Basic Education Laws Amendment (BELA) Bill: DBE briefing and Programme

Meeting report

The Chairperson, Ms D Baartman (DA), opened the meeting, welcoming everyone present. The agenda for the meeting included a briefing by the Department of Basic Education (DBE) on the Basic Education Laws Amendment Bill [B2B – 2022]. Following the briefing, the Committee Members would discuss the Bill's processing, particularly regarding public participation.

The Chairperson proceeded to ask the Committee Members to introduce themselves briefly. She also noted an apology from Mr F Christians (ACDP) before turning to the officials for their introductions.

Representatives from the Department of Basic Education and the Western Cape Education Department (WCED) then introduced themselves. Following the introductions, the Chairperson outlined the meeting's agenda, noting it would begin with the briefing, followed by a question-and-answer session.

She reminded Members that this process was familiar to them and encouraged them to engage actively. With that, the meeting commenced.

Basic Education Laws Amendment (BELA) Bill [B2-2022]

Mr James Ndlebe, Chief Director: Education Management and Governance, DBE, stated that the BELA Bill aimed to amend certain sections of the South African Schools Act (SASA). He highlighted that the Department had been involved with SASA since 1986 and acknowledged the country's numerous developments and demographic changes since then. The driving force behind the BELA Bill, he explained, was the country's commitment as a signatory to global treaties promoting economic, cultural, and social rights. He emphasised the importance of adhering to principles like "Leave no child behind" and ensuring access to education for all children, as outlined in the Constitution.

Mr Ndlebe clarified that the BELA Bill primarily focused on administrative and management processes at the school level, excluding issues such as curriculum, pass rates, subjects offered, or infrastructure concerns, as these were covered by other legislation, CAPS to be precise. He underscored that the Bill aimed to enhance the quality of management and governance in schools, rather than being a comprehensive education sector reform.

One key aspect addressed in the Bill was the inclusion of Grade R (pre-primary education) as compulsory schooling under the South African Schools Act, ensuring equitable access to education for all children. This amendment sought to relieve parents of the financial burden associated with Grade R education, particularly in no-fee schools.

Further, the BELA Bill aimed to revise the admission and language policies of schools, transferring decision-making authority from School Governing Bodies (SGBs) to the Head of Department (HOD). This change was prompted by instances of discriminatory admission practices observed in some schools.

Additionally, the Bill proposed measures to prevent the unnecessary disruption of schooling due to community protests or other causes, including criminalising such actions. It also introduced penalties for parents who deliberately kept their children out of school for extended periods.

The Bill addressed various aspects of homeschooling, requiring parents to register their homeschooled children with the Department and specify the curriculum being used. It also mandated independent assessments of homeschooled children's progress to ensure they received a quality education.

Concerning small and non-viable schools, the Bill outlined procedures for their closure or consolidation, emphasising community consultation and involvement in the decision-making process.

Moreover, the BELA Bill aimed to strengthen the accountability of School Governing Bodies (SGBs) regarding financial management, requiring quarterly financial reporting and granting the HOD authority to investigate cases of financial mismanagement.

The Bill also proposed reforms to learner codes of conduct, emphasising community involvement in their development and providing guidelines for addressing serious misconduct. It reiterated the abolition of corporal punishment in schools and expanded the definition to include non-physical forms of punishment that undermine a child's dignity.

Finally, the Bill called for regulations to address teenage pregnancy in schools, focusing on ensuring pregnant students' access to education and providing guidance on managing such situations within the school environment.

Mr Ndlebe affirmed that while the BELA Bill included technical amendments, its core objective was to improve the governance and management of schools to ensure every child's right to quality education.

The Chairperson requested Mr Ndlebe present the clause-by-clause details of the BELA Bill. Mr Ndlebe responded that he was unprepared for this request but would try to locate the document containing the clauses.

The Chairperson acknowledged the discrepancy between the overview provided and the comprehensive details of the clauses, noting that while there were only 11 slides, the Bill comprised 54 clauses.

Clause-by-Clause of BELA Bill

Mr Ndlebe expressed the need for patience as he searched for the document containing the clauses, reassuring the Chairperson that he would provide the necessary information for the Members to review with the Department.

Mr Ndlebe proceeded to provide details on the clauses of the BELA Bill. He began by explaining that Clause One focused on definitions, such as the definition of basic education, which now includes Grade R, and the definition of a competent assessor. He elaborated on the definition of corporal punishment, which encompasses various acts against a child, including hitting, smacking, slapping, pinching, scratching, kicking, shaking a child violently, and making children stay in uncomfortable positions or stand for extended periods.

He continued to describe Clause Two, which amends Section 3(1) of the South African Schools Act to specify compulsory school attendance from Grade R onwards, introducing penalties for non-attendance. Mr Ndlebe clarified that this does not mean penalties for every five-year-old not enrolled in school, but rather addresses compulsory attendance starting at age seven.

Moving on to Clause Three, Mr Ndlebe explained that it pertains to monitoring school attendance by educators, principals, and school governing bodies, outlining steps to be taken when a child is absent from school.

He then discussed Clause Four, which amends Section 5, addressing admission age, compulsory school attendance age, and policies set by governing bodies, allowing for the Head of Department to intervene if these policies do not align with departmental policies.

Mr Ndlebe continued to provide a detailed explanation of the clauses of the BELA Bill. He mentioned that Clause Five addresses language and admission policies, emphasising that schools are responsible for developing and keeping these policies, with intervention from the Head of Department if issues arise.

Moving on to Clause Six, Mr Ndlebe discussed the appointment of outside agencies or persons to advise the Minister on curriculum matters. This clause aims to empower the Minister to seek specialised advice when making curriculum changes.

He then discussed Clause Seven, which pertains to developing a code of conduct, emphasising the importance of considering input from parents, the community, and learners.

Clause Eight deals with random search, seizure, and drug testing in schools, outlining procedures for these activities.

Clause Nine clarifies what constitutes serious misconduct for learners, guiding schools on how to handle cases such as stabbing or rape.

Clause Ten addresses corporal punishment, defining what actions are prohibited and reinforcing the ban on corporal punishment.

Clause Eleven focuses on abolishing initiation practices in schools and promoting programs that integrate new learners without subjecting them to uncomfortable treatment.

Clause Twelve permits schools to change their curriculum or nature, allowing for specialisation.

Clause Thirteen addresses the merger of schools, providing guidelines to prevent shortcuts in the process.

Clause Fourteen pertains to procurement of goods and services by schools, ensuring that the process is transparent and follows proper procedures.

Clause Fifteen allows for the removal of functions from School Governing Bodies (SGBs) if they are not performing adequately.

Clause Sixteen amends Section 23 of the South African Schools Act, allowing SGBs to bring in specialists or community members to assist them, even if they are not parents of students at the school.

Clause Seventeen applies to special schools, permitting them to bring in skilled individuals to assist with governance, even if they do not have children attending the school.

Clause Eighteen aims to regulate and support specialised schools, ensuring they receive adequate support and protection.

Clause Nineteen grants the Head of Department the power to dissolve dysfunctional SGBs, with proper steps and appeal processes in place.

Clause Twenty addresses declaring personal interests and recusal in SGB activities.

Clause Twenty-One prohibits SGB members from being paid for their work but allows for reimbursement of expenses incurred in carrying out their duties.

Mr Ndlebe intended to continue with explanations of subsequent clauses but was interrupted due to technical difficulties.

The Chairperson expressed the need to pause the presentation due to technical difficulties and the lack of a close analysis of the clauses. She decided to wait for Mr Ndlebe to address these issues before continuing with the presentation.

Mr Ndlebe eventually joined the meeting again but there were still intermittent interruptions caused by the loadshedding.
 

(see attached for full presentation)

Discussion

The Chairperson reiterated the need for the Department of Basic Education to provide a clause-by-clause analysis of the legislation. She explained the format for this analysis, including detailing the current law, any proposed amendments, and the impact of those amendments.

Mr C Fry (DA) expressed gratitude for the presentation and posed three questions. Firstly, regarding ineffective School Governing Bodies (SGBs), he sought clarification on how their ineffectiveness is measured and by what standard.

Secondly, he inquired about slide 12, seeking more detail on private initiation practices in hostels during school activities.

Lastly, he asked whether a costing analysis had been conducted on the Bill and, if so, where it could be found.

The Chairperson raised three questions. Firstly, regarding the absence of a Social Economic Impact Assessment (SEIA) for the Bill, especially considering the potential costs involved. Secondly, she inquired about the draft regulations concerning pregnant learners, emphasising the need for transparency and understanding of such regulations. Lastly, she sought clarification on whether definitions for online schooling and special needs education were included in the Bill, specifically in clause one.

Responses

Mr Ndlebe clarified that the effectiveness of School Governing Bodies (SGBs) is measured based on their adherence to prescribed roles and responsibilities outlined in the South African Schools Act (SASA). If an SGB fails to fulfil its duties, it is considered ineffective, and steps may be taken to address the situation, such as removing non-performing members. Research and assessments are conducted to evaluate the functionality of SGBs and provide training where needed.

Regarding initiation practices, Mr Ndlebe explained that the Bill aims to prohibit unwarranted and harmful initiation practices in schools. These practices include subjecting new students, such as Grade 8 learners, to treatments that make them feel out of place or inferior. The focus should be on assimilating new students into the school community without resorting to demeaning practices.

Regarding the Social Economic Impact Assessment (SEIA), Mr Ndlebe stated that it was conducted, and the Department of Basic Education (DBE) will provide the relevant documentation and proof of the assessment. Similarly, he mentioned that work has been done on regulations concerning learner pregnancy, and while there are no regulations currently in place, the Minister seeks authorisation to develop them through the normal approval processes.

Finally, Mr Ndlebe acknowledged the need for clarification on the definitions included in the Bill, particularly regarding special schools, admitting that he was not fully present during that part of the discussion.

The Chairperson requested clarification on specific definitions within the Bill, particularly for online schooling, the term "meetings," and special needs education. These definitions were not found during the review, and the Chairperson sought assistance in locating them.

Mr Ndlebe addressed the Chairperson's inquiries regarding specific definitions in the Bill. He mentioned that the version passed by the National Assembly covers the definition of a meeting influenced by public hearings. Regarding online schooling, he explained that while the BELA Bill may have missed addressing this initially, the Department has since established a unit to focus on online schooling, with regulations and guidelines in development. As for special needs education.

Mr Ndlebe clarified that the focus was on including governance issues within the Bill, but the definition of special needs education is included and has been accepted. He assured the Chairperson that the requested document containing these clauses would be provided promptly.

Further discussion

The Chairperson raised several questions for clarification. First, she requested information on the costing analysis, the social economic impact assessment (SEIA), and the progress on drafting regulations regarding pregnant learners to be forwarded to the Committee. She emphasised the importance of understanding the implications of granting the Minister authority over regulations.

Second, the Chairperson inquired about the financial implications of making Grade R compulsory. She sought clarity on who would bear the costs, whether it would be funded by National Treasury, the Department of Basic Education (DBE), or absorbed by provinces.

Third, the Chairperson asked about the enforcement mechanisms and sanctions related to Clause 2, particularly concerning failure of enrolment. She sought details on how enforcement would be implemented.

Lastly, she questioned whether subsidies would be provided to provinces for Grade R, depending on the financial arrangements and who would bear the associated costs.

These inquiries reflect the Chairperson's concerns about the practical implementation and financial implications of the proposed legislation.

Further responses

Mr Ndlebe provided detailed responses to the Chairperson's questions. Regarding the costing analysis, he explained that it includes expenses related to making Grade R compulsory, such as additional teachers, infrastructure, and equipment. The Department of Basic Education (DBE) has received confirmation from National Treasury that funding will be allocated accordingly once the law is passed.

Concerning enforcement mechanisms, Mr Ndlebe clarified that communities are responsible for reporting cases of children not attending school. The Department will investigate the reasons behind non-enrolment, such as poverty or deliberate actions by parents. Penalties will be enforced if parents intentionally keep their children out of school.

Regarding subsidies, Mr Ndlebe stated that funding for education would be adjusted to include Grade R learners. Provinces will receive allocations based on learner numbers, with Grade R learners being incorporated into existing funding calculations.

The Chairperson sought further clarification on the enforcement measures outlined in clause two of the legislation. Specifically, she inquired whether parents could face imprisonment or fines if they failed to send their children to school, as indicated in the clause.

Mr Ndlebe affirmed that what the Chairperson was stating is “correct”.

The Chairperson sought further clarification regarding the potential consequences outlined in clause two of the legislation. She expressed concern about the possibility of a single parent, who was known to watch their child, facing imprisonment for 12 months if they failed to send their child to school.

Mr Ndlebe explained that their understanding was that the maximum penalties were being established because there was no existing legal framework or court precedent to enforce this matter. He noted that these penalties were intended to guide the courts in their decision-making processes. He pointed out that courts have specific procedures and due processes to follow to understand the reasons behind a case and determine appropriate penalties. The purpose of setting maximum penalties was to provide clarity and guidance in such situations. Mr Ndlebe cited an example where a parent had been sentenced to 12 months in jail for denying access to their child's father, highlighting how courts operate within the existing legal framework. He emphasised that while there may not have been previous instances of parents being penalised for refusing to send their child to school, the courts would interpret and apply the law accordingly in education-related cases.

The Chairperson inquired about the number of children currently in South Africa who are not attending school but should be.

Mr Ndlebe responded that he did not have that data readily available and suggested seeking assistance to obtain the information.

The Chairperson expressed concern about the potential increase in the number of individuals incarcerated if parents are penalised for their children not attending school. She emphasised the importance of understanding the current number of children not in school in the country. Additionally, the Chairperson sought clarification on the process of obtaining funding from National Treasury. She questioned whether the Department of Basic Education had approached National Treasury prior to drafting the Bill to ensure funding availability.

Mr Ndlebe confirmed that as part of the Social Economic Impact Assessments (SIEAs), the Department of Basic Education obtained confirmation from National Treasury regarding funding for the Bill. He explained that the National Assembly had requested Treasury to confirm the funding availability, and Treasury responded affirmatively in writing.

The Chairperson invited representatives from the Western Cape Provincial Parliament (WCPP) and the Western Cape Department of Education (WCED) to add any comments or insights they may have regarding the discussion. The Chairperson specifically addressed Mr de Vega from the WCED to provide input.

Inputs from the Western Cape Education Department

Mr Ian de Vega, Chief Director: Business Intelligence Management, Western Cape Education Department (WCED), thanked the Chairperson and acknowledged that many of the questions had already been addressed by the Members. He noted that substantive comments opposing the main Amendment Bill had been submitted to the Select Committee on Education, Technology, Sport, Arts, and Culture on 31 January 2024. Mr de Vega highlighted several reasons for opposing the Bill.

Firstly, he stated that the National Assembly failed to comply with its constitutionally imposed obligations to facilitate adequate and meaningful public participation in the law-making process. He mentioned that not all provinces participated in the process, and insufficient time was provided for notice and meaningful engagement. As a result, the process was constitutionally invalid, potentially rendering the entire Amendment Bill invalid.

Secondly, Mr de Vega expressed opposition to clauses four and five of the Amendment Bill, which proposed far-reaching amendments to Sections 5 and 6. These amendments aimed to transfer the power to approve the admissions policy and language policy of public schools, respectively, from the governing body to the head of the department. He argued that these provisions were impractical, unworkable, lacking rationality, and unconstitutional. He highlighted technical aspects of these provisions that could be deemed impermissibly vague and likely to be struck down by the court in the event of any challenge.

Thirdly, Mr de Vega raised concerns about the estimated costs of the Bill, which he believed were underestimated as they excluded certain aspects like learner transport, feeding schemes, and hostel accommodation. He emphasised the need for confirmation from National Treasury regarding the availability of necessary funding to realise the policy intention of making grade R compulsory and universally accessible. He suggested that Section 3(1), which proposed to make grade R compulsory, could not be supported without confirmation from National Treasury and sufficient time to put necessary resources in place for implementation.

Moreover, he pointed out contradictions in the Bill regarding the compulsory school-going age, which could cause confusion and needed to be amended for clarity. He also highlighted concerns about learner attendance and monitoring, emphasising that the WCED could not take responsibility for learners who were not registered at schools. He suggested clarifications to ensure that the provision only applied to registered learners.

Finally, Mr de Vega addressed issues related to home education, proposing important insertions and amendments to ensure the maintenance of standards, protection of personal information, and compliance with relevant legislation.

The Chairperson expressed gratitude to Mr de Vega for his comprehensive comments and requested that the submissions and comments opposing the Amendment Bill be forwarded to the Committee for review. She then turned to Advocate (Adv.) Romeo Maasdorp, the Legal Advisor for the Western Cape Provincial Parliament (WCPP) and invited him to provide any comments or input on the Bill.

Inputs from the Western Cape Provincial Parliament (WCPP)

Adv Romeo Maasdorp, Legal Advisor, Western Cape Provincial Parliament (WCPP), thanked the Chairperson and requested that either – Mr Ndlebe or the Committee’s procedural officer – to share the actual Bill during the meeting. He specifically asked for clause 27 to be highlighted.

Adv Maasdorp referred to clause 27, which pertains to the establishment of a school fund administered in accordance with directives issued by the head of department. He noted that this aligns with the distinction between the policy direction provided by the political head (MEC) and the operational role of the head of department. Similarly, clause 32 authorises officers to conduct investigations into financial matters under the authorisation of the head of department, reflecting the operational imperative of financial matters falling within the domain of the head of department.

However, Adv Maasdorp highlighted clause 26, which requires the approval of the MEC for any long lease, overdraft agreement, or loan by the governing body. This deviates from the established dichotomy between the political and operational roles seen in other clauses of the Bill.

Adv Maasdorp sought clarification on why the political head (MEC) is involved in operational matters concerning loans, lease agreements, and overdraft agreements, contrary to the consistent approach taken throughout the Bill. He directed his question to the drafters or Mr Ndlebe, seeking insight into the rationale behind this specific provision.

Response from the DBE

Mr Ndlebe acknowledged the request for further clarification on the discrepancies between the roles of the MEC and the head of department in operational matters, particularly regarding clause 26. He expressed the need to consult with the legal department to address these concerns and ensure uniformity in the Bill. Mr Ndlebe also indicated a willingness to reconsider and make changes, if necessary, based on the feedback received.

The Chairperson expressed the need to thoroughly examine the wording of each clause in the Bill, rather than just an overview, to ensure clarity on what is being agreed to or disagreed with. She proposed setting a deadline for the Department of Basic Education (DBE) to provide the necessary information and brief the Committee before proceeding to public hearings. The Chairperson sought confirmation from the Committee Members if they agreed with this approach and indicated that silence would be interpreted as tacit consent. Mr Ndlebe was asked if he agreed with the plan to compile the necessary information and resolutions for the Department of Basic Education (DBE) to address before the next session. This would facilitate the process and potentially make it easier for him during the next session.

He affirmed that the request was “perfect’’.

The Chairperson confirmed that everything had been covered before moving on to the discussion about the upcoming public participation process. She invited the Committee Procedural Officer to confirm if everything had indeed been addressed before the Committee moved on to discuss public participation.

The Procedural Officer confirmed that everything had been covered from their side.

The Chairperson agreed, acknowledging that she would deal with the public participation process next. She then thanked Mr Ndlebe, the DBE delegation, and Mr de Vega from WCED for their participation and stated that they were welcome to continue with their tasks for the day.

Discussion on the Scope and Implications of the Bill and Plans for Public Hearings

The Chairperson highlighted the extensive impact of the Bill, noting its relevance to the majority of schools, approximately 1 512 in number, and its implications for various stakeholders such as parents, learners, school governing bodies, community members, and teachers.

However, Adv Maasdorp cautioned that while the impact is significant, the Bill is focused on specific issues and not a complete overhaul of the Schools Act.

Acknowledging this, the Chairperson initiated a discussion on the public hearings, including considerations such as the number of hearings needed, advertisement strategies, and provision of interpretation services. She invited suggestions from the Committee Members.

Mr D Plato (DA) suggested having at least one session in each educational region. He emphasised the importance of education to many individuals.

The Chairperson then asked the Procedural Officer about the number of public hearings conducted by the WCPP.

The Procedural Officer responded that there were initially ten hearings, with an additional three planned.

The Chairperson proposed having two hearings per district.

Mr Plato expressed concern about the upcoming election year and suggested accommodating the appropriate number of hearings considering the circumstances.

Mr C Fry (DA) agreed that two hearings per district would be sufficient.

The Chairperson supported the idea of two hearings per district to ensure accessibility for smaller communities.

The Procedural Officer was tasked with checking if sign language interpretation services would be needed for the public hearings. She confirmed that she would inquire with the WCPP about this matter.

The Chairperson stated that the scope of the Bill would impact a majority of schools, approximately 1 512, excluding special needs education. She emphasised its effect on various stakeholders such as parents, learners, school governing bodies, community members, and teachers.

The Chairperson asked Adv Maasdorp if this assessment was accurate, to which she acknowledged the impact while noting the Bill's limited scope as it addresses specific issues within the Schools Act.

The Chairperson then opened the floor for discussion on the number and location of public hearings.

Mr Plato suggested at least one session in each educational region, with consideration for the upcoming election year.

The Procedural Officer provided clarification on the number of hearings conducted by the WCPP and proposed two hearings per district. Mr Plato and Mr Fry agreed with this suggestion.

The Chairperson suggested advertising in major newspapers and local newspapers in each area where hearings would take place.

Mr Ben Daza, Senior Procedural Officer, sought clarity on the number of districts and their specific locations.

The Chairperson clarified that there are six districts, resulting in 12 hearings. Mr Fry and Mr Plato expressed support for the suggested locations.

The Chairperson assured Members that efforts would be made to minimise disruptions to their personal schedules.

Regarding public input, the Chairperson proposed an online template for comments, which received support from Mr Fry.

The Procedural Officer confirmed that the template would be accessible to everyone and suggested forwarding it to Members for approval before public release. Additionally, the Chairperson discussed the use of social media and involvement of stakeholders in the public participation process.

She requested feedback on involving the Parliamentary Monitoring Group (PMG) in advertising. The Procedural Officer was tasked with seeking PMG's assistance and coordinating comments received through various channels.

Finally, the Chairperson outlined additional information required from the DBE, WCED, and other stakeholders, including written comments, costing breakdowns, and regulations concerning pregnant learners.

She concluded the meeting by thanking participants and emphasising the importance of their engagement in the legislative process.

Meeting adjourned.