SA Council for Educators Bill: discussion

Meeting report

EDUCATION AND RECREATION SELECT COMMITTEE
24 May 2000
SOUTH AFRICAN COUNCIL FOR EDUCATORS BILL: DISCUSSION

Documents handed out:
South African Council For Educators Bill

SUMMARY
The Minister has requested a number of amendments to the Bill following the public hearings held the previous day. There was a clause by clause informal deliberation on the Bill where these proposed amendments were discussed. The provinces must communicate these proposed amendments to their provinces before presenting their final mandates on 5 June.

MINUTES
Adv Boshoff led members through a clause by clause deliberation of the Bill explaining what amendments were proposed subsequent to the public hearings. The following clauses were discussed:

Clause 1:
The definition of ‘official of the organised profession’ will be omitted.

Clause 4:
Mr Mkhaliphi (ANC-Mpumalanga) said that in the initial briefing on the Bill by Mr Duncan Hindle from the Department he understood that the scope of the Act would include educators up to the level of Deputy Director General. When does someone cease to be an educator?

Adv Boschoff said that the Bill defines an ‘educator’ in a broad sense as any educator referred to in Clause 3. The definition is linked to the provision of education in all institutions including private institutions. For the Director General and the Minister the onus is different. But they can be affected if they provide education

Clause 4:
An ANC member asked what happens when one registers with the intention of being employed but then one does not find employment.
Adv Boschoff said that the flexibility of the registration process lies in Clause 22(8) and a further amendment is proposed to make it even more explicit.

Clause 5:
Adv Boschoff said a number of issues had come out of the public hearings and the Minister requested the following proposals:

Clause 5(b)(ii)(aa): The Department wants to make it clear that these requirements must reflect all entry levels. To do so they proposed inserting ‘all levels of’ after ‘entry to’ so that the clause would read ‘the minimum requirements for entry to all levels of the profession’.

Clause 5(c)(iii)(cc): There was some uncertainty about when an individual could apply for reentry to the profession after being removed from the register for a breach of the code of ethics. They were proposing that after ‘register’ the words ‘for a defined period or indefinitely, or subject to specific conditions be inserted.’

Clause 6:
The Department proposes the following amendments to Clause 6:

- Clause 6(2): Technical amendment (as a person cannot be employed at all the institutions listed in (a) to (g) simultaneously). It should rather read ‘employed at one of the following’.
- Clause 6(3): It was the unanimous view of the unions that the language referring to ‘officials of the organised profession’ was not acceptable. The Minister thinks these comments have merit and the Department has therefore reconsidered its approach. Clause 6(3) is to be deleted.
- Clause 6(5): regarding the criteria to determine the office of a member an amendment is proposed.
- A new Clause 6(6) will be inserted and will read as follows, "The nomination of a person as a member of council is disqualified if such person (a) is removed from an office of trust by a Court of law; or (b) is convicted of an offence involving dishonesty or an offence for which the sentence imposed is imprisonment without the option of a fine." The existing Clause 6(6) will therefore become Clause 6(7).

Clause 7:
During the public hearings this was the most contested clause because professional organisations felt the wording was merely cosmetic dressing. They felt that any nominations made by their organisations could be disregarded by the Minister. They would wish to elect a person accepted and respected by the Council, someone who understood the Council’s interests. If an outsider was appointed the interest of educators might be sidelined.

The Department considered Clause 7 and decided to move away from a closed shop, self-regulating body like the law council, to a more open professional body, like the nursing and medical council. The Minister has agreed on the following:
- Clause 7(1)(a): After the word ‘nominate’ omit the rest of the wording to the end and replace it with ‘five persons of whom one must be appointed by the Minister.’
- After a concern was raised by trade unions over the need for outside nominations the Minister proposed the following:
Clause 7(1)(b): Insert after ‘nominated’, ‘by the Council.’

Clause 11(1)(b):
An issue raised by the Minister but not picked up in the public hearings was that at least one member must be a nominee of the Minister who could take decisions on behalf of Council. It is important to take the same principle and apply it to professional development done by the employer and the state for educators. The broader development of the profession would be done by Council. There is little cohesion between the two entities and the many statutory bodies. This person, the nominee of the Minister, will provide the link.

Clause 13
- Clause 13(1)(b): After ‘council’ it was proposed that the following be inserted, ‘of whom at least one is a member referred to in section 6(1)(c)’.
- Clause 13(2): The key issue raised by the unions is that of professional development and that the activities of the Professional Development Committee activities are not clearly set out. The unions want the same approach taken by the Disciplinary and Registration Committees. An amendment to Clause 13(2) is proposed: ‘The professional development committee must, subject to this Act-
a) consider and make recommendations to the Council in relation to the powers and duties contemplated in Clause 5(b); and
b) exercise or perform any other power or duty delegated or assigned to it by Council.’

Ms Nkuna (ANC Northern Province) said that since the Department has the function of applying disciplinary measures there should be no conflict between the Council and the Department.

Adv Boschoff said that the Department is only one of the employers covered by this legislation. Like the other employers it can deal with the misconduct of employees. A breach of the code of ethics makes the employee guilty of misconduct. On the employer’s side he is guilty of misconduct if it is in respect of the employee/employer relationship.

Clause 14:
Clause 14(1)(a): One of the criticisms against this clause which came out of the public hearings is that the focus is entirely on discipline and not on a code of ethics. The Minister proposes the insertion of a new Clause 14(a) which will stipulate that the Disciplinary Committee has the duty to ‘a) develop, review and maintain a code of professional ethics.’

In regard to the disciplinary procedures set out in Clause 14, Adv Boschoff said that the difficulty is that there are three layers of review. First there is the investigation, and then there is a recommendation of the appropriate sanction by the Disciplinary Committee then a final finding by Council. Whereas the Committee should only make a recommendation, the Committee tends to make the actual finding. It is proposed that ‘make a finding’ in Clause 14(2)(d) be deleted and ‘recommend’ be inserted.

Ms Swartbooi (ANC-Kwazulu Natal) asked what action could be taken if the educator felt the disciplinary hearing was not fair.

Adv Boschoff said that there is always the opportunity for the educator to go to Court.

Clause 15:
Ms Nkuna (ANC Northern Province) referred to Clause 15(1), which stipulates that the Council may co-opt other persons to attend committee meetings on the basis of their expertise. Are these persons not members of the Council?

Adv Boschoff said it is important to look at Clause 15(2), which states that any committee may include persons who are not members of council. He explained that specific expertise might be needed by a Committee to facilitate the investigation of a particular incident. Therefore, in terms of Clause 15(1) outside persons may be included.

Clause 19:
Mr Suka (ANC Eastern Cape) asked whether the funding for Council will come from teachers or will the state contribute.

Ms Nkuna (ANC Northern Province) referred to Clause 19(2)(b) which states that the Council must submit adjusted statements of estimated income and expenditure to the Minister for approval. Why did the Minister have powers to disapprove when the Department was not contributing to the Council through a subsidy?

Adv Boschoff responded that in terms of Clause 19(1)(a)-(c) the funds of council consist of compulsory fees, moneys from donations or fines or interests and money from ‘any other source’. This clause does not have to specify that the council will receive money from the budget vote. It is wide enough to include funds from the state but it will not specify that the Council will be carried by the education budget vote and in this way will not create an expectation or an obligation for the provincial or national department.

Regarding the state’s power to disapprove statements, funding also comes from a levy which, when imposed on an individual by statute, is compulsory and constitutes public funds. The definition of a public entity is that it is a body established by national legislation fully or substantially funded by the Revenue Fund or by a levy imposed by national legislation and accountable to Parliament. The Council falls within this definition.

Mr Panday (ANC Kwazulu Natal) supported Mr Suka’s concerns. He said that the state must make a contribution because the Council is dealing not only with educators’ interests but also the interests of the state.

Mr Suka (ANC-Kwazulu Natal) asked whether all educators would contribute to the funding of the Council, whether unionised or not. Adv Boschoff said that everyone would have to contribute.

Mr Mkhaliphi (ANC Mpumalanga) said that his interpretation of Clause 19(2)(b) is that it gives latitude to the Council. It only says that the council ‘may’ submit the statements to the Minister. He suggested that it read ‘must, when necessary.’

Adv Boschoff said it is important to read (b) with (c). The Council can only expend if the original or supplementary budget has been approved. If the council wanted to spend any money, it would have to be from an approved budget.

Clause 21:
Adv Boschoff said that there is no obligation on independent employers to register with the council without a statutory provision. The Minister has therefore requested a new Clause 21(2), which will stipulate that ‘a person may not be employed as an educator by any employer unless he or she is registered with the council’. This subclause will ensure that compulsory registration is effectively implemented to all employers.

Clause 22:
In terms of this clause educators who do not meet all requirements may provisionally register. This will give educators a chance to meet the criteria and allow them, for instance, to obtain the necessary formal qualifications. Adv Boschoff said it is important to enact legislation for the future so that standards will be attached to it. Flexibility will allow the baggage of the past to be redressed.

He thinks that Clause 22(8) is important in this regard. During the public hearings there were submissions made by independent schools and the Muslim School Association raising the issue of religious education. Often teaching is done by religious persons who have no teaching qualifications. The flexibility in Clause 22(8) has a specific connotation for other sectors. It refers to the ‘special circumstances of different sectors in education’ To avoid a too narrow interpretation of Clause 22(8) the following amendment is proposed, substitute subsection (8) with ‘Different categories of registration may be determined by the council-
a) to allow for special circumstances of different sectors in education; or
b) if there is a reasonable basis for such differentiation’. This will be for churches and religious organisations or even technical schools, where a leader may not have a formal qualification but has the necessary skills.

Mr Suka (ANC Eastern Cape) commented that it is important for persons in rural areas not to be compromised by their lack of formal qualifications.

Mr Mkhaliphi (ANC Mpumalanga) asked whether the Department did not see fit to tie conditional registration to a time frame since the main purpose is professional development.

In response, Mr Raju (DP Kwazulu Natal) said that once a person is employed he is immediately expected to be a member of council. Adv Boschoff agreed with the answer. He said that initial registration is important because it does not exclude persons who have taught for years but have no formal qualifications. The flexibility of provisional registration is important.

Clause 23:
The intention of this clause is to allow an individual to have his name removed from the register. The Department is proposing that in Clause 23(3) an insertion be made to qualify it, ‘unless contemplated in (1)(a) to (e).

Clause 24:
This clause governs the registration certificates. The Minister has requested an amendment to Clause 24(1) and (2). Clause 24(2) should be omitted and in Clause 24(1) after ‘A registration certificate must be‘, ‘issued and ’ will be inserted.

Mr Panday (ANC Kwazulu Natal) asked whether the clause was silent in terms of language. Adv Boschoff said it was silent. The certificate would be issued in the language of choice.

Mr Tlhagale (UCDP North-West) expressed concern over the numerous amendments proposed by the Department. He said that members had already secured their voting mandates on the Bill which now has a different face altogether. What was the reaction of the legal advisor on the process that now needs to be followed?

The Chair, Mr Kgware, reminded members that this is a Section 76 Bill and from this point on the recommendations made by the Department and public submissions must be included and members must go back to their provinces for final voting mandates.

Mr Suka (ANC Eastern Cape) said this is a procedural matter and NCOP rules must be referred to.

The date on which final mandates will be presented is 5 June 2000. The meeting was adjourned.