause 2: Amendment of section 3 of Act 84 of 1996 on Compulsory attendance
Dr Boshoff indicated that the matter of parents or guardians of unregistered homeschoolers being at risk of imprisonment had been under consideration during the public hearings. The proposed penalty was quite harsh, and it should be reconsidered.

Ms Sukers referred to the point of making Grade R compulsory in the clause. The Socio Economic Impact Assessment is only concerned about the financial impact on the state and it does not look at the financial impact it would have on the public. The system will have unintended consequences if it is made compulsory, as there is not enough information on the system. The ECD census does not cover Grade R, and it is estimated that Grade R is 95% of Grade 1 but there is no research to prove this fact. If the clause is adopted there could potentially be an issue of backlog in the registration process. If the compulsory education age is extended to Grade R, this means that all children within that age will have a right to education. She raised a concern that when the Bill is adopted, any Grade R programme which is not at a public school will need to be registered with an educational institution in terms of section 29(3)(c) of the Bill of Rights. She asked for clarity on the number of programmes available, if Parliamentary Legal Services has considered this and requested that it provide a written opinion on the matter.

Mr Nodada asked for clarity on the financial requirements of making Grade R compulsory. While it is commendable that children will be sent to school from an early age, taking into consideration the current crisis of reading challenges and ensuring that children are in a protected space. He asked for clarity on the recourse mechanism which exists for parents that do not take their children to Grade R and choose to keep their children back due to safety reasons or feeling as though their child is too young. Also the South African context which has been outlined by Committee members such as children having to cross rivers to get to school is very important to this conversation. The wording “just cause” is quite broad and needs to be explained thoroughly.

The penalty of a parent not taking their child to school has been increased to 12 months. Has there been an instance of someone being penalised for such? He asked for the rationale for increasing the punishment and if this is the best way of dealing with a child not being taken to school.

Ms Moroane stated that while DBE has outlined the various school-going ages, the South African Schools Act already has a penalty clause and increasing the penalty provision does not target a select group of parents but applies equally horizontally to all parents who prevent their children from accessing education. In an attempt to address the high learner dropout rate, it is anticipated that increasing the penalty provision serves as a deterrent for the parents who prevent their children from attending school, and it does not discriminate against any parent. A penalty clause is legislated and gives the court's power to prosecute.

DBE response
Mr Ndlebe replied that the clause will not affect home scholars. For home scholars, if there is proof that the child is receiving an education, there is no way that a child who receives education at home will have a parent subjected to the conditions of this clause. The clause has been put in place specifically for parents who refuse to take their children to school even when conditions allow them to. There are cases of children with special needs who are locked in houses by parents and are not allowed to go to school and others with particular reasons for not allowing their children to attend school. There is the rule of law so a parent who may be suspected of violating this Act may not just be locked up without due process being followed, such as establishing the reasons for this. DBE has set out these provisions to ensure that a child aged five may begin to attend formal schooling, not limited to a government institution. The clause covers the choice of the parent.

Committee members can guide DBE on the number of months for penalisation of parents who do not take their children to school as they should; however, there should be consequences.

The question of age is confusing and DBE confirms that indeed it is messy. DBE will be correcting the matter with the help of the legal team. A child needs to be five years of age to attend Grade R, and this refers to a child who is four turning five by 30 June. In Grade 1 the child needs to be six at the time of registration. The current confusion is between the age of registration and the compulsory school-going age. The current school-going age according to SASA is age seven and this is not the age of admission. It means that the child needs to be at school by the age of seven.

Follow-up by Committee members
Dr Boshoff again noted his dissatisfaction with the penalty for parents who are found guilty of not taking their children to school as obliged to.

Ms Adoons stated that the stakeholders involved in this process are all there for the interest of the child. If a child is not given their rights it is a criminal offence, and any person who stands in the way of a child receiving an education should be attended to accordingly. She agreed to the 12 month penalty.

The Chairperson highlighted that the age provision needs to be looked into by the advisors. South Africa is not the only country where parents are penalised for not taking their children to school. She noted other countries as a benchmark such as in Jamaica parents are convicted for 14 days, in the Bahamas it is one month, Nigeria two months, and Malaysia six months. The provision is not entirely new and the Committee has taken a decision for 12 months imprisonment.

Clause 3: Insertion of section 4A Monitoring learner attendance
Mr Nodada indicated that while the clause is straightforward, it is important to note the high number of dropouts in South African schools and 3.8 million youth are not in education or training. The issues may rest in the systems that exist. The clause is acceptable; however, there should be further investigation on tools that can be given to schools to keep track of the dropouts.

Mr Moroatshehla agreed with Mr Nodada. Some of these fears may be addressed through stating that the role of parents should be strengthened even further.

Mr Manyi asked for clarity on the thought process for stating that the matter should be reported to the governing body as opposed to the HOD.

Mr Madlingozi suggested that the three consecutive days of absenteeism should be reduced and this matter should be reported in less than three days.

DBE response
Mr Ndlebe replied that the Department accepts the suggestion to invest in the tools that deal with attendance as well as strengthening the role of the parent.

On the concern about three consecutive days of absenteeism, it is not possible that a follow up could be made on a day to day basis as it poses an administrative challenge.

Mr Leukes highlighted that it is the parents' responsibility to ensure that they report their child to the school if the child is absent from school.

The Chairperson stated that DBE should not be confusing Committee members as it is the Department's laws which are being discussed.

There was an agreement to keep it as three consecutive days of absenteeism.

Clause 4: Amendment of section 5 Admission to public schools
Deputy Minister, Dr Reginah Mhaule, said that clause 4(b) on the Intergovernmental Committee might not be implementable as DBE may not have control over other departments. It was therefore decided that 4(b) should be removed from the clause.

Dr Boshoff said that clause 4 implies a huge bureaucracy because the ability to process and provide feedback on a policy within 60 days may not be possible for the HOD. Therefore in some instances policies may be left as they are. DBE has also not made fiscal provision for the hiring of a team to assist the HOD to process these policies. DBE in this case acts as a service provider and a regulator.

Ms M van Zyl (DA) raised concern about clause 4(a) as the age of admission is too young given the circumstances that some learners have to face such as infrastructure that hinders them from safely commuting to school. She also raised special needs children and stated that this would negatively affect them.

Mr Nodada acknowledged the removal of clause 4(b) as the Department and the Committee would be compensating for the work of another department. Clause 4 requires a legal opinion because it may have constitutional implications on the separation of powers. He pointed out the importance of recognising that School Governing Bodies have a fundamental role to play. For clause 4 the status quo should be that the SGB must determine the admission policy as it is well versed about the capacity in the particular school. The SGB is constituted by parents who come from these communities. The HOD is required to approve every SGB admission policy which would be quite extensive and prove to be an administrative burden. The Department cannot both be player and referee when the policy is being challenged. The principle of separation of powers is important.

Mr Nodada suggested that the power of the SGB should be retained in having power over admissions. The appeal mechanism therefore determines whether it should go to the HOD or MEC. It cannot be avoided that there are some schools that utilise admission policies to exclude certain learners, and it therefore becomes the responsibility of the Department to ensure that there is a recourse mechanism for parents when they raise a complaint about a policy that is excluding certain learners.

Mr Moroatshehla agreed that the clause was quite contentious and the public hearings were evident of such, as the public expressed their views either for or against the policy. The public said that the admissions policy has been illegally used to exclude some learners from accessing certain schools. The public also said that some of the SGB policies are selective to the extent that learners are admitted on the basis of language, academic performance, sporting achievements among others. One of the reasons SASA was amended was to align it to the recent court decision and ensure that due process is followed by the HOD. The HOD may only disapprove a policy if the set processes are followed. Change is painful and inevitable especially when things are no longer working. He said that the policy should be amended as proposed by DBE.

Mr T Letsie (ANC) acknowledged the importance of DBE being able to self-correct and note the inputs of the public. It is confusing that the DA says that DBE cannot be both player and referee yet in the same breath suggest that the SGB can be both player and referee. The appeal goes through to the Department. He agreed with Mr Moroatshehla and stated that there is a court judgment that the HOD has the power to admit a child that is excluded by a particular school. The judgment indicated that the SGB may determine capacity as part of its admission policy, however, the power is subject to other provisions of SASA which state that DBE maintains ultimate control of admission decisions. He supported the amendment made by DBE.

Ms Sukers relayed her personal struggle with the clause with the admission of her own children to a school. She knows how it feels to have the policy used in a discriminatory manner. She disagreed with the amendment and indicated that it is administratively heavy. She proposed that there should be a national dialogue on the matter as the emotions about this are indicative that there are deeper issues that need to be addressed.

Mr Manyi said that DBE should have highlighted that this was merely a summary of the public interactions. The EFF is aware of the various racist SGBs that exist and make it difficult for children to be admitted to certain schools. The Committee should not waste more time and betray the mandate of the people, who request that the government should address this. The EFF agreed with to clause 4 as it seeks to correct the issues raised by the public.

DBE and Legal Advisor response
Mr Ndlebe indicated that the Constitution calls for the basic right to education and DBE is a custodian of this clause. When a child is not at school the Department needs to account for the child, because no one will address the SGB in this case. The role of the SGB and the Education Department cannot be compared to that of Eskom and other service providers. DBE is not a service provider but rather a custodian of education for every child in South Africa. The powers of the SGB cannot be compared to the powers of DBE. The clause seeks to allow the SGB to determine these policies as a shared responsibility; however, the clause also states that the HOD should have a final say on what the SGB has come up with. The SGB cannot be given all the authority to develop a language policy and still be the only one to have a say on the same policy.
He noted the concerns raised by Committee members about the administrative burden of the policy, about which DBE will have a discussion together with the legal team. He acknowledged that the turnaround time for the policy submission may be a bit risky and needs to be looked into again.

Mr van Breda stated that the clause is in compliance with the Constitutional Court judgment of the MEC for Education, Gauteng v Rivonia Primary School. The Court stated that DBE maintains ultimate control and admission policies cannot be in conflict with the Constitution.

Mr Ndlebe addressed the concern on the admission age. The admissions policy has always stated that children in Grade 1 are to be five years turning six at the age of admission, and with the addition of Grade R it is taken a year back.

Ms Coleridge-Zils indicated that DBE has been taken to court in the past on the age requirement because parents felt that if their child is ready and there is space for admission, their child should be able to start school.

Adv Ngema asked for clarity from DBE on the policy for expulsion as the Bill is quiet in that regard. She asked for clarity on the Department's take on addressing this because if the Bill currently speaks to the admissions policy it is the only part that has been addressed and the other policies will remain abstract.

Mr Ndlebe explained that the SGB will conduct a disciplinary hearing. If a child is found guilty and they have to be expelled, the SGB will recommend to the HOD for expulsion. Only the HOD has authority to expel a learner.

The Deputy Minister added that the appeal process sits with the Member of Executive Authority, where parents can appeal the expulsion decision. She also referred to pregnancy in schools and stated that all learners have a right to education. The Department has come up with an administrative process on how to deal with a pregnant learner.

Follow-up questions from the Committee members
Mr Nodada repeated his request for a legal opinion on clause 4 as it will assist to gain perspective on what was said by the legal advisors.

Mr Moroatshehla stated that the legal opinion request by Mr Nodada was confusing because the legal team is already in the meeting. He did not understand where else the legal opinion should be sought. The request is just a way of prolonging the process. He objected to Mr Nodada's request.

Ms Sukers reiterated her request for the Act to be broadened to allow for a public school to become a private school. The issue of legality is around centralisation, and therefore it would be important to know what the constitutional impact thereof is.

Mr Nodada said that his request has been misinterpreted. His request was simply to have the information that has come out of the meeting on the clause to be put in writing to provide clarity.

Clause 5: Amendment of section 6 Language Policy
Mr Moroatshehla stated that he has had personal experience with this particular policy, as a defendant of it as well as a victim of clause 5. A straightforward response to this clause is consequential to clause 4. His own child could not be admitted to school due to the constraints of the language policy, and he had to get the intervention of the Minister. He agreed with to the clause as proposed by the Department.

Mr Nodada requested a legal opinion on the clause as to the separation of powers. If laws are made for the exception, it becomes problematic. It was important to ensure that the parents and community are involved in their school and to determine what would be best suited for that particular environment. For example, his hometown in Tsolo, Eastern Cape has mother tongue education in Xhosa. He noted the importance of being able to process information and the depth thereof in one's own mother tongue. The establishment of the best language policy needs to be left to the community and parents of the children, otherwise it may become problematic. The power of determining the language policy should not be left in the hands of one individual who will determine the future of children. Power should not be centralised.

He agreed that the Committee cannot run away from the fact that there are schools that use their language policy to exclude certain learners. He proposed an alternative clause stating that the SGB of a public school may determine the language policy of the school subject to the Constitution, any applicable act or provincial law, provided that the language policy of a public school must be limited to one or more of the official languages of the Republic of South Africa; also taking into consideration that sign language has been recognised as an official language at a public school. If a parent is not satisfied with the language policy of an SGB based on the Constitution, they may appeal the decision to the HOD or MEC. He once again asked for legal guidance on the clause as it may have constitutional implications.

Mr Manyi stated that Committee members might not have the same understanding of the meaning of an HOD, and the role they play. An HOD is not a politician but rather a professional who would have submitted a CV in his professional capacity, and would have a great understanding of the law and the Constitution. The HOD is there to ensure that government policy is implemented accordingly. It is important to contrast this with the functions of an SGB, which is for the strengths and purposes of issues within that particular area. The HOD brings about a rational approach to dealing with matters to do with the Constitution and the learner. The legal team present should not be undermined, as they are there to provide guidance and real time opinions.

Dr Boshoff also agreed that clause 5 is mirroring the previous clause. The comments in the previous clause apply to this clause. It is important to note exactly which schools are being referred to – whether state schools or community schools. This would in turn determine how the state intervenes and to what extent they intervene in these matters. It is a language issue, and mostly has to do with Afrikaans schools. The Committee is getting to the core of the 1994 settlement, where the previous leaders indicated that while all the agreements are being entered into they need to preserve their schools. Government then indicated that they may keep the Afrikaans schools but should not discriminate and exclude learners on the basis of race, gender etc. The state schools of the previous dispensation were turned into community schools and when a school community constitutes itself in a particular area, the members of that particular area work together to ensure that the school is running accordingly with adequate resources. This is in accordance with Section 235 of the Constitution and it is problematic that the proposed Bill is working towards removing what has been stated in the Constitution.

Ms Sukers also relayed her personal experience with the language policy. The right to educate your children in their language of choice is an inherent human right. When laws are made it is always important to note that the law deals with the lives of human beings and hearts and minds need to be reached in order to make a success of any system. What has been put forward by all that voiced their views on change and transformation, has been in formation for ten years and the Committee needs to reach the hearts of those individuals to collectively address issues which matter to the heart such as language. The state must not do what the community can do. It is important to engage with schooling communities on these issues. However, she maintained that she disagrees with the amendments.

Mr B Yabo (ANC) said that the clause provides all the checks and balances to qualify for constitutionality. The clauses do not come across as handing over arbitrary power to a single individual. For example, the requirement that the SGB formulates the language policy still remains in place, and the policy is then given to the Department for the HOD to approve. There is some form of accountability on what has been formulated by the SGB. When the HOD wants to amend the language policy there are procedural steps the HOD has to take. There is nothing in the clause that provides the HOD with arbitrary powers. He agreed with the clause as written.

Ms Adoons stated the main purpose of the public hearings was to hear the views of the public on the Bill before the Committee. The majority of the public expressed their excitement in their participation in this process. The Committee cannot take decisions on behalf of the public without engaging with communities. The Bill will bring hope to parents because it means that there is work being done with what concerns their schoolgoing children. The clause should be passed as is because it is going to assist those that have previously been disadvantaged.

The Chairperson noted sign language being added as an official language and asked why braille was not added.

DBE response
Mr Ndlebe responded to the Chairperson saying that the statement needs to be amended as it states that it is for the purpose of teaching and learning; however, it should remain as an official language.

It cannot be a mistake that there are children that cannot speak their mother tongue. A lot of children attend schools where they are taught in languages that are not their mother tongue. The Committee and the Department would not be in this discussion if SGBs were listening to communities. It cannot be right that there are schools in places such as Pretoria, the capital of South Africa, that are inaccessible due to language barriers. It is not an Afrikaans language issue and it should not be painted as such as languages such as Setswana are also affected. SGBs do not want to allow processes where a Setswana school is built in an area full of Sepedi-speaking children and these two languages coexist in one school. There should not be a difficulty in this process because communities are not monolingual; communities have changed.

He explained that an HOD is a person who is appointed as a custodian of education and they should not be compared to an SGB. There should always be a custodian of the education to ensure that children are receiving an adequate education. The reason these things do not happen is because SGBs take on these responsibilities themselves and decide for the majority. The public must decide on the language policy through various consultations outlined in the Bill.

Mr Leukes addressed separation of powers highlighted by the Committee Member.

Legal Advisor response
Adv Ngema stated that it is clear that clause 4 and 5 are supposed to be mirroring one another and that is not the case. Clause 5(6) does not indicate a way forward, and it does not indicate what is to be done should the SGB not take on the recommendations. They accept the point and the two clauses should truly mirror one another and DBE needs to find synergy to mirror the clauses.

Mr van Breda addressed the matter of separation of powers. It is a constitutional principle and it envisaged the function of the three branches of government are kept separate. Section 29(2) in the Constitution provides that a learner has the right to receive education in a language of their preference, and section 7(2) indicates that the state should respect this right. Therefore the clause is attempting to ensure that that right is fulfilled.

Clause 6: Amendment of section 6A of SASA Curriculum and assessment
Mr Moroatshehla indicated that in the public hearings which he attended there were no comments on the clause and therefore the Committee should move to clause 7.

There were no comments from DBE and the legal team on the clause.

Clause 7: Amendment of section 8 of SASA Code of conduct
Mr Nodada suggested that maybe the term “just cause” is too broad and should be replaced with more specific language such as religious, cultural, or medical grounds.

Ms Sukers stated that most schools have codes of conduct which are not legally compliant. SASA was passed in 1996 and ten years later the Children's Act and the Child Justice Act was promulgated. She asked if the BELA Bill addresses and incorporates the principles of the Children's Act and the Child Justice Act.

Dr Boshoff asked if this clause would not be an appropriate place to add the measures that can be taken by the school when a learner breaks the code of conduct. The Bill is very clear on what is not allowed but it does not indicate what happens when the code of conduct is not adhered to.

Mr Moroatshehla stated that the ANC supports the clause as is.

DBE response
Mr Ndlebe stated that if "just cause" provides listed examples it would be limiting; whereas if it is left open it allows the school to apply its mind to the application it receives. The clause is still subject to correction.

DBE did not see it necessary to put the Children's Act and the Child Justice Act into SASA as they apply in schools even though they have been developed by other departments. It is not accurate to say that there is nothing happening in schools in terms of discipline. The measures for discipline are in place such as the demerit system and detention. DBE has been teaching schools on how to develop a system where they should be indicating what happens when the code of conduct is violated. When DBE is dealing with alternative measures for corporal punishment, it is in addition to what is already happening in schools. The clause emphasises the exemption in case a parent wants to be exempted from a particular clause.

Mr Leukes highlighted the case of the Kwa-Zulu Natal school where learners, specifically girls, were not allowed to wear jewelry and in this case it was for religious purposes; the Constitutional Court agreed with the argument. The Court indicated that schools should allow for such exemptions based on religious or cultural reasons.

Legal Advisor response
The legal advisors said that they would work together with DBE on the request to provide clarity on the term “just cause”.

Clause 8: Amendment of section 8A of SASA
Mr Moroatshehla indicated that as the ANC they sympathise with clause 8, whether the intentions were good or bad, the clause is not executable. The clause is confusing and to such an extent that the Committee was called names by the public. Clause 8 was shot down by members of the public in almost all the public hearings. It would be a misrepresentation to think that the clause could be defended. He proposed that the clause should not be included.

Mr Manyi stated that even during the Apartheid era this clause would not have been acceptable. It should not be acceptable in a democratic government to have a proposal which seeks to normalise alcohol. The effects of a drunk person not only affects the school but will result in cases of abuse in the home. The clause will undo the great work being done by the Department, and therefore he proposed that the clause should be scrapped. The EFF rejected the clause on these grounds.

Mr Letsie agreed that the clause should be removed as it was also one of the most contested clauses. The clause could possibly be abused by an SGB.

Mr Nodada sympathised with the sentiments of the public on the rejection of the clause. While the effects of alcohol abuse are quite extensive in the country, often in communities there are not enough facilities for use for other activities. The rationale by the Department was understood because communities have to use these school facilities for their own functions. Quintile 4 and 5 schools face budgetary constraints and they have to find other means to preserve and maintain the infrastructure and employ more teachers through the SGB. This custodian given their powers should facilitate discussions on any activity that needs to happen on school grounds. The clause did not pass public participation muster, however any arrangement available for the SGB to utilise school facilities for fundraising activity should remain unless alternatives are made available. The liquor law should guide how the process is facilitated.

Ms Sukers agreed with her colleagues and echoed the sentiments shared about the effects of alcohol in communities.

Dr Boshoff asked for clarity on what will happen if the clause is not accepted, in the case of a staff member who lives on the school premises. Can the staff member not consume alcohol in their own home? Will the church only use grape juice for holy communion? There are well established practices going on without scandal where alcohol is consumed at functions. He asked if these circumstances will become illegal if the clause is not accepted. The clause could be refined.

Mr Madlingozi agreed with his colleague Mr Manyi that schools should be respected and treated as sacred places.

DBE response
Mr Ndlebe stated that while the Department knew what it wanted to achieve with this particular clause, its views have now become immaterial. DBE has removed clause 8A which deals with the sale of alcohol.

Clause 9: Amendment of section 9 Suspension and expulsion from public school
Mr Manyi stated that the formulation of “not limited to” is not applicable to this clause. He also noted Schedule 1 of the Criminal Procedure Act.

Ms Sukers said that this was an example where the Children’s Act and the Child Justice Act principles are not being applied. DBE should consider adding the rights of the victims and of learners at the school because the clause has a sole alleged perpetrator approach.

The ANC supported the clause.

Mr Letsie said that the clause is trying to respond to situations where certain schools want to get a reason to expel a learner. He supported the clause as it provides clarity on what exactly is the extent of the misconduct.

DBE response
Mr Ndlebe stated that the definitions may be altered with the assistance of the lawyers to cover the concerns raised by Ms Sukers and Mr Manyi.

Mr Manyi explained that “not limited to” is open to abuse, because schools may suspend learners simply for having Afro hair. However, in this case it is exhaustive and justifiable therefore it could be left as is.

Clause 10: Amendment of section 10 Prohibition of corporal punishment
The ANC moved for the adoption of the clause that corporal punishment should be abolished.

Mr Nodada said that the one concern that came out of the public hearings was the need for a recourse mechanism for teachers with the abolishment of corporal punishment. The DA agreed with the clause but indicated that there should be a recourse mechanism in place.

Mr Manyi stated that the Committee should not try and justify teachers hitting learners. If a learner is hitting a teacher they should be reported to the police and there should not be an environment where anarchy is created. The clause seeks to remove abusiveness. Any other wayward behaviour should be added to clause 9.

Mr Moroatshehla said that discipline is subjective and discipline is not implemented by the Department but rather it starts with the parents in the home and then the teachers. The department can only provide a guideline.

Ms Sukers said that there has been a case of an autistic learner who was constrained and the carer was accused of handling the student in an abusive way. She asked if there should not be a definition that allows for exemption when addressing behaviour in the case of special needs.

Dr Boshoff highlighted that schools are places where power is exercised, but power is also able to be taken away. Once teachers lose their authority, the bullies will take over and they will not hesitate to exercise corporal punishment. This has a lot to do with the moral authority of an individual and it is difficult to legislate. He raised concern with the strict description of corporal punishment.

DBE response
Mr Ndlebe urged Committee members to focus on the clause, and he agreed with the sentiments shared by Mr Manyi. The previous clause dealt with misconduct of children and the code of conduct. The recourse is indicated in clause 9. Constraint was dealt with in the definition of corporal punishment. Teachers that are found in contravention of the clause will go through due procedure and it will be determined if it was indeed corporal punishment, or if they were just constraining a child. DBE is working on establishing a recourse mechanism.

Mr Leukes added that the amendment seeks to broaden the prohibition to include corporal punishment at hostels and school activities defined in the Act.

Follow-up by Committee members
Ms Sukers said that the Committee members inputs are based on what the public has voiced out. DBE needs to provide guidance to the Committee.

Committee members agreed that there should be an alternative proposal to corporal punishment for the behavioural problem in public schools currently. The Committee should not be referred to clause 9.

Clause 11: Amendment of section 10A Prohibition of initiation practices in schools hostels
All Committee members agreed with the clause.

Clause 12: Amendment of section 12 Provision of public schools
Mr Manyi proposed that the Department should be given a chance to explain the necessity of a clause before it is deliberated on by the Committee to provide insight for the discussion.

Mr Ndlebe noted that currently schools are providing general subjects such as Maths, Science, and commercial schools. However, things have changed over the years and there are aviation schools now and marine schools. The clause states that if a community wants to change the focus of a school they can apply to the HOD and MEC to facilitate that process. The MEC or HOD can also initiate a process to provide more and better options for learners.

Dr Boshoff wondered if this process may include National Certificate Vocational (NCV) programme which is managed by the Department of Higher Education. It may be appropriate to replace the Further Education and Training phase (FET) phase with the NCV as it is more career oriented.

Committee members agreed to the clause.

Clause 13: Amendment of section 12A of SASA Merger of schools
Mr Ndlebe stated that this is not a discussion of whether schools can be merged or not, because that provision already exists in the SASA. The clause talks about ways to go about the merger. There are two types of schools – primary and secondary schools – but some schools are a mixture of junior primary and senior primary schools. There is a misalignment in this regard and DBE needs to ensure that schools start at Grade R to Grade 12 or Grade 8 to 12. If there are misaligned schools and there is a need to remove some children and put them in another school, this section covers that provision. The clause also outlines what the minimum requirements are for a school to exist, and that is 135. Anything under 135 does not qualify as a functional school and it can be matched with another school to bring them together. Any school with few learners tends to have fewer teachers, which creates a burden for the teachers and a disadvantage for the learners. The clause seeks to address the mischief of Provincial Departments not following procedure in merging schools. The public hearings indicated the frustration of not following procedure.

Mr Nodada indicated that it is good to exercise caution on this. There has been a moratorium in the Western Cape to close down or merge small schools, as this poses a big issue for farming communities. In many instances these are the only schools available in that area for the children of farm workers or the farm communities. Smaller schools make an impact in the quality of education, and therefore how do we protect the pockets of excellence that exist despite the fact that there is an understanding of those that are non-viable. There needs to be thought behind the recourse that exists when there are no other alternatives which exist for these children.

Dr Boshoff said that there is no mention of what happens to the property of the schools which are vacated and perhaps the communities may have some plan for those spaces. This process needs to be formalised in the case where a community wants to make an independent educational institution – as to how do they acquire the building.

Ms Sukers stated that the outlined procedure is quite harsh. She gave the instance of a school that closed in December and in January learners had to start a new school, taking into consideration the transportation barriers and the appeals of the community have not been addressed. It is important to note the impact these mergers have on the communities and to take precautions on how the consultations are done in the case of widespread communities.

Mr Moroatshehla stated that communication with stakeholders should be refined from the onset. Learners should not be moved from well roofed schools to accommodate them in temporary structures. There are cases where learners are moved to a new school and transportation provision is not made, resulting in learners not being unable to access the new school. This must be taken into consideration and provision for scholar transport needs to be made.

Ms Sukers asked what DBE is doing with unutilised infrastructure as a result of the mergers.

DBE response
Mr Ndlebe said that the Bill is seeking to improve and address the concerns raised by the Committee. There needs to be procedural processes that are followed in order for the merger to take place. There are over a thousand schools in KZN that are non-viable. DBE needs to work faster in dealing with these schools. This will enable the release of additional resources and teachers as a means of supporting the schools mentioned by Members, that is, farm schools.

The Department refers to the schools that have been merged and left empty as decommissioned schools. The decommissioned schools are taken back to the Department of Public Works and Infrastructure(DPWI) and they become its responsibility. However, prior to that process DBE consults with the community to guide them on what the empty school premises could be used for. In some instances where schools are too far apart, these schools are used as circuit offices and subject advisors will utilise these spaces.

Clause 14: Amendment of section 18A Code of conduct of governing body
Clause 14 was removed from the Bill. Mr Ndlebe indicated that in the public hearings there were complaints that the process of declaring financial interests as the SGB is an administrative burden. There is a clause on recusal which speaks to this, where an SGB member has to recuse themselves in situations where people are discussing issues in which they have a financial or personal interest such as the appointment of a person or tender process.

Clause 15: Amendment of section 20 Functions of all governing bodies
Clause 15 was removed from the Bill.

Clause 16: Amendment of section 21 Allocated functions of governing bodie
Mr Ndlebe stated that DBE would like to leave clause 16 to the Committee to discuss and make a ruling on. The public hearings were evidence that the complaints about central procurement are based on experience. Section 21 schools are schools that are meant to have money deposited in their accounts to purchase Learning and Teaching Support Material (LTSM) themselves. However, the experience on the ground is very negative because the Provincial Education Department (PED) withholds the money and makes the purchases on behalf of the schools. Sometimes the schools do not need these materials or the material delivered has been inferior. The Eastern Cape has been taken to court and it was challenged on its implementation of central procurement.

Mr Letsie stated that as it stands provinces can still buy in bulk on behalf of these schools and provinces are purchasing resources that certain schools do not need. The clause seeks to address and regulate department purchasing behaviour. The clause states that the PED needs to consult the schools before purchasing LTSM. The clause re-emphasises SGB powers. He proposed that there should be a way to deal with schools that do not adhere to the correct procurement process. He also suggested that some of the money saved by the PED during the procurement process, should be channeled to infrastructure projects in schools.

Ms van Zyl said that corruption as the consequence of centralisation procurement in South African schools has always been a significant concern, because it affects the quality of education. While the concept of centralization aims to streamline the process, increase effectiveness, and reduce costs it often leads to several unintended consequences. One of the most prominent is corruption. She suggested that there should be an alternative clause, because being 'in consultation' does not equate to being 'in agreement'. The clause should state that “notwithstanding the provisions of subsections 1(c ); 3; and 22, the HOD may in consultation and after agreement with the SGB procure identified learning…” The term “agreement” needs to be added.

Dr Boshoff agreed with Ms van Zyl, given the history of state capture which makes the idea that centrally procured items are cheaper and in most cases may even be more expensive. The clause should indicate “on request by '' which would mean that the HOD informs the Department on what is available at a particular price and the SGB requests it at that price through the necessary channels. The scrutinising of financial statements of schools is also very important.

Ms Sukers said that aggregate procurement works when there is an efficient system in place. This is not the case in the current context.

Mr Manyi said it is important to take note that the agenda is always to drive transformation. The value for money approach which the procurement process is taking only benefits those that have their way with the economy. The points on aggregate and central procurement are a fancy way of saying only white monopoly capital should be producers and fledging SMEs should die. In the long run the procurement approach will negatively affect those at the lower end of the scale and owners of small businesses will suffer. The procurement process should take the long road and think of the benefit of small businesses in the long term.

Mr Madlingozi said that the Committee should be careful not to create legislation for the effectiveness of the economy because in turn young people with businesses are sidelined within this monopoly.

Mr Maroatshehla argued that the clause is a balanced piece of the legislation because there is no element of making any compulsory infusion. It is also a progressive piece of legislation.

Mr Nodada added that the concept of centralization is generally problematic. The dangers have been evident particularly in the Eastern Cape province where textbooks are never delivered on time and some officials think that they own the schools to the detriment of the learners. Centralisation is problematic as it is often open to corruption. Laws may be made with good intentions and end up backfiring in the long run. He highlighted the importance of decentralizing procurement.

Mr Manyi said that saying “in agreement” is incomplete without pronouncing on the deadlock breaking mechanism because what happens in a case where there is no agreement.

[The audio cut and the Chairperson's closing comments were inaudible].

Adv Ngema said that the courts have explained that it is equivalent to “in agreement” and there is nothing that can be done unless both parties agree after consultation.

Clause 17: Amendment of section 22 Withdrawal of functions from governing bodies
Mr Ndlebe explained that clause 17 is about the withdrawal of SGB functions [inaudible]

Ms Moroane welcomed the clause as it deals with corrupt SGBs and those which are unable to deliver as expected.

Mr Moroatshehla echoed his support for the clause.

Mr Mandlingozi asked for the exact length of the period of withdrawal.

DBE replied that the SGB cycle is three years and elections are every three years. When the functions of an SGB are withdrawn, it is done so with the hopes of assisting it to grow. If the SGB can indicate and demonstrate that there are systems put in place to increase its functions the functions can be retained. Functions are taken away on the basis that the SGB cannot manage the funds correctly, and the accounting is haywire but often over time the SGB can become functional.

Clause 18:
Mr Manyi said that SGB functioning is based on the sophistication of the parents that form the SGB and these differ from one area to another. There needs to be a rationale behind the selection of the SGB Members.

DBE highlighted the importance of the SGB co-opting people from the outside with skills such as finance, in the instance where the SGB has no knowledge of financial processes. The SGB is a combination of teachers, learners and often principals. It is therefore inaccurate to say that the Members of a certain SGB are illiterate. The clause states that SGB should be allowed to expand beyond on the basis of expertise of people that are not part of the institution including sponsors of the school in whichever capacity.

Clause 19:
Mr Nodada said that this clause seeks to provide power to the Minister to determine the number of SGB members. Centralisation is not a good idea. He does not understand why the Member of the Executive Council (MEC) needs to be substituted and the MEC powers given to the Minister. This process is dangerous as the process is often not in line with the democratic principles set out for SGBs. The DA rejected the clause on those grounds and requested that the clause be removed.

Ms Adoons disagreed. The clause will cover schools which are not well taken care of.

Ms Sukers indicated that the principle of subsidiarity is the most potent issue against centralisation. She supported Mr Nodada.

The EFF supported the clause.

Clause 20:
Mr Ndlebe indicated that these schools were not covered in SASA, because these are new schools. The clause asks for permission to have SGBs included in these schools.

Committee members all agreed to deliberate up until clause 25, due to time constraints and continue with deliberations in the next meeting.

Clause 21
The clause deals with dissolving the entire SGB that has failed to perform its functions.

Ms van Zyl said that there is a need to advocate for a longer appeal timeline process, 14 days is not enough.

The Committee members agreed that the timeline should be increased to 30 days.

The clause was agreed to.

Clause 22:
Mr Ndlebe said that this is the clause that motivated DBE to delete the declaration of financial interests by SGB Members. The removal is covered in the clause by having the recusal by SGB members instead.

Committee members agreed to the clause.

The legal advisors indicated that they would like to add ‘financial interest’ after ‘personal interest’.

Clause 23:
Ms Sukers stated that the clause is problematic especially for schools in quintile 1-3. She proposed the need for advocating for a stipend for SGB Members, because often these are community Members who have great moral compass and are dedicated to the duties of an SGB Member.

Mr Letsie disagreed with the proposal made by Ms Sukers.

Dr Boshoff also disagreed with the proposal made by Ms Sukers.

Clause 24:
The Committee members agreed on clause 24 as recommended by DBE.

Clause 25:
The Committee members agreed on clause 25 as recommended by DBE.

The Chairperson commended the Committee members on the manner they had deliberated in the meeting. The meeting would resume the following morning at 09:00.

Meeting adjourned.