Clause by clause analysis of BELA Bill (table format) (awaited document)
The Standing Committee on Education (WCPP) convened virtually to receive a detailed briefing on the Basic Education Laws Amendment (BELA) Bill from the Department of Basic Education (the Department). The meeting delved into various facets of the BELA Bill, encompassing topics such as school closures, homeschooling, and regulations pertaining to learner pregnancy. Representatives from the Department fielded inquiries from Committee Members, particularly addressing concerns surrounding the closure of small and non-viable schools and the allocation of legislative authority to the Minister.
Discussions underscored the imperative of taking into account the distinct circumstances of schools and communities, ensuring transparency and accountability throughout the legislative process, and striking a balance between robust public engagement and the stringent timelines inherent in legislative procedures. Consequently, the Committee resolved to conduct a series of public hearings, aiming for a total of seven sessions to facilitate meaningful participation while accommodating Members' political obligations.
Further, arrangements were finalised for expert briefings from external organisations such as the Federation of Governing Bodies of South African Schools (FEDSAS), and the receipt of written submissions from stakeholders was duly acknowledged.
The Chairperson announced that the Committee was dealing with a follow-up briefing by the National Council of Provinces (NCOP) Permanent Delegate and the Department of Basic Education (the Department or DBE) on the Basic Education Laws Amendment (BELA) Bill [B2B – 2022]. She mentioned that the Committee would also continue its discussion on public participation regarding the BELA Bill, along with providing feedback from the NCOP. The Chairperson further mentioned there were draft units sent by procedural officers.
Explaining the difference between the current and previous week's meetings on the Bill, she stated that last week, the Committee had discussed overviews and analyses of respective clauses in the Bill. For this week’s meeting, the Committee had requested a clause-by-clause examination by the Department, including details on amended legislation, reasons, and the impact of the amendments. Members were then invited to introduce themselves, followed by delegations, and the meeting would proceed with presentations and a question-and-answer session.
Addressing a delay due to the absence of the presenter, the Chairperson suspended the meeting for five minutes. She emphasised the importance of punctuality and the need to proceed with the clause-by-clause examination before public participation and Bill advertisement. The meeting reconvened at 08:10.
Clause-by-clause examination of the Basic Education Laws Amendment (BELA) Bill [B2B-2022]
Mr James Ndlebe, Chief Director: Education Management and Governance, DBE, relayed the Chairperson's request to examine the old South African Schools Act (SASA or the Act), focusing on identifying changes and going through the Bill clause by clause. He noted that the first clause addressed definitions, particularly those related to the DBE, which now encompasses grade R, a provision which was absent in the previous version. He highlighted the inclusion of definitions like "benefit in kind," which was previously ambiguous. Referring to Section 38(a), he explained how schools were now permitted to compensate educators for extra work beyond their regular duties, incorporating various forms of remuneration, such as accommodation and other benefits. Mr Ndlebe also mentioned the continued inclusion of the definition of "competent assessor."
The Chairperson interrupted Mr Ndlebe, apologising for the interruption and seeking clarification regarding the presented definitions. She requested that Mr Ndlebe specify whether each definition represented an expansion, a new addition, or remained unchanged, as no current provision was visible in the SASA. She asked him to indicate whether each definition was a new insertion, a reduction, or a change.
Mr Ndlebe explained that if a section was empty on the left-hand side of the document presented, it indicated that the provision or definition was not there before, thus signifying a new addition.
The Chairperson acknowledged and thanked Mr Ndlebe for his clarification, as not only the Members but also viewers on platforms like YouTube might not have fully grasped the process. She expressed her gratitude for his assistance.
Mr Ndlebe elaborated on the definitions provided, starting with "competent assessor," which addressed issues related to homeschooling, particularly the requirement for a report demonstrating a learner's education progress. He noted the addition of definitions like "constitution," which aligned with the existing Act, and "corporal punishment," highlighting the inclusion of non-physical forms of punishment.
He discussed the definition of "illegal drug," emphasising additional terms related to prohibited substances. The definition of "district" was introduced to align with education district policies, including the incorporation of grade levels.
Further, he explained the definition of "homeschooling," clarifying its meaning within the context of the Act. The term "launcher person" has undergone cosmetic changes to simplify its interpretation, particularly regarding school loan applications.
New additions such as "other financial benefit" were introduced to elaborate on Section 38(a), encompassing non-monetary rewards for educators. The definition of "parent" was clarified to address guardianship issues within School Governing Bodies (SGBs) and elections.
He continued by defining "special education" and "compulsory attendance," highlighting changes in Section 3 of the Act. Mr Ndlebe asked the Chairperson if he was not speaking too quickly, offering a comprehensive explanation of each definition presented.
The Chairperson addressed Mr Ndlebe, acknowledging that he was not speaking too quickly. However, she pointed out a potential mistake regarding "special needs education," noting the absence of a space between the words "to" and "facilitate." She suggested making a technical amendment to ensure accuracy in the Bill, emphasising the importance of avoiding spelling mistakes in educational legislation.
Mr Ndlebe expressed that the process was rushed, noting disorganisation among the team and difficulties with the document display. He queried if the document was visible on the Chairperson's side, as his own did not show content on the left-hand side.
The Chairperson confirmed that she could see the document, albeit with some truncation in the first paragraph. She suggested enlarging the document to improve legibility, particularly for the first three boxes. She reassured Mr Ndlebe that the issue would be addressed, proposing to request the Parliamentary Monitoring Group to upload the respective document alongside the meeting minutes on their website and in their documentation.
Mr Ndlebe began by addressing Section 3, which dealt with the substitution of weights, particularly regarding the inclusion of grade R. However, he requested to postpone discussion on this section due to confusion surrounding enrolment and compulsory ages.
Continuing with Section 3 of the Bill, which addressed the management of learner attendance, Mr Ndlebe explained that it introduced roles and responsibilities for principals and SGBs to address learner dropout issues. He elaborated on the steps SGBs had to follow in monitoring absenteeism and reporting to the Department for support.
Next, he discussed Section 4, which pertained to admission policies. He highlighted a shift in the Bill toward the inclusion of the Head of Department (HOD) in determining admission policies, citing a Constitutional Court ruling. He noted new requirements for the consultation and involvement of communities in admission policy decisions, emphasising the importance of compliance with the Constitution.
Regarding statements in red text within the document, Mr Ndlebe explained that they outlined requirements for schools to submit policies to the Department, along with timelines for submission and the Department’s response thereto. He expressed concern over the practicality of this requirement and proposed their removal, citing feedback from SGBs. He suggested that existing policies could be addressed at the level of circuit managers and officials without the need for formal submission to the Department. He reiterated the intention to remove these statements, as discussed with the National Assembly.
The Chairperson sought clarity on whether the red text represented the areas where Mr Ndlebi was proposing an amendment. She asked if Members, respective provinces, and members of the public in those provinces should consider whether or not to propose an amendment based on his reasoning.
Mr Ndlebe confirmed her understanding.
The Chairperson thanked him for the clarification before inviting him to proceed.
Mr Ndlebe outlined several key revisions and additions to the SASA, beginning with the clarification of the roles and responsibilities of the HOD in school policy decisions. He emphasised the importance of including the HOD in consultations with SGBs regarding language policies and other significant matters.
Another area addressed was the code of conduct, where Mr Ndlebe highlighted the need for involvement from learners, parents, and teachers in its development. He also introduced an exemption clause allowing learners to request exclusion from specific code of conduct provisions based on religious or other grounds.
In terms of drug testing and corporal punishment, terminology had been revised to encompass a broader range of substances, shifting from "illegal drugs" to simply "drugs." Additionally, the definition of corporal punishment has been expanded to include verbal and non-physical forms of discipline.
Initiation practices within school premises or activities were strictly prohibited, with clear guidelines provided to prevent such practices during school outings or in hostels.
Mr Ndlebe also discussed procedures for changing the nature of schools, such as converting to specialised focus areas like agricultural or music schools. He outlined the application process and steps involved in converting schools to meet specific educational needs.
Guidelines for the merger of schools had been established, emphasising community consultation and the consideration of factors, such as viability and community impact. Small and non-viable schools were protected from closure through established conditions for merger decisions.
The functions of SGBs had been expanded to include provisions allowing them to procure learning and teaching support materials in consultation with the Department. Clear procedures were outlined for central procurement of educational resources, emphasising consultation and decision-making authority.
Procedures for addressing non-performing and/or dysfunctional SGBs had been introduced, including communication, steps for engagement, assessment, and resolution before dissolution. Safeguards had been put in place to ensure procedural fairness and the opportunity for SGBs to defend themselves before any dissolution decision was made.
Membership requirements for SGBs were modified to allow for the co-option of individuals with relevant expertise from outside the immediate community. This expansion aimed to broaden the pool of potential SGB members to include those with specialised knowledge or skills beneficial to the school.
Special provisions were introduced for SGBs of schools catering to children with special needs, including representative structures to ensure adequate support for students with diverse abilities.
(Mr Ndlebe was disconnected for a moment due to loadshedding)
In his continued presentation, Mr Ndlebe delved into various aspects of the proposed amendments to the SASA, offering detailed insights into each component. He began by addressing the new provisions concerning the reinvestment of funds for SGB members. Highlighting the importance of accountability and transparency, he clarified that SGB members who incurred expenses while performing their duties, such as attending meetings, were eligible for reimbursement. However, he stressed that this reimbursement did not extend to payment for attending meetings, as the emphasis was on volunteerism and commitment rather than financial gain. He highlighted the potential risks associated with monetary incentives, noting that introducing payment for SGB participation might attract individuals primarily motivated by financial gain, rather than genuine dedication to the educational cause.
He further explained the rationale behind the proposed changes regarding SGB elections and office bearers. Notably, the amendment prohibited staff members from serving as chairpersons of finance committees, aiming to prevent potential conflicts of interest and ensure greater transparency in financial decision-making within schools. Mr Ndlebe underscored the importance of parental involvement in key governance roles, echoing the principle that decisions impacting the school community should reflect the interests and perspectives of parents.
Another significant amendment pertained to learners' rights and responsibilities, particularly in cases where minors were involved. The revision clarified that regardless of age, learners could not enter into contracts or participate in processes, such as teacher selection. This aimed to safeguard learners' interests and ensure that important decisions regarding their education were made with due consideration and oversight.
Regarding the closure of public schools, Mr Ndlebe emphasised the importance of following due process to prevent arbitrary closures. He stressed that stringent procedures had to be adhered to, with clear guidelines outlined to hold provincial departments accountable for their actions. These measures were intended to protect communities from hasty or unjustified school closures, ensuring that decisions were made in the best interest of all stakeholders involved.
Mr Ndlebe also addressed the issue of homeschooling, highlighting the need for regulations to govern this educational alternative. The proposed amendments sought to establish clear guidelines for homeschooling arrangements, ensuring parents complied with curriculum standards and assessment requirements. Additionally, measures had been introduced to support pregnant learners in school, highlighting the importance of providing appropriate assistance and accommodations to ensure their continued education.
The presentation further touched on various administrative changes, including updates to financial reporting requirements for schools and provisions for dealing with disputes between SGBs and the DBE. These amendments aimed to enhance accountability, transparency, and efficiency within the education system, facilitating smoother interactions between stakeholders and promoting the best interests of learners.
(see attached document for further details)
The Chairperson addressed clauses 40 to 54 as being technical and involving word changes, suggesting that the question-and-answer session would be divided accordingly into three parts: clauses 1 to 20, clauses 21 to 40, and clauses 41 to 54. This organisation would ensure that each set of clauses received adequate attention and facilitated a more focused discussion.
The Chairperson then invited questions from Members, starting with clauses 1 to 20. Upon receiving no immediate questions, the Chairperson proceeded to ask her own questions, demonstrating a proactive approach to clarifying any uncertainties and fostering engagement among participants.
The Chairperson's first question pertained to Clause 14, which addressed the allocated functions of the governing body, specifically regarding central procurement. She sought clarification on how this clause differed from transversal procurement, highlighting the need to understand the nuances of central procurement and its implications for school governance.
The Chairperson then inquired about Clause 17, which involved replacing the authority of the provincial Member of the Executive Council (MEC) with that of the National Minister in the election of SGB members for schools catering to learners with special education needs. She expressed a lack of understanding regarding the rationale behind this change and sought clarification on any underlying issues or challenges.
Lastly, the Chairperson raised a concern about the practicality of the 14-day appeal period outlined in Clause 19, which allowed the HOD to dissolve an SGB if it ceased to perform its functions. Considering the potential complexities and challenges involved, she questioned whether this timeframe was sufficient for SGBs to adequately address and appeal such decisions.
Mr Ndlebe provided insightful responses to the Chairperson's questions, shedding light on key aspects of the proposed amendments to the SASA.
Regarding Clause 14, Mr Ndlebe clarified that Section 21 schools, being juristic persons, were not bound by the Public Finance Management Act (PFMA). Therefore, while transversal tenders were common in government departments, they did not necessarily apply to schools. However, he emphasised the importance of transparency and collaboration between the Department and the SGBs when negotiating prices for goods or services, ensuring that decisions aligned with the best interests of the respective school.
In response to the inquiry about Clause 17, Mr Ndlebe explained that the change from the provincial MEC to the National Minister in the election of SGB members for schools catering to learners with special education needs aimed to address inconsistencies across provinces. The amendment sought to promote uniformity and equitable access to specialised support and resources for such schools by standardising the process at the national level.
Regarding Clause 19, Mr Ndlebe discussed the rationale behind the 14-day appeal period for the dissolution of an SGB. He highlighted the importance of consistency in timelines within education laws and policies, aiming to avoid confusion and ensure efficiency in governance processes. The standardisation of timelines, developed in collaboration with SGB associations, legal services, and provinces, aimed to streamline administrative procedures and promote clarity and fairness in decision-making.
Further discussion and responses
The Chairperson raised three additional queries regarding clauses 1 to 20 of the proposed amendments to the SASA.
Firstly, the Chairperson sought clarity on Clause 2, which pertained to the grade or enrolment age of learners in schools. This indicated a need for further explanation or elaboration on the specific provisions and implications of this clause.
Secondly, the Chairperson inquired about Clause 7, which addressed the code of conduct and the concept of "just cause". The Chairperson expressed uncertainty about the criteria or standards used to determine what constituted "just cause" within the context of the code of conduct, suggesting a need for clarification or additional guidance on this matter.
Thirdly, the Chairperson raised concerns about the removal of the term "illegal" from the word "drug" in a particular clause, potentially broadening its scope to include prescribed legal medicine. The Chairperson questioned how educators or schools would differentiate between unprescribed and prescribed legal medicine, particularly in cases where individuals may not be under the influence but have legal medication in their possession.
Lastly, the Chairperson mentioned Section 21 schools and alluded to Section 239 of the Constitution, which dealt with institutions or functionaries exercising powers or performing functions in accordance with constitutional or legislative provisions. While indicating a need for further research on this matter, the Chairperson suggested that they would address it in subsequent discussions.
Mr Ndlebe addressed the confusion surrounding Clause 2, which dealt with the age of entry and compulsory schooling. He emphasised the need to differentiate between the two concepts, highlighting that while the admission age for grade one was typically five-turning-six in June, the compulsory school-going age was seven. The introduction of grade R further complicated matters, as it introduced a new entry age. He acknowledged that the current wording of the clause was unclear and expressed the need to revise it to avoid confusion and ensure clarity regarding the age requirements for school entry and compulsory schooling.
Regarding the issue of illegal drugs, Mr Ndlebe explained that not all drugs were illegal, but some may have adverse effects, particularly in a school setting. He emphasised the importance of learners having prescriptions for any medication they brought to school to ensure that the school was aware of its purpose and potential effects. He used the example of cough mixture, which may not be illegal but could have negative effects if consumed excessively. He suggested that the focus of the legislation should be on addressing the consequences of drug use rather than the legality of specific medications.
Mr Ndlebe also mentioned the presence of legal advisors who could provide additional clarity, particularly on issues with legal implications. He indicated a willingness to revise and improve the wording of the legislation to make it more understandable and reader-friendly.
The Chairperson sought clarification on who would be responsible for addressing the legal aspects of the sections of the legislation that may be difficult to understand or interpret.
Mr Chris Leukes, Acting Chief Director: Legal Services, DBE, provided clarification on two key points. Regarding the phrase "just cause" in Clause 7, he explained that it was not a new concept and has been used previously in the SASA. In the context of exemption, "just cause" refers to a valid justification for a learner or parent to apply for exemption from certain aspects of the code of conduct. For example, if a learner applied for exemption on religious grounds, such as a Muslim learner attending a Christian school not wanting to participate in scripture reading, that would constitute a "just cause". The phrase was intended to ensure that there was a legitimate reason for seeking exemption and to protect the interests of both the parent and the governing body. However, if the Committee felt that there was a better phrase to use for clarity, the Department was open to considering alternatives.
Regarding the issue of illegal drugs, Mr Leukes advised that certain drugs that were previously illegal may now be legal, such as cannabis, for medical use. The responsibility lay with parents to inform the school if their child was on prescribed medication that may have an effect on their behaviour or well-being. This information allowed the school to be aware of potential risks and take appropriate action if necessary. As long as prescribed drugs are disclosed to the school, it should not pose a problem, and the school could then ensure the safety and well-being of the student.
Mr Leukes also inquired if there was a question about the difference between Section 20 and Section 21 schools, seeking clarification on whether this was a topic of discussion.
The Chairperson sought further clarity on central and transversal procurement and how it impacted SGBs, especially considering Mr Ndlebe's earlier explanation that the PFMA did not apply to Section 21 schools. Furthermore, the Chairperson mentioned the broader scope of administrative law, citing Section 239 of the Constitution, which dealt with institutions or functionaries exercising power or performing functions in terms of the Constitution or other legislation.
Regarding central and transversal procurement, the Chairperson sought information on how these procurement methods affected SGBs and whether there were legal implications beyond the PFMA that SGBs should consider. While Mr Ndlebe provided some explanation, the Chairperson requested further clarification or additional information on this matter.
The Chairperson also asked for assistance in unpacking the legal language in Clause 2 concerning enrolment age and school-going age. Mr Ndlebe had mentioned that the clause was confusing, so the Chairperson sought assistance in understanding the legal intricacies involved.
Mr Leukes explained the intention behind Clause 2 of the Bill, which dealt with enrolment age and school-going age. He clarified that the primary objective was to formalise grade R (previously not part of the formal schooling system) and make it compulsory. Currently, the compulsory school age is seven years old, and parents are obliged to enrol their children by this age.
Mr Leukes highlighted the existing provisions in the SASA, specifically Sections 3 and 5(4). Section 3 dealt with the compulsory school age, emphasising that a child had to be in school by age seven. Section 5(4) addressed admission ages, allowing parents the right to enrol their child earlier, either at the age of four-turning-five for grade R or at the age of five-turning-six for grade one.
With the introduction of compulsory grade R, the Bill aimed to adjust the compulsory school age to accommodate this new requirement. However, Mr Leukes acknowledged that the current drafting might cause confusion and expressed openness to alternative formulations that the legislators may find clearer.
Discussion clauses 21 to 40
The Chairperson raised several questions regarding specific clauses in the presentation. In respect of Clause 22, she questioned why the decision on SGB elections was being centralised under the National Minister rather than allowing each province to determine its own election procedures. She stated that Clause 25 prompted confusion about the criteria and process for closing public schools, seeking further clarification on how these factors would be applied.
Regarding Clause 26, the Chairperson raised concerns about the practicality of requiring SGBs to seek approval for loans from the MEC for every instance, particularly for small loans or routine matters. She noted the inconsistency in certain clauses in transferring powers from provincial ministers to the National Minister.
Mr Ndlebe elaborated on the issue of SGB elections being determined at the ministerial level, expressing concerns about the confusion it created within the sector. He highlighted discrepancies in election procedures across provinces, such as differing quorum requirements, which could cause uncertainty for stakeholders. To address this, he suggested that the Minister regulate SGB elections to ensure uniformity in processes nationwide. Lastly, he mentioned challenges related to electronic elections and emphasised the need for consistent regulations to avoid disruptions in the electoral process. He delegated other questions to his colleagues.
The Chairperson reiterated two questions, seeking clarification on Clauses 25 and 26. Firstly, regarding the closure of public schools, she sought details on the conditions and steps involved in the process, as was discussed briefly earlier. Secondly, regarding Clause 26, she inquired about the practicality of MECs approving every loan request from schools within their province, questioning the feasibility of such a process for both the MECs and the schools involved.
Mr Ndlebe addressed the question regarding loans, suggesting that it fell under administrative rather than executive functions, indicating that there might be room for agreement on how it could be handled differently, rather than solely relying on the MEC. However, he requested clarification on the other question raised by the Chairperson.
Mr Ndlebe clarified Clause 25, explaining that schools with fewer than 135 learners in primary schools and fewer than 200 in high schools were considered small and non-viable, hence the closure. He reasoned that the Department allocated teachers based on a ratio of one to 40 or one to 35 learners, making it challenging for schools with fewer students to provide quality education. Therefore, the Department explored the possibility of merging such schools to ensure educational quality, which exploration involved consultations with SGBs and stakeholders. This process aimed to ensure stakeholder engagement and consensus, with the Minister or MEC advertising intentions in local newspapers for public feedback. Mr Ndlebe emphasised that school mergers prioritised childrens’ welfare and were only pursued when feasible and beneficial.
Regarding loans, Mr Leukes explained that current law required the permission of the MEC for government governing bodies to enter into loan agreements. This requirement aimed to prevent budgetary strains on the Department in the event of loan defaults. Mr Leukes noted that while the law did not specify loan amounts, it ensured MEC oversight to safeguard departmental finances. Additionally, for lease agreements longer than 12 months, MEC permission was required to avoid burdening schools with short-term lease approvals.
The Chairperson expressed concern about the closure of small and non-viable schools, particularly in areas like her constituency, where there was only one primary school and one high school. She highlighted that some classes might have fewer than 40 learners, and on average, around 30 learners per class. The potential closure of these schools could leave the constituency without any schools, which would impact farming communities, especially in schools in the Lainsburg Municipality.
The Chairperson suggested further engagement on this matter.
Mr F Christians (ACDP) noted that his concerns were almost entirely covered. He referenced past disputes in the Oudtshoorn municipality over school closures, emphasising the challenges faced by farming communities, especially regarding transportation and distance between schools. He posed a question regarding opposition to school mergers, highlighting instances where communities resisted closures due to practical concerns, such as distance and boarding arrangements.
He stressed the importance of mediation and finding practical solutions that considered both the viability of schools and the needs of the community. He raised concerns about small loan amounts across numerous schools, suggesting potential accumulative financial strain and the need for further discussion on the matter. He acknowledged the complexity of loan approval processes and the need to balance administrative efficiency with oversight.
Mr Leukes stated that perhaps one could take a first bite and then find it is not there. He suggested that the Committee could discuss a particular issue. The first point he wished to make was that it was not an absolute rule that a school with 135 or fewer learners had to close. He explained that the MEC had discretion, as the word "may" indicated. He emphasised that numerous safeguards were in place to prevent abuse and allow the community to have a say in whether a school should close.
Referring to Section 4(b), he mentioned that the MEC could not act without first notifying the school and parents in writing of their intention to close the school. He added that there also had to be newspaper advertisements and other forms of communication to inform the community.
Mr Leukes stressed the importance of consulting with parents and learners, giving them less than 30 days to make representations. He highlighted that the decision could be reviewed if valid reasons were provided. He noted the obligation of the MEC to consider these representations, adding that there were many checks and balances in place. Regarding the closure of a sole school in an area, he explained the potential impact on learners having to travel far.
Mr Ndlebe wished to highlight that there were cases where the merging and closure of schools should not be pursued at any cost. He pointed out that there were schools that should never be closed, such as the only primary or high school in the area. Regardless of the numbers, these schools should be preserved. Instead, mechanisms should be established to better support them.
Mr Ndlebe suggested that the MEC could consider overlooking issues like teacher-learner ratios and provide additional teachers to such schools, considering their unique circumstances. He explained that while some schools may be within walking distance, there were instances where geographical barriers like rivers or mountains made neighbouring schools inaccessible. In such cases, these schools should be left untouched.
The Chairperson expressed gratitude and then addressed Mr Christians' query regarding the lease agreements mentioned earlier. With over 1 500 schools in the province, even if the lease agreement amounts were small, it could become a substantial burden if each one had to be sent to the Department every time. This administrative process seemed quite burdensome. The Chairperson requested clarification on this matter.
Mr Leukes responded and stated that he understood the question or comment correctly. He acknowledged that even small amounts could accumulate significantly, using the example of R1 000.00 spread across 2 000 schools, resulting in R2 million. He emphasised that, ultimately, the Department would be responsible for any defaults on those loans.
Mr Leukes encouraged discussion on whether there should be a specification in the Bill stating that under a certain amount, there would be no need to apply to the MEC. He reminded the Committee that this was their Bill, and they were welcome to propose such amendments.
The Chairperson proceeded to clarify that the Bill being discussed was not theirs. Instead, it had been introduced by the National Minister of Education to the National Parliament, and provinces were providing their respective inputs and managing public participation in accordance with Section 76 of the Constitution. The Chairperson then expressed satisfaction with the openness of the DBE to amendments proposed by provinces, noting that discussions were ongoing regarding all clauses.
Mr Leukes apologised to the Chairperson and clarified his previous statement. He explained that provinces could indeed make proposals for amendments and provide their mandates. He reiterated that there was scope for amendments and encouraged the Chairperson to propose specific amendments if necessary.
The Chairperson expressed confusion regarding Clause 35, which dealt with homeschooling and mentioned home visits by officials. She questioned the practicality of conducting home visits when there already were not enough teachers in schools. She sought clarification on why these home visits were deemed necessary, especially considering that no home visits were required after grade nine. Moreover, she raised concerns about determining whether a curriculum for homeschooling was inferior to the government curriculum.
The Chairperson turned to Clause 39, which granted the Minister the authority to make regulations on the management of learner pregnancy. She recalled a previous meeting where it was mentioned that a draft document would be forwarded regarding this matter. Expressing concern, she emphasised the legislative role of Parliament. She questioned why the power to regulate on such important matters was being delegated to the Minister rather than being addressed through legislation. She stressed the importance of ensuring that pregnant learners were not denied basic education, as it was a fundamental right. She also questioned why regulations were necessary instead of addressing these issues directly in legislation, considering Parliament's responsibility for lawmaking.
Mr Christians mentioned concerns raised by communities regarding Sections 6, 35, and 39 of the Bill. He highlighted the sentiment among homeschoolers that the Department seemed to be working against homeschooling, making it more difficult for them to operate. While acknowledging the need for accountability, Mr Christians stressed the importance of making it easier for homeschoolers while ensuring government accountability.
Moving on to Sections 6 and 39, Mr Christians noted significant opposition, with concerns that allowing the Minister to make regulations could potentially have unintended consequences, such as driving an agenda regarding abortion. He emphasised the unhappiness surrounding these sections and the sentiment among many people that there were problems with the Bill.
He acknowledged that he had not provided all the details but emphasised that the Bill was a topic of discussion in many communities. As public representatives, the Members aimed to provide clarification and assistance based on community feedback.
The Chairperson thanked Mr Christians, emphasising the importance of seeking clarity as Members of the Committee. She noted that during the public participation stage, the focus would be on input from the public rather than questions from the Committee Members. Therefore, she stressed the need to thoroughly address any questions of clarity beforehand, particularly regarding Sections 39 and others. She expressed a desire to understand the distinction between regulations the Minister would make and existing laws and regulations in the health sector concerning pregnancy. She then invited Mr Ndlebe and Mr Leukes to provide their insights before opening the floor for further questions.
Mr Leukes addressed the question regarding regulations, stating that the Minister currently lacks the authority to make regulations on learner pregnancy. He mentioned a Constitutional Court case regarding the rights of pregnant learners, noting instances where schools would expel pregnant learners. Mr Leukes emphasised the need to provide protection for pregnant learners, with detailed regulations ensuring their rights were safeguarded. He explained that while there was an existing policy on pregnancy, it did not carry the weight of law. Therefore, there was a necessity to regulate these issues to prevent abuse and uphold the rights of pregnant learners according to the Constitution and law.
He clarified that putting these regulations in place would involve public engagement and consultation with stakeholders. He assured that the regulations were not related to abortion, as there were already provisions in the Children's Act regarding abortion. He stressed that the Minister could not order a learner to abort a foetus through regulations.
The Chairperson noted Mr Ndlebe's absence from the meeting and anticipated his possible rejoining. She decided to open the floor for any follow-up questions before proceeding to the next section. Addressing Mr Leukes, she highlighted the importance of clarity regarding the draft regulations mentioned earlier. She emphasised that if there was a misconception about the content of these regulations, it was crucial for the Committee to see the draft document to dispel any misunderstandings.
She pointed out that without clarity on the specifics of the regulations, Members of the Committee and the public would inevitably make their own assumptions. She stressed the significant responsibility placed on them as legislators to fully understand what they were delegating to the Minister. She urged the Committee to consider the gravity of their decision regarding delegating legislative power.
Mr Christians expressed his agreement with the Chairperson's sentiments and emphasised the importance of protecting pregnant children's right to education. However, he echoed the Chairperson's concerns about the perceived carte blanche given to the Minister through these regulations. He highlighted that on the ground, there were widespread concerns that these regulations could be misused, particularly regarding the sensitive issue of abortion.
He stressed the need for clarity and transparency, as people lacked answers due to the limited opportunity to ask questions. He underscored the difference between policies, which allowed for discretion, and regulations, which enforced specific actions. He reiterated the need to thoroughly scrutinise Sections 6 and 39 of the Bill to provide clarity to the public and address their concerns. He emphasised that his questions stemmed from the significant impact of the Bill on children and parents and the widespread engagement on the matter. He expressed the apprehension of many regarding Section 39, as it appeared to grant excessive authority to the Minister without clear guidelines on the regulations to be implemented.
The Chairperson handed over to the Legal Advisor of the Western Cape Provincial Parliament (WCPP).
Adv Romeo Maasdorp, Legal Advisor, WCPP, addressed the concerns surrounding Clause 39A, which granted the Minister the authority to make regulations on the management of learner pregnancy. Adv Maasdorp agreed with the Chairperson's remarks about guarding against outsourcing their legislative mandate to regulations. He acknowledged that the lack of clarity regarding the management of learner pregnancy had led to speculation, distrust, frustration, and anxiety. However, he also cautioned against unfounded conspiratorial speculation from communities.
Adv Maasdorp proposed amending the clause to specify the extent and scope of the Minister's regulatory authority. He suggested rephrasing the clause to state that the Minister "may make regulations on the management of learner pregnancy" and outlined four specific areas where regulations could be made:
- ensuring learners' emotional well-being;
- facilitating their continued schooling;
- involving and supporting parents or guardians; and
- ensuring schools have the capacity and resources to support learners.
He believed that by clearly defining the Minister's regulatory mandate in these areas, they could address the anxieties raised by Members and alleviate concerns about outsourcing their legislative authority.
He highlighted the importance of guiding the Minister's regulatory authority to address both Mr Christians' and the Chairperson's concerns about maintaining legislative oversight. He believed that clarifying the scope of the Minister's regulatory powers could mitigate the spread of conspiracies and reassure constituents.
The Chairperson expressed gratitude for Adv Maasdorp's comments, noting that they were well received, particularly the suggestion to tighten up provisions to prevent blanket legislative authority. However, she noted Mr Ndlebe's absence and wanted assurance that answers would be available before moving on to the next section of clauses. She inquired if Mr Leukes could continue with clauses 41 to 54.
Mr Leukes agreed to answer questions based on clauses 41 to 54. He proceeded to address an outstanding question from Mr Christians regarding homeschooling. He clarified that the intention behind regulating homeschooling was to protect the interests of learners and parents and ensure that the standard of education provided at home was not inferior to that offered in public schools.
He mentioned the constitutional imperative outlined in Section 29(3) of the Constitution, which stipulated that the education received by a child, whether in independent or public schools, should not be inferior. He emphasised that parents had the freedom to choose any curriculum for homeschooling and were not obligated to follow the national curriculum. Further, he noted that the requirement for home visits had been amended in the National Assembly, indicating that it was no longer mandatory.
The Chairperson directed a question to Mr Leukes, seeking clarification on how it would be determined whether a curriculum was inferior to the government curriculum. She noted that Mr Ndlebe had previously mentioned this matter, indicating that Mr Leukes might be able to provide assistance.
Mr Leukes explained that curriculum offerings were regulated by Umalusi, the quality control organisation. For a curriculum to be accredited and recognised, it had to undergo evaluation by Umalusi to determine if it met the necessary standards. This accreditation process ensured that curriculums offered in independent schools met the required quality benchmarks. He indicated that various curriculums had to obtain accreditation from Umalusi to be recognised officially.
Members had no follow-up questions and the Chairperson expressed gratitude to the DBE for their thorough clause-by-clause examination of the Bill. She acknowledged the complexity of dealing with such legislation but emphasised the importance of ensuring clarity and addressing all of the Members’ questions.
The Chairperson mentioned the resolution from the previous week to hold a separate session on costing and noted other requests for documentation that they were awaiting. She requested that Members remain online for feedback from the NCOP and for administrative matters related to the Committee. Finally, she thanked the Department and excused them from the meeting.
Public Hearings Programme
The Chairperson thanked the Members and reminded them to stay online while she provided feedback. She asked the Procedural Officer to assist in accessing the NCOP programme sent to them on Tuesday evening at 21:00.
The Procedural Officer confirmed that the notification was indeed sent at 21:16 to inform legislators of the meeting scheduled for the following day.
The Chairperson provided an update on the NCOP meeting, stating that they considered a letter requesting an extension. She noted the unusual nature of the NCOP holding a Committee meeting solely for this purpose but explained that other provinces had also requested extensions for meaningful public participation.
The NCOP requested the submission of negotiating mandates by 27 March 2024 and final mandates by 17 April 2024. The Chairperson outlined their Committee resolution from the previous week, which included plans for 12 public hearings across the province, requiring two to three weeks to advertise and prepare templates for submissions. Taking into account travel logistics and scheduling hearings when stakeholders could attend, this would extend into mid-April, followed by two weeks to compile data and administration, concluding by the end of April.
She expressed concern over the tight timeline and the need for a response from the NCOP regarding their extension request. If the request was denied, the Committee would need to reconsider their approach, potentially reducing the number of public hearings to meet the deadline, though this could limit community engagement. She invited Members to discuss finding a balance between meeting the timeline and engaging stakeholders.
Mr C Fry (DA) expressed his concerns regarding the timeline for the BELA Bill, noting that it was tabled in 2022 but was only now being addressed. He felt that the pressure to rush through the Bill was unfair, considering the importance of public participation. He suggested reducing the number of public hearings from 12 to 10 in hopes of finding a balance between engaging stakeholders and meeting the given timelines. He emphasised the importance of giving people the opportunity to provide input on the Bill.
Mr Christians acknowledged the difficulty of the situation and reflected on past experiences where they had reduced the number of public hearings. He emphasised the importance of adhering to the given timelines while still ensuring meaningful public engagement. He suggested reducing the number of hearings to between six and eight, focusing on district localities, with potentially one or two in metropolitan areas. He believed this would strike a balance between meeting timelines and engaging key stakeholders effectively.
Mr D Plato (DA) expressed his apologies for his tardiness and agreed with Mr Fry's assessment of the challenging timeframe, especially considering the approaching elections. He emphasised the need to balance public hearings with political responsibilities, such as canvassing and constituency engagement. Therefore, he supported having fewer than ten public hearings to ensure effective participation while allowing politicians to fulfil their election-related duties.
Adv Maasdorp mentioned that the meeting was taking place on 09 February 2024 and clarified that the Bill had been received in November 2023, not recently, as previously insinuated by a Member.
The Chairperson inquired if the Members were in agreement with conducting six to eight public hearings, to which there was a consensus.
The Chairperson suggested aiming for seven hearings, which fell within the average range. Moving on, she highlighted that the Committee had received a request for an expert briefing from the Federation of Governing Bodies of South African Schools (FEDSAS). She noted that arrangements should be made promptly to schedule the briefing. Additionally, there had been no further requests for briefings by experts, but any additional requests would be presented to the Committee for consideration.
The Members confirmed their agreement with the Chairperson's proposals.
The Chairperson inquired about the receipt of the written submission from the Western Cape Education Department.
The Procedural Officer confirmed that she had received the submission via email last week and had distributed it to all Members, including it in the folder for the Bill.
The Chairperson acknowledged this and expressed uncertainty about whether the Department wished to discuss the submission. She asked the Procedural Officer to check with them, as scheduling a separate session might be necessary.
The Procedural Officer agreed and undertook to contact the Department and report back to the Committee.
The Chairperson noted that National Treasury may have also been asked to provide a briefing on the costing, and emphasised the importance of ensuring the presence of the DBE.
Adoption of Outstanding Minutes
The Chairperson confirmed that the meeting minutes dated Friday, 02 February 2024, were now being addressed. She asked to review attendance and apologies. After checking pages one, two, and three for any edits, finding none, she sought a move for the minutes.
Mr Fry motioned to adopt the minutes, which motion was seconded by Mr Plato.
The Chairperson thanked them and confirmed the adoption of the minutes.
The Procedural Officer affirmed that everything had been addressed. She stated that provision would now be made for the seven public hearings, as per the Committee's recommendation.
The Chairperson thanked everyone for participating in the meeting and the robust discussion.
The meeting was adjourned.
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