The Portfolio Committee intended to address the missing submissions on the Basic Education Law Amendment (BELA) Bill. However, the Committee had received the document only at 6 pm the previous night, leading to a lack of enthusiasm by most Committee members to engage with the report due to their inadequate preparation.
The Committee Content Advisor presented the recent additions to the National Public Hearings Report on the BELA Bill and highlighted various general observations.
Committee members expressed several concerns including the missing submissions and the actions taken to address this and the absence of a table quantifying the level of support for the Bill. They discussed the significance of public participation, and the conversation also touched on the School Capture Petition, leading to a discussion on the distinction between submissions and petitions and their respective processes.
The Department of Basic Education (DBE) proceeded with a briefing to finalise the Committee proposed amendments (A-List) to the BELA Bill, such as Clause 1, 2, 4, 5, 8, 9, 22, 37, and 41. These amendments covered definitions, corporal punishment, compulsory school attendance for Grade R, language policy, and code of conduct for learners. DBE also motivated for reverting the agreed to 30-day period for review back to the more commonly used 14-day period.
The Committee discussed these proposed amendments and this A-List was adopted with the DA, ACDP and FF+ objecting.
The proposed amendments in the A-List will be incorporated into the Bill to form the B version of the Bill which would be officially adopt on 19 September 2023.
The Chairperson requesting Dr W Boshoff (FF+) to commence with a prayer. Apologies from both Minister and Deputy Minister were acknowledged by the Chairperson. The Committee would proceed with addressing the non-summarised submissions on the BELA Bill.
The Chairperson expressed gratitude to the technical team and Department for the diligent work on the submissions. Despite the late arrival of this compiled information, the Committee had time to review it.
Ms D van der Walt (DA) indicated that she had not had adequate time to review the documents.
The Chairperson announced that they would examine the newly provided information, which would subsequently influence the acceptance or amendment of clauses. She apologised for the delayed distribution of the information to Members and proposed the adoption of the agenda.
Mr B Nodada (DA) said that they had received the documents at 6:06 PM the preceding evening, despite his prior email requesting timely distribution for thorough consideration. The Committee had not been given adequate time to review the documents, particularly the matrix and national report on the public submissions, He had not had the opportunity for meaningful engagement with these reports.
He suggested that the meeting agenda start by receiving the Department presentation on the proposed amendments and that the report not be considered during that meeting.
Ms M Sukers (ACDP) agreed with Mr Nodada. They had received the documents at 6 PM, making it challenging to engage meaningfully with the content. She had been in a late-night meeting and had only seen the document in the morning.
Ms Sukers also raised the issue of capacity and its impact on the Committee members' ability to thoroughly engage with documents. She noted that there is evident pressure on the system. This underscores the capacity problem which, in turn, negatively affects efficiency particularly for engagement. She believes that the Committee cannot proceed to deliberation without proper engagement with the documents.
Ms M Van Zyl (DA) supported Mr Nodada's point and said that the Committee should not proceed with deliberations. She pointed out that the Z-List did not indicate they would be discussing this matter, and Parliament is unaware of this discussion.
She referred to the minutes of 8 August, noting that the agenda had not been tabled for adoption because the Committee received the information less than 24 hours prior and that report was not considered due to its late submission and had to be adopted in the next meeting. Consequently, she felt that proceeding further was not appropriate.
Mr P Moroatshehla (ANC) quoted that 'change is inevitable, painful, unavoidable' and a formidable opponent. He emphasized that those who can adapt to change will make every possible effort to guide them in a better direction. He stressed the importance of being aware of the current time and the pressure the Committee is under to complete its tasks. His view was that there should be no postponement of the meeting due to minor additions to a presentation that the Committee had received two weeks prior. He believed it to be a delay tactic and suggested they proceed with the agenda as presented by the Chairperson.
Ms N Adoons (ANC) agreed that the agenda should be adopted as is, given that there are no new presentations. She proposed that the Chairperson begin the meeting.
Mr T Letsie (ANC) corrected Ms Van Zyl, clarifying that the 8 August minutes she referred to were not yet adopted by the Committee and were draft minutes to be addressed later in this meeting. He proposed that they continue with the meeting.
Dr W Boshoff (FF+) mentioned that he still had not received the meeting documents and had not had a chance to prepare. Nevertheless, he believed the meeting should proceed. He acknowledged the importance of addressing a 30-year-old legislation and agreed with Mr Moroatshehla that change is necessary. He suggested getting a presentation on the missing submissions, even though they may not make a decision at this point. He also could not see what had changed on the A-list as they had not dealt with it.
Mr B Yabo (ANC) agreed with continuing the meeting, stating that the agenda was clear.
Ms M Moroane (ANC) expressed her desire for the Committee to proceed.
Ms van der Walt stated that the fundamental issue remains – without receiving documents well in advance, it is challenging to apply one's mind, especially when dealing with legislation. She agreed with Mr Boshoff's call for a detailed presentation on what is new. She noted with concern some members of a certain party ignoring precedent when it suits them. She referred to Mr Moroatshehla's comment about some people fearing change and stressed that they are all politicians who support change but should not disregard legislative process for the sake of change.
Mr B Madlingozi (EFF) said that the Committee had extensively discussed the report and while they needed to address the missing submissions, they had been discussing it for too long. It was time to move forward. He proposed the adoption of the agenda.
The Chairperson acknowledged all Members' input but emphasized the need to conclude the legislation. They were trying their best to consider all Members' points but expressed frustration at the opposition party which often goes to the media to assign blame when a challenge arises. Despite the challenge, she ruled that they would proceed with the agenda.
The Chairperson noted the objection of the DA and the ACDP.
Mr Yabo raised a point of order that Committee members raise their hand if they wished to speak.
Ms Portia Mbude-Mutshekwane, Committee Content Advisor, apologised for the late submission of the report. She explained the extensive process undertaken to reach this stage of the report. This included recruiting volunteers, orienting colleagues from other units to understand the BELA Bill content, task allocation, task explanation, and verification of completed tasks. They also addressed ICT challenges in Parliament to ensure that all tasks assigned were completed.
Following the verification process, the team drafted the report, underwent a redrafting process, and meticulously edited and checked every page to ensure accuracy and compliance with requirements. The team had dedicated many sleepless nights to complete the report to the Committee's satisfaction.
She proceeded to take the Committee through the additions to the National Public Hearings Report on the BELA Bill.
National Public Hearings Report on BELA Bill: revised
The written submissions deadline date was extended from 15 June 2022 to 15 August 2022.
Ms Mbude-Mutshekwane explained that the executive summary highlights the importance of effective public participation during the parliamentary legislative process, with reference to court-identified factors for validating constitutional obligations.
She noted a minor modification in Table 1, which details public involvement through different venues and provincial hearings.
The BELA Bill drew participants from both rural and urban municipalities, encompassing a diverse array of stakeholders from various sectors. These stakeholders included political parties, parents, community leaders, school governing bodies, federations of school associations, individuals from the disability sector, youth organizations, teacher unions, trade unions, members of provincial legislatures, traditional leaders, clergy, prophets, and sister departments such as Health and Home Affairs. To facilitate public engagement, the Parliament IT unit developed a platform that allowed the public to submit comments through various means, including Google Forms, email, postal mail, or hand delivery. This platform provided the public with significant opportunities to voice their opinions and influence the Committee during the Bill's deliberations.
The mandate for public participation is rooted in the constitutional obligation placed on Parliament to enable public access to its processes. The Committee's approach to public participation adhered to the Parliament Public Participation Model, which offers a legislative framework to enhance public involvement in parliamentary affairs. The public participation process began with the creation of a project plan that outlined key deliverables and logistical arrangements, including venue selection, communication strategies, and Bill translation.
To raise community awareness and readiness, the Committee sought support from internal parliamentary stakeholders. Staff members from the Public Education Office and Parliamentary Democracy Office conducted sessions on public involvement and stakeholder awareness in the designated municipalities. These information sessions began before the public hearings for stakeholders.
The Communication Strategy involved various elements such as video promos, media alerts, and radio broadcasts, in collaboration with Parliamentary Communication Services. WhatsApp posters and video promos on the BELA Bill were created by Parliamentary Communication Services and shared as part of the strategy. These posters included information about the province, date, time, and venue of the Public Hearings for each respective province.
The Portfolio Committee on Basic Education conducted provincial public hearings from 26 February to 11 June 2023 in all nine provinces.
The Constitution, specifically in Sections 59(1)(a) and Section 72(1)(a), mandates the National Assembly and the National Council of Provinces to facilitate public involvement in legislative and other processes of the Assembly and its Committees.
Children and youth, as citizens, have a significant role in influencing Parliamentary processes, particularly given that the Bill involves amendments to education sector laws. Therefore, it's crucial to ensure their voices are heard in Parliament.
Throughout the 9 provincial public hearings, a total of 235 children and youth actively participated by making oral submissions, thereby expressing their views on the BELA Bill.
Additionally, the Committee compiled a comprehensive list of all stakeholders interested in the Bill to ensure that their input was included in the process.
In section 6, there was a request for clarification on the methodology. To address this, the secretariat meticulously documented the details of individuals and stakeholders who submitted written responses in an Excel spreadsheet.
Their inputs were categorized into 8 themes:
(1) Access to Basic Education,
(2) Compulsory Learner Attendance,
(4) Governance and Professional Management of Public Schools,
(5) Budget and Finances of Public Schools,
(6) Home Education,
(7) Independent Schools,
To facilitate the analysis of public views on the BELA Bill, columns were created to denote support, opposition, or partial support. Submissions were processed in batches, numbered from 1 to 100, and subsequently returned to the secretariat. However, submissions containing offensive language could not be categorized.
The call for submissions on the BELA Bill generated significant public interest and engagement. The Committee received submissions through various means, including email, Google Forms, physical forms delivered at public hearings, and more. Quantifying the submissions became a complex task, with technical challenges, such as discrepancies between added numbers and receipts, especially for electronically submitted ones. Despite these challenges, all submissions, whether oral, written, electronic, or otherwise, were captured and presented to the Committee.
Various submission methods were employed, including video transmissions, handwritten submissions, electronic and postal submissions, as well as email correspondences in different formats. The public's interest and participation were remarkable.
Submissions received after the cut-off date could not be considered. However, all submissions were deemed valuable, and none were discarded during the process.
Political parties expressed interest in participating in the email submission processing. In response, the Chairperson shared dates, venue details, and times with all members via WhatsApp to ensure transparency and allow interested parties to observe and understand the process. The ACDP was represented by an observer from that political party. Any communication related to the BELA Bill was directed through the Chairperson.
Several submissions raised concerns with clauses 4, 5, 14, 16, and 37. An overwhelming majority of the public submissions, whether written or oral, expressed non-support for the Bill.
A petition was considered and forwarded to the relevant office for further action. The ICT section provided valuable assistance with technical aspects of the process.
There were several general observations, including:
a) Many people responded as part of organized groups such as the "Dear BELA Bill" group, political parties, civil society organizations, and NGOs. These groups mobilized a significant number of registered emails.
b) Numerous emails had identical wording, suggesting that certain groups advocated for similar issues. Common themes included concerns about school governing body (SGB) powers, language policies and unregulated home education.
c) The majority of email submissions did not support the Bill, primarily citing concerns about clause 37. These submissions focused on parental rights to determine their children's education, arguing that the Children's Act already regulates home education. Section 18(2)(a) of the Children's Act, along with its definition of "care," grants parents the right to guide, direct, and secure their children's education.
d) Submissions from lobby groups opposing the Bill centred on issues with admission in clauses 4 and section 5. They argued that these clauses are not feasible in poorly resourced schools, particularly those in Quintile 1-3. They also raised concerns about undocumented learners and other reasons parents may choose to keep learners at home.
e) Some objected to clause 5, believing that the government intends to remove Afrikaans as a medium of instruction. They emphasized that the school's governing body should have the authority to determine the language and admission policies, including if a learner meets the admission requirements.
f) Some school governing bodies (SGBs) rejected clause 14, citing concerns that the proposed disclosure would infringe on the privacy of governing body members and their families.
g) There were concerns with clause 16 on the Head of Department (HoD) powers for procuring Learning and Teaching Support Materials (LTSM). Some believed that this amendment could hinder effective and transparent functioning of the SGB in delivering high-quality education.
h) Some submissions raised service delivery issues unrelated to the specific clauses of the BELA Bill, such as concerns about infrastructure and transportation.
i) Postcard submissions expressed objections specifically to clause 8A, arguing that alcohol should not be allowed at schools.
j) Courier and hand-delivered submissions generally supported the BELA Bill and highlighted various clauses, including clauses 2, 3, 5, SGB powers, clause 7, and clause 9.
k) During public hearings, it appeared that some participants misunderstood clauses 8A and 41. Some were provided with pre-written scripts, which were read at multiple venues.
l) Some written submissions duplicated one key aspect.
m) Other submissions critiqued the present government without providing substantiated facts.
In conclusion, this report offers the Portfolio Committee the necessary information for the final deliberation of the Bill. It summarizes the key points raised during the public hearings, combining insights from both written submissions and provincial hearings into a consolidated report.
Mr Madlingozi said that the desire of some individuals to rename the Bill using relevant terms may have contributed to the loss of submissions. This report made it clear there had been no need to postpone the meeting. That request for postponement was a delaying tactic. Despite attempts to stall, they cannot prevent the needed change as the Bill is meant to protect unborn children from a separated future.
Ms van der Walt referred to page 41 of the report, specifically section 6.3 on petitions, and on page 39, that the written submissions included emails, Google forms and submission forms.
Mr Yabo interjected and sought clarity on Mr Nodada's objections. He asked if he was speaking on behalf of the DA. If that were the case, the DA who objected to proceeding with the report, should not be allowed to engage with it and discuss it.
The Chairperson replied that despite objections to the process, she was allowing them to speak in the interest of time.
Mr Nodada raised Rule 85 of National Assembly Rules. The Chairperson could not mislead the meeting by stating they objected to the report when they had only objected to the adoption of the agenda. The Chairperson's comments were uncalled for and he urged her to run the meeting as a Portfolio Committee meeting rather than as a meeting of a particular political party.
Ms van der Walt addressed the Chairperson's overruling of the objection and continued her previous point. She emphasized the importance of clarifying that the specific petition mentioned on page 41, with over 20 000 signatures, was submitted to [email protected] on 15 August 2022 at 12:24 PM. She wanted it to be recorded in the minutes, noting that it was not a regular petition but a submission to the BELA Bill, as clarified by the Chairperson's legal advisor.
She then focused on the School Capture Petition, which aimed at stopping the ANC from taking over schools and it expressed concern about school governing bodies losing control over admission and language policies. It was dishonest to claim that the petition raised service delivery issues. She requested that any service delivery matters mentioned in the petition be presented to the Committee for verification. She stressed the importance of upholding South Africa's Constitution, which allows the public to freely sign or not sign petitions and participate in public engagement. She insisted that each petition needed to be considered as included.
Ms Van Zyl discussed pages 20 and 21 of the report. The table on page 21 clearly detailed who supported and who did not support the Bill. However, the information under 6.2.3 on page 40, related to submissions from the previous week's work, was not quantified in the national report and were only briefly mentioned. She requested a clear table indicating how many people supported or did not support the Bill based on recent submissions.
Mr Boshoff questioned why the results were not tabled and echoed Ms van der Walt's point about the multiple meanings of the word "petition." He provided a formal and informal definition, emphasizing that a petition can be a legitimate form of submission. His party used a different approach to gather public opinion and stressed that if 27 000 people agreed to a statement, it should make a material difference in a total of 45 000 submissions, highlighting the importance of not disowning such a significant number of signatures.
Ms Sukers expressed difficulty in engaging with the details due to the late time at which Members received the report. She noted the substantial impact of 9 500 submissions on the overall report. She reiterated the need to address committee staff capacity issues and their impact on transparency and public participation, citing the presence of observers as an example. She objected to the report and emphasized the importance of effective engagement and capacity.
Mr Nodada raised several questions and requests:
1. The number of outstanding submissions that were analyzed and requested a breakdown of how many rejected the Bill, how many supported it, and how many did not indicate a position.
2. The reason for not quantifying the total submissions (written, oral, and public) in a table format.
3. Clarity on the 11 700 submissions mentioned in the first report, asking from where they came, if they were from a specific group, and if they were analyzed as one submission or individual ones. He wanted to understand the technical difference between such submissions and petitions.
4. Both qualitative and quantitative analyses of the submissions. He provided examples from clauses 4, 5, and 37 to highlight that the report did not fully reflect what was submitted in public hearings. These clauses dealt with school space, use of mother tongue in schools, and thorough consultation.
Mr Nodada's questions aimed to gain a clearer understanding of the submission analysis and its representation in the report.
Mr Moroatshehla expressed support for the new 3-minute time limit for members and emphasized the importance of analysing the content of submissions. People may sign petitions without fully understanding the issues, and the Committee needs to substantiate objections to the Bill with specific reasons to present before Parliament.
Mr Letsie mentioned that they had received a legal opinion on the matter of the petition two weeks ago and expressed his readiness to move forward, accepting the revised report as presented.
Mr Yabo expressed frustration that Members were revisiting topics that had already been addressed and responded to in previous meetings. They were not dealing with these matters for the first time and should focus on addressing outstanding issues rather than revisiting definitions that had already been explained. They needed to stick to the agenda which was clear and specified deliberations on the Basic Education Laws Amendment Bill, including outstanding submissions and the draft amendment list. He urged the Committee not to spend time defining terms like "petition" that had already been discussed.
Committee Content Advisor response
Ms Mbude-Muthsekwane provided information on the matter of the petition. She explained that the Public Education Office had provided an information pamphlet that outlined what a petition is. According to this pamphlet, a petition is a formal request to parliament for intervention or action in response to a grievance, concern, or complaint, in accordance with Sections 56(d) and 69(d) of the Constitution. The pamphlet emphasized the importance of petitions for public participation and their role in helping parliament become aware of public concerns.
Petitions are significant as they reflect the views and experiences of those affected by government policies and allow the public to directly communicate their concerns to Members of Parliament. There are various forms of petitions including single, collective, mass group and petitions must indicate the relief being sought.
On the specific petition in question, she explained that they did not discard it but sent it to the Petitions Committee for consideration and registration on the petitions database. This action was taken to comply with Parliament's defined process for handling petitions, as outlined in the Public Participation Framework.
Ms Mbude-Muthsekwane addressed access by observers. She explained that when the staff were observed for the first time, they needed to establish which regulation pertained to this matter. The staff approached their work as competent individuals and professionals rather than as politicians. However, they complied with the directive to allow observation and the Chairperson's request to have an observer present. They were observed during their work, including their use of laptops.
On the submission numbers, their directive was to examine the content of the submissions, and this information had been provided in the report. They added a note at the bottom of the report to specify what people on the ground had expressed on the matter.
On Nodada's question about hand-delivered submissions, she referred him to an update presented to the Portfolio Committee on 19 February. In this update, they provided a heading that explained hand-delivered submissions. The 19 February meeting detailed these submissions and included information on the areas addressed in them, such as clauses 2, 3, 5, 7, and 9. This information had been shared in the report and the Committee had received it.
Ms Mbude-Muthsekwane pointed to 6.2 "Written submissions" in the report which mentioned that the call for submissions on the BELA Bill drew a significant amount of interest and the public engagement was substantial. She mentioned that the IT Division could confirm the challenges faced with the BELA Bill inbox, as they had helped the Committee to thoroughly review all the emails. She shared a portion of her correspondence with the IT Division supervisor/manager, discussing some of the challenges encountered. Despite these challenges, the Committee made efforts to ensure that no submissions were missed and that everyone was included.
Mr Nodada repeated his question about the origin of the submissions, whether they came from organizations or individuals, as this would impact the process in Parliament. All submissions to Parliament should influence Members of Parliament when dealing with the Bill, both quantitatively and qualitatively. He expressed concern that the Department had focused on submissions received in a parcel instead of analysing the email submissions which should have been processed first. He sought assurance that the overall process was safeguarded.
Ms Mbude-Muthsekwane provided additional information, including a telephone number and tracking number related to a parcel received in August 2022. She clarified that they had not stated that IT had lost the emails but explained that the system they were dealing with had limitations in retaining information on the database.
The Chairperson requested that the Committee address the legal opinion on the petition and the number issue considering the information provided by the Content Advisor.
Parliamentary Legal Advisor, Adv Phumelele Ngema, provided legal insights on the matter. She referenced Section 17 of the Constitution, which states: "Everyone has the right, peacefully and unarmed, to assemble, to demonstrate, to picket and to present petitions". She also noted Section 56(d) under the heading "Evidence or information before National Assembly," which allows the National Assembly or its Committees to receive petitions, representations or submissions from interested individuals or institutions.
Adv Ngema explained that there is a guide that uses the provisions of the supreme law to help Parliament distinguish between special petitions and general petitions and determine which petitions are valid for consideration by Parliament. She emphasized the importance that petitions must clearly indicate what they request from Parliament.
Parliament has the authority to enact laws, and the legislative drafting process is specified in the Constitution. The Committee's role is essentially to work on legislative drafting.
On numbers or qualities and quantities, Parliament's actions are governed by statutory regulations and the Parliament's rules. Parliament can only act within the scope of its constitutional empowerment. The enactment of legislation is outlined in Chapter 4 of the Constitution, which covers obligations such as public participation. Parliament strives to respect the Constitution and court judgments that ensure its provisions are upheld.
Adv Ngema clarified that while the Constitution does not explicitly state the need to quantify submissions, it does emphasize the importance of public participation. Public participation is considered a right and privilege, and it has the potential to influence the legislative process. However, the ultimate power to enact legislation rests with the members of the Committee, who are appointed by the National Assembly. Once the Committee completes its report on the legislative process, it becomes the responsibility of the Committee members to approve the report.
Ms van der Walt referenced Rule 32 "General powers" which empowers Committees to summon individuals to give evidence, receive petitions, representations, or submissions from interested parties, and permit oral evidence on various matters.
She argued that the petition sent on the BELA Bill in the form of emails should be considered a submission. She had all the comments on the petitions and noted that very few of them were irrelevant, although they were not related to service delivery. They would analyse these petitions for appropriate action.
Ms Sukers stated the importance of Parliament fulfilling its duty by carefully considering what the public has submitted. The Department needed to respond to these submissions. She acknowledged Mr Nodada's comments on process issues and the Chair should ensure that they adhere to the principles of the law-making process.
Ms Sukers expressed concern that the Committee could not engage with the A-List if it had not properly reviewed what had been submitted. She appreciated the hard work in compiling the information but stressed the importance of parliamentarians applying themselves to the submissions and the law. She suggested that parliamentarians should be held accountable for costs if they do not perform their duties adequately.
Ms Van Zyl asked about the department's understanding or view on the majority's opposition to the Bill based on the total submissions counted, including those from the previous week. She was concerned that the report only mentioned that most submissions were rejected and that they did not have a complete picture of public sentiment.
Mr Yabo argued that there was no legal requirement to quantify the results of public submissions, referencing the advice given by Adv Ngema. He suggested that Ms Van Zyl's demand for quantification was out of order unless she could provide a legal basis for it.
Ms Van Zyl stated that public participation aims to determine if a Bill is supported or not, and quantifying the data is essential for that purpose.
Mr Letsie urged the Committee to focus on completing the consolidated national report. He praised the report's quality and proposed its adoption.
A Committee member seconded the adoption.
Mr Boshoff acknowledged Adv Ngema's statement that there is no mandate to quantify the responses but also noted that there is no prohibition against it. The first draft national report included clear and set-out numbers, which he found to be a good idea, even though it was not mandated. He suggested that the Committee proceed with the understanding that numbers will be added to the report, similar to the first column with numbers. While he understood that this might not be immediate, he emphasized the importance of including the numbers.
The National Public Hearings Report on BELA Bill was adopted.
The ACDP, DA and the FF+ objected.
Annexure A: Matrix of Public Submissions & DBE Response on BELA Bill
Ms Portia Mbude-Muthsekwane explained that the report matrix contains the explanations for proposed amendments, submitters' comments and recommendations, and DBE responses as provided by Mr James Ndlebe, and the articulation in law.
Clause 1: Definitions
The DBE response was that they did capture the change to the definition of corporal punishment.
Clause 2: School Attendance
Mr James Ndlebe, DBE Chief Director, responded that the school attendance age for Grade R remains 5 years old, despite comments suggesting that this age is too young. There was a recent debate in which it was stated that Grade 1 students should be six years old going forward. Recommendations for Grade R implementation are already in place because some schools already have Grade R, and what happens in Grade R is considered enriching. The age provided in the draft will determine the conclusion of the compulsory school-going age and the age of admission, with no variations in Clause 2.
Clause 3: Monitoring learner attendance
The DBE accepts the clause as it is.
Clause 4: Admission of Learner and the power of the SGBs
During the clause-by-clause deliberations, DBE acknowledged the removal of the requirement. However, DBE emphasized that the issue of HoD intervention in learner admission policy and language policy in clauses 4 and 5 would persist because the Bill contains provisions outlining how the HoD can still intervene.
Clause 5: Language Policy
Similarl to clause 4, the requirement for submission will be removed for approval.
Clause 8: Sale of Alcohol on School Premises
To be removed.
Clause 9: What constitutes an act of serious misconduct
There were no changes.
Clause 10: Corporal Punishment
No changes but the definition of exercise was indicated in Clause 1.
Clause 14: SGB Disclosure of Financial Interest
To be deleted.
Clause 15: Use of School for Educated-related activities
To be deleted.
Clause 16: HoD Powers
Remains agreed upon as per the clause-by-clause.
Clause 17: Withdrawal of functions of an SGB
Clause 19: Minister Powers
Remains as is.
Clause 22: Provides for the declaration of personal interest and recusal of SGB members.
DBE committed to providing a declaration form and expressed the desire to include an additional element in this clause. DBE initially agreed on a 30-day period for review but is considering returning to the standard 14-day notice period, which has been consistent in all department matters. The rationale for this is that a school year consists of 200 days, not 365, so a one-month notice period would impact the school's ability to address the issue in a timely manner. It was pointed out that all other stakeholders, including parents, SGB members, and HoDs, are given a 14-day notice to respond to any issues. Including both 14-day and 30-day periods could create confusion in the education sector. DBE is therefore proposing a return to the 14-day notice period.
Ms van der Walt asked about the consequences if a response is not provided within 14-days.
Mr Ndlebe explained that the Bill specifies the outcome in such cases. For instance, it may state that if no response is received within 14 days, permission will be granted.
Mr Mzwandile Matthews, Advisor to the Minister, noted that there seems to be an underestimation of the authority vested in the Head of Department (HoD) where specific actions or activities should be initiated but have not been implemented as required by the South African Schools Act (SASA). The HoD powers are defined in a general sense to address situations where provisions in SASA are not adhered to. In such cases, the HoD's authority would override the standard process, ensuring that the matter remains approved.
He added that the standard notification period prescribed by SASA is 14 days. While there are 200 potential school days in a year, the actual school calendar often consists of fewer days (about 196), accounting for holidays and breaks.
The Committee agreed to the 14 days.
Clause 37: Home education
DBE has acknowledged the comments on Clause 37, specifically objections about homeschooling. However, on careful consideration, it was noted that these objections did not directly address the issues outlined in the Bill. The Bill proposed that reports be submitted at the end of a phase rather than annually, which was also reflected in the A-List of proposed amendments.
On the section on school registration, it aligns with the constitutional provision that places the responsibility for operating a school, including its costs, on the individual or entity operating the school. Despite various comments invoking concepts such as "God-given right" and parental responsibility, it is crucial to emphasize that these viewpoints cannot override the constitutional requirement that the curriculum offered should be at least on par with the prescribed curriculum.
The comments received often touched on the Curriculum and Assessment Policy Statement (CAPS), asserting that DBE should not prescribe a curriculum or assess students. Instead, the DBE intention was to request regular reports, conducted by a qualified teacher or assessor, at the end of a phase. The Department also withdrew the proposal for home visits, affirming that families could implement their own curriculum, aligning with their religious beliefs, while ensuring that reports from qualified educators were submitted at the end of each phase.
The rest of the clauses (Clauses 38 – 56) were not contested.
Mr Nodada expressed his concern that the Chairperson had previously stated that she would take questions but had not yet done so. He mentioned his intention to compose a letter containing his requests and questions.
Ms Sukers said that she was unable to thoroughly engage with the matrix, as she had received it late the previous evening and could not vouch for its accuracy.
A Committee member told Ms Sukers that she did not need to engage with the matrix as it was only for noting.
The Committee Secretary, Mr Llewellyn Brown, acknowledged that there had been a change in today's meeting agenda. He had realized this late but had promptly sent a note to Members after the documentation was sent, advising them not to consider the agenda items based on the Z-list. Instead, they were instructed to refer to the attached notification, which outlined the revised meeting agenda. There was no change in the meeting itself, only in the agenda items
Proposed amendments (A-list) to BELA Bill
The State Law Advisor (SLA) went through the A-List and provided explanations for the proposed amendments (see document: Draft A-List BELA Bill.)
Clause 1: Definitions
1. The term "means" has been replaced with "includes" in the definition of basic education to avoid limiting a constitutional right.
2. An amendment suggested by the department involves adding "a recognized professional body in the field of education" to the definition of a competent assessor, in contrast to a competent assessor without this additional qualification.
3. The department's proposed change to the definition of corporal punishment introduces the concept of "exercises which are not in accordance with the curriculum applicable to the child."
4. A new definition for 'special education needs' has been added to the Bill.
Adv Shalili Misser, DBE Chief Director: Legal and Legislative Services, requested that they change “children” to “learner” in the corporal punishment definition.
Clause 1 was adopted.
Clause 2: Compulsory Age of School Attendance
1. The Department is removing the proposed advisor of section 3(1) of the SASA in response to concerns raised during deliberations.
2. The definition of "school activity" is quite broad, encompassing any official, educational, recreational, cultural, or social activity of the school within or outside the school premises. Criminalizing or hindering this process is considered irrational and cannot be justified.
Clause 2 was adopted.
Clause 4: Power of the HoD
1. The Department proposes the deletion of paragraph (b) of the clause, which provided for the establishment of national and provincial inter-governmental Committees. This amendment clarifies that the absence of the required documents will not prevent a learner from being registered or admitted to school.
2. The Department proposes an amendment to section 5(5) of the SASA by adding that an admission policy determined by a public school must be consistent with the Constitution and relevant legislation.
3. The Department is deleting the proposed paragraph (a) in the Bill, and the paragraph is being incorporated into paragraph (d) in the same clause.
Mr Nodada pointed out that the text said "HoD after consultation" and wanted to know why it did not say "in consultation."
The SLA replied that this was a proposal from the Department, and he did not see any issue with using "after consultation."
Mr Nodada explained that "in consultation" carries a different, more binding meaning compared to "after consultation." He argued that "after consultation" implies that the decision has already been made, while "in consultation" signifies agreement through the process.
The Department clarified that during deliberations, they discussed and decided that the HoD would have the final say, which aligns with the Constitution's mandate. It is the state's responsibility to ensure the fulfilment and protection of constitutional rights. This approach is consistent with previous case law and constitutional principles.
Ms Misser added that consultation is intended to resolve disputes and empower the entity responsible for making the ultimate decision.
The clause was adopted.
Clause 5: Language Policy
Clause 5 provides for amendments to section 6 of the SASA, which concerns language policies of public schools. The Department proposes to omit the HoD returning the language policy to a governing body. This amendment aims to align this clause with clause 4 on the approval of admissions.
Clause 5 was adopted.
Clause 8: Search, Seizure and Drug Testing
Paragraph "(a)" provides for amendments to section 8(A) of the SASA, which concerns random search and seizure and drug testing. Due to the Department's deletion of paragraphs (b) to (g), there is a need to remove the "(a)" designation, but the contents of the paragraph remain unchanged.
Clause 8 was adopted.
Clause 9: Misconduct of Learners
The reason for this amendment is to ensure that section 9 of the SASA, which concerns suspension and expulsion of learners from public schools, uses the word "accused" instead of "suspected" to clarify that learners should not be suspended solely based on suspicion of serious misconduct but rather when serious misconduct has been confirmed or accused. This change aims to provide a fair and just process for learners facing suspension or expulsion.
Clause 9 was adopted.
Clause 22: Declaration of SGB’s Personal and Financial Interests
This clause proposes amendments to section 26 of SASA, specifically on the recusal of members of the governing body. The minor amendment suggests that a member of the governing body should not only declare personal interests but also financial interests. This change aims to enhance transparency and accountability within school governing bodies.
Clause 22 was adopted.
Clause 30: 14 Day Notice Period
As discussed earlier the Department will be deleting this clause and sticking with the 14-day notice period instead of a 30 day one.
The clause was deleted.
Clause 37: Use of “Just Cause”
1. This was discussed earlier in the meeting.
2. During deliberations, there was a valid concern raised about the use of the term "just cause" and a suggestion was made to use simpler language. However, the challenge with changing this term is that it is used throughout the Principal Act. Therefore, amending it in this Bill would necessitate amending it wherever it appears in the entire Act. This would require permission from the National Assembly to make such comprehensive changes. It's important to note that "just cause" essentially means "a reason that is legally acceptable or valid," and it has been consistently used in the principal act since its inception.
Clause 37 was adopted.
Clause 41: Management of Learner Pregnancy
2. This pertains to paragraph (a) of clause 41, which deals with the management of learner pregnancy and the admission of learners to public schools.
Clause 41 was adopted.
Objections to proposed amendments (A-List) of BELA Bill
Those parties that objected to theA-list were noted as follows:
The Chairperson announced that the A-list had been adopted and would be integrated into the BELA Bill known as the B version of the Bill. This means they will need one more meeting to finalise the overall Bill. The upcoming meeting is scheduled for Tuesday 19 September 2023. If some members are in Finland, it will be conducted online, otherwise, it will be an in-person meeting.
Thereafter, the Bill will be forwarded to the National Assembly. The National Assembly will then debate, consider, and decide whether to reject or adopt the Bill.
The Chairperson thanked everyone involved in the BELA Bill for their patience, help and support.
The Committee considered and adopted the minutes of 8, 15, 16, 17, 29 August and 5 September 2023.
The Chairperson asked for a moment of silence for the leader of the IFP that had passed away.
The meeting was adjourned.
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