Basic Education Laws Amendment Bill: legal opinion

Meeting report

The Chairperson welcomed the Portfolio Committee to a meeting to deliberate the Basic Education Laws Amendment (BELA) Bill.

When considering the agenda, the Chairperson suggested that the legal opinion on the BELA Bill be discussed before deliberating the Bill itself.

Ms N Adoons (ANC) moved for the amendment to the agenda and Mr P Moroatshehla (ANC) seconded the amendment.

Legal Opinion

Ms Phumelele Ngema, Parliamentary Legal Advisor, told the Committee that the legal opinion was a written response to what had already been discussed in prior Committee meetings on the processing of the Bill.

Regarding the legal questions, this addressed the issue of processing required when enacting the Bill. This is related to concerns of facilitating public participation and the motion of desirability. The second issue, regarding Clauses 4 and 5, dealt with the notion of separation of powers relating to the authority of the Head of Department (HOD) of School Governing Bodies (SGBs).

On public participation, the legal opinion highlighted that in recent case judgements, public participation necessitates that the voices of the public must be heard and incorporated in the law-making process. Though, Parliament still has the discretion to decide how to conduct public participation.

She explained that clauses 4 and 5 of the BELA Bill were not issues of separation of powers but attempted to clarify the functions within the three-tier partnership.

On the definition of basic education, there was an attempt to form an inclusive definition of ‘basic education’ for the purposes of the amendment Bill.

The legal opinion advised that the Committee consider a motion of desirability on whether or not to proceed with the deliberations of the Bill. The legal opinion also reflected that the BELA Bill is still pursuing the correct legal processes in alignment with the Constitution. However, all public submissions must be considered and bear influence on the deliberations of the Committee.

See full opinion attached

Discussion

Mr B Nodada (DA) said, based on the legal opinion, that it was important to safeguard the process from being challenged at a later stage. On point 26 of the legal opinion in conjunction with the judgement of the Land Access Movement of South Africa (LAMOSA) v Chairperson of the National Council case, public participation processes necessitate meaningful engagement with the inputs received.

He felt that, in its current state, the Bill could be challenged because of the roughly 9 500 submissions that were not analysed and considered. He referenced the LAMOSA case, stating that written and oral submissions must influence Committee deliberations. He felt that the public participation thus far on the Bill had not been meaningfully engaged with or sufficient.

Secondly, he said there must be a qualitative and quantitative matrix of the public submissions to meaningfully engage. He said that this supports the legal opinion which emphasises the importance of the best interest of the child as many of the submissions were made by parents.

Due to the insufficient nature of the initially adopted [public participation] report, he said that the Committee should rather draft a thorough report inclusive of the submissions and matrixes before proceeding with deliberations.

Mr Nodada suggested that the rest of the agenda and deliberations be suspended.

Ms M van Zyl (DA) agreed that the 9 500 submissions had not been submitted to the Committee, therefore meaningful participation had not taken place. She also felt that the deliberation process could not continue.

She said that the process must return to the Department of Basic Education (DBE) with the 9 500 submissions which must be assessed and counted into the national report. From there, the process would be able to continue from the beginning.

Ms D Van Der Walt (DA) said that, concerning petitions,  everyone can petition a matter of concern to Parliament. She highlighted the importance of also considering written submissions, such as petitions. She felt that each individual signature should count as an individual submission.

Ms M Sukers (ACDP) said it was important to expand on the issue of meaningful engagement and effective processes. She said that the matrix engagement allows the Committee to apply their minds to what the public submitted and affords the Department an opportunity to respond.

She said that, by virtue of dealing with the deliberations in the absence of a matrix, the Committee paid lip service to public participation. She noted that, when deliberating clause 37, the Committee indicated that there were no proposals. However, proposals had been made by the home-schooling community which attended public hearings and written submissions.

She said that the matrix would have been useful to indicate whether there were actually proposals on the clause. She felt that the Committee could not continue with an A-list deliberation as it did not afford meaning to public participation. She felt that the public should be made aware that the Committee is taking their voices seriously on the matter.

Ms Adoons welcomed the legal opinion. On point 31, she noted that the Committee was still following the correct legal process in line with Sections 29 and 76 of the Constitution. Although, she also agreed that the oral submissions must be counted and included in the national report.

As the national report was adopted with amendments, she felt that one of the amendments must include the counted public submissions.

Mr T Letsie (ANC) said that he feared having an open-ended process regarding the deliberation of the Bill. He cautioned against people trying to derail the process of the Bill being enacted. He agreed that 9 500 submissions must be analysed and considered in the report. He asked that the Committee refrain from bringing in more new concerns as it could further delay the process.

Mr Moroatshehla appreciated the legal opinion. He agreed that the Committee must count and analyse the oral submissions. He had issues with the number of submissions growing without an accurate count. He felt that the deliberation process should continue irrespective of the unanalysed submissions, as it was unclear how greatly these submissions would impact the A-list.

Dr W Boshoff (FF+) said that his calculations of the submissions amounted to roughly 6 300. He agreed with the principle that public submissions should be represented during the deliberations. He also agreed that a matrix was a good way of representing the information and could be easily understood by constituencies.

He felt that the submissions could not be represented as an afterthought as they could be very influential on the contents of the Bill. He agreed that the process should be followed and managed to the best of the Committee’s ability to prevent being challenged in court later.

Regarding the powers of the HOD, he said that oral presentations represented that the authority does not belong with the HOD. He noted that at least five people who participated in the oral public submissions in the Northern Cape were officials from the DBE, which was not their place.

On the separation of powers, he said that in instances where the SGB makes an error, it should come from the Minister or MEC. This was as it would cross the line between policy and execution. He concurred that there was a problem with the division of powers which could later be brought to court.

Mr B Madlingozi (EFF) said the way forward must include dealing with the omitted submissions. He was unsure why the submissions were excluded. However, he felt that the process should continue to move forward. He said that it was about time that education be decolonised for children.

He questioned what was being hidden in the submissions that required the Committee to restart the deliberation process. He thought that the faster the Bill could be worked on, the better.

Ms M Moroane (ANC) supported that the submissions must be counted and analysed. Though, she urged that this not derail the process of ensuring the work continues.

Mr S Ngcobo (IFP) agreed that the submissions must be given consideration.

Responses

Ms Ngema appreciated the manner in which Parliament was dealing with the processes. She clarified that the Bill had nothing to do with petitions. This was as the further prescripts defined that petitions deal with matters of concern to the public which are not addressed in legislation.

Secondly, she said that when public participation occurs, it may lead to the need for a referendum to clarify the issues. She appreciated that the Committee was willing to engage with all of the public submissions and information.

Mr Shaun Van Breda, State Law Advisor, said that this was a matter which concerned Parliament’s own processes. He said that if submissions were not considered, this would prejudice the process. Regarding the A-list in its current state, he said that this may need to be significantly amended if the Committee chooses to consider other submissions. This would result in it being superfluous to continue with deliberations.

The Chairperson said that the submissions would be counted by the next Committee meeting. She encouraged the Committee to focus on the content of the submissions made rather than the number of inputs. She agreed with the sentiments of the meeting.

She emphasised the importance of the deliberations moving forward after considering the submissions. 

The meeting was adjourned.