Basic Education Laws Amendment (BELA) Bill: Negotiating Mandates; Committee Legacy Report

Meeting report

Opening remarks

The Chairperson welcomed everyone to the meeting. He recalled that the Basic Education Laws Amendment (BELA) Bill was presented to this Committee on 8 November 2023. The Bill was a section 76 Bill, which was referred to all nine provinces and allowed them to conduct their public participation processes. Provincial legislatures held public hearings in their regions and consulted with stakeholders to receive their input on the proposed Bill. The provincial legislatures were then required to consolidate their negotiating mandates based on their deliberations after the public participation process. Therefore, in this meeting, the provincial delegates are requested to read their negotiating mandates to the Committee.

 

Provincial Negotiating Mandates on the BELA Bill

Gauteng

Mr T Munyai (ANC, Gauteng) said that the Gauteng Provincial Legislature supports the BELA Bill and all its clauses, objectives, principles, and details. The Gauteng Provincial Legislature voted in favour of the BELA Bill.

Free State

Mr I Ntsube (ANC, Free State) said that the Portfolio Committee on Education, Health and Social Services, as designated by the Free State Legislature, voted in favour of the BELA Bill.

Eastern Cape

Mr M Saziwa (ANC, Eastern Cape) said that the Eastern Cape province voted in favour of the BELA Bill with the following proposed amendments:

• Clause 3: Monitoring learner attendance

Clause 3 of the Bill places a duty on the School Governing Body (SGB), the principals and the educators to monitor learner attendance at school, including enquiring into the whereabouts of a learner when absent from school for three consecutive days. To support the SGB and the school, particularly educators, in carrying out this statutory obligation, a provision for social work services and other professionals must be made in this clause or in the regulations to ensure such services are available to the schools when needed.

• Clause 8(b): Random search and seizure and drug testing at schools

The search and seizure of liquor, dangerous objects or drugs, will, in terms of this clause, be conducted by the principal or his or her delegate. The execution of this statutory obligation is likely to put at risk the safety of educators. The proposal in this regard is that clause 8(b)(2) must be amended to ensure effective execution of search and seizure at schools by involving the South African Police Service (SAPS) or any other credible security agency to support the execution of this statutory duty.

• Clause 9: Serious misconduct

It is proposed that clause 9 be amended to make it explicitly clear that an assault on the educator by a learner is both a serious misconduct and a criminal offence that can, depending on the age of the learner, be dealt with in terms of the Child Justice Act, 2008 (Act no. 75 of 2008).

• Clause 12: Provision of public schools

It is proposed that under clause 12, a provision must be made for public schools that will offer online and blended learning to conform to technological advancements and the digital age era.

• Clause 19: Dissolution of governing body

It is proposed that before the exercise of powers to dissolve an SGB that has ceased to perform its powers in clause 19, the Head of Department (HoD) must, as a prerequisite, at the commencement of the SGB term of office, cause training to be conducted for SGB’s. This will ensure that SGB’s are well capacitated in all aspects of school operations. It is therefore proposed that the training provided to the SGB’s must not only be limited to an induction exercise, but must entail a comprehensive training programme.

• Clause 21: Remuneration of members of governing body

It is proposed that clause 21 be amended to make it clear that although SGB members are not entitled to be remunerated for the performance of their duties or for the attendance of meetings and school activities, but many be reimbursed for travel costs and other expenses incurred in attending meetings and school activities. The current section 27(1) of the South African Schools Act (SASA) provides that necessary expenses incurred by a member of a governing body in the performance of his/her duties may be reimbursed by the governing body. Therefore, the amendment in clause 21 must be aligned with section 27(1) of SASA.

• Clause 25: Closure of public schools

It is proposed that clause 25 be amended to reflect that the number of learners enrolled in a particular public school shall not be the sole criteria for the closure of a public school. Rather, a broad criteria encompassing social factors and other considerations must be taken into account.

When closing or merging unviable public schools, a provision must be made for the availability of the scholar transport and that all the necessary resources and support be provided to the new school.

• Clause 39: Regulations

In clause 39, the Minister must be empowered to make regulations on learner disciplining methods that are the alternative to the abolished corporal punishment.

Limpopo

The Chairperson read through the Limpopo Legislature’s negotiating mandate and said that the legislature voted in favour of the BELA Bill.

Mpumalanga

Ms E Nkosi (ANC, Mpumalanga) said that the Mpumalanga Legislature voted in favour of the BELA Bill.

North West

Ms Lehihi (EFF, North West) said that the North West Legislature voted in favour of the BELA Bill.

Western Cape

Mr E Njadu (ANC, Western Cape) said that the Western Cape Provincial Legislature does not support the BELA Bill in accordance with Standing Rule 90. The African National Congress expressed its minority view to support the Bill.

Northern Cape

Ms D Christians (DA, Northern Cape) noted that the Portfolio Committee on Education, Sport, Arts and Culture had received 2339 written submissions on the Bill.

The outcome of public hearings:

• Kimberley had a total of 173 attendees. Three voted in favour of the Bill, and 114 voted against the Bill.

• Kuruman had a total of 158 attendees. 46 voted in favour of the Bill, and 23 voted against the Bill.

• Upington had a total of 831 attendees. No voting took place due to disruptions.

• De Aar had 211 attendees. Nine voted in favour of the Bill, and 109 voted against the Bill.

• Springbok had 265 attendees. 18 voted in favour of the Bill, and 76 voted against the Bill.

The Portfolio Committee on Education, Sport, Arts and Culture deliberated on the Bill, which highlighted the need for sufficient funding for the effective functioning of compulsory early childhood development (ECD) centres. It noted concern over the disempowerment of SGBs in terms of the language and admission policies. It also highlighted the need for sufficient timelines for public hearings to ensure meaningful participation and engagement on the Bill.

The Northern Cape Legislature voted in favour of the BELA Bill.

KwaZulu-Natal (KZN)

Ms K Muthwa (EFF, KZN) experienced network issues. Ms Lehihi read out the KZN negotiating mandate on behalf of Ms Muthwa. The KZN Legislature voted in favour of the BELA Bill.

Discussion

The Chairperson informed the Committee that he had received correspondence from a Member of the Free State Legislature and from a Member of the Northern Cape Legislature. The Members had raised very sensitive issues about the procedures or the manner in which public hearings were conducted in their respective provinces. The problem concerned the processes within those provinces, so his Office referred those letters to the respective legislatures. His Office wrote to the Speaker of the Free State and Northern Cape legislatures to request them to investigate these matters and to report back to the Committee.

He noted that he had received another letter from Ms Christians, in which she expressed that she felt she had not been treated fairly in the last meeting and that nothing had been done to protect her. He apologised to Ms Christians, especially when she felt he had done nothing to protect her. He believed that if this issue was raised in the last meeting, he would have ensured that the Members engaged in it until it was resolved. He explained that his duty as Chairperson is to ensure that the Committee processes the BELA Bill, but it was not his duty to ensure that the Bill gets passed as that depends on the Member's interaction with the Bill. He invited Ms Christians or any other Member to comment.

Ms Christians said she appreciated the Chairperson’s response on all the matters she had raised.

Ms Nkosi commended the Chairperson's handling of the matter. Since the public hearings were held in different provinces, she believed that the Chairperson was correct in referring the matter to the respective legislatures to investigate.

The Chairperson said that he wanted to ensure that he did not disadvantage anyone or deny anyone the chance to speak because that is not in his nature. He encouraged Members to raise their concerns, as this will avoid tension amongst Members. He was happy that the matters were resolved.

He invited the Parliamentary Legal Advisor to comment on the negotiating mandates and guide the way forward.

Ms Phumelele Ngema, Parliamentary Legal Advisor, believed that the Committee had followed the constitutional provisions and that the processes were in line with the Rules of Parliament and the National Council of Provinces (NCOP). She said that the Committee could decide to proceed with clause-by-clause deliberations on the Bill. The Committee should also consider whether it is influenced by any proposed amendments in the negotiating mandates. If the Committee is influenced to propose amendments to any clauses, then she and the State Law Advisor will draft the C-list in consultation with the Department. If none of the proposed amendments in the negotiating mandates are approved, then the legal advisors could explain and respond to some of the issues raised.

Mr Saziwa noted that some of the proposed amendments to certain clauses in the Eastern Cape’s negotiating mandate were not flighted on the screen. He said he was not ready, as he had assumed that the permanent delegate would present the negotiating mandate. He asked if it was possible for the legal advisor to comment on whether the proposed amendments are sufficiently covered in the Bill or if it would be covered by the regulations. The Eastern Cape’s negotiating mandate reflected the matters raised in its public hearings.

He said he wanted to raise another point, in that many of the areas of objection were not necessarily coming from the clauses on the Bill. He explained that in one of the public hearings, there was a complaint from one of the political parties that part of the Bill talks about assisting learners as young as 12 years old to get an abortion, but this is not found in any of the clauses.

The Chairperson interjected. He suggested that Mr Saziwa not go into detail about such matters at this point. He said that there were many campaigns against this. In one of the provinces, somebody had said that the BELA Bill is a “Satanist bill.” He told Mr Saziwa that the legal advisors would respond to his question about the Eastern Cape’s negotiating mandate and the proposed amendments.

Ms Christians suggested that the Committee follow the legal advisor’s advice to review the Bill clause-by-clause.

The Chairperson told Ms Christians that the Committee will definitely proceed with clause-by-clause deliberations in its next meeting.

Mr Munyai thanked the legal advisor and the Chairperson for their guidance. He said that Gauteng’s public participation processes were not a referendum or a petition. The negotiating mandates have been tabled. He believed it was important for the Committee to consider the mandates before proceeding to the next step.

The Chairperson invited the Parliamentary Legal Advisor to respond to the Members' comments.

Ms Ngema informed the Committee that the Parliamentary Legal Services had been requested to present a response to all the questions and issues raised. This will be done in the next meeting, where she will take the Committee through a general response and comment on the provincial mandates and the submissions from the public. Once that is done, it will be easier to guide the process on the clause-by-clause deliberations as it will provide clarity on what the Constitution dictates and whether there is other applicable legislation, especially with respect to the issues of the socioeconomic impact assessment and the constitutionality of the specific provisions that have been contested.

The Chairperson thanked Ms Ngema. He said that South Africa is a constitutional democracy, so everything done in Parliament must be based on the Constitution.

Mr Njadu sought clarity on the department's role in responding to the provinces and on when the clause-by-clause deliberations would take place.

The Chairperson told Mr Njadu that the legal advisor would respond to the issues raised in the next meeting. Thereafter, the legal advisor will guide the Committee through the clause-by-clause deliberations.

Ms Ngema said that she, the State Law Advisor, and the Department’s team will be present in the next meeting to respond to all the questions. When the Committee does its clause-by-clause deliberations, she will be guided on whether the Committee will affect changes to the Bill or whether it will remain the same.

Committee’s Legacy Report

The Committee Secretary, Ms Noluthando Skaka, flighted the Committee’s legacy report on the screen.

The Chairperson said the legacy report reflected the Committee’s work over the last five years. It highlighted the Committee's achievements and made recommendations for the Committee in the Seventh Parliament to consider.

Mr Njadu believed that the legacy report accurately reflected the Committee’s teamwork over the last five years. He, therefore, moved for its adoption; Ms N Ndongeni (ANC, Eastern Cape) seconded this.

Read: ATC24038: Report of the Select Committee on Education, Technology, Sports, Arts and Culture on its activities undertaken during the Sixth Parliament (May 2019 – March 2024), dated 27 March 2024

Adoption of minutes

The Committee considered its minutes of 20 March 2024.

Mr Ntsube moved to adopt the minutes. Mr Njadu seconded this.

Closing remarks

The Chairperson thanked the Members, delegates from the provinces, and departmental officials for attending the meeting.

The meeting was adjourned.