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EDUCATION SELECT COMMITTEE
7 September 2001
GENERAL AND FURTHER EDUCATION AND TRAINING QUALITY ASSURANCE BILL; EDUCATION LAWS AMENDMENT BILL: BRIEFING
Documents handed out:
Education Laws Amendment Bill [B 55- 2001]
General and Further Education and Training Quality Assurance Bill [B 57- 2001]
General and Further Education and Training Quality Assurance Bill: the Department explained that the General and Further Education and Training Quality Assurance Council would in terms of this Bill replace the South African Certification Council. They assured members that the quality control mechanisms would be applicable to all stages and levels of the education system.
When dealing with the Education Laws Amendment Bill, the role of the governing bodies was discussed. The provision preventing governing bodies from operating separate trust accounts led to concerns about the impact of this provision on S21 schools.
The Chair noted that hearings had taken place on the General and Further Education and Training Quality Assurance Bill and the Education Laws Amendment Bill on 29, 30 and 31 August 2001. He pointed out that these Bills were S76 Bills and proposed that these be dealt with in the NCOP first and then be dealt with as a joint venture between the Portfolio and Select Committees. The members agreed. The Higher Education Amendment Bill is a Section 75 Bill and as such has been introduced to the Portfolio Committee first and thereafter will be referred to the Select Committee.
An apology was given on behalf of the Director-General who was attending the World Conference on Racism in Durban. The Deputy Director General was there to represent him.
General and Further Education and Training Quality Assurance Bill
Adv. Eben Boshoff, the legal advisor of the Department, told the Committee that in terms of the approach in 1995, the South African Qualifications Authority (SAQA) was created by Parliament with the main responsibility of creating a qualification's framework. The body was also given the task of accrediting certain bodies to do quality assurance or what is commonly known as Education and Training Quality Assuring bodies. He explained that the General and Further Education and Training Quality Assurance Council ("the Council") would in terms of this Bill replace the SA Certification Council. The fact that the statutory body responsible for quality assurance had presented problems did not mean that one could neglect the basic right to quality education.
The providers are deemed to be the provincial education departments, in terms of the Bill. They have to adhere to the Council's criteria for accreditation. The Bill requires substantial compliance with these criteria. If the provincial department fails to adhere substantially, the Council and relevant department must try and resolve the problem. Failure to do so means that the Minister should facilitate the process and provide guidance.
Clause 2: It is important to look at the definition of a 'school', 'further education and training institution' and an 'adult basic education and training institution'. Adv Boshoff defined these loosely as programmes that lead to qualifications in these areas.
Clause 5: This is a deeming provision which has sparked much interest as it affects the powers of Parliament i.e. Parliament should be able to revoke accreditation to this body.
Clause 6: The Council consists of fifteen members who are nominated by various role-players and appointed by the Minister. The Minister also appoints the Chairperson from among these members.
Clause 11: In terms of Clause 11(1) the Minister appoints the Chief Executive Officer (CEO) of the Council. Cabinet had decided to amend the section. The decision was based on the fact that the CEO is a member of the Council, all of whom will be appointed by the Minister. The clause therefore ensures consistency and emphasises that the CEO is an employee of the Council and not of the Minister.
Clause 13: The Council is a national public entity and is therefore subject to the Public Finance Management Act.
Clause 16: The Council has wider functions than its predecessor and provides quality assurance in a broader sense. The Minister plays an important role in setting policy. The Council has to stick to the SAQA regulations as closely as possible. Clause 16(3) provides that the Council will take over its functions progressively under the approval of SAQA and the Minister. Clause 16(4) to (7) lists the functions of the Council, which repeats the SAQA regulations almost verbatim.
Clause 17: This clause aims to deal with continuous assessment, which had previously never been dealt with.
Clause 18: When the DG receives information regarding an irregularity, he reports it to the Minister who institutes an investigation. The other provisions remain the same.
Chapter 3- Accreditation of Providers
Adv Boshoff explained that a distinction had to be made between public and private providers when dealing with the effect of their failure to comply substantially.
Clause 22: This clause deals with public providers. If such provider fails to comply substantially (1) the Council notifies the department of its failure and gives it a reasonable period in which to comply, (2) failing which the Council informs the Minister. (3) The Minister will require the MEC for Education of the province to report on reasons for this failure. (4) The Minister will then consider the various factors and advise the department and the Council as to what reasonable steps to take to solve the problem.
Clause 23: This clause deals with private providers. If such provider fails to comply substantially (1) the Council notifies the department of its failure and gives it a reasonable period in which to comply, (2) failing which the Council evaluates steps taken by the provider to comply and considers any submissions. (3) The Council may then affirm or withdraw its accreditation.
Clause 28: This allows the Council to delegate powers and assign any of duties to other bodies. Previously the SAQA approach had been based on agreements. It had however been very difficult to get parties to agree. Even where this had been possible it was difficult to co-ordinate agreements. The Bill introduces an approach used with regard to Higher Education i.e. The responsibilities belong to the Council who can then delegate their different programmes to different bodies.
Clause 29: Clause 29(4) provides for transitional arrangements. Since the SA Certification Council will no longer exist, its assets and employees now belong to the Council. The employees are regarded as having had continuous uninterrupted service.
Clause 30: Although the Minister was not happy with the name of the Bill, the DG felt that the name indicated the responsibilities of the Council. He added that it was important to be specific so that there can be clarity in the minds of the public.
Mr Mkhaliphi (ANC) commented that the Bill seems involved and complicated. Since there are so many bodies performing almost similar functions, he asked if the Department could formulate a flow chart that would indicate the lines of communication between the different structures mentioned in the Bill?
Adv. Boshoff replied that he presumed that the flow chart would be used to deal with the delegation of functions in Clause 28 of the Bill. He said it is possible to provide such a document. It was agreed to provide this by the following week, not later than Wednesday.
Mr Mkhaliphi noted that Clause 16(3) stated that " The Council may, with the approval of the Minister and the South African Qualifications Authority, assume its functions progressively depending on its capacity". He said it is not clear whether a situation of uncertainty is being created by this sentence.
Adv. Boshoff said they are dealing with a pragmatic approach. The Minister and SAQA determine which matters should be made priorities, and if everything can be done within their limited resources, that is fine. But if there is a problem with resources, then it is important that the authorities that deal with quality assurance must give direction as to what is the priority.
Mr Raju (DP) noted that Clause 6(3)(vi) (Composition of the Council) stipulated that the member should have experience in statistics. He argued that people with expertise in statistics are not easy to come by from average people coming from tertiary institutions. He asked the department to throw light on that.
Adv. Boshoff replied that the clause says membership as a whole must have one of those qualities mentioned. Expertise in statistics is a very important skill to have in a body of this nature. It does not mean that everyone must have all those qualities, but the Council as a whole must at least have one person who has expertise in one of those areas.
Mr Raju said that he welcomes the provisions of Clause 6(3)(c) that "due attention would be given to relevant factors such as race, gender and disability". He added that Clause 6(7) states that "The members contemplated in subsection (1) must elect one person as a deputy chairperson from amongst their number". He suggested that it should be added that "the Chairperson and deputy Chairperson should be from the opposite sex".
Adv. Boshoff responded that this is an issue that the committee should give direction on, otherwise they do not have any problem with that type of approach.
With regard to the Chief Executive Officer (CEO), Mr Raju asked if would it be allowed for the CEO to hold another position in government or another institution?
Adv. Boshoff said it is important to note that Clause 11 states that the person would be an official of the Council so he or she will be formally employed. This means that if a person is appointed as CEO of the Council, the person has to resign any previous post before taking on the responsibility as a CEO.
Mr K Panday from KwaZulu-Natal wanted to know whether the provinces had been invited to the public hearings because he believed they had missed some very important discussions. He added that he would like delegates to be given some of the submissions so that they can take them to their respective provinces.
The Chairperson responded that provincial legislatures are supported by Regis House which deals with provincial submissions. The submissions that Mr Panday is referring to would be available there. The Committees had placed a joint advertisement in the newspapers about the hearings. He added that people who had made submissions were people from the department. From the side of the provinces, the process was just beginning.
Noting what the Chairperson had said, Mr Van Niekerk (NNP) asked if they want people to come to the committee and give submissions, could that still be done? The Chairperson replied that the provinces could still do that in order to get new mandates.
Education Laws Amendment Bill
Advocate Boshoff said the approach in this Bill is that the money that has been paid to the schools should be used by the school for the school's interest. No money should be used for individual or personal interests. He said the principle is to set up a system that is based on democratic values. This would help establish democratic structures that will deal with the issue of governance in schools. Adv. Boshoff stated that many of these amendments had emerged from practical situations.
Clause 1: There had previously been dual representation of learners at schools, i.e. a representative council of learners and the prefect system. In terms of the amendment a representative council of learners would be the only recognised representative body of learners at a school.
Clause 2: Adv. Boshoff explained that the Bill clarified the functions of the governing body, which had previously been misunderstood.
Clause 4: This clause amends S 25 and deals with the situation where a governing body ceases to perform. The clause distinguishes between the case where it fails to perform at all and where it merely fails to perform specific functions. In the latter case the person appointed to take over such functions temporarily must build the necessary capacity to ensure that the governing body can resume its functions.
Clause 5: This clause prohibits a governing body from entering loans or overdrafts to supplement the school fund without the written approval of the MEC. This brings schools in line with the Public Finance Management Act. In addition it puts pressure on moneylenders by providing that if they sidestep the relevant authorities their loans will not be recoverable.
Clause 6: Every school must open a banking account. Previously schools were only allowed to open one account. In terms of this Bill a school may, with the approval of the MEC, invest surplus monies in another account. Clause 6(a) (3) is therefore an enabling clause.
In terms of Clause 6(b) money from the school fund of a public school may not be paid into a trust or used to from a trust. Previously schools had created separate legal entities using school fees. The problem is that because a trust is a separate entity it is no longer under the control of the governing body but of the trustees. In addition the trustees can change the trust deed at any time. Thus trustees can also change the beneficiary of the trust by saying that the school will no longer be the beneficiary of the trust funds.
Clause7: The budget will no longer be based on guidelines provided by the MEC as this allowed for too many different approaches.
Mr Van Niekerk asked if the old prefect system falls away or if the learner representative council takes over the functions of the prefect system.
Adv. Boshoff replied that the learner representative council could accommodate the functions of the prefects. Other student organisations such as COSAS and SASCO will exist but the council will represent the interests of all the students in the school.
Mr Van Niekerk asked if the Bill has removed any of the existing functions of governing bodies.
Adv. Boshoff responded that the Bill merely provides clarity on their functions but does not affect the functions they already have.
Mr Mkhaliphi (ANC) referred to special schools with management bodies or management councils (not provided for in terms of the Act). He wanted to know how these schools will be dealt with.
Adv. Boshoff said all schools (including private schools) are governed by the South African Schools Act, 1996. Any structures, which are not provided for in terms of this Act, are therefore illegal unless they take the form of a subcommittee.
The Chairperson told the committee that they would meet on 19 September to look at the negotiating mandates.
The meeting was adjourned.
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