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EDUCATION AND RECREATION SELECT COMMITTEE
12 October 2005
EDUCATION LAWS AMENDMENT BILL: DEPARTMENT BRIEFING; VISIT TO FREE STATE PROVINCE: DISCUSSION
Documents handed out:
Draft Programme of the Committee
Analysis of South Africa’s Education Laws Amendment Bill
The Department of Education (DOE) briefed the Committee on the Education Laws Amendment Bill. The Bill proposed amendments to the SA Schools Act and the Employment of Educators Act. Amendments covered issues such as disciplinary action; suspension of learners; appointment of educators; exemption from paying school fees and the status of temporary teachers.
Members asked questions about norms and standards; differentiation between poor and rich schools; the attachment of assets for non-payment of fees and non-monetary contributions by parents who could not afford school fees.
Adv E Boshoff (DOE Director of Legal Services and Deputy Information Officer) explained that the Bill aimed to amend the South African Schools Act. These amendments were contained in Clauses 1 to 6 of the Bill. From Clause 7 it dealt with amendments to the Employment of Educators Act.
Adv Boshoff explained that the Department of Education had introduced new concepts into the legislation. They included no fee thresholds, which would be a determining factor in deciding upon no fee schools. The norms and standards for school funding had also been defined. Although it was not a new concept, it was limited under the current legislation. The last concept dealt with what school fees were.
There had been a number of practices in the system, which allowed for compulsory contributions. It was not clearly stated how this could be enforced by law and it was therefore required to bring legal certainty into the field.
Clause 2 dealt with discipline in schools; particularly the issue of suspension and the protection of learners that had been suspected for committing serious misconduct.
The clause aimed at amending Section 9 of the Schools Act by introducing the concept of a precautionary suspension before the actual disciplinary hearing took place. There might be a need in the case of rape, for instance, to remove a learner so that tension in the school could be avoided. The introduction of suspension as a precautionary measure could be linked to the fact that the particular learner should also be granted a reasonable opportunity to comply with the rules of natural justice before any decisions were made. This was in line with administrative law and also gave protection to all learners that might be affected by the decision. This clause also dealt with disciplinary hearings and provided timeframes for that. The right of a learner to a hearing should be protected .It had become evident that suspension had been used as a form of sanction.
The DOE tried to differentiate between suspension as a precautionary measure and sanctions as a punishment. Suspension had been given flexibility in the school system; could be used as a form of punishment, but should be limited to a maximum of seven days.
Clause 3 should be read in conjunction with Clause 4 and 5. This dealt with investigation into the cost of education and what had been happening in schools when collecting school fees. New concepts had been introduced through these amendments. This clause dealt with norms and standards in particular.
The DOE had introduced a set of criteria by which the Minister of Education would determine norms and standards for schools. It introduced a set of criteria for the distribution of state funding to all schools in a fair and equitable manner. It also provided that learners in public schools be placed under national quintiles. There had been provincial quintiles but the DOE had decided on national quintiles because poverty was not evenly spread across the country. For example, there were more poor learners in the Eastern Cape than in Gauteng. The intention with this approach was to look at poverty on a national level. Executive councils in each province should apply this model of national quintiles in order to ensure that the distribution of state funding would be equitable. The aspect of poverty would therefore be addressed no matter where it was present.
Clause 4 dealt with an amendment to Section 39 of the Schools Act. This was an attempt to promote the provisions in the Act pertaining to certainty about school fees, for example the practices of registration fees and other types of fees that were found in the system. This clause made it clear that schools should charge school fees. School fees were all-inclusive and this meant that poor learners in richer schools had the right of exemption of all the compulsory costs pertaining to the particular school. The learner in a poor school would be clustered in a poor school and they would get the status of a no fee school. The entire school and all its learners would therefore be protected through the process.
Poor learners in rich schools would qualify for exemption from compulsory costs. This would protect poor learners in rich schools. This amendment also introduced the concept of no fee thresholds. This threshold was considered the basic level of funding that was required for a school to function as a public school. If a school got that level of funding, it might be declared as a no fee-paying school.
Clause 5 dealt with the enforcement of school payment. There had been numerous cases where legal action had been taken against poor parents. Many parents were not aware of their rights in terms of the legislation. The DOE had therefore tried to balance the right of the school to enforce the payment of school fees, which was important for the running of the schools, with the rights of parents. Schools could therefore enforce school fees only if they could show written proof that parents had been informed of their rights.
Clause 6 dealt with the alienation of assets of public schools. The DOE had come across a number of cases where school assets had not been accounted for properly. There was no proper register or inventory of assets and schools did not properly manage assets. This affected the delivery of education in the classroom.
The DOE did not want to take away any rights of the governing body, because in terms of the Schools Act, they were the owners of immovable property. The DOE only wanted to ensure that there was a proper inventory and that assets would be managed in a responsible and transparent manner.
Clause 7 dealt with an amendment to the Employment of Educators Act. This dealt with the right of the governing body to make recommendations for the appointment of educators, especially state educators. The approach suggested was that the provincial Head of Department (HoD) would act on the recommendation of the governing body. The governing would be allowed to recommend three candidates of which one would be chosen for appointment by the HoD.
Clause 8 dealt with temporary educators. There were a substantial number of educators appointed on a temporary basis and some had been employed as such for more than five years. The governing body participated in appointing temporary educators, but converting temporary educators into permanent educator status would not only be very costly, it would also be challenging. This meant that the rights of incumbents should also be taken into account.
It was important to know that this was a voluntary provision. There was no obligation on the employer to convert temporary positions into permanent ones. If there was a need to do so and if it were in the best interest of education, the employer could use the provision to bring employment security to the system.
The Chairperson allowed Members to ask questions of clarity but not to debate the Bill. He assured them that they would have that opportunity at a later stage.
Ms H Lamoela (DA) asked for clarification of Clause 3. Mr Boshoff replied that the current provisions of Section 35 of the Schools Act gave the Minister the authority to determine norms and standards. He said that the amendment provided a proper framework to be set by Parliament. The framework introduced the concept of national quintiles. The norms and standards should be addressed in national quintiles which would deal with poverty across the country and not only within one province. It also provided five specific criteria for the development of norms. The first was that it should set out a distribution model to the schools taking into account the five national quintiles and it should be fair and equitable. The second was that it should be linked to the public schools where learners would be placed under the quintiles, because poverty started with learners and their parents.
Ms J Vilakazi (IFP) wanted to know how the Department was going to differentiate in poor schools. She wanted to know if the entire school would be labeled a no fee school or how the Department would handle it.
Mr Patel (DOE Acting Deputy Director-General, Planning and Monitoring) replied that the provision should be read in conjunction with the norms and standards. The norms and standards would supply the detailed workings of the mechanism and what the allocation would be per school. The entire school would be declared a no fee-paying school. There would be no differentiation between learners. The poverty of the community should be measured around all schools. This measure would be determined administratively through the norms and standards. All schools would be ranked from the poorest to the poor.
Mr D Mkono (ANC) queried Clause 6 about the attachment of assets and whether it would be based on legal action. He also wanted clarity about Clause 7.
Adv Boshoff replied that there were two types of assets, movable and immovable, and that immovable assets belonged to the state. He said that the attachment of assets was a legal concept and that the assets of the state could not be attached. Regarding Clause 7, Adv Boshoff replied that it dealt with excess educators and that it was a provision in the current legislation. It aimed at protecting the employer in dealing with excess educators.
Mr Govender (ANC) wanted clarity about the payment of school fees. He used the example of parents offering their services in order to pay school fees at some schools. He commented on the fact that the legislation spoke about property being attached. He wanted to know what would happen to the attached property. He also wanted to know who would be responsible for basic services at a school that had been declared a no fee school.
Mr Patel replied that the DOE had felt that non-monetary contributions should count towards exemptions, but there had been considerable opposition to the idea. The intention of the Bill was to make non-monetary contributions voluntary.
Mr Patel said that school-governing bodies had a right to collect school fees where parents were able to afford it and they had the right to use any measures in order to get the fees.
The Chairperson thanked the delegates from the DOE for their elaborate briefing.
The Chairperson said that there were a few housekeeping matters to be discussed. They discussed the draft programme for their visit to the Free State without making any amendments.
The meeting was adjourned.
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