Education Laws Amendment Bill: adoption; Challenges at Nelson Mandela University: discussion

Basic Education

12 September 2005
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Meeting Summary

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Meeting report

EDUCATION PORTFOLIO COMMITTEE

EDUCATION PORTFOLIO COMMITTEE
13 September 2005
EDUCATION LAWS AMENDMENT BILL: ADOPTION; CHALLENGES AT NELSON MANDELA UNIVERSITY: DISCUSSION

Chairperson:
Professor S Mayatula (ANC)

Documents handed out:
Education Laws Amendment Bill [B23 – 2005]
Proposed Bill Amendments arising out of the Committee meeting of 6 September 2005
ANC Submission: Proposed Amendments to the Education Laws Amendment Bill (see Appendix A)
DA Submission: Proposed Amendments to the Education Laws Amendment Bill (see Appendix B)
ACDP Submission: Proposed Amendments to the Education Laws Amendment Bill (see Appendix C)

SUMMARY
During formal deliberations on the Education Laws Amendment Bill, Members proposed certain amendments to sections of the Amendment Bill on behalf of their parties. These proposed amendments were discussed and a decision was taken on whether they should be rejected or sanctioned. Once this process was complete, Members voted on the Amendment Bill clause by clause.

All the parties reached consensus around the need to make minor amendments to Clause 1. This included removing non-monetary contributions from the definition of school fees. All the parties also agreed that sections of Clause 2 should be amended. Specifically, the Committee amended Clause 2 to allow governing bodies to extend the punitive suspension of a learner guilty of serious misconduct, pending the decision of a Head of Department (HoD) on expulsion.

There was however, an ideological difference between the Democratic Alliance/African Christian Democratic Party and the African National Congress around Clause 3. The DA and ACDP proposed that impoverished learners should receive full government funding as individuals, while the ANC and the Department wanted to provide the proposed no-fees schools with full government funding. During the vote, the ANC and Inkatha Freedom Party voted in favour of Clause 3, as amended by the ANC proposals, while DA voted against it.

During the deliberation on Clause 5, the parties put forward proposals around parents’ rights to apply for school fee exemptions, and the schools’ rights to recover money from parents wilfully defaulting on fee payment. Most of the Members eventually agreed to a number of amendments, which would enable school governing bodies to take effective action against parents that deliberately failed to pay school 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, and the criteria of representivity, could be used by HoDs to appoint teachers exclusively on the basis of their race. The ANC retorted that representivity - along with ability, qualifications and quality - should be used as criteria when appointing a teacher to a post. Indeed, the ANC pointed out that representivity was a constitutional imperative. When the Committee voted on Clause 7, all the ANC Members indicated that they supported the clause as amended. The DA, however, voted against Clause 7 as it was fundamentally opposed to it.

The Committee then cast votes on the entire Amendment Bill. The seven ANC Members and the IFP Member voted in favour of the Bill. The two DA Members voted against it. The Members from the ADCP and the Independent Democrats abstained. However, the ACDP Member indicated that although the ACDP had abstained, it would possibly vote against the Amendment Bill during the debate in the National Assembly.

The Committee then discussed two requests for assistance, which they had received from the Nelson Mandela University. The University had asked the Committee to intervene in order to prevent some of its faculties being transferred to Vista University. Added to this, the University’s Student Representative Council (SRC) had asked the Committee to intervene in the advertising process for the post of Vice-Chancellor. The SRC was concerned that this post had only been advertised internally. The Members decided that the Department should brief the Committee about the situation at the University. The Committee would also invite the University’s Council to respond to the SRC’s allegations. Once this had taken place, the Committee would decide on whether it needed to send a delegation to the University.

MINUTES

Formal Bill deliberations
The Chairperson noted that the Committee should deliberate the Amendment Bill clause by clause. The different parties had prepared formal proposals, which outlined the amendments that they wished to make. The Committee would consider these formal proposals and would decide on whether the different parties’ proposed amendments should be made. Once this was complete, the Committee would vote on the Bill clause by clause. He added that the Bill would be debated in the National Assembly on 15 September. Following this, it would be sent to the National Council of Provinces.

The Chairperson commented that the Department and the Legal Advisors had responded to the issues that were raised during the 6 September informal deliberation. They had drafted a number of proposed amendments to the Bill, which accommodated certain of the concerns that the Members had raised during the informal deliberation.

Clause 1: Amendment of Section 1 of the South African Schools Act
Mr I Vadi (ANC) commented that the Department had suggested that the term "adequacy benchmark" should be replaced by "no fee threshold funding" in Clause 1. The ANC agreed with this proposed amendment. However, it was concerned that the definition of "no fee threshold funding" made reference to the "average public school" The ANC wanted the word "average" removed as it possibly suggested that the proposed no-fee public schools would be mediocre institutions.

Mr Vadi noted Clause 1 would allow the Minister to declare certain public schools as no-fee schools and to provide enough funding to cover all the expenses of these schools. The ANC felt that this should be made explicit in the definition of "no fee threshold funding". The ANC felt that the definition of "no fee threshold funding" should be amended to read: "’no fee threshold funding’ means the level of funding per learner contemplated in the norms and standards for school funding applicable to a public school which enables the Minister to declare a school a no fee school in terms of this Act".

Ms H Zille (DA) asked whether the ANC believed that its proposed definition of "no-fee threshold funding" would be sufficient to ensure that the no-fee schools received adequate funding to deliver quality education. She was concerned that the no-fee schools would possibly be under-funded.

Mr Vadi replied that the funding proposal, for the no-fees schools, stipulated that these schools would be funded at a rate of R700 per learner. This was a massive increase from the current basic funding rate, which was approximately R120 per learner. This increase would have a major impact on the proposed no-fee schools: it would allow them to drastically improve the quality of the education that they offered.

Members briefly discussed the removal of non-monetary contributions from the definition of school fees, which had been proposed during the 6 September meeting. All the parties agreed with the proposed amendment to remove non-monetary contributions under the definition of school fees. This would avoid the danger of schools attempting to force parents to undertake manual work to pay towards school fees.

Ms Zille noted that Clause 1 (c) stipulated that school fees would include any monetary contribution "made or paid by a person or body" on behalf of a learner. The DA formally proposed that this should be amended to specifically refer to the monetary contribution "made by parents" on behalf of a leaner. This would ensure that parents were responsible for paying school fees. She added that this was also a technical amendment, which would align Clause 1 with Clause 5. Nonetheless, she added that the DA would not forcefully push for this amendment.

Mr A Mpontshane (IFP) responded that the IFP disagreed with the DA’s proposal. Mr Vadi added that the ANC also opposed the DA’s proposal. Mr Mpontshane and Mr Vadi pointed out that any person could pay a learner’s school fees, which included siblings, grandparents, institutions, legal guardians, uncles and aunties. Indeed, what would happen if a learner were an orphan? They believed that the DA’s proposal would create massive legal problems. The ANC and IFP, therefore, felt that the phrase "made or paid by a person or body" should remain unaltered.

During the vote, all the Members indicated that they were in favour of Clause 1, and the relevant proposed amendments.

Clause 2: Amendment to Section 9 of the South African Schools Act
Mr Vadi noted that Clause 2 outlined the steps that should be followed when disciplinary action was taken 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 persons 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 learner. This sanction could take the form of a seven-day suspension and a recommendation, to the HoD, that the learner be expelled. The HoD then had 14 days to decide whether to accept or reject this recommendation. Added to this, the school would have to get the HoD’s permission to extend the learner’s suspension for this 14-day period. This was somewhat impractical as it was unlikely that a school would receive the HoD’s ruling on such a matter within the 14 days.

Mr Vadi noted that in the informal hearing all the parties had agreed that the school governing body should be empowered to extend the precautionary suspension until the HoD had reached a decision on whether or not the learner should be expelled. In order to allow for this, the ANC proposed that sub-clause (a) (1e) should be amended to read "A governing body may extend the suspension of a learner for a period not longer than 14 days, pending the decision by the Head of Department on whether or not to expel such a learner from the public school".

The ANC also proposed a few minor technical amendments to sub-clauses (a) (1A), (a) (1B), and (a) (1c) (a).

Ms C Dudley (ACDP) commented that there could be a situation where a school failed to give a precautionary suspension to a learner, because the learner’s misconduct may not have initially seemed serious. However, once an investigation was underway, it could find that the learner’s misconduct was more serious than initially thought. There would then be a need to suspend such a learner. The Bill, however, did not allow for a precautionary suspension to be implemented against a learner that had not been initially suspended. This needed to be rectified. The ACDP, therefore, proposed that sub-clause (a) 1 should be amended to allow the governing body to suspend a learner as a precaution at any time before or during a disciplinary procedure. Adv E Boshoff (Director: Legal and Legislative Services) responded that it was unnecessary to amend sub-clause (a) 1, as the Amendment Bill already allowed a school to impose a precautionary suspension at any time, before or during, a disciplinary procedure.

Ms Zille noted that if a learner had not received a precautionary suspension, and was found guilty of misconduct, they could not be suspended for the 14-day period while they awaited the HoD’s decision on their expulsion. The DA felt that in order to address this possible problem, a sub-clause should be added to Clause 2 (a) (1c): "If no precautionary suspension had been imposed before such disciplinary proceedings, suspend the learner pending the decision of the Head of Department on the expulsion of the learner".

Mr Vadi replied that if a learner was involved in a serious incident the governing body could suspend that learner as a precautionary measure for seven school days, pending a disciplinary hearing. If a leaner was found guilty they could receive a seven-day punitive suspension, and the governing body could recommend their expulsion to the HoD. This punitive suspension was different to the precautionary suspension. If the seven-day punitive suspension expired, while the HoD was considering the expulsion recommendation, the ANC’s proposed amendment would allow the governing body to extend that suspension until the HoD had reached a decision. As a result, there was no need for the DA’s proposed amendment.

Mr D Hindle (Department Director-General) replied that in order to accommodate the concerns of the DA and ACDP, sub-clause (a) (1E) could be amended to state: "A governing body may suspend or extend the suspension of a learner pending the decision of the Head of Department on whether or not to expel such a learner from the public school". This would allow a learner, who had initially not been suspended, to be suspended at any time during the disciplinary processes. All the Parties agreed that this suggested amendment should be made.

Ms Dudley noted that the ACDP felt that if a HoD had decided not to uphold a governing body’s recommendation to expel a learner, the matter should be referred back to the school. The school could then impose their own alternative suitable sanction unless they did not have a sufficient code of conduct. The ACDP therefore proposed that sub-clauses (d) (8) and (9) should be replaced by a single sub-clause, which stipulated that: "If the HoD decides not to expel a learner the HoD may impose a suitable sanction on the learner if a school does not have a code of conduct adequate to deal with the issue or the school governing body requests such an intervention."

Mr Vadi noted that under the current legislation all public schools were expected to have adequate codes of conduct. As a result, he questioned whether the ACDP’s proposed amendment was necessary. Ms Dudley replied that even if this was the case, the ACDP wanted the governing bodies, and not the HoD, to have the right to impose a suitable alternative sanction on a learner.

Ms Zille pointed out that the Legal Advisors had proposed that sub-clause (d) (8) should be amended to read: "If the Head of Department decided not to expel a learner, the Head of Department, after consultation with the school governing body, may impose an alternative suitable sanction on the learner". She felt that this could address the concerns of the ACDP. Ms Dudley replied that the ACDP would accept this amendment. The other parties also agreed to this amendment.

During the vote, all the Members indicated that they were in favour of Clause 2, which included the sanctioned amendments.

Clause 3: Substitution of Section 35 of the South African Schools Act
Mr Vadi commented that the ANC proposed a few minor technical amendments to Clause 3, which were in line with the Department’s and the Legal Advisor’s suggestions. For example, the ANC proposed that sub-clause 35 (1) should specify that the Minister should determine the quintiles for public schools in order to establish the norms and standards for school funding.

Ms Zille stated that the DA was opposed to the ANC’s proposal as it would mean that only public schools would be placed into quintiles, and not individual learners. The DA felt that underprivileged learners should be funded as individuals, and that learner quintiles should be included in the definition of the norms and standards for funding. Nonetheless, the DA realised that altering the funding system from no-fees schools to individuals was not possible in the Amendment Bill. Ms Zille, therefore, stated that sub-clause 35 (1) should remain as it was in the Amendment Bill, and that the ANC’s proposed phrase "for public schools" should be omitted.

Ms Dudley stated that the ACDP believed that underprivileged learners should be funded as individuals, so that they could attend schools of their choice. If learners were funded as individuals, no-fee schools could still be declared. As a result, the ACDP proposed that sub-clause 35 (1) should be amended to read: "Subject to the constitution and this Act, the Minister must determine national quintiles and norms and standards for education funding of learners after consultation with the Council of Education Ministers and the Minister of Finance". Added to this, sub-clause 35 (2) (a) and (b) should be amended to allow learners, who were being funded as individuals, to use this funding at private schools. Ms Zille added that the DA agreed with the ACDP’s proposed amendments.

The Chairperson replied that the ANC’s proposed phrase "for public schools’ was essential. It had to be made explicit that the Minister was only mandated to declare the norms and standards for the funding of public schools. The Minister could not declare norms and standards for the funding of other schools, such as independent schools. The Minister could also not declare an independent school a no-fees school.

Ms Dudley replied that the ACDP had not suggested that the Minister should declare independent schools as no-fee schools. She noted that the ACDP felt that every underprivileged learner was important. The no-fees system would not benefit underprivileged learners that were attending private schools. The ACDP believed that this was unfair towards underprivileged learners in private schools. The Chairperson replied that if learners were funded as individuals, private schools would benefit from government funding. It was not the government’s responsibility to fund private schools, even if it was indirectly through funding learners as individuals. The government rather wanted to improve the quality of the public schools. Mr Mpontshane stated that the IFP agreed with the ANC’s view. Public schools should receive direct government funding so that they could be improved.

Mr Vadi and the Chairperson observed that there was an ideological difference between the ANC’s funding proposal and that of the DA/ACDP. This ideological difference could not be resolved.

The Committee then voted on Clause 3, which included the ANC’s proposed amendments. Seven ANC Members and one IFP Member supported Clause 3, as amended. Ms Dudley abstained from voting, but indicated that it was likely that the ACDP would vote against Clause 3 in the National Assembly. Mr L Greyling (ID) also abstained, while the two DA Members voted against Clause 3.

Clause 4: Amendment of Section 39 of the South African Schools Act
Mr Vadi noted that the ANC proposed a few minor technical amendments to Clause 4, which were in line with the Department’s and the Legal Advisors’ suggestions. For example, the ANC proposed that 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. Ms Dudley stated the ACDP still felt that learners should be funded as individuals and, therefore, proposed an amendment to sub-clause 39 (2) (b) that would bring Clause 4 in line with the ACDP’s thinking on Clause 3. Nonetheless, she stated that it appeared as if the Department had already decided on the no-fee schools funding system. In the light of this, the ACDP had no problem with the ANC’s proposed amendments to Clause 4. Mr Mpontshane added that the IFP supported the ANC’s proposed amendments to Clause 4.

Members then voted on Clause 4, which included the ANC’s proposed amendments. Eight Members voted in favour of Clause 4, while Ms Dudley, Ms Zille, Mr Greyling and Mr G Boinamo (DA) abstained from voting.

Clause 5: Amendment of Section 41 of the South African Schools Act
Mr Vadi stated that sub-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 sub-clause 41 (3) should be amended, and that the exemption should rather be calculated from the point at which the parent had applied for the exemption. Ms Dudley added that the ACDP agreed with this proposed amendment.

Ms M Mentor (ANC) commented that there could be a situation where a parent did not apply for a schools fee exemption at the beginning of a year because they were employed. If the parent were then retrenched, would Clause 5 allow such a parent to apply for a school fee exemption for the remainder of the year? The Chairperson replied that this was the intention of the ANC’s proposed amendment to sub-clause 41 (3)

Ms Zille commented that during the informal deliberation, all the parties had agreed on the objectives of Clause 5, which were to ensure that indigent learners were not discriminated against because their parents could not afford to pay fees, and to ensure that schools could take action against parents that deliberately did not pay school fees. Nonetheless, Ms Zille noted that sub-clause 41 (4) (a) stated that a school could only act against a parent if it had established that the parent "does not qualify" for an exemption. She felt that this sub-clause placed an unfair burden of proof on a school. Added to this, it was unfair that a school could only act against a parent after it had established that the parent "has completed and signed" the form prescribed in the regulations contemplated in Section 39 (4).

Indeed, the wording of sub-clause 41 (4) (c) would mean that a school could not take action against a parent who had refused to sign this form. The DA, therefore, proposed that the phrase, in sub-clause 41 (4) (a), "does not qualify" should be replaced with "has not applied". Added to this, the phrase, in sub-clause 41 (4) c, "has completed and signed" should be amended to "has not completed and signed". This would allow a school to take action against a parent that had refused to apply for a school fee exemption and had refused to pay school fees. Adv Boshoff replied that sub-clauses 41 (5) (a) and (b) already allowed a school, which had followed the proper procedures, to take action against a parent that had deliberately failed to pay school fees.

The Chairperson felt that perhaps there was a problem around the sequence of sub-clauses 41 (4) and (5). The stipulations in sub-clause 41 (4) made it difficult for a school to take the punitive steps against a defaulting parent. Mr Vadi noted that during the informal deliberations, Members had agreed that schools should be obliged to inform parents, in writing, about their right to apply for fees exemptions. Indeed, schools should offer assistance to parents, who qualified, to apply for school fee exemptions. However, once a school had done this, and a parent had still not applied for an exemption or paid the fees, the school should have a right to taken action against them.

Adv Boshoff replied that there were already sections of the regulations, which stipulated that schools should inform parents, through a written notice, that they had a right to apply for exemptions. Once a parent received such a notice they could choose to apply for an exemption. If they did, they would be required to fill out an exemption application in which they would need to disclose their financial status. This would be compared with the criteria, for parents to qualify for an exemption, which were outlined in the South Africans Schools Act. When a school took a parent to court for not paying school fees they needed to be sure that the parent did not comply with the exemption criteria.

The written notices that a school needed to send to a parent, about their right to apply for an exemption, could be used to build a case against a parent that deliberately failed to pay school fees. A school also needed to send notices to a parent, who had not applied for an exemption but was not paying school fees, to inform them that they were required to pay the fees. All of this, along with sub-clauses 41 (4) and (5), would allow a school to build a paper trail, which could be used against a parent that deliberately defaulted on the payment of school fees. Mr S Nawa (Department of Education Deputy Director: Legal Services) stated that sub-clause 41 (4) was applicable to parents that had already applied for a school fees exemption, while sub-clause 41 (5) was applicable to parents that had refused to apply for exemptions. He, therefore, stated that the sequence of sub-clauses 41 (4) and (5) was logical.

Ms Zille asked why this had not been explicitly outlined in the Amendment Bill. Ms Zille maintained that it would be impossible for a school to prove that a parent did not meet the exemption criteria if the parent did not complete the form, as outlined in section 39 of the regulations. As a result, it would be impossible for a school to meet its obligations, which were outlined in sub-clause 41 (4). This would mean that it could not move to sub-clause 41 (5) and take action against the defaulting parent. Ms Zille stated that the DA’s proposed amendment would allow sub-clauses 41 (4) and (5) to remain in their present sequence. Added to this, its proposed amendment to sub-clause 41 (4) (c) would allow a school to take action against a defaulting parent who had refused to complete, and sign, the exemption application form.

Adv Boshoff responded that the form referred to in sub-clause 41 (4) (c) was not actually the exemption application form. It was rather a form, which a parent needed to sign in order to acknowledge that the school had notified them of their right to apply for a school fees exemption. This form, therefore, enabled a school to obtain written proof that they had informed a parent of their rights. If a parent then did not apply for an exemption, and refused to pay the fees, sub-clause 41 (5) allowed a school to take such a parent to court. The parent would then be required to provide evidence to the court, which outlined the reasons they could not pay fees. Adv Boshoff added that the DA’s proposed amendment in sub-clause 41 (4) (c), which stipulated that a school could take a defaulting parent to court if they had not completed and signed the form, would be legally problematic. The reason for this was that it would be almost impossible to prove that a person wilfully refused to sign the form. The person in question could simply state that they never received such a form, or that they had signed the form but the school must have lost it.

Mr Nawa added that it was unlikely that parents would refuse to sign the form referred to in sub-clause 41 (4) (c), as signing the form was merely an acknowledgment that they had been informed of their rights. Indeed, this form did not require parents to disclose their financial status. Added to this, parents were required to sign this form at the beginning of the school year. He added that parents were only required to make financial disclosures in the exemption application forms. Mr Nawa noted that once a parent was aware that they could apply for an exemption, it was assumed that they would do so.

Mr Boshoff commented that some schools were not making impoverished parents aware of their rights to apply for school fee exemptions. This was due to the fact that some schools did not want to lose the revenue that they would receive from such parents. Once the indigent parents failed to pay, the schools would wrongfully take them to court in order to get default judgements against them. Sub-clause 41 (4) and (5) had been drafted to address this problem, and to offer protection to impoverished parents that were unaware of their rights.

Adv Boshoff proposed an amendment, which would perhaps address the Members’ concerns around sub-clauses 41 (4) and (5). He suggested that sub-clause 41 (5) should be amended to read: "Despite sub-section 4, a public school may act in terms of sub-section 1". This would allow a school effective action against a defaulting parent. All the parties agreed to this proposed amendment as it addressed their concerns.

The Committee then voted on Clause 5, as amended. Nine Members voted in favour of passing Clause 5, while three Members abstained.

Clause 6: Insertion of Section 58A into the South African Schools Act
During the vote, all the Members indicated that they were in favour of passing Clause 6.

Clause 7: Amendment of Section 6 of the Employment of Educators Act
Mr Vadi stated that Clause 7 outlined the steps which should be followed when a teacher was appointed to a vacant post. Specifically, Clause 7 stipulated that a governing body should compile a short list of three suitable candidates, which should then be sent to a HoD. The HoD would be responsible for selecting one of these three candidates to fill the post. If the HoD selected one of these candidates, he/she would not be required to provide the reasons for doing so. Indeed, the HoD would also not be required to provide reasons for rejecting the other two candidates. This was due to the fact that the governing body would have believed that all three candidates, on the shortlist, would have made suitable appointments.

However, 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 then select one of these to fill the post. If none of these applicants were suitable, the HoD would have to re-advertise the position. In the interim, the HoD could appoint someone to fill the vacant post on a temporary basis. In such a case, the school governing body had a right to appeal the decision of the HoD to reject all of the applicants/candidates. The MEC would then examine the appeal and consider the HoD’s reasons for rejecting all the applicants. The MEC would then be required to make decision on whether to uphold or reject the decision of the HoD. Mr Vadi stated that the ANC was satisfied with this process and, therefore, had proposed no major amendments. The ANC did, however, propose two minor technical amendments.

Ms Zille stated that she was concerned that a HoD did not need to provide reasons for rejecting, or appointing, any of the three recommended candidates. She noted that sub-clause (3) (c) (ii) stipulated that the details of the three recommended candidates should be submitted by the governing body to a HoD in order of preference. Due to this, it should be a requirement for a HoD to provide reasons for selecting or rejecting any of the three candidates. Ms Zille added that the DA was fundamentally opposed to Clause 7. It knew, however, that the ANC would win the debate around Clause 7. The DA, therefore, proposed amendments, which it felt would make Clause 7 more acceptable. This included amendments which would require a HoD to supply reasons for rejecting any of the three recommended candidates, and would allow a governing body to appeal against the HoD’s decision.

Adv Boshoff replied that the rationale behind sub-clause 3 was to allow a HoD to have some power in appointing a suitable candidate; rather than merely rubber-stamping the decision of the governing body. Indeed, the whole of Clause 7 aimed to create a balance between the power of the governing body and the power of the HoD.

Ms Dudley commented that the ACDP felt that the needs of a community should be considered when a teacher was appointed to a vacant post. The ACDP, therefore, proposed that sub-clause (3) (b) should be amendment to read: "In considering the applicants, the governing body or the council, as the case may be, must ensure that the principles of equity, redress and representivity, within the context of the needs of the community are complied with". The ACDP also felt that if a HoD failed to select one of the three recommended candidates, then the matter should be referred back to the governing body for them to select other suitable candidates, or the post should be re-advertised.

The Chairperson disagreed with the ACDP’s proposal that the needs of a community should be considered when a teacher was appointed to a vacant post. This could lead to abuse; for example, a community could decide that a school should only employ teachers of a certain faith. This would be unconstitutional.

Ms Zille was concerned that the criterion of representivity would be used to select candidates on the basis of their race. Indeed, staff would be selected in order to reflect the racial make-up of a school’s learner community. The DA believed that due to its close correlation with race, the concept of representivity was unconstitutional. Indeed, enforcing representivity would mean that a coloured or a white teacher could never get employed at a predominantly black school. The DA, therefore, felt that the concept of representivity should be replaced by the concept of diversity. This would ensure that all schools would become racially integrated.

The Chairperson replied that the DA’s interpretation of representivity was flawed. Mr Nawa added that Section 195 of the Constitution stated that the public administration should be broadly representative of the South African population. Accordingly, employment practices should be based on ability, objectivity, fairness, and a need to address the imbalances of the past. Mr B Mthembu added that representivity was essential in order to address the legacy of apartheid. Indeed, representivity was a Constitutional imperative: it would be unconstitutional not to apply it. Added to this, representivity implied that there would be diversity, and it did not mean that quality and ability would be forfeited.

Mr D Montsitsi (ANC) added that it was unfortunate that the DA did not seem to accept representivity, equity, and redress as legitimate criteria for appointing someone to a post. Mr Montsitsi stated that apartheid had ended and the ANC would not pass legislation that marginalised the majority of South Africans. The ANC would continue to strive towards a non-racial South Africa. Mr Vadi added that representivity did not refer to narrow race quotas: it rather referred to a broader range of issues that included gender representivity, racial representivity, ethnic representivity, and disability representivity. The Chairperson noted that South Africa, under the ANC, would strive to accommodate all people irrespective of their race or gender.

Ms Zille responded that no one wished to return to the apartheid era. The DA’s argument against representivity was an argument against racial classification. The manner in which representivity was defined in ANC documents implied that there should be racial quotas for all professions. Due to its pre-occupation with racial quotas, the concept of representivity was the flipside of an apartheid coin. Diversity was truly an anti-apartheid concept, which was defined by non-racialism. She added that representation was a constitutional concept, not representivity.

Ms Zille observed that the Director-General had stated that Clause 7 had been drafted in order to prevent governing bodies appointing unsuitable candidates to teaching posts. However, no governing body had ever appointed a teacher to a post; even in the past only a HoD could appoint a teacher on the recommendation of a governing body. Added to this, there were already sections of the legislation that allowed a HoD to reject a governing body’s recommendation if it was poor. She stated that Clause 7, therefore, was not about addressing the bad decisions of governing bodies.

Mr Greyling, Ms Zille and Ms Dudley stated that the criteria of ability, quality and relevant qualifications should be included in Clause 7 of the Amendment Bill. These criteria were as important as representivity and equity. The Chairperson, Mr Vadi and Mr Hindle replied that a person’s ability, quality and qualifications were outlined as necessary job criteria in the Employment of Educators Act. Therefore, they did not have to be re-included in Clause 7 of the Amendment Bill.

Before the Committee voted, a brief discussion was held around whether Clause 7 (3) (h) would be amended. Ms Zille noted that during the informal deliberation all parties had agreed that Clause 7 (3) (h) would be amended. Mr Vadi replied that the ANC had subsequently discussed Clause 7 (3) (h) during its caucus meeting and felt that there was no need to amend it. In the light of this, Ms Zille reiterated that the DA was fundamentally opposed to Clause 7. The Committee then voted on Clause 7, as amended by the ANC’s proposals. The seven ANC Members, and the one IFP Member, voted in support of Clause 7. The two DA Members and the ACDP Member voted against Clause 7, while the ID Member abstained.

Clause 8: Insertion of Section 6 B in the Employment Educators Act
During the vote, nine Members were in favour of passing Clause 8, while the two DA Members and the ACDP Member abstained.

Clause 9: Repeal of Laws
During the vote, all of the twelve Members indicated that they were in favour of Clause 9.

Clause 10: Short Title

All of the twelve Members voted in favour of Clause 10.

The Chairperson asked the Members to vote on the overall Amendment Bill. The seven ANC Members and the IFP Member voted in favour of the Bill. The two DA Members voted against the Bill. The ADCP Member and ID Member abstained. Ms Dudley indicated that although the ACDP had abstained, they would probably vote against the Amendment Bill when it was debated in the National Assembly. The Chairperson, after tallying the vote, noted the Committee supported the Bill with amendments.

Challenges at Nelson Mandela University.
The Chairperson commented that the Nelson Mandela University was concerned that certain of their faculties were being transferred to Vista University, and had requested the Committee to intervene. Added to this, the Nelson Mandela University’s SRC had asked the Committee to intervene in the advertising process for the post of the Vice-Chancellor. The SRC was concerned that the post of Vice-Chancellor had only been advertised internally. The Chairperson stated that the Committee needed to decide on how it was going to intervene. He asked whether the Committee should send a delegation to the University, or whether it should receive a briefing on these issues before it decided on its next step.

Mr Hindle advised that the Committee should first receive a Department briefing on these issues. Te Committee should perhaps first meet with the SRC before it met with the University Council. Mr Boinamo and Mr Vadi felt that the Committee should also invite the University Council to respond to the SRC’s allegations. The Committee could then decide whether it needed to send a delegation to the University. The Chairperson considered these suggestions and stated that the Department should first brief the Committee on the issues at the University. The Chairperson added that he would liase with the University Council in order to get their response to the SRC’s allegations. This would allow the Committee to gain a better understanding of the issues. Once it had done this, the Committee could then decide on its next step.

The meeting was adjourned.

Appendix A:
EDUCATION LAWS AMENDMENT BILL
B23-2005 CLAUSE 1


1. On page 2, from line 6, to omit paragraph (a) and to substitute: "(a) 'no fee threshold' means the level of funding per learner contemplated in the norms and standards for school funding applicable to a public school which enables the Minister to declare a school a no fee school in terms of this Act;"


2. On page 2, from line 15, to omit paragraph (c) and to substitute: 'school fees' means school fees contemplated in section 39 and includes any form of contribution of a monetary nature made or paid by a person or body in relation to the attendance or participation by a learner in any programme of a public school";


CLAUSE 2


1. On page 3, in line 17, after "seven" to insert "school".


2. On page 3, in line 19, after "seven" to insert "school".


3. On page 3, in line 27, to omit "one week" and to substitute "seven school days".


4. On page 3, in line 36, before "pending" to insert "for a period not longer than 14 days"


5. On page 3, from line 37, after "school" to omit "only if the Head of Department has agreed to such extension".


CLAUSE 3


1. On page 4, in line 15, after "quintiles" to insert for school


2. On page 4, in line 25, after "according to" omit "their".


3. On page 4, in line 28, after "distribution of' to omit "their".


CLAUSE 4


1. On page 5, in line 2, to omit "adequacy benchmark level of funding per learner" and to insert "no fee threshold"


2. On page 5, from line 5, to omit subclause (9) and to substitute: "(9) The Member of the Executive Council must identify and draw a list of all the schools contemplated in subsection (7) within his or her province". 3. On page 5, after line 8, to insert a new subdause (10): "(10) The Minister must-


(a) consider the list of schools identified in subsection (9);


(b) compare the list with the determination contemplated in section 35(1); and


(c) publish the list per province, in the Government Gazette if it complies with the determination


4. On page 5, in line 9, before "The schools" to omit "(10)" and to substitute "(11)".


5. On page 5, from line 10, to omit "adequacy benchmark level of funding per learner" and to insert "no fee threshold".


6. On page 5, in line 13, before "The right" to omit "(11)" and to substitute "(12)".


7. On page 5, from line 15, to omit "adequacy benchmark level of funding per learner" and to insert "no fee threshold".


CLAUSE 5


1. On page 5, in line 27, after "from the" to omit "beginning of the year if" and insert "date on which".


CLAUSE 7


1. On page 6, in line 46, after "submit" to insert", in order of preference to the Head of Department,"


2. On page 6, in line 50, to omit "in order of preference to the Head of Department."

 

 

Appendix B:
SUGGESTED AMENDMENTS TO THE ELA BILL,2005


1.
Clause


" 'school fees' means schools fees contemplated in section 39 and includes any form of monetary contribution by parents in relation to the attendance or participation of a learner of or in any programme of a public school"


2. Clause 2(a)


Add the following to (IC):

  • Replace the full stop at the end of(b) with ; and
  • Introduce a new © to read as follows:
  • "If no precautionary suspension had been imposed before such disciplinary proceedings, suspend the learner pending the decision of the Head of Department on the expulsion of the learner."


3. Clause 5


Amend (4) as follows:

  • In (a) replace the words "does not qualify" with "has not applied";
  • In © replace the words "has completed and signed" with "has not completed and signed".

 

Appendix C:
ACDP SUBMISSION PROPOSED AMENDMENTS TO EDUCATION LAWS AMENDMENT BILL 12 SEPTEMBER 2005


1. Section I of South African Schools Act 1996, page 2 line 15 [c] 'School fees' means school fees contemplated in section 39.


2. Section 9 [a] Page 3 line 7 (1) The governing body may on reasonable grounds and as a precautionary measure, suspend a learner who is suspected of serious misconduct from attending school, at any time before and during a disciplinary procedure.


Section 9 [d]

(8) wording from (9)

(9) If the HOD decides not to expel a learner the HOD may impose a suitable sanction on the learner if a school does not have a code of conduct adequate to deal with the issue or the SGB requests such an intervention.


3. 35 (1). Subject to the constitution and this Act, the Minister must determine national quintiles and national norms and standards for education funding of learners after consultation with the council of Education Ministers and the Minister of Finance.


(2) ...must


(a) set out criteria for the distribution of state education funding of learners in a fair and equitable manner, for learners attending state or independent schools


(b) provide for a system in terms of which learners at both public and private schools can be assessed according to financial means


4. 39 (2) (b) must provide for the exemption of parents of learners receiving state education funding and living within a specific distance from the school as specified in the regulations


5. 41 (2) & (3) remove (4) A public school may act in terms of subsection (1) only after it has ascertained that-


(a) a parent does not qualify for state education funding


(b) & (c) remove


(5) ...if


(a) that school can provide proof of a written notification to the parent delivered by hand or registered post that the parent has failed to apply for a state exemption.


(e) parents must be offered assistance in applying for a state exemption.


7. (1) section 6 of the Employment of Educators Act 1998


(3) (b) In considering the applications, the governing body or the council, as the case may be, must ensure that the principles of equity, redress and representivity, within the context of the needs of the community are complied with and the governing body or council as the case may be must adhere to - (i) criteria specified in the regulation to ensure quality education including relevant ability and qualifications.


(g) if the HOD declines the recommendations he or she must refer the matter back to the SGB to re-select from the remaining candidates or re-advertise, unless the SGB requests the HOD to make the appointment on their behalf.


(k) remove


8. .. .permanent appointment in the post on the recommendation of the governing body or after a period of 1 year...

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