Education Laws Amendment Bill: public hearings

Basic Education

31 August 2001
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Meeting report


31 August 2001

Chairperson: Prof S Mayatula

Relevant Submissions:
Federation of Governing Bodies of SA Schools (FEDSAS)
National Professional Teachers' Organisation of SA (NAPTOSA)
SA Onderwysers Unie
SA Democratic Teachers' Union
Gauteng Education Department on behalf of the MEC
Western Cape MEC for Education
SA Foundation for Education and Training (email for document)
Department of Education (Winterveldt North Circuit) (included in the minutes)
Westville Boys High
National Youth Commission
Education Laws Amendment Bill [B55-2001]

The Federation of Governing Bodies of SA Schools criticised the restrictions on schools obtaining loans and overdrafts, saying that this amounted to unnecessary red tape. They were also opposed to the fact that schools were limited to one bank account and could only open a second with the permission of the MEC. The National Professional Teachers' Organisation of SA supported most of the amendments with a few suggestions. The SA Onderwysers Unie believes that the quality of education should be maintained in institutions where excellence has been obtained and should be improved in institutions that are struggling toward this level of education. The SA Democratic Teachers' Union welcomed the establishment of Learner Representative Councils and that the prefect system was being done away with. The Gauteng Education Department generally supported the Bill but made a few comments and suggestions. The Western Cape Education MEC was opposed to the LRCs acting as umbrella bodies to all other organisations at schools. The SA Foundation for Education and Training appealed to the government not to make it difficult for governing bodies to generate their own income as schools could not be sustained solely on fee income. The National Youth Commission supported the Bill but proposed some amendments. Westville Boys High said that the restrictions on trusts did not make sense.

Federation of Governing Bodies of SA Schools
The presenter, Mr P Colditz noted that FEDSAS had lodged their initial comments in May after the first draft of the Bill had been published in the Government Gazette in April 2001. This submission was based on the revised August 2001 draft of the Bill.

This submission focused on the following:
Clauses 1,2 and 4: They approved of these amendments.
Clause 5: This deals with the substitution of S36 of the South African Schools Act (SASA). They criticised the requirement that the MEC needs to approve all loans and overdrafts in writing as giving rise to unnecessary red tape. They also argued that the Public Finance Management Act is not applicable to public schools. In addition, the drafter misunderstands the terms 'deficit' and 'deficit balance'. If a school borrows money to buy equipment and makes provision for the installment in its budget, such school clearly does not have a deficit balance on its budget.
Clause 6: They criticised the fact that schools are now being limited to one bank account. This restriction would give rise to unnecessary complications. For example, a school has surplus funds and manages to invest it in an interest bearing fixed deposit account (the second account) with the permission of the MEC. If such school then acquires additional funds three months later, it cannot open a third account to earn interest on this money as well. If there are schools that abuse monies by placing it in different accounts, the Department should find ways of dealing with these schools without punishing functional 'innocent' schools.
Clause 7: This deals with the fact that the budgetary process is no longer subject merely to guidelines by the MEC. Instead these guidelines now become prescriptions by the MEC. The problem is that no one has any idea what these prescriptions will be. This is not practical as different schools have different budgets and one cannot therefore prescribe budgetary items to schools. For example, some schools have swimming pools and will have chlorine included in their budgets while others have other needs that are totally different. In addition there is a requirement that budgets be published in the Provincial Gazette. As this does not make any sense, FEDSAS assumes that this is a typing error that will be rectified.

An opposition member referred to the fact that some schools are very functional while others do not manage very well. He asked if FEDSAS would agree with the grading of schools so that fewer restrictions are placed on schools who do perform well.

Mr Colditz said that they supported the grading of schools.

Mr K Moonsamy (ANC) said that FEDSAS’s argument against the MEC having to approve loans is not compelling as the State will have to foot the bill should schools be unable to pay.

Mr Samuel responded that there is no provision stating that the State will have to foot the bill. There is no risk of the State being held contractually liable. The lender must consider the risk if he lends to a school.

Adv E Boshoff, Department law advisor, stated that the State's liability could arise out of delictual and contractual claims.

Mr L Kgwele (ANC) asked if FEDSAS was aware that some schools gambled on the stock exchange and got involved with loan sharks.

The presenter replied that in terms of S16 (2) of SASA the governing body is in a position of trust in relation to the school. Thus they incur personal liability in the event of loss to the school.

Mr Kgwele asked if FEDSAS was not satisfied with the appeal mechanism in the SASA (in the event of the MEC refusing permission).

The presenter expressed concern that there are no such mechanisms relating to the MEC refusing permission in this particular case. There is no provision stating what would happen if s/he refuses permission and on what basis s/he is allowed to do so.

Mr Kgwele said that while the MEC could not prescribe the contents of the budget, s/he could provide a guideline for the formatting of budgets.

The Chair asked the Department to explain the requirement that school budgets should be published in the Government Gazette.

Adv Boshoff stated that it had not been the intention of the provision and it would have to be corrected. The provision should have stated that the MEC's guidelines must be published in the Government Gazette.

National Professional Teachers' Organisation of SA
NAPTOSA had already tabled written comments on the April version of the Draft Bill. The presenter read their submission on the August draft of the Bill. They however supported most of the amendments. No discussion took place.

SA Onderwysers Unie
Mr P Martins, SAOU’s CEO, stated that the SAOU upholds the constitutional principle 'that quality education is the inalienable right of every child within an equal, non racial, non discriminatory educational system'. Their involvement in the hearings therefore stems from their belief that the quality of education should be maintained in institutions where excellence has been obtained and should be improved in institutions that are struggling toward this level of education. Mr Martins then read the submission dealing with their specific proposals.

Mr B Geldenhuys (NNP) asked if Mr Martins was aware of any instances where trust funds were used for purposes other than for what they were intended.

Mr Martin said that he was aware of such cases. There were also cases where the monies were invested and lost. Mr Martins referred to a case where the SA Revenue Service was able to claim the school and trust funds. The problem that the SAOU had with the creation of trusts lay more with the fact that it was 'exclusive' in nature rather than the fact that it is unlawful. For example, if trust funds are to be used for a Computer Centre at a school where learners must pay to use the facilities, it serves to exclude those who cannot afford to pay.

Mr Geldenhuys asked if it was possible for the Learners' Representative Council (LRC) to serve the same function as a prefect body.

Mr Martin answered in the affirmative.

Mr Kgwele asked if Mr Martins agreed that the State needed to be given a say in the formation and use of trusts and trust funds.

Mr Martins responded that it is better for the State to interact with the parties instead of declaring trusts unlawful 'from the word go'. He argued that this would lead to a cycle of dispute and litigation.

The Chair asked if government could stop the trustee from changing trust beneficiaries.

Mr Martins said that in practice this might not be possible.

SA Democratic Teachers' Union
Mr A Matlole stated that the continued existence of the prefect system in Model C schools had always been a problem for SADTU. They therefore welcomed the establishment of Learner Representative Councils and that the undemocratic system of school governance was being done away with.

Representative Council of Learners:
The union proposed the following:
-Time-frames for implementation
-Monitoring its implementation
-Capacity building (via national norms and standards by the MECs)
-Freedom of association i.e. learners' rights to belong to national student organizations such as COSAS and PASO

Status of Public Schools:
The union welcomed this amendment.

Functions of all governing bodies
The staff complement in former Model C schools is still predominantly 'white' despite the fact that the learners are black. This can be attributed to the fact that the governing bodies have been given the power to appoint educators.

Failure of governing bodies to perform functions
The union proposed the following:
-the establishment of Provincial and National Associations for Governing Bodies be legislated to co-ordinate and monitor the role of Governing Bodies.
-That these structures serve as advisory bodies for the Minister and MECs.

School funds and assets of public school
The union accepted this amendment. A trust should only be established with the permission of the MEC. In its request to the MEC, the governing body should provide:
-Information regarding the duration of the trust
-A commitment to periodically furnish the MEC with financial and final reports
-A commitment to ensure that the funds are used for the purpose for which the trust has been established.

Prof L Mbadi (UDM) asked if the principal had a role in appointing staff or if this was solely the responsibility of the governing body.

Mr Matlole stated that the principal is a member of the governing body ex officio. In this way he does have a role to play in appointing staff members.

Mr Kgwele pointed out that the rights of governing bodies are covered in the SASA.

Mr Matlole did not believe that these rights were covered adequately in the Act. He expressed concern that the formation of these bodies could militate against the spirit of education as they are often used for purposes other than for which they had been intended.

An opposition member referred to the fact that there are problems with certain governing bodies that interfere with the functioning of schools. He said that one could not use the behaviour of a few to get rid of a whole system.

Mr R Ntuli (DP) referred to the union's objection that white teachers continued to be employed in Model C schools. He pointed out that the Labour Relations Act prohibited the Department from simply firing these teachers.

Mr Matlole said that where the majority of children are black these children had a constitutional right to receive an education in their mother tongue. He suggested that white teachers could be redeployed to other schools.

Gauteng Education Department
The Gauteng Education Department supports the Bill but made a few comments and suggestions. The presenter stated that the LRC's provided a coherent strategy to promote leadership and democratic values among learners. She suggested that the MEC should determine the functions and procedures of these Councils. (Refer to submission).

Mr Kgwele asked if the subcommittees envisaged by the Department included the prefect body. He added that prefect bodies were undemocratic structures.

The presenter stated that she did not want to pre-empt what these subcommittees would be such as media, sport or even prefect bodies. However, whatever they were, they would have had to be established in the spirit of democracy.

Mr Geldenhuys stated that the idea of subcommittees was refreshing as it gave schools space to operate. He suggested that allowing learners to be members of both the subcommittee and the LRC would serve to broaden the functions of the LRC itself.

Western Cape MEC
Ms H Zille stated that the Western Cape Education Department was in principle opposed to the LRC's acting as umbrella bodies to all other organisations at schools. She proposed that there is a need for flexibility as different schools have different organisations, which should be able to speak for themselves. She then proceeded to read her submission – see document for details.

An ANC member stated that trust funds were often used to fund activities such as sports and this is often done without the parents' consent.

Ms Zille stated that they did not support trust funds being used for purposes other than those for which the trust had been created.

Mr Kgwele asked how Ms Zille proposed to achieve the desired flexibility with regard to LRCs.

Ms Zille suggested that changing the wording of the provision could achieve this.

SA Foundation for Education and Training
Mr C Roos stressed that the Foundation in no way supports illegal acts but were opposed to the fact that the Department's response to illegal actions should give rise to the removal of certain financial management mechanisms.

The State provides schools with staff on an equal basis i.e. irrespective of the background of the school. Only norms and standards are taken into account when financing this. These norms and standards are based on equity and this means that poorer schools get more money.

The amount of money provided to each pupil per year is inadequate if one takes into account the pressure on schools to provide quality schooling. Schools accept the cross-subsidisation in terms of norms and standards i.e. the principle that those who can afford it, would pay for the education of those who cannot. In addition the amount with which government provides schools does not meet the amount that they had stipulated as being the minimum to be provided to each school. In calculating the amount required to run a school it is evident that schools could not be sustained if one were to rely solely on fee income as costs are continually increasing.

It is for this reason that governing bodies have been forced to generate their own income. The Foundation therefore asked that the government not make it unnecessarily difficult for schools to conduct their core business i.e. the delivery of the national curriculum.

Mr Roos then proceeded to read the submission. No discussion took place.

Department of Education (Winterveldt North Circuit)
The presenter, Mr L Ramuttou, made the following proposed amendments to the Employment of Educators Act, 76 of 1988 as amended by the Education Laws Amendment Act, 53 of 2000:
· Schedule 2: S4 (6) a-c to be deleted for the following reasons:
1) The misconduct does not warrant formal enquiry, therefore there is no need for a meeting.
2) The level of training of principals in Labour Law does not allow them to debate these issues with trade unions.

· Section 4(7): Delete: 'Similar' for the following reasons:
- One should consider an accumulation of valid warnings rather than an accumulation only of warnings for similar offences. Progressive disciplining means progression from verbal to final warning. Accumulation of similar offences will bog down progressive disciplining.

· Forms A-C: 'Signature of employer' to be substituted with 'signature of representative of employer'.

· Form F: Additional Form: Charge sheet to be provided.
· Form H: Guidance about evidence and witnesses to be provided.

South African Schools Act:
Addition to S23
Governing Body: The School Governing Body shall be the only recognised structure to govern the public school. The following structures or terminology is/are forbidden: management council, management board or forum.

Addition to S25
The functioning of the governing body shall be evaluated annually to ensure that it is complying with the following sections of the Act: 5, 6, 7, 8, 18, 20 or 21, 30, 36, 37, 38, 39, 42 and 43. A governing body which fails to comply with the above shall be dissolved.

No discussion followed due to time constraints.

National Youth Commission
The presenter, Mr B Mkongi, stated that the Commission supports the Bill in general, but proposed a few improvements to the Bill. These proposals focused on: S11(1) and (2); S25(1); and S38(1). After reading the document, he suggested that the Committee should examine the ability and willingness of the Department to enforce the requirements of the Act on the ground.

Ms P Mothoagae (ANC) asked how making the LRC the only legitimate learner body could work to the detriment of the functions of other learner organisations.

Mr Mkongi replied that some schools do not recognise the existence of other organisations. They suppress any organisation seen as a threat to the LRC. Sometimes the LRCs are too weak to take up certain issues, thus these other organisations have to be given recognition.

An ANC member asked why the term 'MEC' would have to be replaced by 'Minister'.

Mr Mkongi explained that they are aiming for a united South Africa. If the LRC differs from province to province it can compromise unity. If an MEC wants to equate the LRC to the prefect system in a particular province, he will be able to do so as there is no uniformity.

Westville Boys High
Mr T Stokes read the school’s submission to the Committee. A brief discussion followed.

An opposition member asked if all the major problems regarding trusts would be abolished if the school first obtained MEC approval.

Mr Stokes said the restrictions on trusts did not make sense. He argued that instead of prohibiting trusts entirely, the problems usually arising from the formation of trusts could be eliminated if the MEC's permission was obtained first.


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