Education Laws Amendment Bill: hearings

Meeting report

EDUCATION PORTFOLIO COMMITTEE
30 August 2005
EDUCATION LAWS AMENDMENT BILL: HEARINGS

Chairperson: Mr S Mayatula (ANC)

Documents handed out:
Federation of Governing Bodies of SA submission
The National Professional Teachers’ Organisation of SA submission
Affinity Education Consultants submission
SA Democratic Teachers Union submission
Institute for Health and Development Communication (Soul City) submission
Federasie van Afrikaanse Kultuurvereeniginge (FAK) submission
Governing Body Foundation submission
The Governor’s Alliance submission
Education Law Project of Witwatersrand University Centre for Applied Legal Studies written submission (not presented)
Education Laws Amendment Bill [B23 – 2005]

SUMMARY
Various stakeholders presented 20-minute submissions on the Education Laws Amendment Bill [B23 – 2005] that would amend the South African Schools Act (SASA), Number 84 of 1996 and the Employment of Educators Act (EEA), Number 76 of 1998. The Bill would affect the manner in which disciplinary proceedings against learners had to be conducted; school funding; recovery and exemption from fees and classification of fees, the sale of moveable assets and educator appointments.

Despite the Chairperson ruling that only questions for clarity would be allowed, there was some debate, mostly centring around transfer of power from School Governing Bodies (SGBs) to Heads of (Provincial Education) Departments (HODs) in the matter of suspension of learners, and the appointment of educators. The amendment stipulating that schools could enforce the payment of school fees only after ascertaining that the parent did not qualify for exemption was also criticised.

MINUTES

Federation of Governing Bodies of SA submission
Mr Paul Colditz, Federation National Chairperson, had concerns around delays in the suspension of learners after disciplinary hearings; said that poor people should be funded no matter which school they attended and that the amendments would make it impossible to recover fees from defaulters. Their biggest concern, however, was around the right of the head of the provincial education department to overrule SGBs when appointing teachers. The Federation said that many provinces had not published vacancy lists for many years because they lacked capacity and School Governing Bodies were in many cases better equipped and informed to determine the most suitable candidate for a post at their school.

Discussion
Mr I Vadi (ANC) questioned the presenter’s interpretation of the Bill. The right of the SGB to recommend educators for appointment remained – the SGB should recommend three candidates and the head of the PEC should choose one. The presenter did not agree. Section 6(3)(b) of the old Act required the provincial HOD to refer the selection list back to the SGB if he or she found none of the candidates suitable, and he or she could only do so in very defined circumstances. The amendments would shift power from SGBs to bureaucrats.

The MEC for Limpopo, Mr A Motswasedi, said that in some Limpopo villages, unsuitable candidates had been appointed. He asked why the Department of Education, as the employer, should not have more say in appointments. The presenter was surprised that SGBs were able to make appointments because no vacancy lists had been published in Limpopo since 1995, but in any event, existing legislation allowed the HOD to overturn appointments if there was prima facie evidence of undue influence. The employer did have the right to regulate appointments and had a carefully designed system to ensure that only the qualified were eligible for appointments.

National Professional Teachers’ Organisation of SA submission
Mrs S Muller, NAPTOSA Director, supported exemptions where learners could not afford fees, but said that it would be many decades before South Africa could afford free quality education for all. In the interim, fees were necessary and SASA was a sufficient and workable remedy against parents who could but would not pay fees. They advocated examining why it was not working in the few existing cases, rather than scrapping it altogether. They felt the main problem in education was the very large class sizes.

That SGBs had not all transformed was intolerable. In reality, only a very few schools were "letting South Africa down". Existing legislation could and should be used to deal with them at a school, district and department level.

Provincial Education Departments (PEDs) themselves retarded transformation. How dared they not publish vacancy lists, thereby denying educators the opportunity to move from area to area? District and provincial education departments were poor at administration. Relying on them to handle appointments would be to the detriment of the system. Unionisation was also a problem; in some areas teachers had to resign from NAPTOSA before applying for promotion.

NAPTOSA was also concerned that MECs for education were not bound by a time frame when making a final decision as to whether a learner should be expelled.

Some of the amendments to both Acts would have a particularly negative effect on schools for learners with special education needs, with respect to transport and the special conditions that educators should be aware of when accepting posts at these schools and which the HOD might not be aware of.

There was no time to question the presenter as he had used 20 minutes to make his submission.

Affinity Educational Consultants submission
Mr Shabaan Khan, Affinity Director, welcomed the amendment to Section 9 of the Act which stipulated time frames in the expulsion procedure and made provision for the learner to be given access to education during the process but recommended that the time be shorted.

Affinity alleged that a decile system was currently used to determine school funding norms and that changing to a quintile system would disadvantage schools on decile 9 (who would be grouped with decile 10). They advocated a review of the current norms and standards for funding. They also said that poorer provinces would be disadvantaged by a one-size fits all policy.

They welcomed the requirement that SGBs disclose criteria for exemption from fees but they were cautious about the cumulative effects of non-payment of school fees as this might lead to a culture of non-payment.

They welcomed the prohibition of registration and other fees but said that the amendment should be reworded to prevent Section 14 schools (public schools on private property) from charging learners flat fees for their curricula, which included religious education, which many of the learners did not subscribe to.

Affinity otherwise welcomed all of the proposed amendments that would prevent victimisation of learners and their parents for non-payment of fees, allow the provincial HOD to have more say in the appointment of educators and thereby forward the objective of employment equity, and the amendments that would allow him or her to make temporary appointments permanent.

SA Democratic Teachers’ Union submission
Ms Pinky Mncube said that SADTU supported the amendments to the SASA that made provision for a national system of quintiles and the establishment of minimum adequacy benchmark levels. However, they had serious concerns about the practical outcomes in the absence of changes to the funding mechanism to direct resources to the poorest schools in the poorest provinces. The factors constituting the adequacy level benchmark should be open to scrutiny, verification and public debate. Poorer provinces might only be able to achieve the adequacy benchmark level for a small percentage of schools and consequently would only be able to declare a small number of non-fee-paying schools. Non-fee-paying schools might become oversubscribed and neighbouring fee-paying schools suffer accordingly. Implementation should be carefully monitored to ensure that the changes had a positive impact on poorer schools. SADTU questioned why national norms and minimum standards could only be determined after consultation with the Minister of Finance, which implied that education standards were to be determined by budget considerations rather than education criteria.

They supported the increase in the powers of the provincial education authorities in appointing educators. SADTU also supported the objective of amendment 9 (to expedite disciplinary procedures for learners). However, there could be circumstances where a precautionary suspension should be enforced before the learner was given an opportunity to make representations, for example, if the learner threatened the safety of others.

They welcomed the amendment to Section 39(a) of the SASA that provided for the rights of parents eligible for full or partial exemption of fees. The provision that schools should budget for fees exemption might result in former model C schools applying an unofficial ‘poverty quota’ i.e. determining in advance the number of non-fee paying learners they could admit. The prohibition of add-on fees was also welcomed.

That the MECs should use the Minister’s annual national quintiles to identify non-fee paying schools was problematic for two reasons. Firstly, the system would be provincially-based so poorer provinces would declare fewer fee-free schools than richer ones. Secondly, non-fee paying schools might find themselves reclassified from year to year, which was not sustainable.

The amendment to Section 41 of the SASA did not go far enough. Schools and SGBs should not be in the business of debt collection.

SADTU endorsed the insertion of Section 58A in the SASA that prevented SGBs from selling property. They also felt that amendments to Section 6 of the EEA could be tighter. The head of a provincial education department might have reasons other than those in Section 6(3)(b) for declining an SGB’s recommendation and these should be regulated more strictly. Likewise, the HOD’s power to overlook candidates should be limited to the grounds specified in Section 6(3) (b) and not unfettered. The HOD should also provide reasons for his or her decision, which would enable SGBs to evaluate whether they should appeal.

In circumstances where the HOD considered all applicants in Section 6(3)(g)(i), there should be collectively agreed upon procedures and checks and balances to ensure that the appointment was fair and proper. The strict time periods and the right of the HOD to make decisions in the event of a tardy SGB would speed up the appointment process. There should be a similar process of appeal for educators contesting the fairness of a promotion.

The insertion of Section 6B in the EEA remedied the anomaly whereby a first-time appointee did not require the recommendation of the SGB before being permanently appointed, whereas a temporary employee did.

In addition, SADTU commented that SASA dealt with non-personnel, non-capital schools expenditure. These resources had been significantly redistributed towards poorer schools. The resources however accounted for 10% of the education budget. Personnel expenditure accounted for 85% of the budget and the post provisioning formula favoured more wealthy schools with larger subject offerings. Therefore wealthier schools received approximately the same number of posts as poorer schools. This, added to the school fees which wealthier schools collected, rendered the proposed adequacy benchmark levels insignificant by comparison.

Institute for Health and Development Communication (Soul City) submission
Ms P Dlamini (Advocacy Co-ordinator) said that Soul City was concerned about the strong discretion given to the SGB regarding fee exemptions and recommended that schools be compelled to provide parents and learners with more information regarding their rights to exemption. They were disappointed that the Bill did not address school uniforms and transport, which were also barriers to poor children’s education. They recommended that funds be set aside to ensure all schools became section 21 schools.

The checks and balances in the expulsion process (Clause 9) were welcomed. However, the process was flawed in that learners and parents might not be aware of their rights, might not have the time or confidence to engage with the process and the schools were not compelled to put catch-up programmes in place. Soul City recommended the diversionary approach.

Regarding Section 35 of the SASA, no-fee schools should also be supplied with subsidised school uniforms, transport, nutrition, water and electricity.

Regarding Section 41 of the SASA, Soul City recommended that schools that did not advise poor parents of the exemptions policy and assisted them in gaining exemptions should be sanctioned. They welcomed subsection 7 that stipulated the benefits learners could not be kept from accessing despite non-payment of fees.

Committee Members asked for the names and other details of schools that victimised parents to be forwarded to them and this was promised.

Federasie van Afrikaanse Kultuurvereenigings submission
Professor D Goosen, FAK Chairperson, complained that the balance between the principles of accessibility and the right to mother-tongue education had become skewed towards accessibility and had led to undemocratic centralisation. The FAK was concerned about the curtailment of the powers of SGBs in appointing educators as an example of moving towards a central authority. Acknowledging that bureaucratic intervention might sometimes be necessary, the FAK urged that these crises not be used to ‘entrench bureaucratic interventions’ through legislation.

The FAK stressed that they were not only concerned with Afrikaans, but with all minority languages. Professor Goosen said that there was no dogmatic recipe that could be applied to a school where the staff comprised only white Afrikaners, but the pupils were 50% black. He tentatively proposed parallel (not dual) medium schools, but history showed that the stronger language eventually predominated.

Limpopo Member of the Executive Council submission
Mr A Motswasedi, MEC, said that ten years after the SASA had been promulgated, employment equity had been subverted and there were many inappropriate educator appointments. He gave examples of biases of different kinds that negatively affected educator appointments: a highly qualified black woman who had been rejected by a school where the SGB was predominantly white, rural schools in Limpopo that would only appoint "sons of the soil" (men from the local community), and temporary principals of high-functioning schools replaced by men that resulted in the schools declining. As MEC, he felt he had the right to have a say in appointments. He denied that there was a need to curtail unions’ influence. He also denied that vacancy lists had not been published. He had been MEC since 1994, and had published lists at least annually.

Governing Body Foundation submission
Mr Clive Roos, Foundation researcher, said that the GBF was concerned with the forms of suspension and the possible use of alternative sanctions by the provincial HOD. There remained no avenue other than the courts for SGBs to deal with a decision not to expel a learner and they recommended that the matter should be referred back to the SGB. Regarding the fees exemption process, the GBF could not comment on the norms and standards for school funding as they were not known. They supported the prohibition of registration and other fees. They emphasised that the adequacy benchmark level of funding per learner should be realistic. They presumed that PEDs would be capacitated to collect, publish and process data to enable them to determine the level.

The impact of the amendment of Section 41 of the SASA on the ability to generate income from fees at GBF member schools might be significant. They hoped that the final revised regulations would be clear and workable. They did not favour the retrospective exemptions, for reasons of fairness and because it made it difficult for schools to budget. The onus to prove inability to pay should rest on the parents instead of the SGB having to prove the reverse but, again, the absence of the final regulations made comment difficult.

The GBF objected most strongly to the reduction of the role of parents to choose educators. The reasons given for the proposed amendments were invalid because the delays in appointments were caused by the incapacity of PEDs. Learners had not been disadvantaged during the appointment process as temporary appointments had been made in the interim and it was not unusual for the employer to limit influence to a regulatory framework.

Section 6(3)(f) and (g) made no provision for the provincial HOD to give reasons for his or her decision; the criteria to be applied and the appeal process appeared to be limited to the temporary appointment only.

They did not endorse the amendment of Section 6B that allowed a provincial HOD to convert a temporary appointment to a permanent one because the SGB had approved the temporary appointment. There were times when a person suitable for a temporary appointment was not acceptable for permanent appointment.

Governors’ Alliance submission
Ms K Callaghan (Alliance Secretary) was very concerned about obstruction of their members’ attempts to maintain order and discipline in their schools. They noted that learners, but not SGBs, were afforded the right of appeal when suspended. They recommended that a timeframe be set for the MEC to respond to an appeal, asked what would happen to the learner during the time of appeal and asked that the rights of the other learners and staff be considered in the process.

The norms and standards for school funding were unfair because in many cases, a school would be treated as ‘least poor’, because of its location and facilities, although its community was the poorest. They recommended that each school accommodating a learner from a poor community should receive the same per capita funding as that provided elsewhere.

The Alliance asked why schools had to determine conditions for exemption if the Minister could prescribe on all such matters and how schools could draw up a budget reflecting the cumulative effects of non-payment and exemption, if they had ‘tendencies … to go by’. They agreed that fees, other than school fees, should be prohibited. When determining adequacy benchmark levels the size and needs of the school should be carefully considered as a one-size fits all approach would not work.

The Alliance recommended that SGBs be given power to recover fees and said that Section 41(3) should be reworded to read that fees voluntarily paid before exemption should not be refunded.

The onus should be on the parent to apply for exemption from fees and not on the SGB to prove that parents had means to pay when parents did not apply for exemption or pay fees.

The Alliance objected to the devolution of power from the SGBs to the provincial HOD in the matter of appointments and asked that ‘careful thought be given to all the good and democratic reasons why SGBs were given the right of prior recommendation ‘ in the first place. They also requested the Minister to consult with organised SGB associations regarding collective bargaining in the ELRC, ‘to bring balance to the equation’.

Overall, the amendments were a transfer of power to the central level which would make public schools as ‘disempowered and marginalised as they were before 1992’.

Principal of Silverstream Primary submission
Mr C Van de Reede made a strong plea for the role of the principal in determining quality in schools to be recognised. He said that the Act should address organisational development and legally oblige the principal to implement ‘diagnostic, actual and maintenance’ strategies.

The Chairperson commented that it was encouraging to hear teachers with passion but said that the mechanism proposed would not be appropriate in the Bill under discussion.

Discussion
Ms Zille commented that teacher education was the core problem and that the Bill did not address this. Mr Vadi said that all principals had been elected by SGBs for the last ten years, and as the problems in education persisted, it should be concluded that SGBs were not making the right decisions. The principal said that SGBs were often drawn from communities disempowered by poverty and lack of education. They were easy to manipulate and lacked capacity, and moreover, changed every three years.

Ms Zille alleged that the Bill made no mention of quality criteria in education appointments, but she was corrected – clauses in the current Acts pertained to quality and were not being amended. Ms Zille asked why quality was so lamentable if quality criteria were in place. Mr D Hindle, Director-General of Education, had said that was because the Department had insufficient control or authority over appointments. The need to control quality should be the main motivator of the Bill instead of equity and redress The Chairperson said those criteria were already in the Act - what would be the point of reverting to them?

The Chairperson reminded Members that the Bill would be discussed and voted on at their 6 and 13 September meetings.

The meeting was adjourned.