Basic Education Laws Amendment (BELA) Bill: response to mandates & deliberations

NCOP Education, Sciences and Creative Industries

17 April 2024
Chairperson: Mr E Nchabeleng (ANC, Limpopo)
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Meeting Summary

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The Parliamentary Legal Advisor provided detailed feedback on the concerns raised in the negotiating mandates of the nine provinces on the Basic Education Laws Amendment Bill which dealt with constitutional adherence, public engagement, procedural concerns, financial implications and clause-by-clause deliberations. She emphasised the importance of thorough public engagement and addressed procedural concerns about public engagement, transparency, and inclusivity in the legislative process. She highlighted specific clauses of the BELA Bill that had been contested and discussed the amendments made to address public concerns.

Committee members discussed the prohibition of corporal punishment in schools, the suspension and expulsion of learners, the designation of public schools with specialised focus areas and central procurement. Members also discussed the distinction between serious misconduct and other misconduct in the school environment; the imposition of penalties for contraventions, the prohibition of initiation practices. Throughout the meeting, there was a strong emphasis on upholding constitutional principles, ensuring the well-being and rights of learners, and fostering an inclusive and equitable education system.

Meeting report

The Chairperson welcomed Parliament's legal team, the Department of Basic Education (DBE), Committee members, and guests. The meeting aimed to continue discussions on the Basic Education Laws Amendment Bill (BELA Bill) receiving responses from the legal team and proceeding with clause-by-clause engagement to address matters raised by provinces in their negotiating mandates. He explained the process , where provinces would either agree or debate on responses provided. The Chairperson then suggested reviewing the agenda, which included the consideration and adoption of minutes, responses by the parliamentary legal advisor on issues raised in the Bill, and clause-by-clause deliberations.

The Chairperson requested the legal team to respond to matters raised in the last meeting in the negotiating mandates of the provinces.

Basic Education Amendment Bill: response to  negotiating mandates
Ms Phumelela Ngema, Parliamentary Legal Advisor, indicated that her presentation would focus on unpacking the law and discussing constitutional principles relevant to the Bill. She intended to address the mandates and submissions received by the Committee, plus the procedural concerns raised during committee meetings.

Ms Ngema focused on the Constitution's section 29(2), which addresses language medium in education, and section 29(3) on independent educational institutions with reference to the South African Schools Act (SASA) and National Education Policy Act (NEPA). Section 29 imposes an obligation on the state to consider all reasonable educational alternatives, ensuring equitable access to education.

Moving on, Ms Ngema discussed the significance of public engagement in the legislative process and Parliament’s public participation framework model. She highlighted constitutional provisions requiring legislators to listen to and consider public views, emphasizing the distinction between facilitated public engagement and referendums. Facilitated engagement aims to inform and influence legislative decisions, whereas referendums involve direct voting by the electorate on specific issues. She stressed the importance of thorough and respectful public engagement, urging legislators to ensure that all views are heard and considered.

Ms Ngema addressed procedural concerns about public engagement. She emphasized the need for transparency and inclusivity in the process, urging Members to facilitate meaningful dialogue with the public. She discussed the distinction between Section 76 and Section 75 Bills, highlighting the role of provincial legislatures in the former. Thorough and respectful public engagement is essential throughout the legislative process to uphold democratic principles and ensure informed decision-making.

Ms Ngema questioned the basis for claims of overwhelming objection to the Basic Education Laws Amendment Bill. Who made the determination and using what criteria? By raising this point, she emphasized the importance of critically evaluating public feedback and ensuring that legislative decisions are grounded in thorough analysis and consideration of all perspectives.

Ms Ngema expressed her limitations in fully understanding the proceedings due to capacity constraints, as parliamentary legal advisors are restricted from participating in provincial legislatures. While she acknowledged following some of the meetings, she admitted that her knowledge of what transpired might be limited and frustrating. She cautioned against entering into terrain without sufficient evidence and facts to guide decisions, emphasizing the importance of justifiable reasons and substance in assessing public feedback.

She raised questions about the validity and usefulness of statements claiming overwhelming rejection of the Basic Education Laws Amendment Bill. Many submissions merely stated rejection without providing substantive reasoning or addressing specific provisions of the Bill. She urged the Committee to interrogate the method used to interpret such statements and consider how they assist in guiding the legislative process.

She prompted the Committee to consider the implications of substantial changes made during deliberations. If amendments are introduced based on public feedback and committee discussions, Ms Ngema questioned the relevance and validity of previous statements of rejection. She encouraged Members to delve into these questions during their clause-by-clause deliberations to ensure a thorough and informed decision-making process.

Ms Ngema proceeded to highlight specific clauses of the Basic Education Laws Amendment Bill that had been contested. Although some clauses were similar to those contested at the National Assembly stage, there were still differences. She intended to provide further insight during the clause-by-clause deliberations to assist Members on the context of each clause.

She mentioned several examples of contested clauses, including definitions such as "parent" and "competent assessor." Ms Ngema clarified that the definitions provided in the Bill were thorough and inclusive, addressing concerns raised in submissions. She discussed changes made to the definition of "competent assessor" by the National Assembly and how it related to concerns raised about home education.

Ms Ngema addressed clauses on compulsory attendance, compulsory learning, admissions policy, languages, School Governing Body (SGB) powers, and partnerships. She emphasized the importance of addressing these clauses during clause-by-clause deliberations to provide clarity and explanation to the Committee.

She discussed amendments to sections 35, 39, and 46 of the Bill, highlighting changes made to address public concerns, such as removing home visits and introducing pre-consultation measures. She addressed the alignment of these provisions with the Constitution and SASA, responding to submissions suggesting a need for defining terms like "micro schooling" and "homeschooling."

Ms Ngema pointed out that detailed definitions should be included in the substance of the provision rather than in the definition section. She cautioned against contradictory views that might conflict with constitutional and legislative principles, encouraging Members to consider the submissions and committee minutes for further guidance.

Ms Ngema said that Members seemed clear about the application of international conventions and their obligations.

Moving on to the Department of Basic Education's responses, she mentioned the steps taken to balance the Constitution's right to basic education (section 29) and the right to freedom of residence and movement (section 21). Ms Ngema discussed the allocation of state resources to fulfill them. She cited examples such as clause 5(c), which enables the HOD to direct public schools to adopt more than one language of instruction and raised a question about the consequences of failing to provide the necessary resources for this. She noted other matters raised in the public submissions about the Bill's objectives such as central procurement for learning materials; to extend the powers of HOD to conduct investigation into financial affairs of a public school; to provide that SGBs must submit quarterly reports on all income and expenditure to HOD; to increase the penalty if an independent school fails to register; to further regulate home education; to extend the power of the Minister to make regulations and to provide for offences to be created in regulations made by the Minister.

Ms Ngema highlighted the need for clarity in legislation to prevent disputes and litigation, referencing relevant case law and jurisprudence such as the Rivonia judgment. She underscored the importance of clarifying partnership roles in the education sector to avoid conflicts. She noted specific clauses, including clause 37, which had been amended during the legislative process. The legislature needed to ensure clarity in the Bill to minimize disputes and allow courts to focus on other matters.

Ms Ngema stated that the concerns raised have been addressed to some extent, including the removal of visits into private spaces as instructed by the Portfolio Committee. She emphasized the need for clarity on proposed amendments and existing laws, particularly on home schooling regulations.

She noted the importance of harmonizing provisions on independent school registration and compulsory attendance. She discussed the balance between legislative clarity and flexibility, considering suggestions for possible amendments while ensuring constitutional compliance.

Ms Ngema brought attention to the distinction between policy, delegated legislation and primary legislation. In conclusion, she expressed confidence in the Bill's constitutionality but acknowledged the role of the courts in ultimately determining its legality.

Procedural Concerns about Basic Education Laws Amendment Bill
Ms Ngema explained the purpose of the second presentation was to address procedural concerns raised during the Committee's previous meetings. There was the need to separate issues related to the provisions of the Bill from procedural matters. The presentation also aims to demonstrate the principles of reasonableness and the need to strike a balance between the rights and obligations of the state, parents, and children, as mandated by the Constitution.

Parliament operates within the framework of the Constitution and statutory laws, highlighting the importance of adhering to legal processes and procedures. The Social Economic Impact Assessment (SEIA) process, conducted by the executive branch, is a prerequisite for proposed legislation and serves to ensure proper planning and compliance with constitutional principles.

Ms Ngema noted that serious objections were raised during the public consultation phase. However, she emphasized that objections to proposed provisions do not necessarily preclude the enactment of necessary laws, provided they meet constitutional requirements.

She introduced the concept of constitutional negative obligations and deliberate retrogressive measures, explaining that any measure taken by the state that denies individuals access to constitutionally guaranteed rights should be considered invalid. She underscored the importance of upholding children's rights, as outlined in Section 28 of the Constitution, and ensuring that legislative measures do not infringe upon these rights. Ms Ngema emphasized the role of the judiciary in protecting and promoting constitutional rights and highlighted the need for thorough consideration of procedural issues and constitutional principles in the legislative process.

Clause by clause response to concerns in submissions and mandates
Ms Ngema response included the following points (see document):
- Definition of home education
- Interface between compulsory attendance in Section 3 and home education in Section 51 of SASA. She emphasised the need to assess if these amendments constitute a negative infringement on the rights guaranteed by Section 29(3) of the Constitution, which allows for private or independent education at the expense of the individuals exercising this right. She questioned if these proposals represent deliberate retrogressive measures that hinder the progressive realization of the right to basic education.
- Clause 37 in introduced Bill and now clause 35 in the B version of the Bill passed by National Assembly that amends section 46 of SASA by increasing the penalty provision for failing to register an independent school. She maintained that the concern had now been largely addressed.

Ms Ngema delved into the financial implications of the Bill noting Sections 214 on equitable division of revenue at the national level and section 77 on money bills. The Money Bills Amendment Procedure and Related Matters Act ensures proper financial planning and allocation. It outlines procedures for tabling fiscal frameworks, medium-term budget policy statements, and expenditure reports, among other financial documents, before the National Assembly. It was important to ensure alignment of the legislative processing of the BELA Bill  with the financial planning requirements of the Money Bills Act and the Public Finance Management Act.

Ms Ngema touched on the policy implications of the Bill, particularly on compulsory attendance and early childhood development. She urged caution against prioritizing technical matters over substantive issues that directly impact the well-being and opportunities of children, emphasizing the importance of equal and quality education for all learners. She reiterated the importance of considering the best interests of children and learners in the legislative process, while upholding constitutional principles of equality and respect for human rights.

Discussion
The Chairperson expressed appreciation for the presentation, acknowledging the reminder of the Committee's responsibilities. The legal team would guide the Committee through the Bill, with Members providing input as they progress. He emphasized that any further issues could be addressed during the engagement with the Bill itself.

Despite connectivity challenges, the Chairperson encouraged Members to raise their hands to engage with the presentations and seek clarification or offer insights.

Mr T Munyai (ANC, Gauteng) expressed gratitude for the presentation by the legal expert, stating that it provided clarity on how to proceed. He indicated his readiness for the Select Committee to proceed with the clause-by-clause examination of the Bill, as the issues had been well clarified during the presentation.

The Chairperson said that the purpose of the Bill was to address administrative challenges faced by schools, citing various court judgments as driving factors for the amendments. He explained the procedure for discussing and voting on each clause of the Bill. After each clause presentation, Members would engage and then vote before moving on to the next clause. The legal team would lead the clause-by-clause examination. He would monitor speaking time and intervene if necessary to ensure equitable participation.

Ms D Christians (DA, Northern Cape) raised concern about the financial implications of the Bill, particularly on unplanned funding shortfalls revealed during a meeting with a specific province. National Treasury had not made provision for the funding shortfall, and each province would require an additional unplanned minimum amount of approximately R2 billion per annum for implementation. She suggested that DBE return to the Committee to provide further explanation on how each province would fund this amount annually.

The Chairperson asked if she preferred a response immediately or at a later meeting.

Ms Christians replied that if the department was prepared to address the statement now, they could do so. However, a more comprehensive and detailed answer might be necessary, leaving it to the discretion of the department.

Mr Munyai interjected and raised a point on department budgeting for the Bill, emphasizing that budgeting should only occur once the Bill is signed into law. He noted that there should be no stumbling blocks preventing the Committee from proceeding to the clause-by-clause examination. Concerns about affordability, socioeconomic impact, and constitutional compliance have already been addressed within the executive branch and received certification from state law advisors. Therefore, he respectfully appealed for the Committee to proceed with the clause-by-clause process as outlined in the agenda, stating that any diversion from this course of action would not be beneficial at this stage.

The Chairperson thanked Mr Munyai for his input and acknowledged the importance of addressing the matter before proceeding with the clause-by-clause examination. He requested the Department to explain how the finances would work in response to the question raised by Ms Christians. The legal department had already touched on this issue earlier, particularly on the socioeconomic impact of the Bill. However, it was important to hear from the expert in the department. The Chairperson specifically addressed Mr Ndlebe, asking if he could provide further clarification.

Mr James Ndlebe, DBE Chief Director: Education Management and Governance, emphasised that the signing of the Bill should not be contingent upon the availability of funds. The current funding for Grade R is already in place and operational, with 70% of the funding being provided. He clarified that the figures presented in the Bill were from seven years ago when it was introduced to Parliament. The outstanding 30% funding is the responsibility of Parliament to allocate. The Director-General can provide further explanation.

Mr Hubert Mweli, DBE Director-General, apologised for his location in rural areas with possibly poor connectivity but assured that he was following the discussions on the Bill. He acknowledged the concerns raised by Ms Christians and he had attended the meeting where National Treasury addressed the matter.

Mr Mweli emphasized that no legislation in the world is 100% perfect and cited his extensive experience in the education sector. Grade R has been funded even before the Bill was considered and the aim of the Bill is to bring parity between Grade R and other grades. As the legal expert stated, any gaps in funding can be addressed through budget processes. Grade R activities are already funded at 70%, with a 30% gap, as confirmed by National Treasury.

Mr Mweli explained that National Treasury described the current budget as a consolidation budget aimed at economic recovery from the impact of COVID-19 and advised not to judge future allocations based on the current cycle. Appropriations are not done by the department but by the Budget Council and eventually by national and provincial legislatures. National Treasury had extensively explained these matters in that meeting.

The Chairperson thanked the Director-General and reiterated that budgets do not precede departmental programmes but are rather formulated in response to the programmes and amendments. He acknowledged the lengthy process of over seven years and the extensive consultations before the Bill reached the Committee's table. It was important to address all questions raised during the process, even if they were previously answered, to ensure that all participants have the opportunity to contribute their perspectives and concerns. Anyone with further questions or comments can raise their hand and participate in the discussion.

Clause-by-Clause analysis: BELA Bill

Clause 1
Ms Ngema read through clause 1, providing some commentary on various definitions. She highlighted 'competent assessor', 'corporal punishment'. The definitions of 'drug' and 'illegal drug'  were sufficient to address the issues raised.

On the definition of 'grade R' and 'home education,' Ms Ngema suggested that they may not need further elaboration but welcomed input from the state law advisor and Members. She acknowledged the clarity given to 'required documents' and 'special education needs,' indicating that they must be understood within the context of the legislation.

Ms Christians expressed the Democratic Alliance's overall support for the amendments. She suggested considering additional inclusions recommended by the Commission for Gender Equality and the FW De Klerk Foundation. Specifically, the definition of 'bullying' and including terms like 'equality,' 'equity,' and on 'required documents.' She also proposed including terms such as 'school meeting' and 'special needs education.

Mr Munyai replied that there is no need for further amendments on the content covered in the Bill. The Bill already includes references to education from Grade R to Grade 12 and aligns with the national curriculum. Therefore, no amendments are necessary. The clauses do not pertain to the areas mentioned, so no changes are needed.

The Chairperson sought input from Members on the inclusion of the terms 'bullying' and 'equality/equity' in the definitions clause. After no further comments were provided, the Chairperson asked those in agreement to raise their hands. He then addressed the topic of corporal punishment.

Mr Munyai provided his input on the definition of corporal punishment. It encompasses any deliberate act that inflicts pain or discomfort on a child, even if it is perceived as light, and includes actions that humiliate or threaten a child's dignity or personal beliefs.

The Chairperson acknowledged the importance of addressing such behaviour, citing instances of students experiencing humiliation leading to severe outcomes like suicide. He invited further comments on the definitions in Clause 1.

Ms Ngema provided her perspective on the definitions discussed, stating that they align with the parameters of the mandates made by provinces and the submissions. She suggested that the definition of corporal punishment should be aligned with international conventions on children's rights, such as the United Nations Declaration of the Rights of the Child. On the definitions of equality and equity, they are broadly understood concepts and may not require specific definitions in the Bill, as they can be interpreted based on general understanding and dictionary definitions.

The Chairperson said that South Africa's alignment with international conventions also plays a role in shaping definitions. This underscores the significance of adhering to international standards in defining concepts like basic education.

The Chairperson initiated voting on the inclusion of the additional terms such as bullying, equality and equity. Members were asked to raise their hands if they agreed with the proposed changes or if they believed the current definition sufficed without alteration. The Committee Secretary would monitor the responses and provide the results.

Mr Munyai repeated his disagreement with the proposed amendment to Clause 1. He was also content with the coverage of the definition on corporal punishment as it addresses acts that reduce dignity and instill fear in learners.

The Committee Secretariat suggested following Rule 153(1) of the National Council of Provinces (NCOP) as voting for a Section 76 Bill requires provincial representation. She suggested that the Chairperson call upon Members from specific provinces to vote on behalf of their province.

Ms Ngema supported this as Members should speak within the parameters of their mandates, and voting should be conducted by delegates representing their provinces.

Voting for no amendments: Eastern Cape, Gauteng, Free State, Limpopo, North West, Mpumalanga, KwaZulu-Natal voted in favour. Western Cape was not in favour.

Clause 1 proposed amendments were not agreed to.

Mr M Bara (DA, Gauteng) said he was confused as he was the permanent delegate and therefore had voting powers but he was not the one voting.

The Chairperson explained that the voting was supposed to be done by Mr Bara and not Mr Munyai. He went back to Clause 1 to rectify the error.

In response to Ms Ngema asking if Clause 1 was supported with a change to the definition of 'corporal punishment, the Chairperson clarified that Clause 1 was adopted with no amendments.

Mr Munyai asked that as a special delegate if he not desirable to be part of the meeting.

The Chairperson clarified the voting procedure, explaining that while special delegates can participate fully in the meeting, including discussions, when it comes to voting, the permanent delegate from the province casts the vote based on province's mandate.

Clause 2

Ms Ngema explained that Clause 2 amends Section 3 of SASA to emphasize parental responsibility for their children's school attendance from Grade R to Grade 9. It introduces penalties, including fines or arrest, for those who hinder educational activities. Additionally, the clause proposes changes to the penalty system and the compulsory schooling age. She mentioned a province's suggestion of community service as an alternative punishment. Members were reminded to keep their negotiating mandates in mind.

Mr Munyai replied that Clause 2 pertains to financial matters which are the domain of Parliament, not school admission administration. No learner should be excluded from school due to the absence of documents, and provision should be made to assist in obtaining the necessary documents. He proposed the inclusion of official copies of documents with a signed affidavit from the South African Police Service explaining any challenges in obtaining the required documents. He added that the Bill encompasses Grade R to 12, including the early childhood development section of the education sector.

Ms Christians supported the intention of making Grade R mandatory but raised concerns about the associated financial costs and practicality. She emphasized the importance of addressing the funding implications and suggested that DBE budgetary figures and funding plans should have been included at this stage. She was raising this as a comment.

The Chairperson said that comments made during deliberations require responses.

He said it was important to engage with the issue at hand rather than focusing on party positions. He suggested that the Committee should assess the views presented and work towards finding common ground. He highlighted the need to avoid making decisions based on political affiliation.

Ms Christians said if the Committee was taking the technical way of votes, the Democratic Alliance opposes Clause 2.

The Chairperson conducted a vote on Clause 2.

Voting: KwaZulu-Natal, Eastern Cape, Limpopo, North West, Mpumalanga, Gauteng, Free State, Northern Cape were in favour of Mr Munyai’s suggestion.

Western Cape did not support the change as it could only support the proposed amendments in its negotiating mandate.

Ms Ngema sought clarity on the input from the Gauteng province. She mentioned that the input seemed to pertain to Clause 1 rather than Clause 2. She requested clarity if Clause 2 were to be passed, it would include related amendments to matters previously adopted in Clause 1 by the eight provinces.

The Chairperson clarified that Clause 2 pertains to financial matters, which are decided by Parliament and not by the Committee. He also mentioned immunisation papers for learners and the process suggested for obtaining them. He sought confirmation from Mr Sonjica on his understanding of the discussion.

Ms Christians expressed concern about the process. She asked if the Northern Cape negotiating mandate had arrived as she could not provide specific feedback on each clause.

The Chairperson emphasized the importance of ensuring that all Committee members receive the necessary documents. It is crucial to ensure that everyone has access to the information. He called for confirmation on the Northern Cape mandate.

 The Committee Secretariat confirmed that she had received the negotiating mandate and had forwarded it to all members.

Mr Munyai repeated the proposed amendment that financial matters are the responsibility of Parliament, not the Committee. No learner should be prevented from attending school due to the absence of documents, and learners are to be assisted in obtaining them. Official commissioned copies of immunization cards along with a South African Police Service-signed affidavit explaining the circumstances or difficulties in obtaining the required documents, should suffice. These matters pertain to grades R to 12 and Early Childhood Development (ECD).

Eight out of nine provinces voted in favour and the amended clause was adopted.

Clause 3
Clause 3 involves the insertion of a new provision, labeled as Section 4(a), which addresses monitoring learner attendance. This provision outlines the responsibilities of educators, principals, and governing bodies in ensuring attendance monitoring of learners.

Nine out of nine provinces supported this clause.

Clause 4
Clause 4 amends Section 5 for the admission to public schools from grade R. There were changes to section 5(2) to grant school governing bodies (SGBs) of public schools the authority to determine their admission policy in line with the Constitution and relevant legislation. The amendment outlines the process for submission and approval of admission policies by the HOD, emphasising that the HOD must consider the needs of the local community and the best interests of the child, with a focus on equality as outlined in section 9 of the Constitution and equity. Considerations include the availability of other accessible schools in the community, the resources of the school, and the efficient and effective utilization of state resources. The SGB reviews the admission policy every three years or when there are changes in circumstances.

Ms Ngema provided insight into the submission and approval process of the admission policy by the HOD, including the specified timelines for response and the appeals procedure. She highlighted the contentious issues surrounding the approval of school admission policies, particularly the timeframes and the capacity of the Department of Basic Education. She stressed the importance of thorough deliberation and potential amendments to address capacity issues and provide clarity on engagement processes in Clause 4.

The Chairperson reflected on the historical context of Clause 4, recounting a time when Nelson Mandela was President and schools were opened to all, despite opposition from certain segments of society. He shared an anecdote about a black learner who was initially barred from attending school but was eventually allowed after legal intervention. The student went on to become an engineer, defying the expectations of those who sought to exclude him. Clause 4 addresses such historical injustices.

Ms Christians advocated for maintaining the authority of the local community and school governing body (SGB) in determining the admission policy. SGBs are best positioned to understand the needs of their communities and should therefore retain decision-making power on this. She expressed concerns about the potential administrative burden placed on the HOD if they were required to approve every SGB admission policy. She suggested that the current system where the SGB has autonomy in determining admission policy with the option for appeals in case of grievances, should be upheld. She recommended withdrawing Clause 4 entirely.

Adv A Alberts (FF+, Gauteng) supported this. He highlighted the potential administrative burden on provincial departments if they were required to approve every school's admission policy. He suggested a reversal of the process, where parents could address admission issues with the school first. If unresolved, they could appeal to the HOD and, if necessary, to a higher authority. Moreover, most schools in the country are now inclusive and do not discriminate based on background or race. He noted that schools facing capacity issues should assist learners in finding alternative nearby schools. However, he criticized the apparent neglect of duty by provincial departments in building new schools in areas experiencing population growth.

Citing a Constitutional Court case on the Gauteng Department of Human Settlement’s failure to build schools as mandated, Adv Alberts argued against blaming school communities and governing bodies for enrollment challenges. He advocated for the removal of Clause 4.

Mr S Sonjica (ANC, KZN) expressed gratitude and voiced support for Clause 4, stating that it directly addresses Constitutional Court judgments on school admission and language policy. This clause resolves previous shortcomings and will withstand legal challenges in the future. He urged  Members to support this clause.

Mr Bara emphasised the importance of community ownership and involvement in school governance. He suggested the inclusion of a dispute resolution mechanism in the Bill to address issues between the SGB and the Department. He agreed with the removal of the clause from the Bill, emphasising the need for the Department to be readily available to assist communities when necessary. He stressed the significance of parents' role in their children's education and community development.

Adv Shaun van Breda, Senior State Law Adviser, provided insights into Clause 4. The power of the SGB to determine language and admission policies originates from the South African Schools Act, not the Constitution. The state's duty, as outlined in the Constitution, is to ensure access to basic education for all. He referenced the Constitutional Court judgments in the MEC for Education (Gauteng) v Rivonia Primary School and the Federation of Governing Bodies of South African Schools (FEDSAS) v MEC for Education (Gauteng), which affirmed the Department's control over admission decisions and enrolment capacity. He concluded by underscoring the importance of these legal precedents in understanding the context of Clause 4.

Adv Alberts emphasised the importance of protecting the rights of parents and school communities in determining education policies. He referenced a case in Gauteng where the Constitutional Court ruled against the Department of Education for attempting to force children into a full school, highlighting the need to respect the capacity limitations of schools. He expressed concerns about trusting the state, citing instances of fraud where schools falsely claimed to be full to avoid accommodating more learners. Parents and school governing bodies should have the final say in education matters, in line with international obligations to protect family rights.

Mr James Ndlebe, DBE Chief Director: Education Management and Governance Development, stated that the development of policies is the responsibility of the school governing body with community involvement. However, the final authority over these policies lies with the HOD, who ensures compliance with the Constitution and laws. He referred to Constitutional Court judgments, highlighting the importance of the HOD role in verifying and overseeing admission policies. The policies developed by SGBs are subject to legal scrutiny and must align with constitutional principles.

Mr Ndlebe pointed out the procedures outlined in clauses 4 and 5, which guide the HOD's engagement with SGBs and communities. These procedures aim to prevent overreach and ensure accountability. He addressed concerns about the term "community," explaining its broader significance beyond just parents and teachers.

Mr Ndlebe proposed removing the strict timelines for policy submissions to allow SGBs more flexibility in their decision-making processes. He stressed the importance of upholding the authority of the HOD while streamlining bureaucratic procedures to facilitate smoother interactions between SGBs and the education department.

The Chairperson expressed concerns about the lingering effects of apartheid in the education sector, highlighting instances where discriminatory practices still persist, such as SGBs formed by members of a particular political party who may prevent black children from attending schools. He emphasized the need for accountability to prevent the resurgence of apartheid-era ideologies and discrimination in education. It was important to ensure that someone is responsible for preventing discriminatory policies in basic education and training schools.

Mr Sonjica acknowledged concerns about the timelines raised by Members. He advocated for retaining the clause while removing the timelines. He emphasised the importance of government intervention to prevent discrimination in schools, citing instances where discriminatory practices still exist. It was the role of government to address these issues and urged Members to exercise judgment within the law.

Mr Munyai  agreed that the timelines in Clause 4 should be removed, but the authority of the HOD must be retained. He agreed on the importance of the HOD's authority in representing the state's interests.

Ms Ngema suggested that instead of voting on Clauses 4 and 5, the Committee should allow the legal teams to collaborate and revise them in light of the discussions. Then the proposed amendment can be presented for adoption.

The Chairperson was in agreement with this.

Mr Sonjica respectfully disagreed with the suggestion to leave Clauses 4 and 5 for further revision. There are no legal issues with the clauses, and the disagreement stems from political considerations rather than legal ones. Members should focus on doing what is right rather than delegating their responsibilities.

Mr Bara supported the proposal by the legal advisor to revise Clauses 4 and 5 before voting on them. Accepting the proposal would not harm the process.

Mr Munyai emphasised the importance of moving forward with the agreement reached on Clauses 4 and 5. He suggested that the discussions and agreements made during the meeting would be accurately recorded, ensuring that there would be no misrepresentation of the proceedings. He reiterated his support for removing the timelines but emphasized the need for the authority of the HOD to hold the School Governing Bodies (SGBs) accountable to remain intact.

The Chairperson summarised the discussion and proposed a vote on the matter. The question was if the authority of the HOD should remain in Clause 4.

Seven of the nine provinces supported it; Western Cape opposed it and there was no response from the North West delegate.

Clause 6
This clause amends Section 6A(3) of the principal Act on curriculum and assessment. This would allow the Minister to appoint a person, organization, or group of persons to advise on the determination of the curriculum and assessment methods.

There were no objections and the clause was agreed to.

Clause 7
Ms Ngema explained that Clause 7 amends Section 8 of the principal Act, which deals with the Code of Conduct for learners. Here are the proposed changes:

Section 8(1): The governing body of a public school must adopt a Code of Conduct for learners after consulting with learners, parents, and educators, subject to the Constitution, this Act, and any applicable provincial law.

Section 8(2): The Code of Conduct must aim to establish a disciplined and purposeful school environment dedicated to improving and maintaining the quality of the learning process. It should also consider the diverse cultural beliefs, religious observances, and medical circumstances of the learners at the school.

New Section 8(4): Compliance with the school's Code of Conduct is mandatory for all learners. It introduces provisions for exemption (with just cause) from certain Code of Conduct provisions, allowing learners or parents to apply for exemption. The governing body must communicate its decision within 14 days of receiving the application and provide written reasons for refusal. If exemption is refused, the learner or parent may appeal to the HOD within 14 days.

Section 8(5): Disciplinary proceedings must be age-appropriate, conducted in the best interest of the learner, and adhere to principles of natural justice, fairness, and reasonableness as prescribed by the Constitution.

Ms Christians recommended replacing the term "just cause" with "religious, cultural, or medical grounds" in the proposed amendment to make it more specific and less prone to broad interpretation.

Mr Sonjica agreed with the recommendation to specify the term "just cause" to avoid potential litigation and ensure clarity.

The Chairperson confirmed there were no objections, so the amendment was agreed to.

Clause 8
Ms Ngema explained that Clause 8 amends Section 8(a), which deals with random searches, seizure and drug testing. References to "illegal drugs" would be removed and consequential changes would be made to clarify the responsibilities on learners bringing substances to school. This amendment aims to ensure that actions taken by principals or schools for legitimate educational purposes are enabled by the law.

The Chairperson raised concern about the complexities of conducting searches and drug testing at schools, particularly because not all intoxicating substances are illegal. For instance, legal substances like cough mixtures or benzene can still cause intoxication if consumed inappropriately.

Ms Christians proposed retaining the term "illegal drug" along with including a definition of "illegal drug" to clarify its meaning. She suggested defining "illegal drug" as any drug defined in the Drugs and Drug Trafficking Act of 1992 that is used in contravention of Section 64 of the Act.

Ms N Ndongeni (ANC, Eastern Cape) expressed her opinion that all intoxicating drugs should be considered illegal, suggesting that the clause should remain unchanged.

The Chairperson proposed a vote to retain the clause as is or to include the suggestion made by Ms Christians to add the term "illegal drug."

Mr Munyai emphasised that not all intoxicating drugs are illegal, citing examples like cough mixture and benzene glue. Therefore, he advocated retaining the clause as proposed, without adding the term "illegal drug."

Western Cape opposed with proposed amendments from its Standing Committee.

The North West delegate was absent for the vote.

Seven out of nine provinces were in support of Clause 8 as is.

Clause 9
Ms Ngema explained that Clause 9 amends Section 9 of the principal Act, which deals with the suspension and expulsion of learners from public schools. The amendment aims to ensure fair processes when a learner is accused of serious misconduct, outlining what constitutes serious misconduct. This includes physical assault, harassment, possession of drugs or liquor, bullying, fraud, theft, possession of dangerous objects, distribution of pornographic material, engaging in sexual activity or assault, and other serious acts as listed in Schedule 1 to the Criminal Procedure Act. The provision brings clarity to differentiate between serious misconduct and other forms of misconduct within the school environment.

Ms Ngema suggested that the Committee deliberate if there is a need to clarify the distinction between serious misconduct and misconduct, particularly on immediate suspension without giving the learner the opportunity to make representations. She invited Members to consider if amendments are necessary or if the clause remain unchanged.

Mr Bara suggested that Clause 9 should include two clauses that differentiate between types of serious misconduct based on their severity. The seriousness of the misconduct could be rated or ranked according to the impact on the victim. This differentiation would guide the decision-making process on whether a learner should be suspended or not.

Mr Munyai stated that in cases of serious misconduct involving physical harm to another individual, learners would be suspended pending an investigation. He queried if in such instances, a time limit should be imposed on the learner's right to provide reasons that the suspension should not be implemented. He stressed the importance of ensuring that learners are heard within one week. He also suggested the need for clearer definitions of various types of misconduct, particularly serious ones, and the corresponding penalties. Given the seriousness of the misconduct, it might not always necessitate a hearing but rather immediate suspension. This perspective aligned with the stance of the legal team.

Ms Ndongeni agreed with Mr Munyai that serious misconduct may not necessarily require a hearing but warrants immediate suspension, particularly when it concerns serious matters.

In response, the Chairperson queried the Committee's stance that certain misconduct should bypass a hearing and result in immediate suspension. He asked if there was agreement that some types of misconduct warrant immediate suspension without a prior hearing. The typical sequence of events is a hearing precedes a decision to suspend a student.

However, he argued that in cases of severe misconduct by students, hearings might not be necessary, and immediate suspension could be warranted. Parents could be informed afterwards but the child would be removed from school immediately. He asked if anyone opposed the notion of immediate suspension for serious misconduct in schools, even without a prior hearing.

Eight out of nine provinces voted that depending on the kind of misconduct, the suspension can be immediate. North West had no delegate present for the vote.

Clause 10
Ms Ngema noted this clause dealt with corporal punishment and it aligned with the definition previously agreed on. The amendment clarified the penalty by expressly stating the abolition of corporal punishment. The amendment specified that no person could inflict or impose corporal punishment on a learner at school or during any school-related activity, including hostel accommodation. This prohibition was absolute and comprehensive, leaving no room for ambiguity on permissible forms of punishment.

The legal consequences were outlined in the amendment. Anyone found guilty of contravening the section would be liable for punishment, which could include a fine or imprisonment up to 12 months, or both. She raised concern about the proposed penalties, questioning if it was appropriate to set specific limits rather than leaving the matter to judicial discretion. She argued that the court should determine the penalty based on the circumstances of each case, as they would have access to all relevant information. She cited cases where severe corporal punishment resulted in permanent injuries, highlighting the limitations of legislative drafting in foreseeing such outcomes.

Ms Ngema suggested reconsideration of the restrictions imposed by the Bill on the types of penalties. She proposed allowing courts to determine suitable penalties based on individual cases, similar to existing provisions in other legislation. She affirmed her support for the prohibition on corporal punishment and the imposition of penalties on offenders.

Mr Munyai said the criminal law should apply. Members were in agreement with this.

The Chairperson suggested taking a vote on the two perspectives. One advocating for allowing criminal law procedure to handle this and the other allowing the court to determine the sentencing. Despite reservations, he agreed with charging individuals who violated the law. He reminded Members to specify their province when voting.

North West had no delegate but the other eight provinces were in support of this clause.

Clause 11
This clause amends section 10A of SASA to prohibit initiation practices during school activities and in hostels that accommodate learners. The amendment aims to close a gap in the legislation, similar to the prohibition of corporal punishment in Clause 10.

Nine provinces were in agreement with this as the North West delegate was able to vote.

The North West delegate stated that it was in support of all the other clauses adopted.

Clause 12
Ms Ngema said Clause 12 amends Section 12 of the SASA on the provision of public schools with specialized focus areas. There had been some confusion whether the amendment addressed special needs, but it actually aimed to provide clarity on the responsibilities of public schools in line with Section 29 of the Constitution.

The amendment inserted as Section 12(3) outlines the process for designating a public school with a specialized focus on talent. It involves the SGB applying to the school for such designation, followed by consultation with the HOD and the recommendation to the Member of Executive Council (MEC). The MEC assesses if the designation is in the interest of education and if the school meets the required norms and standards.

Before designating a public school, the MEC must notify the school, its governing body, parents, and the community. This notification includes details of the intention to designate the school and the implications of such designation. It must be communicated through various channels, including newspapers and direct communication with learners and parents. Interested parties have a period of at least 90 days to make representations, which are duly considered by the MEC.

Ms Ngema emphasized the distinction between special talent and special needs, clarifying that the amendment focuses on establishing schools with a specialized focus on specific talents rather than catering to special needs. Clause 12 is a means to facilitate the creation of technical schools tailored to specific talents.

The Chairperson acknowledged that there had been a misunderstanding and this clause sought to amend that, which was confirmed by the Parliamentary Legal Advisor, Ms Ngema.

Mr Bara sought clarity, asking if it would be appropriate to propose the inclusion of specialized disability schools for learners with special educational needs, based on the information provided by the legal advisor.

Mr Ndlebe clarified the purpose of the clause, explaining that it pertained to schools focusing on specific talents such as music, dance, and art. These specialised schools should not be confused with special schools, which cater to children with disabilities such as blindness. Special schools for children with disabilities fall under a different category.

Mr Ndlebe explained that the BELA Bill did not address inclusive education, as this is covered separately under White Paper 6. He mentioned that the Department is actively engaged with stakeholders to address inclusive education matters. Clause 12 referred to schools with specialised focuses such as agriculture, motoring, and others, distinct from special schools for children with disabilities.

The Chairperson repeated that there is a clear distinction between schools of specialized focus and schools for learners with special needs, which are covered in White Paper 6 which is currently being amended in collaboration with stakeholders. The current discussion pertained to schools with specialised focuses, not schools for learners with special needs. He called for a vote on the clause asking Members to indicate their stance.

Mr E Njadu (ANC, Western Cape) said Western Cape expressed support for the clause. Its Standing Committee also proposed an amendment based on the SA National Council for the Blind submission that the clause should be expanded to include the application of a public school designated as a specialised focus on talent to include specialised education needs for learners with disabilities.

Eight out of nine provinces voted in favour of Clause 12.

Clause 13
Ms Ngema said that clause 13 amends Section 12A of the Act addressing the merging of public schools. Section 12A(2)(a) outlines the written notification of the schools and SGBs for the merge and the reasons. Section 12A(2)(b) is the process for the notification requirements, inclusion and engagement of parents associated with the schools, as well as the communities in which the schools are situated. Notice should be provided through publication in a newspaper circulating in the area and via direct communication from school principals to parents and any other acceptable form of communication to ensure widespread dissemination of information.

Section 12A(2)(c) ensures that schools involved in the merger, along with any interested parties, are granted a minimum of 90 days to make representations on the proposed merger. Consideration must be given to these representations before a decision is made.

Section 12A(2A) mandates the MEC to decide within 30 days of receiving representations if to proceed with the merger. This decision must be communicated in writing to the schools and SGBs. It outlines specific communication methods and timeframes.

Section 12A(4) requires – if the decision is made to proceed with the merger – that the MEC, in consultation with the SGBs of the schools to be merged, specifies details such as the establishment date, name, location, and address of the new school.

Section 12A(6) requires a single interim governing body comprising all members of the former SGBs to govern the new school for not more than three months. It will oversee matters such as budgeting, codes of conduct, school fees, contractual obligations, and asset management until a permanent governing body is constituted. The MEC has the authority to extend the interim period if necessary.

Section 12A (8), (9), and (10) addresses existing disciplinary proceedings, rationalization or redeployment of staff, and continuation of academic programme post-merger. These subsections aim to ensure alignment with administrative justice requirements and provide clarity on consultation and communication processes.

Ms Ngema confirmed that Clause 13 aligns with administrative justice requirements and provides clear guidelines for consultation and communication in the merger of public schools. She expressed confidence that the amendments adequately address concerns.

The Chairperson added that the rationalisation of schools does not impact learners with special needs and that they are not included in the rationalisation programme.

Mr Bara asked how transportation and access to schools are regulated for mergers, especially when children from one community need to travel to another community for schooling. He expressed concern that this could lead to some children abandoning school due to transportation challenges.

The Chairperson requested a response from DBE.

Mr Ndlebe indicated that while the matter may not be explicitly addressed in the Act, regulations and guidelines exist to cover these. The regulations include conditions for closing schools and provisions for learner transportation, ensuring that students have access to education even when they need to travel to attend school in another community.

Six out of nine provinces were in support of this clause.

[The B version of Bill rejected the original Clauses 14 and 15 and renumbered the clauses]

Clause 14
This amends Section 21, which addresses central procurement. Section 21 concerns the department's proposal on the allocation of functions to the SGB. It introduces Section 21(3)(a) which grants authority to the HOD to centrally procure identified learning and teaching support material for public schools.

Ms Ngema clarified that the procurement is to be conducted with consideration of efficient, effective, and economic utilisation of public funds or uniform norms and standards. She noted that there have been submissions expressing disagreement or lack of support for this provision, particularly from schools deemed to be functioning well. These submissions suggested schools should have the option to opt in or out of central procurement instead of it being mandated by the department.

She emphasised the need for deliberation and direction from the Committee on the possibility of providing opt-in or opt-out options for schools, as well as exploring alternative procurement processes not necessarily initiated by the HOD. She underscored the importance of understanding the disparities among schools and the practical implications in communities. She asked Members to consider the varying circumstances of schools when deliberating on central procurement.

Mr Munyai  stated that his province is content with the phrase "in consultation with the governing body " being legally sufficient for the provision. He asserted that schools must be obligated to be part of the central procurement provision and should not have the option to opt in. He agreed with the clause.

Mr Sonjica  agreed with Mr Munyai, stating that this phrase is sufficient and does not compel schools to participate but to opt-out. However, he expressed concern about the Department's attitude towards schools that may choose not to participate. He noted that there was often a misunderstanding of the Department's intentions during the public hearings. Also some schools mistakenly believe that because they perform well, they are using their own funds, when in fact, they are still utilising public funds.

Mr Sonjica proposed that if schools opt out of the procurement process, they should demonstrate that they can procure items at a cheaper rate than the department. If schools opt out, they should not be allowed to procure items at higher rates than those offered by the department. He acknowledged the challenge of schools opting out due to irritation with the procurement process being handled by external entities.

The Chairperson acknowledged the concerns raised about opting out of the central procurement system and that items procured outside of this system should not cost more than those procured centrally. There was the potential challenge that items purchased independently end up being priced higher than those acquired through central procurement.

The Chairperson called for a vote to gauge agreement with Clause 14 that the HOD may, in consultation with the governing body, centrally procure identified learning and teaching support material for public schools on the basis of efficient, effective and economic utilisation of public funds or uniform norms and standards. He was optimistic about the agreement of the Members with the Department's stance.

Mr Njadu said that the Western Cape supports Clause 14 with certain amendments. The Western Cape Standing Committee is satisfied with the legal sufficiency of the phrase "in consultation". Schools should have the option to opt into the central procurement system rather than being forced into an opt-out system. He stressed the importance of ensuring that schools do not feel threatened in an opt-out system. Therefore, the Western Cape does not support the clause as it currently stands.

Mr Bara asked to verify if the Western Cape supports the clause or if it wants its proposed addition attached to it. It is the responsibility of the Committee to agree or disagree with the proposed addition. He wanted to clarify the status of the clause.

Adv van Breda sought clarity if Clause 14 has been adopted by the Committee as it appears in the Bill or if it is subject to the Western Cape proposed amendment.

Mr Munyai replied that in the process of lawmaking, minority views hold no weight. The views expressed by the Western Cape do not carry significant influence. The state law adviser should have been attentive to the discussions and agreements on Clause 14. He affirmed his participation in such discussions.

Mr Bara clarified that the Western Cape supports the clause but wishes to make an addition. Should the Committee interpret this proposed addition as a lack of agreement with the clause? There are two key elements: the Western Cape's agreement with the clause and its desire to add to it. It is the responsibility of the Committee to determine if it accepts the addition while acknowledging the Western Cape's support for the clause.

Mr Munyai reiterated his position that if a majority of the Committee did not agree with the Western Cape proposed amendment, the minority view should not be considered in the lawmaking process.

The Chairperson acknowledged that Mr Bara was asking what should be done if the Western Cape agrees with the clause but wishes to make a small change.

Mr Bara confirmed this and proposed that the Committee should accept the Western Cape's support for the clause while rejecting its addition.

Mr Sonjica acknowledged the difficulty in reconciling the Western Cape's agreement with Clause 14 with its desire to make an amendment. The Committee should accept the Western Cape support for the clause but also consider its proposed amendment which relates to reasons for opting out of central procurement. He stated that the clause already covers the option of opting out.

Mr Njadu replied that the Western Cape Standing Committee supports this clause, with the following amendment which is not a comment but a proposed amendment: The Committee is satisfied that "in consultation" is legally sufficient for the provision. Schools must, as part of the central procurement provision, have an option to opt-in to the system and not for it to be an opt-out system. He said schools must not be trapped into even an opt-out system. He confirmed that this is the position of the Western Cape.

Mr Munyai clarified his stance, stating that he would not have agreed with the conditional comment made by the Western Cape. He expressed disagreement with the addition but since they agree with the clause as proposed, he is satisfied. All the provinces agree with the clause, as initially raised by himself.

The Chairperson noted a message from a Member of the Gauteng Province Legislature and read the message aloud, stating that a Member requested the registration of opposition to the Bill and its amendments. Additionally, the message asked for apologies and requested to be excused from the rest of the meeting. The Chairperson clarified that it sounded like a withdrawal from the meeting.

Mr Munyai remarked that since the delegate is not a permanent member, their absence does not affect the voting process.

The Chairperson interjected, stating that despite this, the person is still part of the meeting, and when someone leaves and registers their opposition, it needs to be acknowledged and processed.

The Chairperson invited DBE to comment on the matter. He intended to follow up with the legal team before sharing his own comments. In his understanding, agreement was reached, particularly on the conditions for opting out of central procurement.

Mr Mweli responded, affirming the importance of maximizing benefits from economies of scale. Larger quantities often lead to lower prices, illustrating the concept with examples. On the Chairperson's concern for cheaper procurement options, the Public Service Act (PSA) allows for such alternatives without requiring permission. The intention is to achieve maximum benefits from economies of scale, regardless of a school's performance level.

The Chairperson confirmed that the decision is to agree on the matter, and certain aspects will be addressed in policies, particularly on economies of scale. He assumed that everyone would understand and appreciate this approach. The Chairperson invited feedback from the provinces to confirm their agreement with the decision to keep the clause as is.

Nine out of nine provinces agreed with Clause 14.

Clause 15
This clause amends Section 22 on the withdrawal of SGB functions. The amendment expands the current provision by clearly setting out the process for withdrawing functions. It allows the HOD to withdraw one or more functions of the governing body on reasonable grounds when things are not going well. She clarified that Sections 22 and 19, which focus on enhancing the capabilities and capacity of school governing bodies, are not related to the withdrawal of functions. Ms Ngema highlighted that Section 22 specifically deals with withdrawing functions when issues cannot be resolved through other means. She concluded her explanation of Clause 15, stating that it amends Section 22.

The Chairperson asked if any Members had objections to Clause 15 as presented by Ms Ngema. Since there were no comments or objections from any Members except for the one who had already spoken, the Chairperson suggested proceeding with a vote to confirm that both Clause 15 and its contents were acceptable as they stood.

Eight out of nine provinces supported the clause.

Mr Njadu expressed his appreciation for the clarification by the Chairperson. Clause 14 involved comments, whereas Clause 15 indicates that the Committee supports the clause with the following amendment. The Western Cape proposed amendment aims to enhance clarity on the powers of the HOD to withdraw the functions of SGB. The amendment also outlines the process to be followed when imposing sanctions.

Ms Ngema raised a concern about the time as there were still 38 clauses to go through. Did the Committee intend to go through the entire Bill or were there alternative arrangements.

The Chairperson inquired if it was possible to continue until late given the time constraint, considering that they had started at 10:00.

Mr Munyai suggested continuing until 20:00, highlighting the advantage of being online and not needing to break for a meal.

Ms S Mathye (ANC, Limpopo) expressed her need to leave at 19:30 to attend a virtual class.

Mr Bara proposed pushing the meeting until 19:00 and then reconvene to continue.

Mr Sonjica said that he had a class to attend at 17:30.

Mr Njadu noted the large number of clauses still left and expressed doubt that they would be able to finish by either 19:00 or 20:00. He suggested reconvening for a full day if necessary.

The Chairperson announced the decision to meet the following day from 10:00 to 15:00 with the Committee Secretariat confirming there were no other scheduled meetings.

The Chairperson thanked Members for their participation and the meeting was adjourned.
 

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