SA Council for Educators Bill: negotiating mandates

EDUCATION AND RECREATION SELECT COMMITTEE
17 May 2000
SOUTH AFRICAN COUNCIL FOR EDUCATORS BILL: NEGOTIATING MANDATES

Documents handed out:
Negotiating Mandates from Eastern Cape, Free State, Gauteng, Mpumalanga and Northern Cape

Chairperson: Mr DM Kgware

SUMMARY
Only KwaZulu-Natal Province had not given an indication of its negotiating mandate. The other provinces supported the Bill with Gauteng and Mpumalanga proposing changes to certain clauses. The Department commented at length on these proposed amendments.

The Department may reconsider the clause dealing with the language in which membership certificates are to be issued. Public hearings are planned for the 23 May 2000. There will be informal deliberations with the Department on 24 May 2000 on the Bill. A provisional date for final voting mandates is 5 June 2000.

MINUTES
The Chairperson requested the provinces to read the written mandates they had submitted.

Eastern Cape, Free State, Northern Province, North-West, Western Cape
The written mandates of the above provinces supported the Bill without amendments.

Ms Witbooi said the Western Cape agrees with the Bill [no written mandates had been received yet].

No written mandate had yet been received from KwaZulu-Natal.

The Chairperson indicated that the Committee needs five voting mandates to proceed but suggested leniency to allow others to send in their mandates as well because the initial deadline was set to be some time in June and provinces were under the impression that they had more time to meet it.

Mpumalanga
Mpumalanga's written mandate stated that the Legislature could not find any logical motivation for inclusion of Clause 6(3). It also stated that geographical representation in Clause 6(1) should be spelt out clearly and that equal provincial representation be catered for. The mandate also called for sufficient accommodation of under-qualified and unqualified teachers in the Bill.

Gauteng
Gauteng's written mandate read by Ms Motshekga said it supports the Bill. It suggests that there should be an inclusion of an indication by the State of a formal commitment to types of support programmes it would enter into partnership with SACE (such as in-service training, practical competency, etc)

The following amendments are proposed in their negotiating mandate:
Clause 24 - Registration Certificates
That Clause 24.2.(a) should read "The original certificate will be issued in English or any other official language upon request";
That Clause 24.2.(b) should be deleted.

Clause 19 - Funds Of The Council
An explanation of the Minister's powers to approve or disapprove the Council's budget, especially under what conditions would the Minister deem it necessary to disapprove the Council's request;

Clause 14 - Disciplinary Committee
An inclusion into the clause of the necessary appeal mechanisms is suggested.

Gauteng: Views recorded but not adopted by the majority
Clause 6(i) - the percentage of teacher representation should be increased to permit an adequate control of the Council and participation in committees, as well as panels where necessary. If one considers a two third majority, the number representing the profession would have to be at least 20 not 18.

Clause 7(i) - the clause is believed to give too much power to the Minister. The following amendment is suggested "At the first meeting of a new term of office of members, the members must nominate three persons from whom the Minister must make an appointment as Chairperson. The nominees need not be members of the Council".

Comments by the Department of Education on the Negotiating Mandates
Mr Thami Mseleku, Director-General in the Department and Advocate Boschoff, the Legal Advisor appeared before the Committee on behalf of the Department of Education.

Language in which certificates are to be issued
Mr Mseleku said the issue was raised in discussions with a number of stakeholders. The Department currently has a proposal to deal with this. There is a problem that the Gauteng proposal might still have constitutional implications, but a decision would still be taken after looking at whether the proposals meet the requirements of the Constitution.

The powers of the Minister regarding the budget
Mr Mseleku said the clause was drafted in the context of the requirements in the Public Finance Management Act that there is an onus on accounting officers and executive to ensure that statutory bodies account for their finances and give cash flow reports. It was meant as a protection clause; in some instances councils tend to operate as closed shops. It cannot be said at this stage in what instances the Minister would disapprove the budget.

The disciplinary committee
Mr Mseleku said the Bill provides for three mechanisms which seek to build a three-layered process.
- First, there are panels that do the investigation and make recommendations to the disciplinary committee.
- Second, the disciplinary committee considers the issues and makes a recommendation to the Council.
- Third, the Council as a full body gives a sanction.
The system has a built-in review process such that there can be no question of an appeal because the highest body, the Council, has given the sanction. It is unnecessary to provide for inclusion of the appeal right to courts which is provided elsewhere in other legislation.

Clause 6(3)
Mr Mseleku said the clause has to be read in relation to the definition of "official of the organised profession" in the Bill. The clause is necessary because certain persons who are not members of the profession might be required by the Council of its effective inclusion, such as persons with particular expertise to function in panels, for instance.

Regarding geographical representation
Mr Mseleku said the suggested amendment would make legislation too cumbersome as it would have to spell out every form of representation. For example some might then insist that gender and racial representation should also be set out more clearly.

Relating to sufficiently accommodating under-qualified and unqualified teachers
Mr Mseleku said the principle is that South Africa should not be locked into a cycle of unqualified and under-qualified educators. It is important that the government should put in place mechanisms to improve the situation otherwise the country would be sitting with the problem forever.

Ms Ntlabathi (ANC) said it is important to keep in mind that the Council should also be for the protection of the public not merely a closed shop that protects only the interests of the profession and thus there should be transparency.

She supported Gauteng's proposal regarding appeals. She said there is a need to go back to the drawing board to ensure that there is a mechanism allowing for appeal. It is important that people who are removed from the register of the Council because of problems such as alcoholism (which can be rehabilitated), have a way to reregister when they have been rehabilitated.

Ms Motshekga said when they were discussing the issue of appeals in her Province, reference was made to judgements by bodies such as the Medical Council where livelihoods of people were affected. Such bodies had become a law unto themselves without accountability. Sometimes they were even used as platforms to settle personal scores. For this reason it was felt the option of the courts should be included.

Mr Mseleku said appeal to the courts is a given in terms of the Labour Relations Act and other statutes, and does not need to be provided for in this legislation as it will always be there. It would have to be looked at whether the Council needs to look at the option of de-registration for a certain number of years (except in certain cases of gross violation of the code of ethics). SACE would not be a closed shop because of the presence of other people not members of the profession in it.

The call for an increase of the percentage of teacher representation
Mr Mseleku said this call for a percentage increase in number of representatives for teachers from 18 to 20 in the Council, with the idea to increase teacher participation, would defeat the purpose of protecting other interests in the Council.

Regarding appointment of chair
The idea is to get someone who would command the public's confidence because of the position the country is in at the moment, and to improve the image of the profession. It is based more on a need to demonstrate a movement away from the past.

Ms Ntlabathi wanted to know if there is mechanism to provide the Council with information of criminal charges against a member from the courts because in some instances such charges might impact on the ethics of the profession.

Mr Boschoff said not all criminal cases have an effect on the profession. There is a requirement that records of criminal charges regarding state employees should be forwarded to the employer. There is provision for a flow of information between the employer and the Council.

A member asked if the Council would then be obliged to act on such information.

Mr Boschoff said Clause 26 is important in this regard. The Council is there to safeguard the interests of the profession. The Council is obliged to act where it is seen that the individual's actions affect ethics of the profession no matter what steps have been taken, by courts of the employer for instance.

Mr van Niekerk (NNP) said his personal recommendation is that the Department should go with the clause that says the certificates would be published in any of the official languages as requested and also check with the Pan South Africa Language Board before taking any final decisions.

The Chairperson pointed out that the Portfolio Committee is holding public hearings on the 23 May 2000 and has requested that they be held jointly with this Select Committee. The Department has requested informal deliberations be held on the 24 May 2000 on the Bill, with possibly a break to allow people to formulate their positions and then formal stage be held on 5 June 2000. The Committee agreed, and the 5 June 2000 was set as a provisional date for the final mandates. The meeting was adjourned.