Basic Education Laws Amendment (BELA) Bill: adoption; with Deputy Minister

Meeting report

The Chairperson welcomed everyone.

Dr Reginah Mhaule, Deputy Minister of Basic Education, extended an apology from the Minister who she said was attending a Budget Council meeting hosted by the National Treasury.

The Chairperson noted the apology. She mentioned that the Committee would consider and (later) adopt the amended BELA Bill together with its draft report. Thereafter, the Committee would consider and adopt its outstanding minutes.

She requested a mover for the adoption of the agenda.

Mr T Letsie (ANC) moved for the adoption of the agenda as presented.

Mr P Moroatshehla (ANC) seconded the mover for the adoption of the agenda as presented.

The Chairperson mentioned that Members had originally agreed to consider and adopt the Bill a week ago, but then it had to meet and assess the matric exam readiness.

The Committee, she outlined, would look into the amendments made to the A-List of the Bill by the Parliamentary Legal Advisors (PLA), which, once agreed to, would be added to the B version.

Mr B Nodada (DA) asked which part of the agenda the Committee was on.

The Chairperson said that Members were discussing the amendments made to the A-List of the Bill.

Mr Nodada recommended that the PLA present the amendments to Members first before they considered them.

Mr R Madlingozi (EFF) did not agree with the suggestion that the PLA take the Committee through its presentation as Members had already received a copy of the A-List.

Dr W Boshoff (FF+) agreed with Mr Madlingozi’s suggestion.

Mr Moroatshehla also supported Mr Madlingozi’s suggestion, and pointed out that the Committee had both gone through the amendments with the PLA previously and had since received the draft version of the Bill.

The Chairperson reminded Members that they had adopted the A-List version of the Bill in the meeting held two weeks ago. After they had adopted the Bill, the Committee then requested for the PLA to insert the A-List into the Bill. Members were unable to conclude the process the following week as they had to wait for the PLA to print the Bill.

She too opposed allowing the PLA to take Members through the amendments made to the Bill. Nonetheless, she asked for the PLA to provide Members with a brief overview.

Mr Letsie asked if the Chairperson had dismissed the suggestion made by Mr Madlingozi.

The Chairperson mentioned that she had only made the request for the brief overview so that other Members could be reminded of the amendments made.

Mr Nodada raised a point of order.

The Chairperson asked what his point of order was.

Mr Nodada highlighted that procedurally Members should follow the ruling made by the Chairperson.

The Chairperson dismissed his point of order.

Ms N Adoons (ANC) proposed that the Committee be provided some feedback and clarity on the process thus far by the PLA.

The Chairperson agreed with the proposal.

Briefing by Parliamentary Legal Advisor

Adv Phumelele Ngema, Parliamentary Legal Advisor, Constitutional and Legal Services Office, explained that the State Law Advisor and the Committee’s support staff took Members’ instructions on what should be amended in the bill introduced by the executive. The presentation that was done by her colleague has been incorporated into the B version of the Bill.

Thereafter, she briefly took the Committee through the amendments as outlined in the A-list

Read: [B2A-2022] BELA Bill Draft A-List

Mr Nodada asked if Members could pose clarity-seeking questions on the brief overview provided by the PLA.

The Chairperson mentioned that all questions could be submitted in writing.

Ms M Sukers (ACDP) asked if the minority view report could reflect the responses made to the amendments in the previous meeting.

The Chairperson highlighted that the minority parties could also provide the reasons for their rejection of certain amendments in writing.

She then indicated that all parties would be afforded the opportunity to speak on the B version of the Bill.

Discussion

Mr Madlingozi said that the EFF was in support of the amendment to the South African Schools Act (SASA) which sought to make education compulsory from Grade R to Grade 12 and criminalise parents or guardians who blocked children from attending school without a just cause. However, the EFF proposed that the age of entry into school be lowered to the age of three, especially given that the nursery schools are expected to soon be administered by the DBE.

Making schooling compulsory for all school-going children was a necessary intervention to ensure that no child is out of school. This, however, did not address societal problems underlying the absence of some children from school, he highlighted.

The Bill makes no provision for the kinds of steps that may be taken in instances where a child is unable to attend school because they have to take care of a sibling or a parent. There must be provisions for collaborative work with the Department of Social Development (DSD) to ensure that all issues preventing a child from attending school are addressed. None of these issues would be addressed by the provision in the Bill for principals to inquire on why a child may not be attending school, he stressed. 

The EFF, he went on, supported the clause that emphasised the need for the department to intervene in ensuring that school governing bodies (SGB) do not discriminate against learners when developing admission policies. Furthermore, the party did not support the idea of SGBs being given unlimited power to determine discriminatory policies without checks and balances. It was primarily for this reason that the party advocated in its manifesto that each school must have its own qualified social worker – who it also believed would better understand the social problems causing children to drop out.

The EFF supported the proposal to confer powers to the heads of departments (HOD) to make their final determination on the language policy of the schools, as it believed that the function could not be left to the SGBs as many previously white schools still use language to exclude many black children, he said.

Moreover, the party submitted that standardisation of languages should be centralised in the national department and not in the provinces. This should also apply to the code of conduct in all schools, which would prevent scenarios such as those in the Western Cape, where Afrikaans is used to exclude African learners.

The EFF was in full support of the amendment to the Employment of Educators Act which prohibits educators from conducting any business with the State. Adding on to that, it has recommended a more stringent legislative approach to school admission policy, with the admission policy being left to the department and not SGBs.

Learners should be allowed to bring in parents as their representatives during a disciplinary hearing, he submitted.

Despite all of its concerns, the EFF was in support of the Bill.

Dr Boshoff acknowledged the hard work done by all those involved in drafting the Bill. Notwithstanding the positive intentions of the Bill, the FF+, he stressed, could not support it as it noted critical deficiencies.

One, the FF+ was fundamentally opposed to the idea of replacing community-run schools, which are provided for in the SASA, by state-run schools. The gradual shift towards state schooling over the years would be cemented by the adoption of this Bill, he felt.

Two, the FF+ believed that online education, which has been more prevalent since the hard lockdowns implemented during the Covid-19 pandemic, had not been sufficiently taken into account in the Bill.

Three, the FF+ was concerned that no reference was made to Section 235 of the Constitution, which speaks to self-determination. According to several international treaties on self-determination, which were also accepted by the South African Government after 1994, education is at the core of cultural survival. Cultural groups, the FF+ believed, should be afforded the opportunity to look after their own education. This fact was neglected by the Bill, he mentioned.

Instead of centralising power to administer education to learners in the national DBE, the Bill should have rather given parents, through the SGBs, to decide on curriculums for their children. Cultural communities should be given this right in terms of Section 235, he added.

Four, the FF+ rejected the provision in the Bill which confers the power for the Minister to make regulations without having to consult anyone, as it believed that it gave him or her unfettered powers.

While the FF+ noted some of the positive changes that will be brought about by the Bill, it opposed its adoption because of the fundamental concerns it highlighted.

Mr Nodada mentioned that in its current form, the DA unequivocally rejected the BELA Bill.

The DA, he said, supported educational reform, especially given the poor state of the basic education system which has been mismanaged by the government. Those most affected by this mismanagement are children from rural areas in the country. Instead of addressing issues in the basic education system, such as overcrowding, curriculum failures, dropout rates, unsafe environments, unsanitary education facilities, poor quality teaching and the lack of resources, the Bill places emphasis on the centralisation of power into the hands of the State.

By doing so the Bill would be disempowering parents and communities that know what is best for their children. Both parents and communities should rather be empowered by the Bill so that they are able to facilitate quality education for their children and make decisions on behalf of their children, he urged.

Members, he continued, have a constitutional obligation to make sure that before any law is enacted by Parliament a meaningful public participation process has taken place. However, in this case, the Committee did not take sufficient steps to do so. Nine thousand five-hundred submissions were not included in a draft report, resulting in certain Members staging a walk-out in protest, he highlighted. The DA was proven to have taken the correct decision as the Committee backtracked on the decision to adopt the report and decided to analyse all of the submissions.

Despite taking that step, the Committee did not conduct a quantitative or qualitative analysis of the submissions, because if it had it would have noted that the majority of them had rejected the Bill. As the Committee was not guided by the majority opposition to the Bill, it had failed to fulfil its constitutional responsibility. Due to these failures, the DA believed that the Bill will be challenged in the court.

Clauses Four and Five were not clear on whether the HOD may or may not approve a language policy for a school – this had to be clarified in the legislation, he stressed. There were other issues. One, that it would be an administrative burden for the nine HODs across the provincial departments, who will have to approve different language policies for over twenty-four thousand schools. Moreover, by giving the HOD the final authority to make this determination and not the parents, the Bill had further centralised power with the State.

The admission and language policies are being used by the department as a tool to scapegoat its failure to properly capacitate public schools so that they can provide quality education to learners, he mentioned.

In order to provide good quality education, mother-tongue learning should be enhanced and rolled out across all public schools. However, this was not covered in the Bill, he said.

The Bill centralised power into the hands of the Minister in various forms, taking away the constitutional responsibility of provincial departments as a decentralised mechanism in education that ensures decision-making power is brought closer to the people. Some powers have also been taken away from Members of the Executive Council to make a determination on how to run the provincial departments.

When processing a Bill Members should be mindful of the consequences of each provision included. Furthermore, they should place sufficient checks and balances to protect the quality of education in the country, he advised.

Home education has been completely ignored by the Bill, with homeschooling associations stating that they were not adequately consulted. These associations have pointed out that they are not against the regulation of homeschooling. All they requested is that the provision take into consideration the rights of parents and learners.

Online schooling was not addressed in the Bill. Online or blended learning should be viewed as a new mechanism to provide education to learners. It could alleviate overcrowding in schools, provide an opportunity for parents to teach their children at home, and enable the state to be more innovative in supplying learners with the resources they need.

Due to all of the concerns raised, the DA wholly rejected the Bill.

Ms Sukers mentioned that the ACDP rejected the BELA Bill in its entirety because the party advances and advocates for parental rights whilst opposing state control of education. It is the primary responsibility and right of a parent to decide on the education of their children, whether poor or rich; whether they are urban or rural-based.

Where possible, education should be provided where a child resides, as this is optimal for their learning development, she said. By closing rural schools, the Bill would be undermining the rights of rural parents and rural communities.

Public participation should be meaningful and effective to give effect to the principles of participatory democracy. The process of law-making with this legislation exposed both the incapacity of Parliament to give effect to this principle and the constitutional obligation of Members to ensure effective participation and give meaning to the voices of people, she mentioned.

The ACDP submitted that these principles were lacking in application, both through the incapacity of Parliament and the failure of the Committee to give due consideration for public comment. By not ensuring that homeschoolers’ comments were included in the legislation the Committee had failed to hold the department accountable for the lack of effective consultation with this community.

The Bill undermined the aims of creating competent communities and had, instead, entrusted the State with more powers. The incapacity of the State to deliver on the most basic of services and the poor educational outcomes proved that the principles of solidarity and subsidiarity should be applied in the reform of education. It was not correct for the State to do what communities can. Closing rural schools and placing children in mega schools, rather than driving innovation in education through diverse models, is a failure by the department, which this Committee allowed, she argued.

In its current form, the Bill gave more jobs for officials, undermined the rights of parents, and ignored the best interest of the child.

The ANC, she stressed, had run an expensive exercise that will have to be re-run, as the Bill was likely to be struck down by the court.

Ms Adoons indicated that the ANC supported the Bill in its current form. It was not true that there was not enough consultation done, as this Bill has been deferred since the Fourth Administration due to continuous engagement with stakeholders and processes.

The Bill, she continued, sought to amend certain sections of the SASA to respond to administrative challenges facing public schools and to continue implementing the government’s transformation agenda. It was not a wholesale Bill that covered all aspects of the sector as has been alluded.

In addition, the Bill responded to the changing demographics of communities, the findings by the court the department has faced, and the DBE’s policy-making Grade R compulsory.

She felt that it was unfortunate that the Bill had been contested, especially the transformative shifts it proposes in the basic education system, such as those of language discrimination and inequality. The Bill has been processed during a time when the country is polarised on matters concerning social cohesion, and the political climate of electioneering, both of which fuel incorrect narratives about it.

Parliament, she continued, was expected to process and promulgate laws. In this instance, the Committee gave stakeholders and the general public sufficient time to make comments on the Bill. All the views expressed by both were considered by the Committee during the discussions with the department. Much of the submissions contained in the draft report did not speak to the clauses presented in the Bill and contained insults towards a certain political party.

Mr Moroatshehla said that certain misconceptions made by opposition parties on the Bill had to be clarified. One, mother-tongue education was not aimed to deprive the nation of its identity.

Two, that the Bill gave the Minister unfettered powers. As a unitary state, power should be centralised at the national level, he argued.

Three, the claims that the public was not adequately consulted by the Committee. In fact, during a presentation to the Committee, the department showed how it had hosted a series of meetings with stakeholders of homeschoolers. All the Bill proposes, he stressed, is that homeschoolers should be registered with the department.

Having considered all the input made by Members, the Chairperson requested a mover for the adoption of the BELA Bill. Once adopted, the Bill would be tabled to the National Assembly, she added.

Mr Moroatshehla moved for the adoption of the BELA Bill with the amendments.

Ms M Moroane (ANC) seconded the mover for the adoption of the BELA Bill with the amendments.

Dr Boshoff said that the FF+ rejected the adoption of the BELA Bill.

Mr Nodada said that the DA’s objection to the Bill and the report should be noted.

Thereafter, the Chairperson asked for the Committee to vote on the adoption of the Bill. She asked those who supported the Bill to raise their hands.

The chairperson indicated that only those who are eligible can vote.

The Committee Secretary confirmed that six Members from the ANC and one from the EFF voted in favour of the Bill’s adoption. Two Members of the DA and one from the ACDP voted against the adoption of the Bill.

As such, the BELA Bill was duly adopted by the Committee. The Bill will then be tabled to the National Assembly.

She reiterated that the views of the minority parties were noted and would be added as attachments to the National Assembly.

Mr Nodada requested that the minutes must reflect who on the Committee voted for and against the Bill.

Consideration and adoption of the minutes for 12 September 2023

The Chairperson took the Committee through the minutes. Thereafter, she requested a mover for their adoption.

Mr Moroatshehla moved for the adoption of the minutes.

Mr Letsie seconded the mover for the adoption of the minutes.

The minutes were duly adopted.

Consideration and adoption of the minutes for 19 September 2023

The Chairperson took the Committee through the minutes. Thereafter, she requested a mover for their adoption.

Mr Madlingozi moved for the adoption of the minutes.

Ms Moerane seconded the mover for the adoption of the minutes.

The minutes were duly adopted.

The Chairperson mentioned that the draft programme for the final term would be forwarded to Members soon.

The meeting was adjourned.