Education Laws Amendment Bill: briefing

Meeting report

EDUCATION PORTFOLIO COMMITTEE
5 August 2005
EDUCATION LAWS AMENDMENT BILL: BRIEFING

Chairperson: Professor S Mayatula (ANC)

Documents handed out:
Education Laws Amendment Bill [B23 – 2005]

SUMMARY
The Department of Education delegation explained that the Education Amendment Bill aimed to amend various aspects of the South African Schools Act and the Employment of Educators Act. One of its main aims was to clarify the processes that surrounded school disciplinary proceedings, which included establishing timeframes and allowing schools to implement cautionary suspensions for learners suspected of serious misconduct. The Bill also addressed issues related to school funding and fees. For example, it allowed for learners to be placed in quintiles at a national level; stipulated that schools could not charge registration or administrative fees; made provision for no-fee schools; and clarified the steps that schools should take in addressing non-payment of fees. It also dealt with aspects that surrounded the disposal of assets by public schools. The Bill provided for amendments to the manner in which educators were appointed, which included strengthening the role of the Heads of Departments (HoDs). Finally, the Bill provided for the repeal of various education laws that had fallen into disuse.

During the discussion, Members asked various questions of clarification. These included:
- what non-monetary contributions would be considered as payment towards school fees;
- what impact would the Amendment Bill have on school disciplinary procedures;
- what was the difference between punitive and cautionary suspensions;
- what impact would the proposed shift from provincial quintiles to national quintiles have on funding; and
- whether schools or individuals would be placed into quintiles?

Some Members felt that instead of implementing no-fee schools, the Department should rather subsidise all learners from impoverished economic backgrounds. Certain Members also requested access to the public submissions on the Amendment Bill, which they felt would allow the Committee to gain a greater understanding of the key stakeholders’ concerns.

MINUTES

Department briefing and discussion
The Chairperson explained that the Department delegation would guide the Committee through the Amendment Bill clause by clause. The Department, along with the State Law Advisor, would then answer points of clarification. The Chairperson stressed that the merits of the Amendment Bill could not be debated in the meeting. A debate on the Bill would only take place once the 30 August public hearings had been held. Indeed, there would be future meetings for an informal and formal consideration of the Bill.

Clause 1: Amendment of Section 1 of the South African Schools Act
Mr D Hindle (Department Director-General) explained that Clause 1 aimed to amend the South African Schools Act by inserting various definitions, which formed crucial parts of the national norms and standards for school funding. Specifically, sub-clause 1(a) aimed to insert the definition of an "adequacy benchmark level of funding per learner" into the Act. This definition referred to an amount, determined by the Department, which would be sufficient to cover the rudimentary costs of a learner’s basic education. Sub-clause 1(c) aimed to amend the definition of school fees to include non-monetary contributions.

Mr I Vadi (ANC) commented that the phrase "adequacy benchmark level of funding per learner" was too complicated and confusing. Mr Hindle replied that the phrase tried to convey the essence of an amount, which would be considered adequate or sufficient to cover the costs of a learner’s education. If the Committee could provide a more understandable phrase, the Department would be willing to use it.

Ms C Dudley (ACDP) asked what forms of non-monetary contribution would be accepted as a payment towards school fees. Mr Hindle responded that a number of schools, particularly in rural areas, were already receiving non-monetary contributions towards school fees. These often took the form of labour.

Clause 2: Amendment of Section 9 of the South African Schools Act
Mr Hindle stated that Clause 2 aimed to strengthen the authority of schools to deal with learners that had been involved in serious cases of misconduct. The Bill would allow for the immediate suspension, on reasonable grounds or as a precautionary measure, of a suspected learner. Sub-clause 2 1 (A) stipulated that in such a case, disciplinary procedures against the suspended learner needed to be initiated within seven days. In a case where a governing body had recommended the expulsion of a leaner, the HoD needed to reach a decision on the matter within 14 days. This would allow for a speedy resolution of the matter. Hence, the aim of Clause 2 would offer some protection to teachers and learners. However, Clause 2 also provided some protection to the accused as the suspension would allow them to avoid possible victimisation prior to the initiation of the disciplinary procedures. Clause 2 would also enable the HoD to have a greater oversight role. Mr Hindle added that sub-clause 2 (d)(6) stipulated that if a learner had been expelled or was suspended, it was the responsibility of the HoD to ensure that the learner still had access to education.

Ms H Zille (DA) noted that sub-clause 2 (a)(1c)(8a) stated that a governing body could impose a "suspension of a learner for a period not longer than one week or any other sanction contemplated in the code of conduct of the public school". However, sub-clause 2 (a)(1e) stated that "A governing body may extend the suspension of a learner pending the decision by the Head of Department on whether or not to expel such a learner from the public school, only if the Head of Department has agreed to such an extension: She asked whether the suspension referred to in sub-clause 2 (a)(1e) was the same suspension referred to in sub-clause 2 (a)(1C)(8a).

Mr Hindle replied that it was the same suspension. Ms Zille responded that this needed to be made explicit because one could mistakenly believe that each of these sub-clauses was referring to a different form of suspension. Mr Hindle replied that the Department would examine this and would alter it if necessary.

Mr Vadi asked whether the purpose of Clause 2 was to ensure that a HoD reached a verdict on an expulsion case within 14 days of its referral. He questioned whether a school needed the permission of a HoD to extend a learner’s suspension. It appeared as if the Bill would allow a school to unilaterally implement an initial five-day suspension without conducting a disciplinary procedure.

Adv E Boshoff (Director of Legal and Legislative Procedures) replied that the Bill provided for a cautionary suspension to be implemented in cases of serious misconduct. This suspension became valid prior to the commencement of a disciplinary procedure. There was no timeframe on such a cautionary suspension. It remained in place until the disciplinary procedure had been completed. However, the Bill stipulated that a disciplinary procedure needed to be initiated within seven days. Added to this, once a case had been referred to a HoD, the HoD needed to reach a decision on the possible expulsion of a learner within 14 days. However, such a cautionary suspension differed from a punitive suspension. The latter could only be implemented once a disciplinary procedure had been completed. It was form of punishment that could remain in place for five days.

Mr Vadi felt that the timeframe and processes that surrounded disciplinary procedures should be outlined in the Bill.

Ms Zille noted that many schools possessed their own detailed codes of conduct, which outlined punishments for specific breaches of conduct. The stipulations in the Bill could give rise to cases where a HoD’s punitive sanction differed from the punitive sanction proposed by a governing body. She asked how one would resolve such a case. Would the HoD’s sanction take precedence over that of the governing body?

Adv Boshoff replied that in such a case, the HoD would be able to refer the matter back to the governing body. Added to this, a school could provide a HoD with a copy of the school’s code of conduct. This would allow the HoD to implement the sanction suggested in the school’s code of conduct.

Mr D Montsitsi (ANC) enquired whether the Department’s national code of conduct formed that basis of all the schools’ codes of conduct

Mr Hindle responded that the Department’s national code of conduct was published as a guideline. Schools were not required to rigidly implement it; rather they were required to interpret it according to their specific circumstances.

Clause 3: Substitution of Section 35 of the South African Schools Act
Mr Hindle noted that Clause 3 dealt with issues surrounding the norms and standards for school funding. For funding purposes, currently schools were placed into poverty quintiles within the provinces. Clause 3 aimed to amend this by placing schools into poverty quintiles on a national basis.

Adv Gaum (NNP) asked how the shift from placing schools in provincial quintiles to national quintiles would impact on the provinces. For example, would some provinces begin to receive greater funding while other provinces received less funding?

Mr Hindle responded that provinces would still be funded according to an equitable share formula. However, a poverty component of 3% would be built into that formula. This would recognise that certain provinces faced greater poverty issues. It would also allow provincial Departments to make provisions for the adequacy benchmark level of funding per learner. Limpopo, Eastern Cape and KwaZulu-Natal provinces would need assistance in order to meet the adequacy benchmark level.

Ms Zille enquired whether learners, and not the schools, would be placed in quintiles. To place learners into quintiles would be a major task as there were 12 million learners in South Africa. Ms Dudley commented that many of the schools in wealthier areas consisted of learners that actually resided in impoverished areas. This meant that these schools were in fact poor because of the background of their learners. She asked whether the shift to place learners into quintiles would address this situation.

Adv Boshoff responded that if the majority of a school’s learners were from a poor background, then that school would be impoverished. The current Act made provision for this by classifying learners according to provincial quintiles. A process would then be undertaken to identify the specific schools that were either predominantly attended by wealthy or poor learners. These schools would then be classified into different quintiles. The Bill would allow for the same calculation method to be utilised, except that learners would be divided into quintiles at a national rather than a provincial level.

Ms Zille stated that the Bill had failed to alter the present calculation method. This meant that it had made no provisions for poor learners who were attending schools in wealthier areas. She felt that this was unfair. It seemed that schools would still be placed into quintiles according to the areas in which they were situated, and not according to the economic levels of the learners.

Ms Zille asked what criteria would be used to place schools into national quintiles. Adv Boshoff explained that under the SA Schools Act, schools were placed into quintiles according to the quality of the school’s infrastructure and the economic position of the school’s learner community. Under the Bill, a school’s community would still be used as the main criteria. However, the school’s infrastructure would no longer be a consideration.

Mr Vadi asked the Department to properly define "national quintiles" and "provincial quintiles". Perhaps the Department could provide the Committee with its research document on quintiles.

The Chairperson asked whether the norms and standards outlined in the Bill applied only to public schools.

Adv Boshoff responded that independent schools were funded differently to public schools. The norms and standards referred to in the Bill applied only to public schools. The aim of the Bill was to establish a more equitable model for the funding of public schools. Adv Boshoff noted that Chapter Five of the SA Schools Act dealt with the funding of independent schools.

Clause 4: Amendment of Section 39 of the SA Schools Act
Mr Hindle explained that many schools formulated their budgets on the basis that there would be no exceptions or defaults on the payment of school fees. Due to these unrealistic expectations, many schools were experiencing budget deficits. The amendments outlined in sub-clause 4(a)(2)(c) would address this situation. Indeed, it stipulated that schools needed to include the possibility of exemptions and non-payment of school fees when formulating their budgets. This would allow for more realistic budgeting.

Mr Hindle commented that some schools were attempting to circumvent school fee exceptions by charging registration or administration fees. Sub-clause 4(b)(5) prohibited schools from doing so. Similarly, sub-clause 4(b)(6) prohibited schools from charging different fees for different curricula. The aim was to have one fee, which was applicable to all the learners at a school. Sub-clause 4 (b)(7) would also allow the Minister, along with the Members of the Executive Councils (MECs), to identify certain schools in the poverty quintile that would become no-fee schools. Such no-fee schools would only be initiated at schools that had received adequate funding from the Department to cover all costs. A list of these schools would be published in each of the provinces. The Department envisioned this as a step towards the goal of free education for all. Nonetheless, if a no-fee school had not received adequate funding, they would be permitted to charge school fees to make up the shortfall.

Adv Gaum noted that the Department would not be subsidising individual learners at all schools, but would rather be identifying no-fee schools. However, there would still be learners from impoverished backgrounds that attended other schools, which did charge school fees. These learners would not receive subsidies, which would place them at a disadvantage when compared to learners at the proposed no-fee schools. He asked why the Department could not subsidise all learners from poor backgrounds at an individual level. Was the Department’s proposed policy not in violation of the Constitution’s emphasis on individual rights and equality?

Adv Boshoff replied that poor learners that attended wealthier schools would still be able to attain school fee exemptions. The Department had seriously considered providing a subsidy to all learners from impoverished backgrounds. However, if the Department subsidised individuals it would mean that poorer individuals that attended expensive schools would receive a greater share of the subsidies. This would place poorer learners that attended impoverished schools at an even greater disadvantage. Schools would then raise their fees in order to benefit from a system based on individual subsidisations. This would result in the system being abused. The proposed system outlined in the Bill offered greater equity. For example, a wealthier school could charge fees at a level that could be used to subsidise poorer learners at the school. Schools that were situated in poor communities did not have this luxury and therefore needed state assistance.

Adv Gaum asked why the Department could not provide a standard subsidy to all poor learners. For example, why could the Department not provide a subsidy of R100 to all poorer learners? Adv Gaum asked whether there was a danger that the public might perceive the no-fee schools as being substandard.

Ms Zille enquired whether it was possible to shift away from schools being placed into quintiles to individual learners being placed in quintiles.

The Chairperson stated that these questions should be raised in the debate. He reminded the Members that their questions should be limited to points of clarification.

Mr Vadi asked whether schools could charge for class photographs or sports kits. Would these costs be considered under registration or an administration fees, and would they be in violation of the policy that schools could only charge school fees?

Adv Boshoff replied that a school could charge for such expenses if the learners’ participation was voluntary. However, if it was compulsory for learners to have sports kits or their photos taken, then a school could not charge any fee for these items.

Ms Zille noted that subclause 4(b)(6) stipulated that learners could not be charged different fees according to the curricula that they had selected. She asked whether differential fees were acceptable for different grades.

Adv Boshoff responded that schools could charge different fees for different grades. For example, high schools were more expensive than junior schools.

Clause 5: Amendment of Section 41 of the South African Schools Act
Mr Hindle said that Clause 5 outlined the procedures that a school needed to follow before they could enforce the payment schools fees. This included ensuring that a learner’s parent did not qualify for school fee exemptions and that they had been given sufficient notice that payment was due. Clause 5 also stipulated that a school could not attach the dwelling of a family due to the non-payment of school fees. Learners could not be deprived of their rights to participate in school activities due to non-payment. This included their right to participate in sports activities, nutrition programmes, classes, cultural activities and social activities. Similarly, a learner’s report card or transfer certificate could not be withheld due to non-payment.

Ms Zille pointed out that the clause placed a burden on the governing bodies. Little onus had been placed on the parents of learners to apply for school fee exemptions. The Clause would also make it difficult for schools to budget properly. The Chairperson ruled that this comment should not be answered.

Clause 6: Insertion of Section 58A into the South African Schools Act
Mr Hindle explained that Clause 6 dealt with issues surrounding the sale of assets by public schools. Specifically, it stipulated that a school could not dispose of valuable assets without the prior approval of a Member of the Executive Committee (MEC.) However, there was an allowance that a MEC could establish a ‘ceiling’, whereby assets below that level could be disposed of without prior consent. Clause 6 also aimed to protect public schools’ from having their assets attached due to any legal action.

Clause 7: Amendment of Section 6 of the Employment of Educators Act
Mr Hindle noted that Clause 7 aimed to amend aspects of Section 6 of the Employment of Educators Act of 1998. Among other amendments, Clause 7 entrenched the right of a governing body to interview candidates for a teaching post and make recommendations according to relevant legal, representative and procedural requirements. However Mr Hindle noted that under the present Act, the governing body only had to recommend one candidate to the HoD for a vacant teaching post. This meant that the HoD was merely rubber-stamping the decision of the governing body. Mr Hindle stated that Clause 7 of the Bill aimed to address this problem. Specifically, sub-clause 7 (c)(i) required a school governing body to recommend at least three suitable candidates to the HoD, who would then decide which of the candidates would be appointed. If the HoD felt that none of the three candidates were suitable for the position, he/she could consider all the applicants for the post or re-advertise the post. However, if the HoD selected a candidate, other than one of those put forward by the governing body, the appointment would be temporary. In such a case, the governing body could either object to, or accept, the appointment. If the governing body objected they needed to launch an appeal within 14 days.

Ms Dudley asked if a HoD did not appoint any of the candidates recommended by a governing body, would they be required to provide the reasons for their decision?

Adv Boshoff responded that the decision to reject any candidate would be an administrative decision. The Promotion of Administrative Justice Act stipulated that any rejected candidate had the right to ask questions, and receive answers, regarding the reason for rejection.

Clause 8: Insertion of Section 6B in the Employment Educators Act
Mr Hindle commented that in many schools, teachers had been employed in temporary posts for many years. Clause 8 made provision for these teachers’ temporary positions to be converted into permanent positions without the need to re-advertise.

Clause 9: Repeal of laws
Mr Hindle stated that Clause 9 would repeal a number of laws including the Higher Education Amendment Acts of 1941 and 1946; the Matriculation Exemption Act of 1960; the Education Services Amendment Act of 1982; and the Universities for Blacks, Technikons, Education and Training Amendment Act of 1985.

Memorandum on the Objects of the Bill
Mr Hindle explained that the Memorandum contained a list of the organisations and individuals that had made submissions on the Bill. Many of the issues that these organisations and individuals had raised had been incorporated into the Bill.

Ms Zille noted that the list of submitting organisations was incomplete. Adv Boshoff replied that the list Bill was a summary and not the full list, as it would have made the Memorandum extremely bulky. Nonetheless, the Department was willing to make the full list available to Members.

Ms Dudley stated that she was concerned that the only other political party, besides the ANC, that had been consulted on the Bill was AZAPO.

Ms Dudley and Ms Zille asked if the Committee could have access to the submissions. Adv Boshoff noted that individuals often sent comments on an Bill to the Department on the understanding that their submissions were confidential. The Minister felt that it would be inappropriate to make such submissions open to the public. The Access to Information Act also specified that the consent of the individuals involved was required to make such submissions public. Contacting all the individuals who made submission for their consent would be onerously time-consuming.

Ms Dudley asked whether the Department could contact these individuals or else Members would find it difficult to understand the stakeholders’ concerns. Mr Montsitsi commented that the Minister had already solicited comments from organisations on the Bill. Hence, the Minister’s job was complete. It was now the responsibility of the Committee to call for its own public hearings. This would allow organisations to once again make submissions on the Bill. There was therefore no needed to obtain the submissions made to the Minister on the Bill.

Ms Dudley enquired whether the Committee’s public hearing had been advertised. When would the hearings take place? The Chairperson responded that the public hearings would take place on 30 August and advertisements would be placed in the media. He hoped that a formal consideration on the Bill could be held in the week of 13 September.

Ms Dudley was concerned that the process was being rushed. She felt that more time was required for processes such as public hearings.

The Chairperson responded that submissions would be accepted before 30 August, so the Committee could have access to most of the submissions as early as possible. Once the public hearings were completed, a debate on the Bill would be held during the informal consideration process. He assured Members that the processes would not be rushed.

The meeting was adjourned.