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EDUCATION PORTFOLIO COMMITTEE
6 September 2005
EDUCATION LAWS AMENDMENT BILL: INFORMAL DELIBERATION
Documents handed out:
Education Laws Amendment Bill [B23 – 2005]
South African Schools Act 84 of 1996
During this informal deliberation, Members discussed and debated the Education Laws Amendment Bill clause by clause. Various questions, proposals and concerns arose out of this process. Specifically, Members from all the parties were concerned about the implications of including non-monetary contributions under the definition of payment towards school fees. They felt that this could inadvertently place parents in an exploitative situation where they would be forced to make non-monetary contributions to a school if they could not pay for school fees.
There were also some concerns about the disciplinary processes for learners, which were outlined in Clause 2 of the Bill. There was a debate between the DA and ANC Members about whether a timeframe should accompany certain of the steps in the disciplinary process. There was also a difference of opinion between some of the opposition parties and the ANC over whether no-fee schools should be implemented or whether underprivileged learners should receive full government funding as individuals.
The DA also noted that they were opposed to certain aspects of Clause 5 as they felt it placed an undue burden on governing bodies to prove that parents, who elected not to pay school fees, could afford to pay the fees.
A debate also took place between the ANC and some of the opposition parties around Clause 7. The Department stated that it had drafted Clause 7 in order to address the problem of governing bodies appointing unsuitable candidates to vacant teaching posts. The DA however believed that Clause 7 had a ‘hidden agenda’. They were concerned that Clause 7 could perhaps be used by the Head of Departments (HoDs) to appoint teachers due to their race rather than their competency. Finally, Members held a discussion around the proposal to convert temporary posts, which some teachers had been in for many years, into permanent posts.
Parties would be able to forward their formal proposals on how the Bill should be amended during the 13 September Committee meeting. Members would then be in a position to vote on the Bill on 15 September.
The Chairperson noted that the Committee had received 16 submissions on the Amendment Bill during the public hearings process. These submissions would inform the informal deliberation on the Amendment Bill. He stated that the Committee should deliberate the Amendment Bill clause by clause. This would allow the Members to raise certain questions, and debate the merits of the amendments that were proposed. Members could then inform their parties about the issues, which would arise out the debate, during the caucus meetings on 8 September. Parties could then put forward their formal positions on the Bill during the formal deliberation, which would be held on 13 September.
Ms H Zille (DA) enquired whether Members would be able to introduce proposed amendments to the Bill during the 13 September meeting. The Chairperson replied that Members should propose amendments during the informal deliberation and not in the 13 September meeting. The different parties needed to have formulated their formal stances by the 13 September meeting.
Ms Zille commented that if the present meeting was the last chance for Members to propose amendments to the Bill, then it was not an informal deliberation. Mr R Van den Heever (ANC) replied that Members should motivate and argue their positions on the Bill during the informal deliberation. Mr D Montsitsi (ANC) added that the informal deliberation entailed a discussion of the clauses. Parties would, however, be formally voting on the Bill’s clauses during the 13 September meeting. If the parties disagreed with any aspect of the Bill, they could table their positions, for voting purposes, during the 13 September meeting: this included proposing amendments.
Mr A Mpontshane (IFP) felt that the process was being rushed. The Members had not been given enough time to brief their parties about the public submissions. He stated that more time was needed for Members to discuss issues around the Bill with their parties. This would allow parties to propose formal amendments to sections of the Amendment Bill. Mr L Greyling (ID) felt that the present meeting should not be used to debate the details of the clauses, but rather to debate the philosophy behind the whole Amendment Bill. The issues that had arisen out of the public hearing also needed to be discussed and debated.
The Chairperson noted that the Bill would be debated during the present meeting, which was an informal deliberation. He added that Members could formally table any proposed amendments, on behalf of their parties, at the 13 September meeting. He suggested that the Members proceed with the informal deliberation. The Members agreed to this.
Clause 1: Amendment of Section 1 of the South African Schools Act
The Chairperson noted that there had been some technical changes to Clause 1. He asked Mr D Hindle (Director General: Department of Education) to outline these changes. Mr Hindle commented that, as a result of the public submissions, the Department had decided to replace the term "adequacy benchmark" with "no fee threshold funding of learners". This new term would be defined as the level of funding per learner that would allow the Minister to declare a school a no-fees school.
Mr Vadi (ANC) stated that the Education Department provided basic minimum funding for every learner throughout the country. The Bill had added to this through introducing a number of no-fee schools, which would receive full funding. He asked whether the original term "adequacy benchmark" referred to the basic funding of all learners, or whether it referred to funding of no-fee schools. Mr Hindle responded that it had referred to funding of the proposed no-fee schools.
Mr Vadi enquired whether the new term, "no fee threshold funding of learners", referred to the basic funding that the Department provided to all learners, or the higher level funding that it would provide to no-fee schools. Mr Hindle responded that the term "no fee funding threshold of learners" related to the full funding that the Department would provide to the no-fee schools. The funding to no-fee schools would be higher than the basic minimum funding that was provided to all learners. He added that the basic minimum funding was already adequately defined in the funding norms and standards of the South African Schools Act (SASA).
Adv E Boshoff (State Legal Advisor) corrected this by pointing out that the funding norms and standards in SASA only outlined broad criteria, and not the specific minimum funding standard. He noted, however, that the Bill would not define basic minimum funding because it was not the subject of the Bill. Ms Zille stated that the norms and standards for funding needed to be clarified.
Mr Hindle commented that a number of the public submissions had raised concerns about Clause 1 (c), which proposed that non-monetary contributions should be considered as payment towards school fees. During the public hearing, it had been pointed out that this proposal could possibly lead to schools forcing parents to undertake degrading physical work to contribute towards the school fees of their children. The Department had considered this, and felt that no leeway should be given to governing bodies to possibly abuse well-meaning legislation for exploitative purposes. He asked the Committee to advise the Department on whether the Bill should retain the statement that non-monetary contributions should be considered as payment towards school fees.
Ms Zille stated that there were problems around non-monetary contributions being considered as payment towards school fees. For example, under the current definition in the Bill, if parents were exempt from paying school fees, they would also be exempt from making non-monetary contributions to the school. She added that parents who were unable to pay school fees should be encouraged, but not forced, to make non-monetary contributions to their children’s school. She, therefore, suggested that non-monetary contributions should be removed from the Bill’s definition of school fees.
Mr Mpontshane noted that many people made non-monetary contributions to schools. He felt that, however, it would be degrading if schools used the Bill to force parents to make non-monetary contributions as payment towards school fees.
Mr I Vadi (ANC) stated that legislation should not in any way create the space for schools to force parents to make non-monetary contributions in lieu of the payment school fees. Mr Vadi and Mr Greyling felt that non-monetary contributions should, therefore, be excluded from Bill’s definition of school fees. It should be voluntary for parents, who could not afford to pay school fees, to make some form of non-monetary contribution towards a school.
Clause 2: Amendment to Section 9 of the South African Schools Act
Mr Vadi commented that the Amendment Bill outlined the steps that should be followed when disciplinary action was undertaken against a learner. It stipulated that a learner, who had been accused of serious misconduct, should receive a precautionary suspension. This would allow space for an investigation to take place, and it would protect all the parties that had been involved in the incident. Thereafter, a disciplinary hearing would be held. Once this was complete, and if the learner was found guilty, the school’s governing body could impose a sanction on the leaner. This sanction could take the form of a seven-day suspension and a recommendation, to the HoD, to expel the learner. The HoD then had 14 days to decide on whether to accept or reject this recommendation. Added to this, the school would have to get the permission of the HoD to extend the learner’s suspension for the 14 days. This was somewhat impractical as it was unlikely that the school would receive a ruling on the matter from a HoD within the 14 days.
Mr Vadi noted that some organisations, which had made public submissions, were also concerned about what would take place if a HoD did not reach a decision within 14 days. Specifically, they were concerned that the learner would have to return to school if the 14-day period expired. Mr Vadi and Ms Zille, therefore, proposed that the school governing body should be empowered to extend the precautionary suspension of a leaner until a HoD had reached a decision on whether he/she should be expelled.
Adv Boshoff responded that in order to achieve this, Clause 1 (E) would have to be amended to read: "A governing body may extend the suspension of a leaner for a period of not longer than 14 days, pending the decision of the HoD on whether to expel such a leaner from a public school". This removed the requirement of getting permission from a HoD to extend a learner’s suspension.
Mr Mpontshane noted that Clause 2 (1) allowed a governing body to suspend a learner on reasonable grounds as a precautionary measure. He asked whether there was a common understanding of what "reasonable grounds" were. Adv Boshoff responded that there was a common understanding of what "reasonable grounds" entailed. In fact, administrative law was based on the criteria of reasonableness. To consider whether an action was reasonable, one needed to consider whether it was appropriate for the circumstances, and whether the process that led to its implementation was fair. One could not implement a sanction, such as a suspension, for a petty offence. This would be considered victimisation and the person involved would have recourse.
Ms Zille stated that it seemed as though the Bill only allowed a governing body to implement precautionary suspensions. The Bill needed to allow a governing body to suspend a learner as a form of punishment. Mr Hindle replied that the Bill, under Clause 2 (a) (1c) (a), did allow a governing body to suspend a learner as a form of punishment. Adv Boshoff explained that the Bill allowed for two types of suspensions: the precautionary suspension and the punitive suspension. The punitive suspension was a punishment that could be implemented for a period of not longer than one week. There was also the precautionary suspension, whereby a learner could be suspended as a precautionary measure prior to a disciplinary hearing. This hearing would have to take place within one week of the learner’s suspension. If the hearing were not held within one week, the governing body would have to get the permission of the HoD to extend the precautionary suspension. The precautionary suspension would also last for the period during which the disciplinary hearing was being conducted. If a governing body recommended that a learner should be expelled after a disciplinary hearing, the governing body could extend a learner’s suspension for the 14 days that a HoD had to decide on the expulsion recommendation.
Ms C Dudley (ACDP) commented that punishing a leaner with a punitive suspension was often not effective. There needed to be better forms of correction than a punitive suspension. Indeed, some learners saw a week’s suspension as a holiday. Adv Boshoff responded that if a learner were suspended, they would be excluded from extra-mural activities: this included sporting events that may be important to the learner. The suspension was, therefore, quite an effective form of punishment.
Ms Zille noted that the Bill allowed a governing body to suspend a guilty learner "for a period not longer than one week…; or make a recommendation to the Head of Department to expel such a learner from the public school". She felt that the use of the word "or" was problematic. Indeed, a problem could arise if a governing body recommended that a learner be expelled, but had not suspended the learner as a precautionary measure prior to the hearing. This would mean that they could not extend the precautionary suspension while they were awaiting the HoD’s decision. Added to this, because of the use of "or", they could not suspend the learner after the hearing. This would mean that the leaner would remain in the school for the 14 days, which was the time that was required by a HoD to make a decision. Mr Hindle responded that the Department needed to examine this issue as there could be a problem.
Mr Vadi and the Chairperson noted that the Bill stipulated that a leaner, and/or their parents, had the right to appeal against an expulsion. This appeal would have to be lodged with the relevant Member of the Executive Council (MEC). During the public submissions, a number of organisations felt that the time period, which the MEC had to decide on an appeal, should be stipulated. The ANC had debated whether such a timeframe should be outlined in the Bill. After much consideration, it had decided that it should not be outlined in the Bill. Certain problems could be encountered if a MEC had a specific time period to decide on an appeal. For example, the child’s parents could hire a lawyer to represent them in the appeal, and the lawyer could tie up the process until the period expired. This would mean that the MEC would have been unable to reach a decision within the specified period. Due to this, the learner would then have to be re-admitted to the school, and the expulsion could not be enforced. It was this type of situation that the ANC wanted to avoid.
Ms Zille responded that if there was no timeframe for a MEC to reach a decision on an appeal, the case could remain in limbo for months. This would be extremely unfair on the learner. The only way that the time period would lapse was if a MEC was lax in making a decision. For this reason, the DA proposed that the Bill should stipulate a timeframe within which a MEC needed to have reached a decision.
Mr Hindle noted that administrative justice would place a responsibility on the MEC to respond to the matter in a prompt fashion. If the MEC did not, the learner would have recourse. It was, therefore, not necessary to outline a specific timeframe for the MEC to reach a decision on an appeal. Ms Zille responded that administrative justice placed an onus on the parents, or learner, to follow up on the issue.
Adv Boshoff commented that appeals could take a number of forms. For example, one could write a letter of appeal, or provide a notice of appeal, or provide a detailed submission of appeal. If a MEC only got a letter of appeal, the MEC would have to write back to the applicant informing them that they needed to provide all the details of the case. Once the MEC had received all the information from the applicant, they would have to provide the Department with this information. The Department would then have to put their position forward. If any new evidence arose, it would have to be made available to both the Department and the applicant. This was all time consuming and, as a result, it was not possible to place a time frame on the process. He added that the Promotion of Administrative Justice Act stipulated that reasonable time should be allowed for the process, which meant that it would not be totally open-ended.
The Chairperson proposed that the Members should discuss this issue with their parties. The Members could then bring their parties’ formal positions on the matter to the 13 September meeting. A decision could then be made on the matter.
Ms Zille was concerned about the fact that Clauses 2 (8) and (9) allowed a HoD to impose an alternative sanction on a learner, if he/she had decided that the learner should not be expelled. She felt that if a HoD had decided not to expel a learner, the matter should be referred back to the school. The school could then impose their own alternative suitable sanction.
Mr Van den Heever replied that one wanted to ensure that the process was handled swiftly. It would be time consuming if the HoD had to refer the matter back to a governing body to impose an alternative sanction. He, therefore, felt that if an HoD decided that a learner should not be expelled, it should be the HoD’s responsibility to decide on an alternative sanction. Adv Boshoff added that some schools might attempt to expel learners for relatively minor offences. Allowing a HoD to decide on an alternative form of sanction would address this problem, and would bring a degree of consistency to the process.
The Chairperson felt that if a governing body wanted to expel a learner, and the HoD had overturned their recommendation, the governing body would appeal the decision. This would mean that the HoD could not refer the matter back to the governing body for them to decide on an alternative sanction. Ms Zille felt that it would be more time consuming, and less effective, for a HoD to impose an alternative sanction. She added that consistency would arise out schools producing quality codes of conduct. Indeed, the Department needed to ensure that schools had good codes of conduct.
Mr Mpontshane asked if a HoD rejected the expulsion recommendation of a governing body, would this not undermine the governing body’s authority?
The Chairperson stated that Members, along with their parties, should consider the issues arising out of the expulsion process, and should put forward their formal positions at the 13 September meeting.
Clause 3: Substitution of Section 35 of the South African Schools Act
Ms Zille stated that the DA felt that the funding formula for schools was flawed. The DA strongly felt that underprivileged learners should receive full funding as individuals. This would allow poor learners to select schools of their choice. The system of funding trapped many learners in sub-standard schools. The DA felt that the funding system needed an extensive overhaul.
Mr Greyling commented that it seemed as though a decision had already been made that no-fees schools, and not individuals, would be fully funded. This philosophy needed to be debated. It was not merely school fees that were a barrier for learners: it was also the cost of books, uniforms, and transport. The no-fees schools did not address these other barriers. The ID felt that it would be better to fully fund impoverished learners as individuals, rather than making the schools in the bottom quintile no-fee schools.
Ms Dudley stated that perhaps poor learners could receive funding as individuals, and some of the no-fees schools could also be implemented. It did not have to be a choice between the two. Nonetheless, she was concerned that the no-fee schools could be stigmatised as substandard.
Mr Vadi stated that the Bill proposed that the poorest 20% of schools would become no-fee schools. This was a step towards meeting the ANC’s goal of free education for all people. He felt that no-fees schools would not be stigmatised as substandard. Due to apartheid, schools in the poorest areas needed to be upgraded. This could only be done by declaring them no fee schools and providing them with full funding. Mr Montsitsi added that wealthy schools would benefit more than poor schools if impoverished learners were funded as individuals. This would mean that the legacy of apartheid would not be addressed.
Ms Zille and Ms Dudley pointed out that many learners from poor backgrounds attended schools in wealthier areas. As a result, even though these schools were in wealthier areas, they were poor because of the economic background of the majority of their learner population. The no-fees system would not benefit these schools, and it would not benefit the impoverished learners that were attending these schools. This would be unfair.
The Chairperson commented that Members should be debating the points that were outlined in the Bill, rather than general issues. The DA, ID and ACDP had raised important issues. However, if the DA, ID and ACDP wanted the funding system to change, they needed to put forward proposals on how this could be reflected in the Bill. It was no use merely stating that the funding system should be changed.
Ms Zille responded that she would bring a formal proposal during the 13 September meeting. Ms Dudley stated that Clause 35 (1) could be amended to allow for the funding of impoverished learners on an individual basis. Clause 35 (1) currently stated that: "the Minister must determine national quintiles and national norms and standards for school funding". This could be altered to "the Minister must determine national quintiles and national norms and standards for learner funding". This would mean that there could be no-fee schools, and funding for impoverished learners on an individual basis.
Mr Hindle noted that the norms and standards for funding had not been finalised. He suggested that the Department should make a presentation to the Committee on the funding system. This would allow Members to gain an understanding of why the Department had proposed to provide full funding for no-fee schools, and not full funding for impoverished learners on an individual basis. The Chairperson agreed that the Department should provide a briefing on this issue to the Committee.
Clause 4: Amendment of Section 39 of the South African Schools Act
Mr Hindle noted that the Department had proposed some technical changes to Clause 4. For example, the MECs should be responsible for placing schools into quintiles, but the Minister should be responsible for publishing a list of these schools in the Government Gazette.
Clause 5: Amendment of Section 41 of the South African Schools Act
Mr Vadi stated that Clause 41 (3) stipulated that, if a parent was exempt from paying school fees, the exemption should be calculated retrospectively from the beginning of the year. The ANC felt that Clause 41 (3) should be amended, and that the exemption should rather be calculated from the point at which the parent had applied for it.
Ms Zille commented that the Bill shifted the responsibility onto a governing body to prove that a parent did not qualify for a school fee exemption. Indeed, a governing body would have to prove that a parent, who was not paying school fees, could afford to pay school fees. The DA felt that this was unfair and that the Bill needed to be amended. Specifically, governing bodies should be allowed to notify parents, who were not paying fees, that they either needed to pay the fees or apply for an exemption within three months. If the parent failed to pay, or apply for an exemption, the governing body should be allowed to take action against them. She stated that the DA would provide a formal proposal on this issue during the 13 September meeting.
Ms Dudley stated that she was opposed to the DA’s suggestion. Many people, who were impoverished, were embarrassed about applying for exemptions. They should not be punished for this. The Department and school should be responsible for identifying learners that qualified for school fee exemptions.
Mr Hindle stated that sub-clauses (5) (a) and (b) allowed a school, which had followed the proper procedures, to take action against a parent that had failed to pay school fees and had not applied for an exemption. Ms Zille replied that sub-clauses (4) (a) and (b) placed the onus on a school to prove that a parent could pay school fees. In the light of this, the actions that could be taken against a parent, which were outlined in sub-clauses (5) (a) and (b), would be ineffective.
Adv Boshoff responded that under common law, if person one accused person two of a certain action, person one had to prove that person two committed that action. Hence, a governing body had to prove that a parent had not paid school fees. He added that the problem was that there was often no documentation around certain aspects of school fee exemptions and payments. This had resulted in a number of parents wrongfully receiving judgements against them. Indeed, some schools were even acting against parents that were exempt from school fees. Sub-clauses (4) and (5) aimed to ensure that there was proper documentation, and that the correct procedures were followed, when a case was implemented against a parent that had not paid school fees. This would also prevent schools taking parents to court that were exempt from school fees.
Ms Zille stated that the Bill should require schools to inform parents that they had a right to apply for school fee exemptions. Indeed, schools should assist parents who needed to apply for exemptions. However, if a parent then failed to apply or elect not to pay school fees, the school should be allowed to take action against them. In such a case, the onus of proof should not be on the school. Adv Boshoff replied that there were already sections of the legislation that stipulated that schools should inform parents that they had a right to apply for exemptions.
Mr Hindle stated that the Department would examine the issues surrounding sub-clauses (4) and (5). He pointed out that the intention of sub-clause (5) was to allow schools to take action against parents that were electing not to pay school fees.
Clause 6: Insertion of Section 58A into the South African Schools Act
Ms Zille stated that schools should be allowed to alienate assets if they had good reasons for doing so, and receive market-related rates for them. She stated that she would bring a full proposal on the matter to the 13 September meeting.
The Chairperson noted that people needed to understand that the assets in public schools did not belong to the schools, but to the government. The question was whether school governing bodies should be allowed to sell such assets.
Mr Hindle noted that schools needed permission from a MEC to sell certain assets. Therefore, a MEC would have to decide whether a school had a valid reason for wanting to sell certain assets.
Clause 7: Amendment of Section 6 of the Employment of Educators Act
Mr Vadi noted that Clause 7 outlined the processes, which should be followed by a school, when appointing a teacher to a vacant post. Specifically, the governing body should compile a short list of three suitable candidates, which should then be sent to the HoD. The HoD would be responsible for selecting one of the three candidates to fill the post. If the HoD felt that none of the candidates were suitable, he/she could refuse to make an appointment. In such a case, the HoD would have to consider all the applicants that had applied for the position and the select one of these to fill the post. In the interim, the HoD could appoint someone to fill the vacant post on a temporary basis. This would be done to ensure that teaching continued. The ANC felt that if the HoD decided not to appoint one of the three candidates, he/she should provide reasons for doing so. Added to this, the governing body should be allowed to lodge an appeal with the MEC against the HoD’s decision. Mr Hindle replied that Clause 7 already allowed a governing body to appeal against the decision of a HoD.
Ms Zille highlighted that during the public hearings, the Director-General had stated that governing bodies often appointed unsuitable candidates to vacant posts. The Director-General had also noted that the Department had developed Clause 7 to address this problem. Ms Zille believed, however, that Clause 7 was not designed to address this problem, but rather had a hidden agenda. Indeed, she believed that Clause 7 could possibly be used by HoDs to appoint teachers according to their race. Race was not a valid criterion to use for appointing teachers: there were excellent teachers of all races. She further stated that the quality of the teacher should be the most important criterion. As a result of these concerns, the DA proposed that the entire Clause should be scrapped.
Mr Vadi noted that before 1994, the Department of Education was responsible for appointing teachers. As a result, the old Department did not appoint people, who openly opposed apartheid, to teaching posts. When the ANC came into power, they decided that the Department should not be directly responsible for appointing teachers. This was undertaken to ensure that people of differing political beliefs could be appointed as teachers. As a result, the ANC had decided that governing bodies should be responsible for appointing teachers. It was believed that this would also allow parents to be involved in the appointment process. Nonetheless, problems were encountered with this system. For example, some governing bodies were appointing people according to their race.
Another problem was that some governing bodies selected unsuitable candidates to fill vacant posts. The dilemma was that, under the current system, a HoD often had to rubber stamp such bad decisions. The Bill aimed to strike a balance between the pre-1994 and post-1994 systems. Indeed, it aimed to ensure that there was a balance between the right of governing bodies’ to select suitable teachers and the Department’s right to make suitable appointments. He added that Clause 7 was not about race: it was about creating a balance. Ms Zille responded that Mr Vadi was assuming that a HoD would be balanced, and would make the right decision. She noted that throughout most of the public sector, government officials had made bad appointments. She questioned why HoDs would be exempt from also making such bad decisions. She believed that only a minority of governing bodies had made bad decisions, and that there were already sufficient mechanisms in the law to deal with these.
Ms Dudley asked if there was legislation that outlined the quality criteria, which could be used by a HoD to decide which candidate should be appointed. Mr Vadi responded that the Employment of Educators Act specified that an educator needed to be of a certain quality to be appointed to a post.
Ms Dudley questioned why one would need the amendments outlined in Clause 7 if the Employment of Educators Act already specified that a teacher needed to be of a certain quality. Mr Hindle replied that Clause 7 of the Bill aimed to make a candidate’s ability one of the mandatory requirements, which a governing body had to consider when making a recommendation to a HoD. Ms Zille pointed out that Clause 7 of the Bill did not stipulate this. She said that if this was the aim of Clause 7, it needed to specify it.
Mr B Mthembu (ANC) stated that Members should avoid the danger of associating the quality of teachers with race. Indeed, it seemed as though some Members were perhaps insinuating that African teachers were substandard. He added that the imbalances of the past should be addressed. Indeed, this was the aim of the Employment Equity Act. He felt that diversity would improve the quality of teaching that schools offered.
Ms Zille stated that no one had implied that African teachers were substandard. There were excellent teachers of all races. She agreed that diversity enhanced the quality of teaching that a school could offer. Nonetheless, one should not be employing people simply on the basis of their race. Parents wanted their children to get an excellent standard of education.
Mr Greyling noted that representivity could not be used as the only criterion for appointing a teacher. It seemed as though some people were concerned that HoDs could give more weight to representivity when compared to other important criteria. Perhaps the Bill needed to stipulate the other criteria, which would be used by a HoD in making an appointment. Nonetheless, it seemed as though the balance in the appointment process was shifting from the governing bodies to the HoDs.
Ms Dudley was concerned that Clause 7 would allow the HoDs to dictate the make-up of a school’s teaching staff. She pointed out, however, that the ANC proposal that a HoD needed to provide reasons for not making an appointment could address this concern.
Ms Dudley asked what would happen if a governing body only found two suitable applicants for a teaching post. Did the list of suitable applicants that was sent to the HoD have to include three candidates? Mr Hindle responded that sub-clause 3 (c) ii stipulated that, if there were not enough suitable applicants, a governing body could send a list of fewer than three candidates to a HoD.
Clause 8: Insertion of Section 6 B in the Employment Educators Act
Ms Dudley commented that Clause 8 specified that teachers, who had been employed in temporary positions for many years, should have their positions converted to permanent ones. She questioned whether this could actually be achieved in practice.
Ms Zille stated that the DA was opposed to Clause 8. She added that the DA would be presenting a formal position on the matter during the 13 September meeting.
Mr Mpontshane noted Clause 7 stipulated that a governing body had to recommend three suitable candidates to the HoD for any teaching post. On the other hand, Clause 8 allowed a HoD to convert a temporary post to a permanent position without the recommendation of a governing body. He stated that there seemed to be a contradiction between Clauses 7 and 8. Mr Hindle replied that some teachers had been employed in temporary posts for many years. The governing bodies involved in this would have felt that these teachers were competent when they appointed them to these temporary posts. Nonetheless, the Department would consult with the governing bodies before they made temporary positions permanent.
Ms Zille acknowledged that the issue of teachers being employed in temporary positions for many years was a problem. However, it tended to be more of a problem in certain provinces, such as Limpopo and the Eastern Cape. This had come about as a result of the inefficient bureaucracies, which existed in these provinces. Indeed, these provinces had not properly implemented the redeployment scheme. Clause 8 would compound this problem by centralising powers even further. She questioned how the same bureaucracies could address the problems that they had created.
Mr Mpontshane observed that the issue of temporary teachers was being settled through a collective agreement. Adv Boshoff acknowledged that a collective agreement had been reached with trade unions, which stipulated that long-term temporary teaching positions should be converted into permanent positions. There was, however, no mechanism available to implement this collective agreement. Clause 8 aimed to address this: it would provide the mechanism through which the collective agreement could be implemented.
The Chairperson noted that parties could put forward their formal proposals on how the Bill should be amended during the 13 September meeting. Members would then be in a position to vote on the Bill on 15 September.
The meeting was adjourned.