BELA Bill: deliberations; motion of desirability

Meeting report

The Committee continued its deliberations on the BELA Bill.

[Discussion on certain clauses is not covered as streaming began only thirty minutes into the meeting].

Clause 27: Closure of public schools
Mr James Ndlebe (Director for Education Management and Governance Development at the DBE) outlined that Clause 27 sought to provide Members of the Executive Council (MECs) with the powers to close a public school through a provincial gazette, based on certain criteria.

Ms M Sukers (ACDP) indicated that several case studies showed that this Clause impeded on a communities’ right to provide their children with an education closer to their homes. Furthermore, she believed that it would also take away their rights to administrative due process.

Mr M Manyi (EFF) requested that the content advisor read Clause 27(3) to (5) into the record for Members.

Ms Portia Mbude-Muthsekwane (Committee Content Advisor) took the Committee through Clause 27 of the Amendment Bill.

Mr Manyi felt that Clause 27 was well considered and contained several checks and balances for public schools. As such, the EFF, he submitted, supported adoption of the clause.

Dr W Boshoff (FF+) believed that the threshold provided for in Clause 27 (4)(a) permitting the closure of a primary public school if there are 135 or fewer students, and 200 or fewer for a secondary school, showed a continuation of the department’s bias towards mega schools over smaller ones. This bias, he continued, has been present since the Union of South Africa in 1910.

Having conducted his own study on education policy in other countries, he noted that one of the successes of the Cuban education system is the policy to build smaller schools nearer to where children reside. The idea behind the policy, he pointed out, was to ensure that children remain with their parents during the foundational phase of their development.

In principle he accepted that schools should be closed if no learners were in attendance, however, he questioned why schools below the threshold of 135 (for primary school) and 200 (for secondary school) would have to be closed and amalgamated into larger ones despite recording positive performances.

Thereafter, he said that the Committee had previously rejected the Griqua community of Gong-Gong's application for the MEC not to close the school in their area in Dikgatlong. This, he went on, would force the children to travel long distances to attend one of the larger schools outside of the area. It was not in the interest of young children to have to stand outside waiting for a bus in the early hours of the morning to take them to school, he added.

He disputed the figure provided by the department on the number of children who are transported to attend schools located in distant areas. Moreover, he believed that the clause did not consider the architectural differences between the urban and rural areas, with most areas being far away from another in the latter, and called for it to do so.

He recommended that either the entire Clause be scrapped or a different threshold for learners attending a school to be implemented. In addition, he submitted that the clause should include specific criteria for the Minister or an MEC to close a public school.

Ms Sukers reminded the Committee that in the meeting held the previous day one of the Members raised the concern of children having to cross a river on their way to school. Adding onto this, she argued that children would not have to do so if the schools in their area remained open.

Then, she highlighted that because poorer communities did not have the funds to take the government to court they did not have legal recourse to prevent the closure of their schools. As a result, she proposed that a provision dealing with the closure of public schools be placed into the Bill.

No mention was made, she noted, on why a primary school under the threshold of 135 learners and below would not have to be given reason for their closure and amalgamation, whilst those with 135 and above will have to be provided reasons. This provision, she felt, was anti-poor.

Ms N Adoons (ANC) argued that the petition submitted by the community of Gong-Gong was, in fact, supported by the Committee, with the report supporting its non-closure, being subsequently adopted in Parliament.

With the amalgamation of smaller schools, creating mega ones, children, such as those in the North West (NW) province, would have access to better quality education, consistent meals and would no longer have to travel long distances to their schools as they will be placed in boarding, she explained. Most of the parents in the NW province were pleased with this policy, she added. As such, she moved for the adoption of Clause 27.

Mr T Letsie (ANC) felt that it was incorrect for certain Members to state that there was a bias towards the closure of smaller schools; rather, there was a bias towards providing quality education to children by closing unviable schools. The main reason many small schools were unviable, he went on, was due to the department’s persistent challenge of not having enough teachers to teach across schools.

He proposed that the clause include that the MEC must embark on a comprehensive consultation process before any closure of any school can be considered. Thereafter, he moved for the adoption of Clause 27.

Mr Manyi explained that the clause did not state that smaller schools would be closed without the consultation of the communities.

Thereafter, he moved for the adoption of Clause 27.

Mr Ndlebe mentioned that the department considered many factors before deciding to propose a threshold of 135 learners. One of them was the shortage of teachers in the country, which made it difficult for the teachers to teach all nine subjects – several of the teachers have complained of their workload. Due to the shortages, many children are not taught crucial subjects, thereby preventing them from finishing school. Another factor considered was the strain smaller schools placed on the department’s resources.

Therefore, the DBE believed that by amalgamating smaller schools learners would have access to both quality education and facilities. However, he underlined that a distinction should be made between a viable and non-viable school, and that not all smaller schools were unviable.

He admitted that some of the schools were incorrectly closed down by the provincial education departments. To remedy this, the DBE has made certain provisions to the proposed Bill.

Ms Phumelele Ngema (Parliamentary Legal Advisor) indicated to Members that the clause does, in fact, require for the DBE or the provincial departments to engage in an extensive consultation process, which places the children’s best interest first, with the affected communities before a decision is made to close a school – this was also in line with the department’s constitutional obligations. Moreover, it required that consideration be made on whether there are other schools in the vicinity accessible to the affected learners; if that is the case, the department is obligated to provide the child with transport.

State legal advisor explained that in terms of the Promotion of Administrative Justice Act an administrator, in this case the MEC or head of department (HOD), is obliged to provide reasons for their administrative action. In other words, either the MEC or the HOD must explain a decision taken by the department to close down and amalgamate a school.

The Chairperson stated that the Committee agreed that it be mandatory for either the HOD or MEC to consult the community before taking such a decision.

Mr Boshoff requested that the department visit Orania to see how well the multi-grade schooling system is performing.

The majority of the Members supported the adoption of the clause. As such, Clause 27 was duly adopted by the Committee.

Clause 28: Amendment of Section 36 of the South African Schools Act, 1996
Mr Ndlebe said that the purpose of Section 36 of the Act was to ensure that financial decisions taken by an SGB and that affect a public school, such as the leasing out of school buildings or an application for a loan, must receive written approval from the MEC first. In its proposed amendment, the DBE sought only to remove a repetition of words in the Act.

All Members supported the adoption of the clause. As such, Clause 28 was duly adopted by the Committee.

Clause 29: The amendment of Section 37 of Act 84 of 1996
Mr Ndlebe indicated that the one change made by the proposed amendment was the word ‘directions’ to ‘directives’. The second is the inclusion of a compulsory requirement for an SGB to present the school budget to parents for their approval. This budget will also include the school fees of a particular school. The aim of this, he continued, would create greater transparency between teachers and the schools, with the lack thereof being of serious concern to parents.

Mr Manyi supported the adoption of the clause; however, he proposed that the requirement for the budget to be presented in fourteen days be changed to thirty days instead.

Mr Letsie agreed with Mr Manyi’s proposal.

All Members supported the adoption of the clause. As such, Clause 29 was duly adopted by the Committee.

Clause 30: Amendment of Section 38 of the South African Schools Act 84, 1996
Mr Ndlebe outlined that the clause intends to provide guidelines on that the department recognised that teachers who had placed more effort than others were not compensated and provided extra remuneration. In some of the schools there are different benefits provided to teachers. Mainly, this clause is about who the school will provide extra remuneration to, either in kind or monetary, they should then apply to the department for the use of the money and be placed in the school budget. The clause has also included definitions on what it meant to pay individuals in kind.

Mr Manyi questioned if the word remuneration was the correct word, and proposed that it rather be changed to the word ‘reimbursement’.

Mr Ndlebe explained that the department understood reimbursement to mean the replacement of money by one person to another, which was different from what is being proposed in the clause. By remuneration the department meant that it intends to create an incentive structure for teachers to better perform their duties.

Mr Manyi proposed that the word ‘remuneration’ be substituted by the word ‘compensation’, as it caters for both monetary and in-kind, whereas remuneration refers strictly to monetary.

The Chairperson pointed out that the state legal advisor had previously settled on the use of the term ‘remuneration’.

All Members supported the adoption of the clause. As such, Clause 30 was duly adopted by the Committee.

Clause 31: Amendment of Section 38A of the South African Schools Act, 1996
Mr Ndlebe told Members that this Clause intended to assist, mainly, young women whose applications for a school fees exemption are often rejected by SGBs on the basis that they are unable to locate the father of their children, as required by school policy. To remedy this, provision has been made in the clause that any parent applying for a school fees exemption who cannot identify the mother or father of the child be allowed to submit additional documents, such as a signed affidavit, to prove their case to the SGB in question.

All Members supported the adoption of the clause. As such, Clause 31 was duly adopted by the Committee.

Clause 32: Amendment of Section 41 of the South African Schools Act, 1996
Mr Ndlebe highlighted that Clause 32 sought to implement mechanisms that would ensure SGBs report back to parents on how the schools’ funds have been used, mainly through the provision of financial reports which show the donations, investments and funds received and spent by the schools.

All Members supported the adoption of the clause. As such, Clause 32 was duly adopted by the Committee.

Clause 33: Financial records and statements of public schools
Mr Ndlebe explained that this Clause will require for the HOD to scrutinise the financial records of public schools, particularly where there is a suspicion of financial mismanagement.

Mr B Nodada (DA) felt that mandating SGBs to submit quarterly reports would place an administrative burden on them. He asked whether the department had conducted any investigation into the consequences this requirement might have on the SGBs, and if so, whether it received any input from the SGBs.

Mr Letsie disagreed with the previous Members’ objections, and argued that the requirement will strengthen accountability, as the department would be able to immediately pick any financial misconduct or mismanagement, instead of having to wait for the annual financial report at the end of the year to do so.

Mr Ndlebe admitted that there was disagreement between the department and the SGBs on this requirement. Although he remained confident that the department’s administrative capabilities would be able to manage the large number of quarterly reports that will be submitted.

A majority of the Members supported the adoption of the clause. As such, Clause 33 was duly adopted by the Committee.

Clause 34: Amendment of Section 43 of the South African Schools Act, 1996
Mr Ndlebe mentioned that the clause seeks to prevent parents from submitting falsified documents for their children to be admitted into a school.

Mr Manyi supported the adoption of the clause.

Ms Sukers proposed that provision be made for independent micro schools, commonly referred to as cottage schools, and curriculum providers who currently operate outside the confines of the law, as the current proposal, she believed, was severe and harsh towards parents.

Mr Boshoff felt that the clause should include a separate category for independent schools.

Ms Adoons believed that the clause was sufficient as it was. Adding separate definitions, she continued, would complicate the understanding of the clause.

Ms M Moroane (ANC) supported Ms Adoons’ remarks.

The majority of Members supported the adoption of the clause. As such, Clause 34 was duly adopted by the Committee.

Clause 35: Amendment of Section 46 of the South African Schools Act, 1996
Mr Ndlebe indicated that this Clause intended to make provision for the punishment of teachers guilty of certain offences (not mentioned).

The majority of Members supported the adoption of the clause. As such, Clause 35 was duly adopted by the Committee.

Clause 36: Amendment of Section 48 of Act of 1996
Mr Ndlebe said that registered independent schools felt that the government should provide subsidies to them in line with their three term system, not the four-term system currently used by the department for public schools.

Mr Nodada said that tighter constraints should be placed on the guidelines of what constitutes a valid condition for the MEC to grant an independent school with a subsidy.

Mr Ndlebe mentioned that the department is currently working on guidelines for the registration of independent schools. Some of the conditions set for an independent school to be registered include whether the school has a suitable physical environment and enough qualified teachers. Discussions between Umalusi, the department and representatives from independent schools on the guidelines are set to be held soon, he added.

Mr Letsie suggested that provision be made in the clause that independent schools be required to renew their operating licenses at the end of each year. Further, they be required to submit an annual report to the department, so that it is able to monitor whether the schools are still complying with the legislation.

Mr Nodada said that the guidelines being worked on by the department, independent schools and Umalusi, should also be included in the Bill.

Mr Ndlebe pointed out that DBE officials visit independent schools on a quarterly basis to verify the number of pupils and teachers still registered at the schools.

All Members supported the adoption of the clause. As such, Clause 36 was duly adopted by the Committee.

Clause 37: Home education
Ms Mbude-Muthsekwane took the Committee through Clause 37 of the Bill.

Mr Manyi said that the clause will ensure that the department discharges its constitutional responsibility by requiring that a parent must apply to the HOD of the provincial department of education (PED) for their child to be registered as a home learner. This, he went on, would give the Minister greater oversight on the education sector as a whole, thus protecting the rights of all learners.

After that, he moved to support the adoption of the clause.

Mr Boshoff believed that parents should not have to apply to register their children for homeschooling through the department; rather, that they should only be required to inform the department of their decision to homeschool their children – only if they comply with all the requirements to do so.

He proposed that subsection 3 include that ‘a parent must supply evidence that’ of all the requirements listed in the sub-section. In addition, he suggested that many of the functions the department is mandated by the clause to perform should reside with an independent education regulator.

Mr Nodada mentioned that the principle on Clause 37 was quite similar to the one rejected in Clause 8 – this was rejected by parents who felt that the department had not thoroughly consulted them on home education and neither had it conducted sufficient research into the area. While he was pleased that the department, through this Clause, was looking to fulfill its constitutional and legislative obligation to ensure that every child receives a basic education, he still believed that its reach should not be as extensive as has been indicated in the clause.

He questioned why parents could not simply inform the department of their decision to homeschool their child on an online portal, instead of having to register them. By allowing parents to only have to notify the HOD of their decision, the department would be respecting their right of choice on how to educate their children.

Given these issues, he proposed that the entire Clause be scrapped and that the department conduct the necessary research and engage in a fair consultative process.

Ms Sukers supported the proposal to remove Clause 37, as many parents would not be able to afford the costs of having to register their children with the department. She pointed out that the DBE, during the public hearings, admitted to not having done any research into homeschooling, nor has an adequate social environmental impact study done on homeschooling. In addition, no parent from the homeschooling community made any submission to the Bill. 

She recommended that the DBE first engage with the homeschooling community before proposing an amendment.

Mr P Moroatshela (ANC) suggested that the report note that Clauses 8 and 37 were poorly drafted and this had several unintended consequences.

It was regrettable, he stressed, that Clause 37 was deliberately being misconstrued by certain Members. Nonetheless, he felt that Clause 6 (discussed the previous day) should put into place conditions that will allow homeschoolers to operate. 

He accused the Members who had earlier said that parents had not been consulted of lying. The parents, he argued, were offered the opportunity to make written comments on the Bill, and previously the Minister held a meeting with representatives of the Homeschoolers Association. In addition, the DBE organised a round table discussion where home education was discussed.

Mr Letsie said that there was a deliberate intention by certain Members to misconstrue the objectives of the clause. Nothing in the clause outlawed children from being homeschooled. The only purpose of the clause was to account for all children in homeschools. As a result, any opposition to the Bill, in its entirety, by other Members was merely an electioneering tool for the 2024 elections.

He found it curious that the Homeschoolers Association took issue with following the department’s regulations, yet it had no problem with registering its children with Umalusi to write their final Matric examinations. For that reason, he suggested that the Committee question the Association on its opposition to the Bill.

Nonetheless, he supported the adoption of the clause.

Mr Manyi took issue with the opposition to the clause because he felt that, through this submission, the DBE was trying to comply with Section 29 (3) of the Constitution, which gives the right to any individual to establish and maintain independent educational institutions so long as they are registered with the state. For that reason, he pleaded with the Members not to oppose the passing of the entire Bill simply because they did not agree with Clause 37.

Ms M van Zyl (DA) felt that there was much confusion on the legislation. She believed it to be problematic that parents would have to apply for their children to be homeschooled as the application could easily be rejected. To correct this, she proposed that the clause state that a parent must notify the department of their intention to homeschool their children.

In addition, she asked for Members to consider the fact that many parents in the rural areas may prefer to homeschool their children to prevent them from having to travel long distances to a public school.

Thereafter, she asked how the department will determine who will conduct the assessments on the children.

During the public hearings the Department emphasised the need to maintain parents’ freedom of curriculum choice, but this was not included in the Amendment Bill.

Mr B Yabo (ANC) highlighted that the clause inserted additional conditionalities through eleven new subsections, which seek to regulate homeschooling.

The Clause differs from the current Act in that it states a parent ‘may apply’ whereas the Act states that a parent ‘must apply’ to homeschool their children, he highlighted. He believed that the main area of contention was subsection 3 of the clause, which states that the HOD may delegate an official to conduct a visit to a homeschool.

Pleased with its intentions, he moved to support the adoption of the clause.

Mr Nodada mentioned that he and the Members who disagreed with the adoption of the clause expressed the views of several parents who did not agree with Clause 37. Parents who made a submission took issue with the fact that Clause 37 states that they must apply for their child to be homeschooler, as well as the department’s wish to visit their homes and conduct an assessment on their child. The third issue was that many of the parents felt that the basic education system did not cater to their children.

He called for the Committee to hold further consultation with representatives of homeschoolers before adopting the clause.

Mr Boshoff also believed that the word ‘apply’ should be better explained in the clause. Further, he recommended that the Homeschool Association and the Minister collaborate with one another on the clause.

He then proposed that the minority parties be given the opportunity to make submissions on the Bill before the Committee dealt with the A-List.

Ms Sukers encouraged both the department and Members to acknowledge the diversity of the homeschooling community. By deciding to homeschool their children each parent was exercising their constitutional right to teach their children in line with their own beliefs.

She took issue with the provision requiring for the department to conduct assessments on the children because the DBE, in its submissions, admitted that it did not fully understand homeschooling. In addition, the homeschool community pointed out that the social environmental impact assessment was not complete and that the DBE had to conduct another one.

The homeschool did not state that they did not want to work with the DBE, rather, they highlighted that the diversity of the community would make it difficult for the department to adequately assess the children, she continued.

It was incorrect, she stressed, to state that parents with differing views towards the clause were politically affiliated. Due to these two reasons, she submitted that the clause be removed from the Bill and for a new consultation process to be instituted.

Ms M Moroane (ANC) said that the Minister had taken all the steps to consult all the relevant stakeholders, including parents, on the Bill.

Like other Members, she too believed that the implementation of this Clause would provide greater protection for learners, given that they would be registered with the department. This was important, she continued, and assists the DBE in fulfilling its obligation government to account for the whereabouts of each school and report the data to the United Nations Educational, Scientific and Cultural Organisation (UNESCO), so that it can evaluate the access of education in the country.

A parent cannot, she remarked, be both a player and a referee in determining how a child is educated. 

Mr Yabo repeated the earlier point made that it was questionable for parents to doubt the quality of the basic education system, yet they were comfortable having their children write the final Matric examination papers under Umalusi.

Ms Adoons said that the majority of parents in all nine provinces express their support of the Bill during the public hearings. Based on this, she too supported the adoption of Clause 27.

Mr Ndlebe outlined that the clause had been submitted by the department to ensure that the regulations complied with Section 29 (3) of the Constitution.

He admitted that the department was not convinced by the arguments made by the parents during the public hearings against the adoption of Clause 37. Many of them only outlined the benefits of homeschooling for children and their rejection of the Curriculum Assessment Policy Statements (CAPS) education system – parents are not required by the clause to educate their children under the CAPS system. Moreover, no alternative options were provided on what could replace the proposed Clause.

Touching on the question of parents having to register their children at the department, he asked Members who opposed this requirement whether it was not correct for the department to need to know what curriculum a parent intended teach their child.

He highlighted that the clause did not propose for the department to assess children at a homeschool to see how far the child is progressing – rather, the department, through this Clause, requires a parent to appoint a registered and licensed independent assessor who can provide the DBE with feedback on the teaching provided by the parent at the end of the child’s educational stage.

He felt that it was unfair to ask the DBE to subsidise each parent who has decided to homeschool their child, particularly as Section 27 of the Constitution clearly states that the department does not have to bear the cost of a child’s private education.

He conceded that the department will most likely not send its officials to conduct home visits, due to the lack of personnel and other factors.

In response to the concern around the DBE’s lack of research into homeschooling, he believed that the department did not need to conduct research into homeschooling, given that it has left the responsibility of teaching the children and the management of the entire process to parents.

Regarding the concerns of the department’s lack of consultation with parents, he took the Committee through all of the consultations that the department held with all relevant stakeholders. The first consultation was held on 9 and 10 October 2014. Stakeholders such as curriculum provider, the Association of Home Education (ACHE), parents and other organisations were in attendance.

A working group, consisting of provincial education departments (Pads), DBE, representatives of home education curriculum service providers, parents, Umalusi, home education associations, Independent Schools Associations of South Africa, the Department of Higher Education and Training (DHET), was established and held a series of meetings held from 2015 until the policy on home education was promulgated in November 2018.

On 28 April 2020 the DBE, he continued, hosted a roundtable on the implementation of the home education policy, which was attended by 77 participants, including parents, independent curriculum service providers, material providers, the Association, government departments, as well as organisations with an interest in homeschooling.

On 22 September 2020 the department held a meeting with the South African National Home Schooling Association (SANHSA) to discuss several issues relating to the implementation of the policy on home education. Also, on 4 August 2020 the department hosted a meeting with Liberty in Learning Coalition to discuss the same policy.

The roundtable discussion mentioned earlier proposed the establishment of a task team to develop regulations. The task team was established on 22 June 2022, and comprises representatives from the AHE, parents, Home Education Legal Defence, curriculum providers, PEDs and civil society organisations.

Since its establishment, the task team has met five times: 22 June 2022, 07 September 2022, 16 November 2022, 22 February 2023 and the 21st of June 2023, he concluded.

Ms Ngema highlighted that homeschooling, under the South African Schools (SASA) Act and Section 29 (3) of the Constitution, form part of independent schools.

In terms of Section 59 (1)(a) of the Constitution, Parliament has an obligation to facilitate public engagements that are inclusive, which she believed was done. It was now up to the Committee to deliberate on the submissions made to the Bill.

She explained that the requirement for a parent to register the child at the department was in line with the Constitution. Furthermore, it followed the agreed upon principle of compulsory attendance for every child aged four years to fifteen.

Certain submissions cited the 2015 discussion paper, which laid out the discussions amongst the homeschooling associations on homeschooling, she said.

The Socio Economic Impact Assessment System (SEIAS) was established by the Cabinet as a tool to ensure that all executive departments review the current legislation before deciding to make any amendments, she said.

She proposed that the wording of the provisions in the clause be changed but without changing the content. This would prevent unnecessary litigation against the department going forward.

State law advisor asked for the Committee to note that the United Nations Convention on the Rights of Child, which South Africa is a state party to, makes no mention of homeschooling. However, the Convention provides that educational institutions such as independent and private institutions, which fall outside of the public education system, may be established but subject to the minimum standards set by the state.

Certain member states of the Convention, like Germany and the Netherlands, have outlawed home education. He also pointed out that South Africa is a member state to the African Charter on the Rights and Welfare of the Child, which also does not specifically mention homeschooling but provides that state parties must provide compulsory basic education and that they should respect the rights of parents and guardians to choose schools for their children other than those in the public system; however, those institutions must conform to minimum standards as approved by the state.

Clause 37 is consistent with Section 29 (3) of the Constitution, except that the latter states that private education must be financed by the parent. Moreover, Clause 37, he continued, seeks to ensure that the state’s constitutional and international obligations are complied with.

The Chairperson agreed with the suggestion to rephrase certain aspects of the clause.

A majority of Members supported the adoption of Clause 37. As such, Clause 37 was duly adopted by the Committee, with amendments.

Clause 38: Amendment of Section 59 of the South African Schools Act, 1996
Ms Mbude-Muthsekwane took the Committee through Clause 38 of the Bill.

Mr Manyi said that he was confused as to whether subsection 2 of the clause – which states that ‘every school must provide such information about the school as is reasonably required by the Head of Department or by the Director-General (DG) of the National Department Basic Education in consultation with the Head of Department’ – referred to the DG as the HOD, and if so, if that was not a repetition.

Mr Ndlebe clarified that the DG is the national head of the department, while the HOD refers to the provinces.

Mr Manyi suggested that the subsection be reworded so that it is clearer to interpret. Thereafter, he moved to support the adoption of Clause 38.

Ms Adoons seconded the mover for the adoption of Clause 38.

All Members supported the adoption of the clause. As such, Clause 38 was duly adopted by the Committee.

Clause 39: Dispute Resolution
Ms Ndlebe informed Members that the clause proposed implementing a dispute resolution mechanism for an SGB and a HOD.

Mr Moroatshela moved to support the adoption of Clause 39.

Ms Sukers proposed that the words ‘independent school’ or ‘homeschooling parent’ be inserted after the words ‘governing body’.

All Members supported the adoption of the clause. As such, Clause 39 was duly adopted by the Committee.

Clause 40: Amendment to Section 60 of the South African Schools Act, 1996
Mr Ndlebe explained that through Clause 40 the department sought to set out various conditions that would have to be met for it to be held liable for in schools. Previously the department used to accept liability for any damage that occurred in schools.

Ms Sukers proposed the removal of the clause.

A majority of the Members supported the adoption of the clause. As such, Clause 40 was duly adopted by the Committee.

Clause 41: Amendment to Section 61 of the South African Schools Act, 1996
Mr Ndlebe told Members that the Minister is empowered by the law to establish regulations. However, as of yet the department does regulate certain areas in the sector, such as the management of learner pregnancy, admission of learners to public schools, the prohibition on payment of unauthorised remunerations, the minimum norms and standards for provincial educator development institutions and district educator development centres, as well as the organisation, roles and responsibilities of districts. As such, the proposed Clause was a request to Parliament to allow the Minister to establish regulations in all those areas.

Ms Sukers highlighted that during the hearings members of the public opposed the Minister being granted unlimited powers to make or determine regulations. Other objections raised against the clause were that it was vague and overly extensive, with the aims of such a wide-aiming discretion being unclear and susceptible to a constitutional challenge; there was no clear indication of what the management of learner pregnancy entails; and the public was not provided a reasonable opportunity to interrogate the Bill.

If the clause intended to provide legislative authority to the recently adopted schools policy on management of learner pregnancy, then the amendment must state that it will be linked to that policy, she stressed. Alternatively, that the amendment be edited to include the words ‘on the management of learner pregnancy, specifically as it relates to bullying, discrimination and creating a safe learning environment for pregnant learners at school’.

The intention of her proposal, she continued, was to prevent the DBE from obtaining powers regarding medical decisions that currently lie with the Department of Health.

Due to all of the reasons mentioned, she recommended that the proposed amendment be removed entirely.

Mr Nodada asked why the areas earlier listed by the department had to be dealt with within the regulations. In the interest of legislative certainty, he felt that provisions relating to the various areas outlined by the DBE should be included in the Bill. However, if this cannot be done, then a new clause should be considered, which states that before each regulation is passed it should first be considered by the Committee. This would allow Parliament to have sight of any new regulations prior to their promulgation by the DBE.

He felt that allowing the Minister to determine regulations for educators and district development centres – as well as provisions, reorganisations, roles and responsibilities of district officers – would be unwarranted interference given that they are the responsibility of the province they are found in. He proposed an alternative amendment to, which was that ‘any regulation or notice issued by the Minister in terms of this Act must be tabled in the National Assembly for consideration prior to publication or gazetting’.

Mr Letsie said that this Clause had been used by opponents of the Bill as part of a misinformation campaign which claimed that the department sought to force pregnant teenagers to undergo an abortion. The reality, he outlined, was that the clause gave the Minister the discretion to make regulations which will ensure that learners’ right to an education, including that of pregnant girls, are upheld, he argued.

He supported the clause and moved for its adoption.

Mr Yabo highlighted that Clause 41, similar to Clause 37, was also contained in the principle Act. As such, he did not understand why there was opposition to it. He seconded the mover for the adoption of Clause 41.

Ms Sukers said the public had clearly stated that the Minister should not have unregulated powers during the public hearings.

In addition, she indicated that the management of learner pregnancy is currently a policy of the department and being implemented across the provinces.

Thereafter, she clarified that opposition to the clause by the South African Democratic Teachers Union (SADTU) members was based on the fact that the policy refers to abortion.

She supported the proposal that there be an inclusion of a mechanism to regulate the Minister’s power if the clause is adopted.

Ms Adoons mentioned that her support for the adoption of the clause was based on the input provided by members of the public.

Mr Boshoff said that Section 61 of the South African Schools Act (SASA) states that the Minister may make regulations on any matter which must or may be prescribed by regulation under this Act and any matter that may be necessary to achieve the objectives of the Act. This provision, he believed, gave the Minister unfettered powers.

He felt that it was unfair for the department to make pregnancy the sole preserve of the girl child.

He also took issue with the provision that the Minister may make a regulation on the admission policies, which takes power away from the SGBs.

He agreed that the Committee should have sight of the regulations prepared by the department, on behalf of the Minister, before they are published.

Mr Ndlebe told the Committee that the request to provide the Minister with powers to make regulations on the areas the department referred to earlier was to make the already enacted policies enforceable. He further clarified that the Minister would only be responsible for approving draft regulations, not the entire process of drafting and refining them. Once the Minister has approved a regulation, it will be tabled before the Committee.

In response to the concerns of allowing the Minister to determine regulations for educators and district development centres in the provinces, he indicated that district officials are currently facing several challenges, like not having laptops. Without the adoption of this Clause, the department will continually have provinces undermining service delivery in the country.

Regarding the concern that the clause would be taking powers away from the SGB, he said that the regulations on the admissions policy would require schools to respond in writing to a parent on why their child has not been accepted, which is currently not the case.

Ms Ngema informed Members that Section 101 (4) of the Constitution does grant the Minister with the powers to make regulations; however, Section 51 of the SASA did not comply with that.

In terms of Section 85 (2)(b) of the Constitution, the executive, including the provincial government, is already empowered to develop and implement national policies. It was possible, she indicated, for Parliament to have some involvement in the development of regulations.

The State Legal Advisor agreed with the Parliamentary Legal Advisor and added that the Committee can include a provision that specifies which regulation should be tabled if it is not possible to table all of them.

Mr Nodada said that he did not understand why the department sought to centralise vast amounts of power with the Minister, and expressed his opposition to it.

He suggested that the Committee resolve that his proposed amendment be disregarded from the Bill.

Mr Ndlebe clarified that the regulations are actually processed by Parliament, with the Minister only being responsible for their tabling.

A majority of Members supported the adoption of the clause. As such, Clause 41 was duly adopted by the Committee.

Clause 42: Amendment of SASA’s Preamble
Mr Ndlebe said that the provision seeks to add a sentence to the preamble.

All Members supported the adoption of the clause. As such, Clause 42 was duly adopted by the Committee.

Clause 43: Amendment of Section 1 of the Employment of Educators Act, 1998
Mr Ndlebe explained that the DBE would, through this Clause, transfer the remaining administrative functions of adult basic education to the DHET, which was now the custodian of this policy programme.

All Members supported the adoption of the clause. As such, Clause 43 was duly adopted by the Committee.

Clause 44: Amendment of Section 5 of the Employment of Educators Act, 1998
Mr Ndlebe said that this Clause also related to the transferal of all outstanding administrative functions of adult basic education to the DHET.

All Members supported the adoption of the clause. As such, Clause 44 was duly adopted by the Committee.

Clause 45: Amendment of Section 7 of the Employment of Educators Act, 1998
Mr Ndlebe said that through this Clause the department was adding the words ‘or in any promotion of the filling of any post’, which was missing in the Act.

All Members supported the adoption of the clause. As such, Clause 45 was duly adopted by the Committee.

Clause 46: Amendment of Section 8 of the Employment of Educators Act, 1998
Mr Ndlebe indicated that the word ‘council’ would be removed as these are only found in higher education, whereas schools are managed by the SGBs.

All Members supported the adoption of the clause. As such, Clause 46 was duly adopted by the Committee.

Clause 47: Amendment of Section 9 of the Employment of Educators Act, 1998
Mr Ndlebe mentioned that through this Clause the department would be adding that an educator can be transferred to another office in the DBE or another department.

All Members supported the adoption of the clause. As such, Clause 47 was duly adopted by the Committee.

Clause 48: Amendment of Section 11 of the Employment of Educators Act, 1998
Mr Ndlebe stated that the clause removed the words ‘institutions’ and ‘centres’ when referring schools and the department.

All Members supported the adoption of the clause. As such, Clause 48 was duly adopted by the Committee.

Clause 49: Amendment of Section 17 of the Employment of Educators Act, 1998
Mr Ndlebe said that the department felt that Section 17 (1)(g) of the Act needed to be re-looked at and include ‘committing any other act which in any other law that applies to the educator insofar as his or her employment is concerned, is classified as serious misconduct’.

All Members supported the adoption of the clause. As such, Clause 49 was duly adopted by the Committee.

Clause 50: Amendment of Section 18 of the Employment of Educators Act
Mr Ndlebe informed the Committee that this Clause also looked to remove the words ‘adult learning centre’ from the Act.

All Members supported the adoption of the clause. As such, Clause 50 was duly adopted by the Committee.

Clause 51: Conducting business with the State
Mr Ndlebe explained that the clause sought to prevent teachers from conducting any business with the State, as several of them are currently acting as service providers for the school nutrition programme.

All Members supported the adoption of the clause. As such, Clause 51 was duly adopted by the Committee.

Clause 52: Amendment of Section 35 of the Employment of Educators Act, 1998
Mr Ndlebe outlined that this Clause added the words ‘norms and standards’ which would apply for district staffing. Through this Clause, the DBE sought to regulate the number of staff members that can be employed in the various districts.

All Members supported the adoption of the clause. As such, Clause 52 was duly adopted by the Committee.

Clause 53: Amendment of Section 38 of the Employment of Educators Act, 1998
Mr Ndlebe highlighted that this Clause had been repealed because the transitional arrangement of moving teachers from colleges to schools had come to an end.

All Members supported the adoption of the clause. As such, Clause 53 was duly adopted by the Committee.

Clause 54: Amendment of Schedule 1 to the Employment of Educators Act, 1998
Mr Ndlebe stated that the clause would delete the sentence ‘public further education and training institutions or adult learning centres’ from the Schedule.

All Members supported the adoption of the clause. As such, Clause 54 was duly adopted by the Committee.

Clause 55: Amendment of Schedule 2 to the Employment of Educators Act, 1998
Mr Ndlebe said this Clause was also deleting the words ‘for further education and training institutions’ from the Schedule.

All Members supported the adoption of the clause. As such, Clause 55 was duly adopted by the Committee.

Clause 56: Short title
Mr Ndlebe mentioned that the department had proposed a short title, that being the Basic Education Laws Amendment Act, 2022.

Mr Boshoff suggested that the short title be changed to a more creative one.

All Members supported the adoption of the clause. As such, Clause 56 was duly adopted by the Committee.

The Chairperson said that the Committee would take a short tea break, thereafter, it would consider its motion of desirability on the Bill.

[Break]

Committee Motion of Desirability on the BELA Bill
The Chairperson reminded Members that this would be the first time the Committee would be deliberating on a motion of desirability during its term. Thereafter, she requested that the Content Advisor read it out to Members.

Ms Portia took the Committee through its motion of desirability on the BELA Bill.

The Chairperson requested a mover for the adoption of the motion.

Mr Nodada submitted that the DA viewed the motion as undesirable due to the already mentioned deficiencies in certain clauses of the Bill.

Mr Moroatshela said that it was unprocedural for the previous Member to submit the DA’s opposition to the motion before someone moved for its adoption. Nonetheless, he moved for the adoption of the motion.

Ms Moroane seconded the mover for the adoption of the motion.

Ms van Zyl seconded the objection submitted by Mr Nodada, as she felt that much of the public’s opinions had not been captured correctly, whilst others were simply ignored.

Mr Manyi indicated that the motion did not reflect some of the decisions taken by the Committee such as its decision to reject the clause permitting the sale of alcohol at school premises.

The Chairperson clarified that a summary of the process would be contained in its final report.

Satisfied with the explanation provided, Mr Manyi also moved to support the adoption of the motion.

The Chairperson asked for the Parliamentary Legal Advisor to explain how the Committee would record the objections made by the smaller parties of the motion.

 Mr Boshoff rose on a point of order.

The Chairperson asked what his point of order was.

Mr Boshoff asked why each Member had not been permitted to move or oppose the motion of desirability.

The Chairperson asked if he was proposing whether the Committee should vote on the adoption of the motion.

Mr Boshoff said that he was only asking for clarification.

The Chairperson indicated that the minority parties could express their opinion on the motion.

Mr Boshoff asked if the minority parties could register either their approval or disapproval of the motion.

The Chairperson responded that they would get the opportunity to do so when the Committee deliberated on the A-list.

Ms Sukers said that the minority parties wanted to note their opposition to the motion.

The Chairperson responded that they could do so but without providing the accompanying reasons.

Adv Ngema explained that in terms of Rule 286 of the National Assembly a Committee is faced with two options when deliberate on a Bill: to either adopt a motion of desirability or completely reject a Bill. In the instance where a Committee rejects a Bill, it must immediately re-table it to the House with an accompanying report. If a motion is adopted the Committee must proceed to deliberate on the outstanding details related to the Bill. Given that the motion had been adopted, the Committee would have to follow the second option.

The Chairperson told the Committee that it would then have to proceed to deliberate on the A-List of the Bill.

Mr Letsie proposed that the Committee do so on a Thursday in the coming weeks.

Mr Yabo moved to support the proposal.

Mr Nodada asked how the Committee would determine that a motion of desirability had been adopted.

He then proposed that the Committee debate the A-List on the 5th of September.

The Chairperson indicated that Members who are unable to attend the debate could request another member from their political party to represent them. 

Ms Adoons requested that the Committee consider deliberating on the A-List on Tuesday 29 August.

The Chairperson said that the Committee Secretariat would consider the dates proposed and inform Members on the decision.

The meeting was adjourned.