Basic Education Laws Amendment (BELA) Bill: deliberations

NCOP Education, Sciences and Creative Industries

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


In a virtual meeting, the Select Committee continued and completed its deliberations from Clauses 16 to 52 on the B version of Basic Education Laws Amendment Bill as passed by the National Assembly.

Despite differing opinions, the majority of provinces accepted each clause unchanged according to their negotiating mandates. There was opposition to centralizing power away from province in several clauses; homeschooling needing further research and consultation; the broad regulation-making powers given to the Minister; several aspect about school governing bodies as well as the educator posts appointed by SGBs.

Meeting report

The Chairperson said that the meeting was a continuation of deliberations noting the importance of ensuring ample participation by Members. The Basic Education Laws Amendment (BELA) Bill had been sent to NCOP on 23 October 2023 and introduced to the Select Committee on 8 November. Following public participation and receiving mandates from all provinces, the Department of Basic Education responded. Legal analysis was also provided to ensure procedural and legal soundness.

On concerns raised during public hearings about potential legal challenges, the Chairperson stated the intention to address the Bill thoroughly without compromising participation. Today's meeting aimed to receive a briefing from Parliamentary Legal Services on major issues raised during public participation and to address any procedural matters. The Chairperson welcomed stakeholders and anticipated meaningful engagement from Members.

On the Bill's progress, the Chairperson indicated they had discussed Clauses 1 to 15 the previous day and would now proceed to Clause 16. He proposed a streamlined approach to expedite proceedings which the Committee agreed to.

B version of BELA Bill: deliberations continued

Clause 16
Ms Phumelele Ngema, Parliamentary Legal Adviser, stated that Clause 16 amends Section 23 of the South African Schools Act (SASA) on the membership of school governing bodies (SGB) in ordinary public schools. The amendment enables governing bodies to co-opt members from communities outside the school's vicinity, allowing them to access expertise not available within their own circles. She anticipated no major objections to this provision.

Mr T Munyai (ANC, Gauteng) expressed support to retain the clause as is. On defining 'community,' he suggested considering the Western Cape Education Department's submission or alternatively this provision to accommodate individuals with relevant expertise.

Ms D Christians (DA, Northern Cape) expressed agreement with the proposed amendment from the Western Cape Education Department, suggesting the insertion of a definition for 'community' or alternatively drafting provisions to apply to individuals with relevant expertise.

The Chairperson asked for comments from other members. With no further comments, the Chairperson proposed moving to a vote, considering the recommendations from the Western Cape and Mr Munyai's view that the clause was sufficient as it stood.

Ms E Nkosi (ANC, Mpumalanga) voiced support for retaining the clause without defining 'community,' stating that the clause was satisfactory as is.

The Chairperson conducted the vote. KwaZulu-Natal, Eastern Cape, Limpopo, Northern Cape, North West, Mpumalanga, Gauteng, and Free State supported retaining the clause unchanged. However, Western Cape did not support it.

Ms Christians was uncertain how to vote, citing a lack of a clause-by-clause breakdown by the Northern Cape, despite her previous request for it.

The Chairperson responded that Members had received the documents, but Ms Christians argued that the document did not specify the clause-by-clause details.

Clause 17
Ms Ngema said Clause 17 amends Section 24 on the membership of governing bodies of public schools for learners with special education needs. The amendment shifts the power to determine the number of members in each category from the MEC to the Minister, with specific categories outlined in Section 24(1). These categories include parents of learners, educators, learners themselves, representatives of sponsoring bodies, organizations of parents of learners with special education needs, organizations of disabled persons, disabled persons, and experts and principals of these schools. Concerns had been raised about the centralization of power, but it was clarified that the Minister consults with MECs before making decisions, ensuring inclusion, involvement and uniformity.

Ms Christians expressed opposition to Clause 17 as it consolidates power excessively and encroaches upon provincial autonomy. She advocated for deleting the clause to maintain the balance of power and uphold provincial governance integrity.

Ms Nkosi supported retaining the clause, citing the explanation provided by Ms Ngema on collaboration between the Minister and MECs through the Council of Education. She suggested leaving the clause unchanged.

Mr Munyai echoed support for the clause, emphasizing South Africa's unitary government structure and the role of the Minister in collaboration with the cabinet. He opposed views advocating for provincial autonomy, stating that such notions contradict the unitary state principle and that should not be allowed.

Western Cape opposed Clause 17. Eastern Cape, Mpumalanga, KwaZulu-Natal, Free State, Northern Cape, North West, Gauteng, Limpopo supported the clause.

Mr E Njadu (ANC, Western Cape) expressed the Western Cape objection, stating that the transfer of power from the MEC to the Minister was viewed as increased centralization. Such a transfer of power could be seen as an unjustified intrusion into the provincial sphere.

Clause 18
The Chairperson read Clause 18

The clause was supported by all the provinces.

Clause 19
Ms Ngema discussed Clause 19, which seeks to amend Section 25 of the act. She explained that the proposed amendment empowers the Head of Department (HOD) to dissolve a School Governing Body (SGB) that has ceased to perform its functions as allocated by the Act, provided there are reasonable grounds to do so. The clause outlines the steps the HOD may take in such a situation, including appointing qualified individuals to perform the functions of the SGB for a specified period. It also addresses the voting rights of these appointed individuals and specifies the procedures the HOD must follow before taking action. Additionally, the clause stipulates that a new SGB must be elected within one year and includes provisions for an appeal process. Ms Ngema emphasized that Clause 19 deals with the dissolution of dysfunctional SGBs.

Ms Christians proposed extending the appeal timeline from 14 days to 30 days, considering the current provision's perceived impracticality. She suggested that a 30-day appeal period would be more reasonable.

The Chairperson thanked Ms Christians for her comment and proceeded to call for a vote. They asked the members to indicate whether they supported extending the appeal period from 14 days to 30 days or if they preferred no changes to be made. They then began calling on the provinces to vote, starting with the Eastern Cape.

Eastern Cape and all the other provinces voted against changes and Western Cape advocated for the amendment on the clause.

Clause 20
Ms Ngema said that Clause 20 amends Section 26 on the recusal by SGB members. The proposed change pertains to the declaration of a direct financial interest by School Governing Body members when they are involved in a decision-making process where they have a personal interest. The clause addresses the procedure to be followed.

Mr Munyai suggested two amendments to Clause 20. Firstly, the additional provision to monitor compliance with the clause by districts. Secondly, removing the words 'personal' and 'financial' from Section 26 in the South African Schools Act (SASA). These will ensure clarity and effectiveness in the implementation of the provision.

Ms Ngema provided clarity on Sections 26(1) and 26(4). Section 26(1) outlines the requirement for SGB members to declare any personal and financial interests before discussing or deciding on matters such as staff recruitment or procurement of goods and services for the school. Section 26(4) specifies that if a SGB member has a personal interest in a matter being discussed, the governing body cannot make a decision on that matter until the member has withdrawn from the discussion. Removing the words 'personal' and 'financial' would undermine the clarity and effectiveness of the provision, as it clearly defines the types of interests that need to be disclosed by SGB members.

Mr Munyai changed his mind about removing 'personal' and 'financial'.

Eight out of nine provinces were in support of the clause.

Mr Njadu said the Western Cape proposed an additional provision to monitor compliance with the new provision by districts. It recommended amending Clause 20 to remove 'personal' and 'financial' from Section 26(1), as well as removing 'personal' from Section 26(3) and 'personal' from Section 26(4) of SASA.

The Chairperson reminded Members to maintain attentiveness. They were currently discussing Clause 21.

Clause 21
Ms Ngema explained that Clause 21 amends Section 27 on the reimbursement of SGB members. SGB members are not entitled to remuneration for their duties or attendance at school meetings or activities. However, there were public submissions that some necessary expenses for SGB members to attend meetings should be considered.

Eight out of nine provinces supported the clause. Mpumalanga did not vote.

Mr M Bara (DA, Gauteng) expressed his concern about not receiving the Gauteng clause-by-clause input for the meeting and feeling sidelined in the decision-making process. While Mr Munyai is able to make inputs, he feels like he is expected only to vote without having the necessary information. He questioned his role in the meeting if he cannot actively contribute to discussions and propose amendments.

Mr Munyai explained that he had sent the clause-by-clause document through email. He had also copied the NCOP Liaison Officer, Gauteng Provincial Legislature and the Secretary of the Select Committee to ensure that Members received the document. He expressed frustration that the NCOP Liaison Officer had not forwarded the document as expected and questioned her role if she was not supporting the Members.

The Chairperson acknowledged Mr Munyai's concern but this might not be the appropriate platform for addressing it. Efforts had been made to ensure that all Members received the documents, as previously discussed. The Chairperson requested input from the Committee Secretariat and the legal team about the disadvantage experienced by certain members, including Mr Bara and Ms Christians from the Northern Cape.

Ms Ngema clarified that participation in the deliberation process of the meeting is open to all members, allowing them to express their views and engage in discussions. However, when it comes to voting, members should adhere to their mandates. Challenges with document dissemination should be addressed separately and resolved within the provincial legislatures. She also noted that the responsibility lies with individual Members to ensure they have access to the documents provided by the Committee Secretary.

Ms Christians expressed her frustration at not receiving the clause-by-clause discussion document from the Northern Cape that should accompany the negotiating mandate, which was essential for voting on the clauses. It was important to discuss the proposed amendments as a Select Committee rather than deferring decisions back to the provinces.

Mr Bara emphasized that he did not receive the necessary documents. He disputed any assumption that he may have overlooked them. Without the required documents, he feels like his role in the meeting is reduced to simply voting without meaningful participation.

The Chairperson said it was not okay that Mr Bara did not receive the documents. He noted Members that had inputs and then Committee Secretariat.

Mr S Sonjica (ANC, KZN) shared his experience of how KZN dealt with clause-by-clause deliberations. KZN only made comments or suggestions where they felt it was necessary. If it did not comment on a clause, it was because it felt it was acceptable. He suggested assuming that silence from a province on a clause indicated no input or proposed changes.

Ms Nkosi apologised for not being able to vote on behalf of Mpumalanga on Clause 21 due to network issues, but her province voted in favour. She agreed with Mr Sonjica that silence from a province indicates agreement with the clause. She suggested that if a province had nothing to add to the clauses for discussion, it might explain why there was no discussion document sent to Members.

Mr Munyai apologized for the oversight and offered to send the documents directly to Mr Bara via WhatsApp or email. He requested Mr Bara provide his contact information through the chat so that he could forward the documents promptly.

Ms Ngema said the process of deliberation in the Committee involves careful consideration and discussion of each clause of the Bill. Members have the responsibility to speak to the issues based on the mandate from their provincial legislature. She noted the role of permanent and alternate delegates, as well as the support provided by lawyers and officers designated for each province to ensure smooth communication between Parliament and provincial legislatures. She aimed to address any misunderstandings and glitches in the communication system to ensure effective participation in the National Council of Provinces.

The Chairperson asked the Committee Secretariat if documents were sent to all Members. One needed to address any oversight in sending papers to the two Members who raised concerns. However, as far as he knew, papers were sent to everyone unless informed otherwise by Ms Skaka.

Ms Noluthando Skaka, Committee Secretary, confirmed that she forwarded all documents received from the provinces to Members. However, she had received a document from a Member on her Gmail account at 10:30 which she just noticed. She clarified that it was an ANC document and asked if she should forward it to Members.

Mr Munyai replied that the document was not an ANC document but a personal one.

The Chairperson emphasised that Committee papers should be received from the Committee Secretary, not from personal sources.

Mr Njadu confirmed that he received the documents from the Committee Secretary. They were likely sent to the Secretariat by all provinces for distribution to the Members.

The Chairperson stated that there seemed to be an issue with the service provided by the secretariat, and Members would know what steps to take if they were dissatisfied. The Committee's focus was on addressing amendments to the Bill, not administrative matters. The Chairperson reminded everyone that they had been working on this Bill since 8 November 2023, so there should not be any surprises on document distribution.

Any ongoing challenges with document delivery should be brought to the attention of the relevant authorities, such as the Chair of Chairs. Despite challenges with document distribution, all Members were encouraged to actively participate in the meeting, particularly on the input on amendments.

Clause 22
Adv Shaun van Breda, State Law Adviser, explained that Clause 22 amends Section 28 of the SASA. This substitutes 'Member of the Executive Council' with 'Minister' and replaces 'Provincial Gazette' with 'Gazette' on arrangements for the election of SGB members of a public school. It also removes the reference to 'any applicable provincial law.' Currently, each province manages the election of SGB members according to its own preferences. This amendment seeks to bring about uniformity in the election process across all provinces.

The Chairperson highlighted the importance of Clause 22 in addressing inconsistencies in SGBs across different provinces. He emphasized the need for uniformity in the election process for SGB members. The lack of consistency can lead to confusion and inefficiencies, especially in areas with multiple schools. This will standardise the SGB election process and ensure that SGB elections occur at regular intervals and align with creating a unified education system in South Africa.

Ms Christians expressed her concern that the amendment aims to establish uniformity in the SGB election process across all provinces, effectively centralizing power away from provincial bodies to the Minister. The encroachment on the legislative power of provinces should be acknowledged. She suggested that such matters should be regulated by regulations made by the relevant MEC rather than being mandated at a national level. Her proposal is to delete the amendment entirely. One needed to preserve the autonomy of provincial bodies in regulating SGB elections.

Mr Munyai agreed with Ms Christians on Clause 22. Uniformity is important in South Africa as a unitary state. But he suggested that such matters should be regulated by regulations made by the MEC rather than through a national mandate. Consequently, he recommended the deletion of the Clause 22 amendment.

Mr Njadu said that Western Cape opposed this clause and recommended that it be deleted.

Mr Bara said Gauteng shared the same view as the Western Cape.

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

Clause 23
Adv van Breda said Clause 23 amends Section 29 on office bearers of governing bodies. The amendment allows for a parent member of an SGB, who is not employed at the school, to serve as the chairperson of the Finance Committee, where reasonably practicable. This amendment aims to enhance good governance in schools.

Mr Njadu stated that the Western Cape supports Clause 23 but had a proposed amendment stating that a principal may not be a member of a disciplinary committee.

Eight out of nine provinces supported the clause as is.

Clause 24
Adv van Breda explained that Clause 24 amends Section 32 of SASA, particularly addressing the status of minors on school governing bodies of public schools. The amendment substitutes the term 'minor' with 'learner' and introduces a new subsection, Section 24(4). This subsection specifies that a learner who is an SGB member may not participate in meetings or decisions on the appointment of staff, including serving on interview panels for staff appointments, whether educators or non-educators.

The Chairperson observed that based on the negotiating mandates from all provinces, it appears that Clause 24 is supported unanimously. He invited any further comments or objections from the members before proceeding.

There were no objections.

Clause 25
Adv van Breda said Clause 25 of the Bill aims to substitute Section 33. This amendment mandates the MEC to engage in comprehensive consultations before closing a public school. It grants the MEC the authority to close a public school if there are no registered learners. The MEC must conduct site inspections to verify the absence of registered learners. The clause stipulates that the MEC must inform relevant parties of the decision to close the school and make arrangements for affected learners to attend another school, including transportation where necessary.

The Chairperson noted that Clause 25 does not apply to special schools, as they are not part of the rationalisation process.

Mr Sonjica agreed that special schools are not included in rationalization. He said that the Council for the Blind may have misinterpreted the clause, and therefore, there is no issue with it as it currently stands.

Eight out of nine provinces were in support of the clause.

Clause 26
Adv van Breda explained that Clause 26 amends Section 36 of the Act which outlines the responsibilities of governing bodies. The amendment stipulates that governing bodies must obtain approval from the MEC to enter into lease agreements for any purpose, including loans and overdrafts. However, the approval of the MEC is not necessary for the lease of movable property of the school if the lease duration does not exceed 12 months.

Mr Sonjica proposed replacing the MEC with the Head of the Department for administrative and official purposes. This adjustment would facilitate easier administration and operation.

Eight out of nine provinces voted in favour of the proposed amendment. Northern Cape supported the clause with no amendments.

Clause 27
Adv van Breda explained that clause 27 entailed an amendment to section 37 of the Act, specifically focusing on the funds and assets of public schools. He clarified that it involved a simple technical adjustment in subsection one, where the term 'directions' was replaced with 'directives'. Concluding his explanation, he reiterated that this was the essence of clause 27.

Nine out of nine provinces were in favour of this clause.

Clause 28
Adv van Breda explained that Clause 28 amends Section 38 of SASA on the annual budget of public schools. The amendment ensures that a document elucidating the school's budget, along with the budget itself, must be provided to parents prior to its presentation at a general meeting for consideration. The procedure to be followed if the governing body intended to deviate from the initial budget by 10% or more or reallocate funds for a different purpose than originally approved. It mandated that reasons for such deviations or reallocations must be disclosed to parents beforehand, and this information must be accessible for inspection at the school at least 14 days prior to the meeting. Moreover, a quorum of 10% of parents was required for the general meeting, and in the event of failing to achieve this at the first meeting, a second meeting would be convened without the need for a quorum, with notices distributed to learners to inform their parents.

Nine out of nine provinces were in favour of this clause.

Clause 29
Adv van Breda stated that clause 29 amends section 38A which addresses the prohibition of unauthorized remuneration or financial benefits to certain employees. The amendment broadens the provision's application to encompass state employees receiving additional remuneration or other financial benefits. It mandated SGBs to furnish comprehensive details on the nature and extent of such remuneration or benefits, along with reasons for their recommendation, including monetary value and the process and resources involved in compensation. The amendment aimed to enhance clarity and alleviate financial burdens on parents paying substantial school fees at public schools..

All provinces voted in support of the clause.

Clause 30
Adv van Breda explained that Clause 30 aimed to amend Section 41 on the enforcement of school fee payments. The amendment sought to introduce subsections 2(a) and 2(b), allowing parents applying for fee exemptions to provide additional documentary evidence, such as an affidavit. This affidavit could include information obtainable from the other parent of the learner or a court order, among other supporting evidence.

The clause received support from all provinces.

Clause 31
Adv van Breda said Clause 31 substituted Section 42 of the Act on financial records and statements of public schools. The amendment mandated that the SGB of a public school maintain detailed records on finances, including investments and donations. It required the preparation of annual financial statements within three months after each financial year, reflecting all financial activities in accordance with MEC guidelines. Section 42 (c) and (d) stipulated that the SGB must present these records and statements at a general meeting of parents, with prior notification of availability for inspection at the school.

Nine out of nine provinces voted in favour.

Clause 32
Adv van Breda said Clause 32 substitutes Section 43(4) and (5) on the audit or examination of financial records and statements. In Section 43(4), the reference to the MEC was substituted with HOD, and the HOD was empowered to authorize suitably qualified officers to investigate the financial affairs of a public school, with consultation with the SGB and access to relevant documents. The HOD could also request the Auditor General to audit school records or appoint forensic auditors for investigations. Section 43(5) required governing bodies to submit quarterly reports on income and expenditure to the HOD within 30 days of each quarter, following directives issued by the HOD.

Nine out of nine provinces voted in favour of this clause.

Clause 33
Adv van Breda said Clause 33 amends Section 46 on the registration of independent schools in that no person may establish or maintain an independent school unless it is registered by the HOD. The amendment to Section 46(4) increased the penalty for contravening this. Previously, the penalty was a fine or imprisonment for a period not exceeding three months. The change substituted 'three months' with '12 months,' allowing for imprisonment for a period not exceeding 12 months. This amendment aimed to impose stricter penalties for non-compliance.

Nine out of nine provinces voted in support of the clause.

Clause 34
Adv van Breda said Clause 34 amends Section 48 of SASA on subsidies to registered independent schools. The amendments focused on 48(2), which previously stated that the MEC may grant a subsidy to an independent school out of funds appropriated by the provincial legislature. The Bill inserted the phrase 'subject to conditions determined by the MEC'. It also added 48(6) that independent schools submit quarterly reports on income and expenditure related to the subsidy within 30 days of each quarter's end. These reports must adhere to directives issued by the HOD. Further, within six months after each financial year's end, independent schools must provide a copy of audited or examined annual financial statements relating to the subsidy. These amendments aimed to enhance transparency and accountability in the allocation and use of subsidies for independent schools.

Mr Munyai pointed out that the conditions in the amendment are not specified in the Act but are to be determined by the MEC.

The Chairperson asked for any further comments on the subsidy of independent schools. He raised a question about where this issue would fall, whether under policy or elsewhere, but it was a topic for another discussion.

Ms Ngema requested clarity from DBE on the conditions that will be determined by the MEC. Would these conditions be determined on a case-by-case basis upon application or if there would be a general determination? How would these conditions be determined, through regulations, directives, or other means? Section 48 is silent on this matter and emphasized the importance of addressing it in the discussion.

Ms Christians said that the clause is silent on the conditions on how the subsidy should be spent, the purposes for which it should be spent, and the reporting requirements for subsidy expenditure. DBE needed to clarify these matters, emphasizing their importance for effective implementation.

Mr James Ndlebe, DBE Chief Director: Education Management and Governance, explained that subsidies allocated to independent schools are subject to specific conditions set by provincial departments. These conditions are determined to ensure that the standard of education in independent schools is not lower than that in public schools, as mandated by the Constitution. For instance, schools may be required to achieve a certain pass rate to qualify for the subsidy, with benchmarks regularly updated by the provincial departments. He clarified that while the Western Cape requested these conditions to be included in the Act, it is not feasible as they are subject to change and updates. Instead, the clause allows the MEC to issue subsidies with conditions, which can be adjusted over time. These conditions are communicated annually to independent schools, highlighting the importance of understanding the relationship between subsidies and the conditions attached to them.

Eight out of nine provinces were in support of the clause.

Clause 35
Adv van Breda said Clause 35 is a comprehensive substitution of Section 51 on the prerequisites for home education. It stipulates that learners may only be educated at home if they are formally registered for such instruction. Parents must inform the HOD of their intention to continue homeschooling at the end of each school phase. The amendment delineates the criteria for HOD approval, allows for pre-registration consultations, and defines parental responsibilities. It also mandates assessments at the end of each phase and ensures that learners educated at home after age 15 or completion of Grade 9 are not disadvantaged. Further, it addresses registration, assessment, and cancellation procedures, including provisions for appeals. The clause empowers the Minister to establish regulations governing home education administration. Overall, the amendment seeks to clarify roles and safeguard parental rights in educating children at home during the further education and training phase.

Ms Christians expressed her concerns about Clause 35, suggesting that it be withdrawn entirely and proposing an alternative course of action. She recommended further consultation with the homeschooling sector to understand their perspectives on the clause, citing objections from homeschooling parents, practitioners, and learners.

Ms Christians emphasised the need for proper consultation and research before approving the clause, particularly given the concerns about potential unlimited regulatory power for the Minister on homeschooling education. She proposed an alternative approach, suggesting the inclusion of a provision to ensure that any proposed home education program maintains standards equivalent to those of comparable public educational institutions. Additionally, she recommended the insertion of new subsections to clarify the process for pre-registration site visits and the handling of personal information, emphasizing the importance of protecting privacy rights in accordance with the relevant legislation.

Mr Sonjica suggested that the department should respond to Ms Christians' concerns, noting that while he agrees with the proposed changes, he feels that some of Ms Christians' points have already been addressed in the Bill. He suggested that the department's response might help expedite the process.

Mr Ndlebe echoed Mr Sonjica's sentiments, stating that there is no provision for a home visit in the Bill. He indicated that the recommendations made by Ms Christians are already covered in the Bill, which outlines the procedures for handling registration issues and includes provisions for consultation and providing reasons for decisions made by the head of department. Therefore, he believes that Ms Christians' concerns are addressed within the existing framework of the Bill.

Ms Christians requested input from the Department of Education on the adequacy of the consultation with the home schooling sector. She expressed concern about the dissatisfaction within the sector and suggested that more consultation should be conducted to address any remaining issues. Ms Christians sought clarification from the Department of Education on this matter.

Mr Munyai responded, stating that any suggestion to delay the process or return to public hearings due to perceived insufficient consultation should not be considered. He highlighted the extensive consultation efforts undertaken by both the Committee and select Committees across the country. Mr Munyai emphasized that the concerns raised by Members were already addressed in the amendments and reiterated that the responsibility to enact laws lies with the Committee. He asserted that the consultation process was sufficient and that disagreement with stakeholders' views does not indicate inadequate consultation. Therefore, he concluded that there is no need to amend the act further.

Ms Christians reiterated her request for a response from the Department of Basic Education on whether they believe more engagement should have been conducted within the sector.

 The Chairperson clarified that the department had already responded through Mr Ndlebe’sinput on the platform.

However, Ms Christians persisted in seeking a direct response from the department.

Mr Sonjica emphasized that at this stage of the meeting, it is not the department's role to determine whether the consultations were sufficient or not. Rather, it is up to the members of the National Council of Provinces to assess whether the Bill adequately incorporates all relevant views. He suggested that redirecting the question to the department was misdirected.

Mr Munyai further clarified that the Bill is no longer with the executive Department but is currently being deliberated by the Select Committee. He stressed that the responsibility for determining the Bill's content lies with the legislators, not the department. Therefore, he urged the members to focus on deliberating and voting on the Bill rather than seeking further input from the Department.

The Chairperson noted that the Basic Education Laws Amendment Bill had been under consideration by the South African Parliament for the past seven years. Throughout this period, there had been public participation processes both at the provincial level and through oral submissions in Parliament. He emphasised that this stage of the parliamentary process did not signify its conclusion, as the Sixth Parliament was not the final legislative body in South Africa. He underscored that there would be future opportunities for legislative amendments, reflecting ongoing efforts to enhance education in the country.

On concerns about the adequacy of public participation, he acknowledged that while this phase had its limitations, it was not feasible to return to public consultations at this juncture. He urged the Committee to proceed with the current Bill, suggesting that any further issues could be addressed in subsequent legislative processes.

Mr Ndlebe stated that the Department of Basic Education had conducted sufficient consultations with stakeholders in the sector, and he offered to provide a list of dates for these consultations upon request. He emphasised that the purpose of the clause in question was to ensure compliance with constitutional requirements, particularly on the registration of schools and the protection of children's interests.

He clarified that debates surrounding the clause were not about registration itself, but rather about the rights of parents and religious considerations. Mr Ndlebe highlighted that the clause aimed to ensure that every schooling met certain standards, as mandated by the Constitution, and that children's progress needed to be reported at the end of each phase.

Addressing concerns about regulation, he explained that the clause empowered the Minister to regulate the sector, which would involve consultation with relevant stakeholders. He argued that issues related to registration and reporting progress did not require extensive consultations, as they aligned with constitutional mandates.

Mr Ndlebe underscored that the Department's role was to enforce compliance with constitutional requirements and ensure children's education, rather than dictating how homeschooling should be conducted. He reiterated his willingness to provide details of the Department's consultation dates upon request.

The Chairperson summarised the discussion, noting the DBE points and the input from Ms Christians. There were differing opinions if changes should be made to Clause 35, with some advocating no change and others suggesting a need for further public hearings and research.

Expressing his stance, he remarked that Mr Ndlebe said it was not Parliament's responsibility to conduct research on homeschooling, as this fell on the parents who opted for homeschooling. Homeschooling expenses were solely the responsibility of the parents, and if they lacked resources, they could enrol their child in a public school.

The Chairperson proceeded to call for the vote.

Seven out of nine provinces voted in favour. Western Cape recommended for the clause to be withdrawn. North West did not vote.

Clause 36
Adv van Breda said Clause 36 amends Section 59 of the Act. The amendments include removing from the heading 'of schools' and making minor changes to substitute 'National Department of Education' with 'Department of Basic Education'.

Section 59(3) is also inserted stating that if anyone provides false or misleading information during the admission process to a public school or application for exemption from school fees, they would be guilty of an offence. This would result in a fine or imprisonment for up to 12 months, or both.

Ms Christians proposed that the MEC should be empowered to request information from school as well.

Mr Munyai noted the importance of the part on penalties for forged documents in Clause 36.

Seven out of nine provinces were in support of the clause. The Western Cape wanted its proposed amendments and the North West did not vote.

Clause 37
Adv van Breda explained Clause 37 introduces a new clause, Section 59A, on dispute resolution. The clause outlines a procedure to be followed in case of disputes between the HOD and the SGB. If informal resolution attempts fail, the aggrieved party must issue a written notice to the other party describing the issues and proposing a resolution. If the dispute remains unresolved after 14 days, each party must nominate a representative, who will meet within 14 days to resolve the dispute. If resolution is still not achieved, the SGB may appeal to the Minister against the decision.

Subsection 2 outlines a similar procedure for disputes between the MEC and the SGB. If informal resolution attempts fail, written notice must be issued, and representatives nominated to resolve the dispute.

Subsection 3 specifies that this section does not apply to matters for which the Act already provides an appeal process.

The Chairperson invited comments on Clause 37 on dispute resolution. After no immediate comments, he proceeded to ask for votes.

Eight out of nine provinces voted in favour if the clause.

Clause 38
Adv van Breda said Clause 38 amend Section 60 of the South African Schools Act, addressing the liability of the state. This section deals with the state's responsibility for contractual or delictual damages resulting from activities conducted at a public school, for which the school would be liable. The amendment seeks to exclude the state's liability for damage or loss in connection with any enterprise or business operated under the authority of a public school for purposes of supplementing the resources of the school as referenced in section 36 or if section 36(2) of the Act has not been complied with.

Ms Christians proposed an amendment to Section 60(1)(b) by substituting it with the following: 'Where a public school has taken out insurance and the school activity is covered by the insurance policy, (1) the liability of the state is limited to the extent that the damage or loss has not been compensated in terms of the policy, and (2) if such damage or loss has not been compensated, the state shall be entitled, as against the school, to be indemnified or to the payment of a contribution to the extent that the school is covered for such damage or loss in terms of such policy.'

The Chairperson noted that while the state might not be liable according to Clause 38, there are instances in the Department of Health where individuals sue the state for negligence, particularly in cases involving medical professionals. This raises questions about the liability of the state in various scenarios. The Chairperson invited comments from Members and those with legal expertise for insights into similar cases.

Ms Ngema referred to Section 60(1)(b), which provides for the limitation of the state's liability when a public school has insurance covering the relevant activity. The existing State Liability Act addresses claims against the state in various scenarios, such as damages in hospitals or other state institutions. It was important not to view the BELA Bill in isolation but rather in conjunction with existing legislation. Section 36(2) of the SASA Act prohibits SGBs from entering into loan agreements without the approval of the MEC, ensuring proper governance and oversight. This alignment aims to prevent errors and ensure accountability before any liability claims against the state arise.

The Chairperson proceeded to call for the vote on Clause 38. Members were asked to indicate if they agreed to accept the clause as it currently stands or if they believed changes were necessary. If any Members wanted to propose changes, the Chairperson suggested holding off on the decision on Clause 38 for the time being.

Mr Sonjica said after listening to Ms Christians' suggestions, he found them reasonable. He suggested Ms Christians reiterate her proposed additions before the vote, indicating his openness to her suggestions. He asked for legal advice as well but he personally found Ms Christians' proposals acceptable.

Ms Christians asked the legal advisor about the acceptability of her proposed addition

Mr Ndlebe agreed with the legal advisor's explanation, emphasizing that the amendments should be considered in conjunction with the primary Act to create a comprehensive solution. Insurance provisions and those not covered by insurance are already addressed in the existing legislation.

Ms Ngema repeated that the amendment should not be viewed in isolation but rather in conjunction with existing statutes, which already cover the issues highlighted by Ms Christians. She suggested Ms Christians repeat her suggestion for further clarity.

Adv van Breda agreed with Ms Ngema and Mr Ndlebe, stating that the proposal already exists in the principal Act. The existing provisions sufficiently address the concerns raised.

Eight out of nine provinces agreed with the clause as is. Western Cape opposed with proposed amendments.

Clause 39
Adv van Breda said Clause 39 amends section 61 of the South African Schools Act. The amendment expands the list of regulations that may be made by the Minister. These additions include regulations on various aspects such as the management of learner pregnancy, admission of learners to public schools, prohibition of unauthorized remuneration, minimum norms and standards for educator development institutes, organization of education districts, and a national education information system.

Subsection 2 stipulates that regulations may specify penalties for contraventions or non-compliance, with offenders liable to fines, imprisonment for up to six months, or both.

Subsection 3 specifies that regulations related to learner pregnancy and admission of learners to public schools must be tabled in Parliament before publication in the Gazette.

The Chairperson expressed frustration with the misinformation and negative rumours surrounding Clause 39, particularly on learner pregnancy and parental consent. He highlighted the disappointment in witnessing such falsehoods being spread, especially by individuals who claim to hold strong religious beliefs. The Chairperson invited comments on its contentious aspects, encouraging an open discussion on the matter.

Mr Munyai expressed his refusal to engage with what he perceived as propaganda surrounding the Bill, asserting his stance against any changes to it. He emphasized the lack of value in addressing such misinformation and propaganda.

In response, Ms Christians voiced her concerns about the vagueness and inconsistencies about Clause 39. She recommended that the clause be removed entirely due to its ambiguity and the broad regulatory powers it grants to the Minister. The matters addressed in the clause should be determined at provincial level rather than regulated at the national level.

Mr Sonjica agreed with the Chairperson about the misinformation and false beliefs that have arisen during public hearings on the Bill. He emphasized the importance of making the law practical and implementable through regulations. He supported leaving the clause unchanged, stating that ongoing community engagement and education about the laws are necessary beyond the current process.

The Chairperson requested input from DBE and the legal team on Clause 39, particularly addressing concerns raised about learner pregnancy and accusations related to sexual education. He expressed skepticism about whether the clause encourages minors to undergo abortions without parental consent.

Mr Ndlebe highlighted that Clause 39 addresses crucial gaps in the legislation, such as the management of learner pregnancy, admission procedures for public schools, and regulations on various aspects of education administration. Regulations were important in providing detailed implementation guidelines for laws.

Mr Ndlebe clarified that the Minister's role in initiating the regulation-making process does not entail unilateral decision-making but involves collaboration with stakeholders, including public consultation. To start the process of developing regulations, it was a necessity to involve stakeholders and specialists to ensure comprehensive coverage and informed decision-making. The absence of specific regulations does not imply endorsement of controversial practices like underage abortion without parental consent but underscores the need for regulatory clarity and oversight.

Ms Ngema stated that regulations, as executive decisions, stem from delegated legislative authority and must conform to constitutional standards. According to Section 101 of the Constitution, regulations, along with proclamations and other supporting instruments, must be accessible to the public.

Ms Ngema explained that Clause 39 enhances Section 61 of the South African Schools Act, empowering the Minister to make regulations. This amplification aligns with Section 101(4) of the Constitution, which allows national legislation to specify the manner and extent of parliamentary oversight over regulations.

Ms Ngema addressed concerns raised about learner pregnancy management, stating that Section 61(1)(aA) grants the Minister authority to make regulations on this matter. However, official regulations do not yet exist due to the absence of delegated power. Nevertheless, she emphasized the importance of legislative empowerment to address issues such as learner pregnancy, which can lead to school expulsion and impact the right to basic education.

Ms Ngema noted that the Portfolio Committee had added Section 61(3) stating that regulations on learner pregnancy or school admissions must be tabled in Parliament for approval. Clause 39 promotes transparency and public engagement in the regulation-making process and complies with constitutional principles on parliamentary oversight.

The Chairperson thanked the legal advisor and asked for further comments from Members on Clause 39. In the absence of any additional comments, he proceeded to call for a vote.

Eight out of nine provinces voted in support of Clause 39 as is.

Clause 40
Adv van Breda explained that Clause 40 proposes a minor amendment to the Preamble of SASA inserting the words 'facilitate the education of children through the promotion and protection of the right to basic education'.

Nine out of nine provinces voted in favour.

Clause 41 & 42
Adv van Breda explained that Clause 41 proposes technical amendments to Section 1 of the Employment of Educators Act. This includes deleting the reference to 'adult basic education centre' in the definition of 'educator' and 'provincial department of education.' These changes aim to align the Act with the current education system by removing obsolete terms.

Similarly, Clause 42 removes references to 'further education and training institutions' and 'adult basic education centre' in Section 5(2) of the Employment of Educators Act. These amendments are minor adjustments to align the legislation with the updated education landscape.

Nine out of nine provinces voted in favour of this clause.

Clause 43
Adv van Breda clarified that Clause 43 amends Section 7 of the Employment of Educators Act on appointments and filling of posts. It extends the application of the provision to promotions of educators. It corrects the citation of the Constitution by removing 'Act 108 of'.

The Chairperson noted the lack of comments or objections from Members. It appeared that the amendments were supported. The provincial mandates noted no objections.

Eight out of nine provinces were in favour of this clause. The Free State delegate was unavailable.

Clause 44, 45 & 46
Adv van Breda said Clause 44 amends Section 8 of the Employment of Educators Act on the transfer of educators. It removes obsolete terms 'council' and 'adult education and training'.

Clause 45 amends Section 9 on secondments and inserts 'or another department'.

Clause 46 amends Section 11 of this Act on the discharge of educators. References to institutions and centres would be simply deleted.

Ms Christians requested that the legal advisor provide insight into the necessity of Clause 45. The clause was unclear and she recommended that the clause be entirely struck.

Mr Sonjica expressed his concern about Ms Christians' stance on Clause 45. There was a contradiction in her request for clarity on the clause's necessity while simultaneously advocating for its deletion. He had a difficulty with this approach. If the provided clarity makes sense, there may be reason to support the clause as it is. He supported Clauses 44, 45, and 46 in their current form.

Mr Njadu agreed that seeking clarity implies a lack of understanding of the clause's purpose. Pursuing clarity might delay the process when there is already a proposal to strike the clause. He was reluctant to support its removal without fully comprehending its significance.

The Chairperson replied that requesting clarity is a legitimate part of the discussion process and does not necessarily indicate a lack of understanding or preclude offering alternative opinions. He likened it to asking someone to repeat themselves for better comprehension. He urged against being judgmental. Seeking clarity is a right afforded to all members.

Mr Bara agreed that clarity allows for better understanding and informed discussion. He encouraged maintaining a fair and tolerant atmosphere during the meeting's conclusion.

Ms Nkosi expressed her support for Clauses 44, 45, and 46.

Adv van Breda provided clarity as state law advisor on section 9(1) and (2) of the Employment of Educators Act, which outlines the process for placing educators at the disposal of other departments or entities. The amendment simply adds 'or another department' to paragraph (a) allowing for secondments across national departments. Such secondments are subject to labor relations laws and he saw no issues with the amendment.

Mr Ndlebe explained the purpose of the clause pertains to the movement of staff in accordance with the Education Labour Relations Act. It was important to adhere to the regulations outlined in that Act to ensure proper treatment of teachers.

Ms Christians said she was covered.

In the voting results, the Western Cape Standing Committee supported Clause 44; it opposed Clause 45 and requested clarity on its necessity and recommended that it be withdrawn in its entirety; it supported Clause 46.

Other provinces were in support of all the Clauses 44, 45, 46.

Clause 47
Adv van Breda stated that Clause 47 amends section 17 of the Employment of Educators Act, focusing on serious misconduct. There are simply technical amendments to Section 17(1). Additionally, there is an inclusion, allowing for another instance where an educator may be dismissed for serious misconduct. This encompasses committing any other act which, according to any other law applicable to the educator in relation to his employment, is classified as serious misconduct.

The Chairperson invited comments on Clause 47 on the list of misconduct. He noted a lack of evidence in provincial mandates supporting this agreement. He proceeded to ask who supported Clause 47. He noted the necessity of addressing the issue despite the absence of straightforward solutions.

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

Clause 48
Adv van Breda said Clause 48 amends section 18 of the Employment of Educators Act on misconduct by letters. He explained that this amendment involves deleting all references to 'adult learning centre', which term is now obsolete.

After the voting process, the Chairperson noted that nine out of nine provinces voted in favour of this clause.

Clause 49
Adv van Breda said Clause 49 inserts section 19 into the Employment of Educators Act on conducting business with the state. In Section 19(1), an educator is prohibited from engaging in business with the state or with a public or private company conducting business with the state, as outlined in 19(2). Contravening 19(1) constitutes an offence, punishable by a fine or imprisonment for up to five years, or both. Such contravention is deemed serious misconduct, mandating the termination of employment by the employer if the person is found guilty during a disciplinary process.

Ms Christians proposed that the prohibition should apply solely to state employees, specifically departmental posts, rather than SGB posts. Additionally, provision should be made for educators who are state employees to submit applications for exemption, subject to necessary and appropriate safeguards. She emphasised that departments should regulate their own data, while SGBs should regulate their own personnel.

Mr Sonjica disagreed with the proposal, asserting that the clause should remain unchanged. It would be appropriate for all state employees to be prohibited from engaging in such business. SGB employees are paid from public funds as ultimately it is money earned by the parents, thus necessitating regulations for all employees of public institutions. The proposal suggests certain sections of state employees should apply for exemption to conduct business with the state. Decisions on exemption should not be based on the educator conducting business within the same school where employed, as this could lead to unnecessary debate. He advocated for a unified agreement that state employees should not conduct business with the state to combat existing corruption tendencies nationwide.

The Chairperson asked if there were any further comments from Members on Clause 49 on insider trading with the state by state employees. After receiving no additional comments, he proceeded to call for a vote on the prohibition of trade with the state by state employees, with the exception of exemptions.

Mr Njadu representing the Western Cape said that its Standing Committee on Education opposes Clause 49 but suggests the following amendments: restricting the prohibition to state employees, specifically departmental posts rather than SGB posts, and making provisions for educators who are state employees to apply for exemption subject to necessary safeguards.

Mpumalanga and North West had no delegates and as a result six out nine provinces voted in favour of this clause.

Clause 50
Adv van Breda said Clause 50 amends section 55 of the Employment of Educators Act, which outlines the regulations that may be made by the Minister. Another paragraph is added to this clause stating that the Minister may make regulations on norms and standards for district staffing.

Ms Christians proposed that the Committee oppose this clause as it potentially encroaches on the powers of provinces and this would be more appropriately determined at a provincial level.

The Chairperson asked for further comments on Clause 50. Since there were none, he announced that they would proceed to vote.

Seven out of nine provinces voted in favour of the clause.

Clause 51
Adv van Breda explained that Clause 51 repeals Section 38 of the Employment of Educators Act because the provision has become obsolete.

Eight out of nine provinces voted in favour.

Clause 52 & 53
Adv van Breda said Clauses 52 and 53 are mostly technical amendments to simply delete the references to 'further education and training institutions' or 'public adult learning centres' for Schedules 1 and 2 of the Employment of Educators Act.

Additionally, there is an amendment to Schedule 2 item 9(5) that the MEC or the Minister must consider an appeal within 30 days of receiving it.

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

Clause 54
Adv van Breda explained that Clause 54 pertains to the Short Title stating that the Act will be called the Basic Education Laws Amendment Act of 2022 and will come into operation on a date determined by the President through proclamation in the Gazette.

Ms Ngema added that there might be a need to update the year in the title since it refers to 2022, whereas it is now 2024. A proposal to amend the year can easily be done if Members wish to do so.

Eight out of nine provinces were in support.

Closing comments
The Chairperson thanked Members, the Department of Basic Education, Parliament and the legal teams for their dedication in getting the Bill to its current stage. His role as Chairperson was to ensure the Bill's processing, while Members' role was to decide if the Bill should be passed or not. With that accomplished, he requested everyone look at the drat programme.

Adv van Breda raised a concern about the meeting scheduled for the following day to consider the C-list. This timeframe would provide insufficient time for the legal team to consolidate notes and ensure that proposed amendments align with the Committee's recommendations, are constitutionally sound and do not conflict with other laws. Additionally, there was the need to consult with the Department.

The Chairperson acknowledged the time constraints and the need for sufficient time to compile credible documents for review. He recognised the significant amount of work involved, which requires collaboration between legal representatives, the Committee, and the Department. He asked the Committee Secretary to present the programme.

The Committee Secretary said that in light of Adv van Breda's remarks, the programme would be revised. The consideration and adoption of the C-list, originally scheduled for tomorrow, would be rescheduled for Wednesday, 24 April 2024. This adjustment was made to allow for sufficient time to address concerns raised and ensure thorough preparation of documents. The consideration of final mandates and adoption of the Committee Report on the Bill would be Thursday, 02 May 2024.

The Chairperson asked if there were any comments on the revised programme. Since there were no comments, the programme was adopted. He thanked everyone for their participation and announced the adjournment of the meeting.


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