Basic Education Laws Amendment (BELA) Bill: DBE briefing & legal advisor input (with Deputy Minister)

Meeting report

Apologies

The Committee Secretary, Ms Noluthando Skaka, noted an apology from the Minister of Basic Education who was attending the UNESCO General Conference in Paris.

Chairperson’s opening remarks

The Chairperson said that the Basic Education Laws Amendment (BELA) Bill was introduced in the National Assembly on 10 January 2022 by the Minister of Basic Education. The Portfolio Committee on Basic Education facilitated public involvement and processed the BELA Bill [B2-2022]. This version of the Bill is now before the Select Committee of the National Council of Provinces (NCOP) for processing.

The Department will brief the Select Committee on how the BELA Bill seeks to amend the South African Schools Act (SASA) and the Employment of Educators Act (EEA)

Deputy Minister’s introductory remarks

Dr Reginah Mhaule, Deputy Minister of Basic Education, said that the Bill reflects South Africa’s aspiration for a more inclusive, equitable and efficient basic education system. It addresses key challenges that have hindered the education ecosystem for years.

The Bill has received many critiques, some of which have misled society.

The objectives of the BELA Bill are clearly grounded in the best interest of the learners and educators. The strategic focus of the Bill is to make grade R compulsory. The Bill provides financial and public accountability frameworks for governing bodies and provincial government. It seeks to bring administrative improvements to admission policies, particularly as it pertains to undocumented learners. It brings technical and substantive adjustments to clarify existing provisions, and it inserts provisions which are not provided for in the existing legislation. It further strengthens enforcement mechanisms for offences and penalties.

Briefing by the Department of Basic Education (DBE) on the BELA Bill

Adv Shalili Misser, Chief Director: Legal and Legislative Services, DBE, took the Committee through the clause-by-clause analysis of the Bill. It included some of the following amendments:

• Clause 1 provides for the amendment to the definition section.

• Clause 2 of the Bill seeks to amend section 3(1) of the SASA to provide that school attendance is compulsory from grade R at age six and no longer only from grade 1; to increase the penalty provision in section 3(6) of the SASA from six months to 12 months.

• Clause 3 provides for the monitoring of school attendance by educators, principals and the school governing bodies.

• Clause 4 of the Bill seeks to amend section 5 of the SASA. It provides for an admission age and that, despite the age at which school attendance is compulsory, as stipulated in section 3(1), a parent may, if he or she so wishes and subject to a few conditions, enrol a child at a school to start attending grade R at a younger age. Provided that, if a school has limited capacity for admission to Grade R, preference must be given to learners who are subject to compulsory attendance. It provides that the governing body of a public school must submit the admission policy of the school, to the Head of Department (HoD) for approval.

• Clause 5 of the Bill seeks to amend section 6 of the SASA to provide for the governing body to submit the language policy of a public school, and any amendment thereof, to the HoD for approval.

• Clause 6 seeks to amend section 6A of the SASA to empower the Minister to appoint outside agencies or persons to advise the Minister on matters relating to a national curriculum statement and a national process and procedures for the assessment of learner achievement.

• Clause 7 seeks to amend section 8 of the SASA by providing, in clause 7(a), that not only any applicable provincial law but also the Constitution of the RSA and the SASA must be taken into account when a public school adopts a code of conduct.

• Clause 8 seeks to amend section 8A with regard to random search and seizure and drug testing at schools. The clause also makes it clear that a school has the right to search an individual learner and not only a group of learners and consequential amendments in this regard are proposed to the section. This clause seeks to extend the provisions of section 8A of the SASA regarding the possession of liquor by a learner and to make consequential amendments to the section, and in regard to the new definition of ‘‘drug’’.

• Clause 9 seeks to amend section 9 of the SASA by providing a list of acts of serious misconduct and to clarify what constitutes an act of serious misconduct by learners.

• Clause 10 seeks to amend section 10 of the SASA. It provides that corporal punishment is abolished, no person may inflict or impose corporal punishment to a learner at a school, during a school activity, or in a hostel accommodating learners of a school.

(See presentation for details)

Discussion

Ms D Christians (DA, Northern Cape) asked how the DBE would ensure that it supports school governing bodies (SGB) and other interested parties so that they can meaningfully engage during public hearings. She asked if practical support and tools were provided to teachers who work in challenging environments, to encourage desired teaching practices during disciplinary proceedings.

She said that one of the main concerns is around the processing of the BELA Bill, considering the time constraints of the Sixth Administration. She asked about the rationale for approving the Bill for tabling, considering that learners are writing examinations, and the processing of the Bill will be rushed to a conclusion due to the limited time available.

She referred to Clause 37, which inserts a new section 59A into the SASA to provide for dispute resolution mechanisms in the event of any dispute between an SGB and the HoD or the Member of the Executive Council (MEC). She asked how this amendment would save costs and promote amicable dispute resolution for the parties involved.

Mr T Munyai (ANC) noted that the presenter had emphasised that one of the rationales behind the legislative reform was to close the gaps that were identified by the various court judgements. He asked that the DBE share these court judgements so that the Committee can understand the context. He asked if there was any rationale behind the centralisation of procurement.

He referred to Clause 7, which seeks to amend section 8 of the SASA by providing, in clause 7(a), that not only any applicable provincial law but also the Constitution of the RSA and the SASA must be taken into account when a public school adopts a code of conduct. He said that he fully agreed with this because South Africa is not a federal state, it is a unitary state.

He noted that Clause 13 seeks to amend section 12A of the SASA to provide that, in instances where two or more schools are merged, a new public school will be established. He said that the merging of schools might have negative implications, such as the lack of infrastructure and overcrowded classrooms.

He referred to Clause 14, which seeks to amend section 21 of the SASA to empower the HoD to centrally procure identified learning and teaching support material for public schools, in consultation with the SGB and on the basis of efficient, effective and economic utilisation of public funds or uniform norms and standards. He asked if this clause was to empower the HoD of the national government or provincial government.

He expressed concern about the quality of home education compared to that of traditional schooling, especially if the curriculum was not the same.

He agreed with the amendment to section 36 of the SASA to provide that the SGB must also seek the approval of the MEC to enter into lease agreements. He suggested that the amendment to section 38 should be more explicit, to ensure that the budget of a school is made available to parents before it is presented to a general meeting of parents for consideration.

Ms N Ndongeni (ANC, Eastern Cape) referred to the amendments to section 17 of the EEA, which inserts a phrase that expands the list of acts of serious misconduct. She asked about the anticipated impact of expanding the list of acts of serious misconduct.

She noted that Clause 49 inserts a new section 19 into the EEA, which prohibits educators from conducting business with the state or from being a director of a public or private company conducting business with the state. She asked that the DBE officials provide examples of this, especially on the number of educators who were found to have conducted business with the state and the consequence management.

She asked if the compulsory attendance for grade R was linked to early childhood development (ECD) becoming compulsory. She asked about the penalty provision in cases where the parent or guardian prevents a learner from attending school. She asked what mechanisms the DBE were using to identify children who were being prevented from attending school. She asked what the DBE were doing to ensure that street children were granted access to school because to some extent they are probably being prevented from attending school.

The Chairperson said that one would often observe adults with children begging at street corners, especially with children that are of school-going age. Some foreign nationals would say that the schools do not accept their children. He asked how the Department of Social Development was assisting the DBE to identify children who are in such situations. He suggested that the municipal police could also assist in reporting parents who prevent their children from attending school.

Ms S Lehihi (DA, North West) made input in an indigenous language. (Refer to video)

The Chairperson thanked Ms Lehihi for raising her questions. He said that her questions may have to be answered some other time, as it relates to a particular school. The DBE officials might not have this information on hand but could provide the information later.

Mr I Ntsube (ANC, Free State) said that most of his comments had been covered by Mr Munyai. He referred to Clause 6, which seeks to amend section 6A of the SASA to empower the Minister to appoint outside agencies or persons to advise the Minister on matters relating to a national curriculum statement and a national process and procedures for the assessment of learner achievement. He asked about the method of appointment of outside agencies or persons.

Mr Munyai said that he assumed that the Bill was before the NCOP to consider all contributions from the nine provinces and to agree or disagree on the final outcome. He questioned why some Members of the NCOP were arguing against the Bill.

The Chairperson told Mr Munyai that this was the first time that the BELA Bill was introduced to the NCOP. The Members are representatives of the provincial legislatures. This meeting was for Members of the NCOP to receive a briefing on the contents of the Bill.

Ms S Mathye (ANC, Limpopo) said that she remained concerned about how the Bill would assist foreign national children, particularly those who are undocumented. She asked the DBE officials to explain how the Bill would assist undocumented children because some of them are being turned away from schools.

Ms Christians said that it is crucial to understand how the DBE plans to allocate the necessary resources for the successful implementation of the Bill. She asked that the DBE officials elaborate on the resource allocation for the funding of new programmes, additional staff and infrastructural improvements.

She believed that it was important for the DBE to explore training and professional development opportunities for teachers, to ensure a conducive work environment for teachers.

She asked how the DBE intended to educate and engage with parents on the changes, as well as to encourage parental involvement in the education of their children.

Deputy Minister Mhaule said that this meeting was to brief the NCOP on the Bill that was adopted in the National Assembly. The DBE intended to clarify the provisions in certain clauses.

She explained that the DBE had lost many court cases regarding undocumented foreign national children. The Bill is not specific on undocumented foreign national children, because they are considered as part of all children in South Africa. The Bill is for South African children and children in South Africa. No child should be disadvantaged in schools. All children should be admitted regardless of their status, whether they came to the country legally or illegally.

Adv Misser referred to Ms Christians’ comment about the timing of the Bill. She replied that the DBE has a team that deals with examinations. The processing of the Bill is separate from the examinations and will continue through the legislative pipeline.

On the questions about the dispute resolution mechanism (Clause 37), she replied that the DBE is trying to promote cooperative governance. In the event of a dispute, the parties should not immediately start to litigate against each other but should rather try to sit down and resolve the issues amicably. If all interventions by the HoD or MEC fail, then litigation will be pursued. There is currently not much litigation in this regard, but the provision seeks to mitigate or prevent such litigation, as this would also save costs.

She informed Mr Munyai that the DBE officials could provide the Committee with a list of the various court judgements, and also provide a summary thereof.

The purpose of central procurement is to facilitate and encourage economies of scale, particularly where provinces procure such at exorbitant prices and are not able to procure on time.

Section 38 is explicit and ensures that the budget of a school is available to parents before it is presented for consideration.

She referred to Ms Ndongeni’s questions. She replied that Clause 47 amends section 17 of the EEA by inserting a phrase that expands the list of acts of serious misconduct. The provision ensures that there is no misconception as to what constitutes serious misconduct.

She said that the provision inserted by Clause 49 is aligned with the provision that prevents a public servant from engaging in business with the state. The new section 19 in the EEA prohibits educators from conducting business with the state or from being a director of a public or private company conducting business with the state. The provision is to prevent such from happening and to prevent instances of corruption.

Once the Bill is passed, it will be compulsory for children to start school from Grade R. It is hoped that learners below the age of 6 and other aspects of ECD can become incrementally compulsory.

The DBE cannot impose consequence management on parents that prevent their children from attending school, but the DBE can counsel them and speak to them. There is a process in which the HoD can issue a notice to parents that are preventing their children from attending school, to ensure that the children do have access to education. The Bill contains a penalty clause, to impose a penalty on parents who deliberately prevent their children from attending school, because every child has a right to education.

The country still needs to address the issue of children on the streets. It must ensure that every learner of compulsory school-going age is afforded the opportunity to basic education. This will require a joint effort by all relevant departments, such as the Department of Social Development and the Department of Police.

In response to Mr Ntsube’s question, she replied that the Minister may appoint outside agencies or persons through the normal procurement processes, but if there are financial implications then it must be in line with the supply chain management processes and the Public Finance Management Act (PFMA). At times, experts from universities would offer their services to the Minister free of charge.

On Ms Mathye’s question, she replied that every child in the country must be allowed to attend school, whether the child is a South African citizen or a foreign national. Even if the child's parent or guardian is undocumented during the application process for admission, the child should nonetheless be allowed to attend school.

On Ms Christians’s question about parental involvement. She replied that DBE does have a capacity and support building programme within the Department. Once the Bill is passed, the DBE will host advocacy and awareness-raising sessions on the Bill and its implications, so that parents can fully understand their role. This is to facilitate a system where parental involvement is valued and welcomed.

A costing exercise has been done on the resources required for the implementation of the Bill. The DBE are aware of its responsibilities to ensure that it is ready for the implementation of the Bill, especially as it pertains to infrastructure and staffing.

Mr James Ndlebe, Chief Director: Education Management and Governance, DBE, said that Adv Misser had responded to most of the questions. He would provide a few examples to emphasise the response that Adv Misser had provided.

He referred to Ms Christians’ question about how the DBE were supporting SGB’s to meaningfully participate in public hearings. He replied that the Bill was no longer in the hands of the DBE because it is currently going through a parliamentary process. The DBE are not in the position to involve itself too much in the preparations for public hearings. However, the DBE usually provides a brief background during the public hearings, so that participants are aware of what the Bill entails. He noted that the Bill had been with the DBE for a very long time, prior to it being introduced in Parliament. The DBE had gone through the same processes when drafting the clauses, which included public hearings and calls for public comment. The Bill that is now before Parliament is a product of those processes.

On the question about dispute resolutions, he replied that the Bill is full of due process. The Bill outlines what the HoD should do in the event that there are disagreements between an SGB and the HoD or the MEC.

In response to Mr Munyai’s question on the central procurement, he replied that the clause was to empower provincial HoD’s. He noted that the HoD at the national level is usually referred to as the Director General, but the term “HoD” refers to the nine provincial heads of the educational departments. The provincial HoDs are given the responsibility to manage the affairs of education in those provinces.

On the question about central procurement, he explained that schools are charged exorbitant prices when they buy material. For example, the prices for food for nutrition or learning materials such as textbooks or computers gets doubled or tripled. The DBE decided that the government should use its buying power and negotiate with providers to come up with a reasonable way of reducing the cost of buying things. The BELA Bill enables schools to voluntarily be part of this central procurement to purchase materials at cost price. This is solely for the benefit of economies of scale, but it is not compulsory, so schools can continue to purchase materials on their own.

On the concern about homeschooling and inferior curriculum, he replied that there are many curricula in the world that are known and registered. All curricula are known to the DBE. When parents register their child for homeschooling, they would have to indicate what curriculum they will follow. The curriculum must be recognised and known.

He referred to the concern about parents who prevent their children from attending school. He said that children are also prevented from going to school if there are disruptions in the communities. For example, during service delivery protests. At times, the adults would lock the schools and chase the children away. The Bill will ensure that this is criminalised, and it is a matter for the law enforcement agencies to implement. This also applies to the adults who beg at traffic lights during the daytime with their children who are of school-going age.

The Bill does have a section that deals with the role of the school (i.e. the educators, principal, SGB) and parents in ensuring continuous attendance of a learner. This is to ensure that children who are of school-going age are attending school. The school should notice when a child has not attended school within a few days' time and follow certain procedures that are listed in the BELA Bill.

The BELA Bill will ensure that school attendance is compulsory from grade R at age six, up until grade 9. The school compulsory age is determined by the Constitution. It ensures that every child has the right to basic education. The BELA Bill will criminalise anyone who prevents a child from attending school.

He agreed with the Chairperson that Ms Lehihi’s question about food and SASSA in Wolmaransstad did not relate to the presentation on the BELA Bill. There should be further engagements on this, especially if it is a matter that is affecting children.

The Chairperson said that there is a lot of interest in basic education. Some stakeholders made suggestions that do not necessarily relate to the BELA Bill, such as the introduction of aerodynamics in primary schools.

Mr Mzwandile Matthews, Advisor to the Minister of Basic Education, said that he wanted to expand on some of the matters that the DBE officials had responded to, especially on the Deputy Minister’s remarks about the universality of access to basic education in the country. He said that Section 29 of the Constitution starts with the words “Everyone has the right”. This means that everyone has the right to a basic education, including adult basic education. So, the delineation between South African children and foreigners, whether they are legal or not. When legislation is promulgated, it must be guided by the principal legal document, which is the Constitution of the country. The Constitution makes broad pronouncements on all persons.

Section 29(3) of the Constitution ensures that all independent educational institutions are enjoined by the Constitution to register their programmes. Part of the requirements is for them to state the type of curriculum they will be following in delivering the education. The BELA Bill will ensure that the curriculum followed by independent educational institutions should not be of an inferior standard to that that is provided within public schools. This will ensure that quality education is also delivered through homeschooling.

He referred to the comments about the central procurement. He reminded the Members of the Limpopo textbook crisis which occurred in 2012. He explained that at that stage, publishers were free to charge any price for any book. They were free to charge as they deemed fit. The DBE then initiated the process of the “national catalogue” of textbooks. The Limpopo textbook crisis resulted in the NCOP invoking section 100(1)(b) to remediate the textbook crisis, particularly on procurement and administrative matters. The DBE then negotiated with the publishers whose books were listed in the catalogue to obtain further discounts on those prices, because money that was received from the National Treasury was not enough. The publishers were extremely generous in responding to the Limpopo situation. There were also negotiations to lower the price of stationary. So, the central procurement of goods is a very good practice to maximise the economies of scale.

He referred to the amendment of section 6A of the SASA which empowers the Minister to appoint outside agencies or persons to advise the Minister on matters relating to a national curriculum statement and a national process and procedures for the assessment of learner achievement. He agreed with Adv Misser’s comment that this is done through normal procurement processes. The Minister is enjoined by the law to appoint a committee or a task team if this is deemed necessary.

Mr Munyai agreed with the processing of the BELA Bill, because it was certified by the Office of the State Law Adviser, and it had also undergone a socio-economic impact assessment. He agreed that the Bill is now in the hands of Parliament. He reiterated his request for the Committee to receive a list of the court judgements that resulted in the amendments as proposed by the BELA Bill.

He said that the issue of procurement is highly contested. He was aware of the dynamics and challenges of procurement, especially with the centralisation of vaccine acquisition during the Covid-19 pandemic. He asked if there was any international benchmark related to this Bill because this might assist the Committee before embarking on public hearings.

The Chairperson asked the legal adviser to brief the Committee on the legal process.

Input by Parliamentary Legal Adviser

Ms Phumelele Ngema, Parliamentary Legal Advisor, Constitutional and Legal Services Office, said that the processing of the Bill would be done in terms of the Rules of the NCOP, particularly Rule 177 read together with Rule 176.

Rule 177 speaks to the Committee’s functions once the Bill is referred to it. The BELA Bill has already been referred to the Committee. The Committee may do everything which is set out in section 177, this includes inquiring into the subject of the Bill.

Rule 176 addresses the question about public participation and the opportunity for the public to make input. The rule is very clear that the Committee may arrange its own business in a manner that allows the facilitation of public involvement in the process.

Now that the Committee has received the briefing from the DBE and has an idea about the content and provisions of the Bill, the Committee may make a decision or deliberate on the way forward for the facilitation of public involvement.

She noted that the amended rules of the House impose an 8-week legislative cycle. The Joint Tagging Mechanism (JTM) has already tagged the BELA Bill as a section 76 Bill which is an ordinary Bill affecting the provinces. There should be serious involvement of the provinces, which includes engagements on the negotiating mandates, final mandates and voting mandates.

Closing remarks

The Chairperson said that the Committee’s staff will develop a programme to outline the timeframes and the way forward.

Mr Ndlebe referred to Mr Munyai’s question on whether the BELA Bill complied with international standards. He replied that South Africa is a signatory to global treaties that promote economic, cultural and social rights of people. As a member of the United Nations and Commonwealth, the country is obliged to meet certain standards to make education compulsory and free. This is reflected through the BELA Bill, which makes grade R compulsory, keeps children in school and deals with those that prevent children from attending school. The African Charter on the Rights and Welfare of the Child also drives the country to develop laws that put the child first. The country should leave no child behind when it makes education compulsory.

Mr Patrick Khunou, Chief Financial Officer, DBE, expressed appreciation on behalf of the DBE for having been invited to brief the Select Committee. The DBE has gained a lot from the interactions. He informed the Committee that the officials would be on standby if there were any further questions.

Adoption of minutes

The Committee considered its minutes of Wednesday, 1 November 2023.

Ms E Nkosi (ANC, Mpumalanga) moved for the adoption of the minutes; Ms Ndongeni seconded this.

The meeting was adjourned.