Basic Education Laws Amendment (BELA) Bill: proposed amendments

NCOP Education and Technology, Sports, Arts and Culture

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


In a virtual meeting, the Parliamentary Legal Advisor presented the Select Committee proposed amendments (C-list) of the Basic Education Laws Amendment (BELA) Bill that included the definition of corporal punishment, admissions policy, language policy, learner conduct, random searches, suspension and expulsion procedures.

Concerns were raised again by a Member about the Basic Education Laws Amendment Bill. These included Clause 2 making Grade R compulsory with determining funding for this; Clause 22 giving the Minister rather than MEC the authority to determine school governing body (SGB) elections encroached on provincial powers; the broad nature of the regulation-making powers of the Minister that affected parental autonomy; the regulation of homeschooling; school closures potentially affecting learners with special needs; and Clause 5 allowing the Head of Department to direct a school to adopt more than one language of instruction.

The Parliamentary Legal Advisor clarified legal aspects while the Department of Basic Education (DBE) addressed practical implications. After comprehensive deliberation, the Committee voted on the C-list. Eight out of nine provinces supported its adoption, with the Western Cape dissenting.

Meeting report

The Chairperson said that the Minister and Deputy Minister could not attend due to prior commitments. He noted his poor network connection and asked the legal advisor to assist so the meeting could proceed smoothly despite the technical problems.

BELA Bill: NCOP proposed amendments (C-List)
Ms Phumelela Ngema, Parliamentary Legal Advisor, stated that the proposed amendments were drafted based on the Select Committee deliberations and instructions.

Clause 1
The first proposal is the expansion of the corporal punishment definition adding "any acts which seek to belittle, humiliate, threaten, induce fear or ridicule the dignity and person of a learner". The second proposal was the addition of the definition: 'Criminal Procedure Act' means the Criminal Procedure Act, 1977 (Act No. 51 of 1977). Other changes were consequential amendments.

Clause 2
The proposed change is the court is given the discretion on length of sentence based on individual circumstances in terms of the Criminal Procedure Act which can be up to 12 months.

Clause 4
Clause 4 on admission policy was contentious. The proposed amendment simplifies the approval process for the admission policy by removing the step involving the Head of Department (HOD). Specifically, paragraphs (a) and (b) outlining the approval process by the HOD, were proposed for removal. Instead, the authority for approving admission policy would lie solely with the school governing body (SGB). This amendment would affect the subsequent numbering of sub-clauses.

Clause 5
Clause 5 which amends Section 6 on language policy had similar adjustments to remove the explicit approval process by the HOD. Instead, the authority for determining language policy would rest with SGB, with criteria specified in the clause.

Section 6(5) and (6), which detailed the approval process by the HOD, would therefore be removed, impacting subsequent numbering. This adjustment would ensure alignment with the delegation of authority to the SGB.

Clause 7
Clause 7 amends Section 8 on the code of conduct for learners. The proposed amendment clarifies the grounds for exemption, specifying circumstances under which learners could seek exemption from certain provisions of the code.

Clause 8
Clause 8 amends Section 8A on random searches and seizures of prohibited substances at school. Corrections were proposed to align references to the Criminal Procedure Act and ensure consistency with existing provisions.

Clause 9
Clause 9 amends Section 9 on the suspension and expulsion of learners. The proposed amendment lists the types of misconduct warranting suspension or expulsion and the associated processes for addressing such misconduct. The aim was to define serious misconduct that warranted immediate suspension without the opportunity for a hearing first. This provision aimed to list these offences. However, learners accused of such serious misconduct would still undergo a disciplinary hearing.

Clause 10
The proposed amendment clarifies that fines or imprisonment could be imposed upon conviction, subject to the court's discretion and in accordance with criminal justice laws.

Clause 14
Clause 14 addressed central procurement, allowing SGBs to opt-out of centralised procurement under certain circumstances, provided they could demonstrate cost-effectiveness compared to central procurement.

Clause 20
This sought to ensure consistency in recusal procedures for SGB members in matters in which they had a personal or financial interest.

Clause 26
Clause 26 proposed shifting the authority to address school loans and overdrafts from the Member of Executive Council (MEC) to the Head of Department for operational efficiency.

Clause 54
There was an editorial change updating the year from 2022 to 2024. This would ensure the Act's alignment with the year of enactment.

The Chairperson was grateful for the presentation. The issues raised by the Committee had been taken into account. He noted he had been experiencing network problems, prompting him to relocate from his constituency office to the police station, and now to the municipal offices, where the network seemed to be more stable. He would keep his video camera off to ensure smooth connectivity throughout the meeting.

He had intended to raise in his opening remarks about a letter from the NCOP Chairperson but was unable to due to network challenges. The letter on public participation would be distributed to Members for their information and would not be discussed in the current meeting as it was irrelevant to the current agenda.

The Chairperson asked if the Department wished to comment on the C-List.

Mr James Ndlebe, DBE Chief Director: Planning and Implementation Support, replied that the Department had no comments on the matter.

Ms D Christians (DA, Northern Cape) raised concern on Clause 2 amending Section 3 on making Grade R compulsory. She did not see as proposed amendment addressing the funding, capacity, and implementation challenges associated with the introduction of a compulsory Grade R. She asked the legal team if such considerations had been taken into account or possible amendments had been proposed.

On Clause 22 substituting 'Member of the Executive Council' with 'Minister' and replacing 'Provincial Gazette' with 'Gazette', she believed this centralised power encroached on provincial legislative authority and there would be a lack of capacity. She expressed the need for a legal opinion on this matter. She also suggesting that regulations should remain at the provincial level to avoid overstepping provincial jurisdiction.

The Chairperson replied that Clause 2 pertains to the commencement of school attendance from Grade R instead of just Grade 1, confirming its significance. Clause 22 empowers the Minister to determine the election of SGB members. He sought confirmation from the Members on their responses to these clauses and if there are any further questions.

Ms Christians said that she was currently going through the clauses one by one, organizing her thoughts on each. She revisited Clause 5 amending Section 6. Section 6(7) allows the Head of Department (HOD) to direct a school to adopt more than one language of instruction. She repeated her suggestion that this clause be reconsidered for removal. She thanked the Chairperson for the opportunity to voice her concerns.

The Chairperson inquired if other Members wished to pose questions before allowing the legal team and the Department to respond on the issues raised.

Adv Ngema acknowledged the three questions. On compulsory attendance (Clause 2 amending Section 3) and its financial implications, she stated that while the question was practical, the Bill does not address funding matters. It focuses on school operations rather than funding. Therefore, no amendments were proposed in response to this query.

On Clause 5, while the numbering changed in the C-List, the substance remained the same, empowering the HOD to direct a school to adopt more than one language of instruction, depending on practicality and within the framework of the Constitution and relevant laws.

On Clause 22, Adv Ngema said this empowers the Minister to determine the election process for SGB members. She emphasised the need for consistency and efficiency in the election process, ensuring all schools adhere to the same standards and timelines. This amendment aims to streamline the process nationally and does not imply a lack of capacity on the Minister's part.

The Chairperson asked DBE for its comments, especially on the insinuation that the Minister may lack the capacity to handle the matter at hand. He recalled the discussion from the last meeting where similar questions were raised and clarified. He now sought clarity from the Department on the Minister's capacity to fulfill this duty.

Mr Ndlebe responded that the Department had previously explained the rationale behind Clause 22. The clause was proposed by stakeholders who were frustrated with the provincial departments' handling of SGB elections. Despite efforts to assist provinces in developing election regulations, many still struggled to do so. As a result, stakeholders Advd for national regulations under the Minister's authority to ensure consistency and efficiency in SGB elections. The Minister would work with the Members of the Executive Council (MECs) in the Council of Education Ministers (CEM), underscoring the collaborative approach taken. This matter had already been extensively deliberated on and voted on by Members. Further debate would only revisit previous discussions.

The Chairperson acknowledged Ms Christians' inquiry and the parliamentary protocol allowing any Member of Parliament to ask questions at any point during the meeting. However, he noted the importance of making progress and avoiding redundancy by asking the same question repeatedly. He invited other Members to share their comments or questions.

Mr G van Staden (ANC, Northern Cape; Chairperson of the Northern Cape Portfolio Committee on Agriculture, Land Reform, Rural Development, affirmed agreement with Mr Ndlebe on the debates. He emphasized the importance of accurately reflecting the Northern Cape's position on language policy, ensuring accessibility to education with the policy of the provision for multiple languages of instruction in accordance with the Constitution. He repeated the necessity for accessibility to remain intact. He confirmed total agreement with Adv Ngema's points.

The Chairperson remarked that the C-List reflected the discussions accurately and he agreed with its content.

Mr S Sonjica (ANC, KZN) agreed with Adv Ngema response. He said there was the need for swift action to incorporate the proposed amendments raised over the past week. He proposed that C-List be considered for inclusion in the final version of the BELA Bill.

Ms Christians stated her intention to engage with Adv Ngema's presentation, highlighting the Committee's role in questioning and seeking clarity as Members of the Committee are not puppets. She noted the importance of her previous contributions and wanted further clarity on certain points before proceeding with two additional questions.

The Chairperson assured her that engagement was encouraged. He clarified that while the matter had been explained previously, Members were still free to ask questions. The parliamentary deadlock-breaking mechanism was there if necessary; decisions could be made through voting. He encouraged Members to raise their hands to speak.

Ms E Nkosi (ANC, Mpumalanga) welcomed Adv Ngema's presentation of the C-List as the outcome of previous deliberations and noted the importance of aligning it with the Committee's agreements. She supported the suggestion to adopt the C-List, considering it accurate. She urged mindful language use, referencing a previous incident and suggesting that all Members should be addressed with respect.

Mr E Njadu (ANC, Western Cape) commented that the matter under discussion had been ongoing and it was important to recognise the process that led to the current stage. He formally seconded the proposal made to adopt the C-List.

The Chairperson acknowledged Mr Njadu's point, agreeing that the Committee needed to reach a final decision. However, he suggested allowing Members time for clarity on any issues before reaching a deadlock. He noted that if there were no objections to the recommendations, the Committee would proceed accordingly. He reiterated the importance of providing clarity where needed and emphasized the committee's purpose in reaching consensus. He thanked Ms Christians for her contribution.

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Ms Christians sought clarity on Clause 25 on the closure of public schools, particularly concerning learners with special educational needs. She urged consideration for such learners during school mergers and closures to ensure they are not adversely affected. She suggested that this consideration should influence Clauses 13 and 25.

She also queried Clause 35 on homeschooling, asking for clarification on the justifications for the requirements and the potential impact on families who choose homeschooling. She expressed concern that increased regulatory requirements could limit parental choice and autonomy in their children's education. She requested further clarity from Ms Ngema on these matters.

The Chairperson said further clarity was needed, and if there was any new information available, it should be shared. He encouraged Members to seek clarification and suggested that if DBE could provide additional explanation to Ms Christians, it should do so.

Mr Ndlebe addressed the concerns raised. Special needs learners in schools are not affected by school mergers or closures. On homeschooling, the Department does not understand how parental choice is limited as the curriculum is not determined by any specific authority. Parental choice in homeschooling is still allowed under the current framework, citing constitutional provisions. These were the answers debated and agreed on by Members on school closures and the homeschooling regulations.

Adv Ngema clarified that the Bill does not directly impact special needs learners, as their issues are addressed separately in specific areas. She explained that during consultations, stakeholders were informed that separate issues should not be conflated. Further engagements with DBE could address any remaining concerns outside the scope of the Bill.

On Clause 35, the proposed regulations for home education are consistent with the Constitution and do not diminish parental rights. The regulations aim to ensure that home education meets certain standards, as required by the Constitution, without infringing upon parental autonomy. There was a need for a regulatory framework to ensure compliance and government's role is to ensure that home education meets acceptable standards. In her legal opinion, the current clause does not violate constitutional principles or existing legislation.

Adoption of C-List
The Chairperson thanked Adv Ngema and acknowledged the ongoing discussion. He noted that despite repeated questions, the answers remained consistent. He suggested moving forward with the suggestion by Members to vote on the C-list, which reflects the inputs from previous meetings. He asked Members to confirm if this course of action was in order. He then asked if there were any further comments before proceeding with the vote.

Ms Nkosi proposed that the meeting should proceed to adopt the C-list and Mr Njadu seconded the motion.

The Chairperson noted the adoption of the C-list and asked if there were any objections.

The Committee Secretariat intervened, stating that voting on the C-list needed to be conducted per province. The voting process commenced:

Voting in support of the C-list: Eastern Cape, Northern Cape, KwaZulu-Natal, Limpopo, Mpumalanga, Free State, Gauteng and North West.
Voting against the C-list: Western Cape

Eight out of nine provinces were in support of the C-List.

The Chairperson thanked Members for participating in the voting process. He thanked the Department and the Legal division of Parliament, for their efforts and dedication.

The minutes of 27 March; 17 and 18 April 2024 were adopted and the meeting adjourned.


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