Morgan’s Electoral, Boinamo’s South African Schools, Labuschagne’s Lotteries Amendment Bills

PRIVATE MEMBERS’ LEGISLATIVE PROPOSALS AND SPECIAL PETITIONS: STANDING COMMITTEE
24 May 2007
LEGISLATION AMENDMENT PROPOSALS: MORGAN’S ELECTORAL ACT, BOINAMO’S SOUTH AFRICAN SCHOOLS ACT, & LABUSCHAGNE’S LOTTERIES ACT: DISCUSSIONS

Chairperson: Ms P Mentor (ANC) (first part of meeting)
Acting Chairperson: Mr Y Wang (ANC)

Relevant Documents:
South African Schools Act Amendment Proposal: The Objects of the Legislation

SUMMARY
Mr Morgan had submitted a proposal to prohibit government advertising during election periods, with certain exceptions, to avoid the situation where taxpayers’ money could be used for electioneering activities that could benefit incumbent parties. Mr Morgan believed the subject that should be debated in all legislatures. The Independent Electoral Commission and Government Communication and Information System (GCIS) were invited to give their views. The Commission explained the effect of the Electoral Act and the Electoral Commission Act, and further explained that the proposal would not directly impact on it, but nonetheless suggested that perhaps the proposal should be couched rather in the form of amendments to the Code of Conduct than an amendment to the main body of the Act. GCIS noted that there could be some uncertainty in implementing the proposals, but that the substance of the proposal was already contained in regulations that were widely circulated during election times. The question was whether those regulations were effective and provided for timely relief. The Committee would urge a debate in the House and put forward the information in its detailed report.

Mr Labuschagne had been asked to do more research on the Lotteries Act Amendment Bill but the matter was unable to be discussed as information was still awaited from the Minister.

Mr Boinamo’s proposal to amend the South African Schools Act had been redrafted and he tabled the new draft, which aimed to provide a proper definition of the right to basic education so that it could be properly enforced. The Department was asked to comment. It set out in detail the legislation governing education and commented that although the principles were good, the proposal itself was too vague and could not be implemented. The Committee decided not to discuss the proposal further but suggested to Mr Boinamo that he incorporate some of the comments into a new draft which could be discussed the following week.

MINUTES
Ms Mentor noted that it was generally agreed that meetings would take place from 09h00 to 11h00 on Friday, but this meeting was changed because of other clashing engagements. She asked Mr Wang to stand in as Chairperson in the latter portion of the meeting.

Electoral Act Amendment Proposal
Ms Mentor recapped that Mr Morgan had put the Electoral Act Amendment proposal before the committee. She congratulated Mr Morgan on the passion with which he carried out his duties. After he had made his submission to the committee it was decided to invite the Independent Electoral Commission (IEC) and Government Communication and Information Systems (GCIS) to comment as the proposals directly affected them.

Ms Mentor summarised that the proposal dealt with limitation on government advertising during the period of an election campaign. Although it was recognised that government could still communicate with citizens on certain matters, it should not place advertisements or releases that could be interpreted to be of benefit to the party that governed that particular province. The committee agreed it was a useful proposal that warranted a debate in the House, but had not yet come to a decision on the matter.

Mr Norman du Plessis, Deputy Chief Electoral Officer, IEC, said the Commission had looked at the Amendment Bill. The principles involved had no impact on the electoral system or direct administration of an election, so it would not impede or advance that election. The amendments would add to the main Electoral Act, so the IEC would have to monitor and regulate these additional aspects, which might be problematic from a capacity perspective. Neither the Electoral Commission Act nor the Electoral Act, quite deliberately; mentioned the IEC functioning within the area of campaigning. The “do’s and don’ts” of campaigning were dealt with in the Codes of Conduct, which were schedules to the respective Acts. These schedules on the Codes of Conduct were not administered by the Electoral Commission but were considered by the Electoral Court. The IEC suggested that the amendments should perhaps be incorporated not by way of the present format (an amendment to the Act) but rather by incorporation into the Codes of Conduct. The Electoral Court would then be able to deal with these things very swiftly. Enforcement of advertising could be regulated to become quite effective. The Commission would suggest that the Committee rather look at it in that particular context.

Mr du Plessis summarised that since these proposals did not directly impact upon IEC, there was no objection, and the principle was one to be decided upon politically.

Mr Tony Trew, Deputy CEO, GCIS, noted that when the Bill was first submitted, Hon Morgan wrote to the CEO of GCIS asking for support. GCIS indicated then that it would be guided by Cabinet as a matter of policy. He explained that this proposal would be defined as a restriction on advertising. The definition of advertising in the amendment was the same definition as that used for State media, and he understood this meant all forms of communication by government during the period. At the moment, whenever there was certainty about the dates of a forthcoming election, GCIS issued guidelines to all communicators. These guidelines were based on the Public Service Regulations and legislation governing during an election period. The fundamental principle was that there was a prohibition on any communication that could advantage or disadvantage any party. The Public Service regulations contained a requirement that no public servant should abuse his position in the public service to promote his own interest or do anything to breach the regulations. The regulations did not specify prohibitions, but worked on the general principle of whether advantage or disadvantage was created by certain actions. These requirements for public servants applied at all times. The guidelines, which were issued to a broad range of stakeholders prior to an election, were supplementary and were issued to emphasise that during an election period no communication should project any particular party. Breaches would render the communicators liable to disciplinary action. The guidelines were also included in the Communicator’s Handbook.

Mr Trew noted that this model was very similar to that of the United Kingdom. The basic principle was that any activity that called into question the political impartiality of civil servants or could give rise to criticism was suspended for the election time. Certain activities such as advertising may be curtailed, but the business of government must obviously continue.

Mr Trew gave the Chairperson a copy of the guidelines.

Mr Trew continued that when Mr Morgan approached the Commission, he indicated that many provisions of the Bill matched those in the GCIS guidelines but noted that many government departments did not operate within those guidelines. The critical issue was whether the guidelines were adequate and whether citizens had recourse.

He noted that one complaint was lodged against the GCIS in 1999 but the Public Protector accepted the integrity of the approach of the GCIS, and communicated that to the Minister.

The existing guidelines did provide protection and recourse to citizens. He cautioned that the amendment would actually restrict government’s capacity to keep the citizens informed as it should. The proposed restrictions were limited by exceptions that basically related to community health, safety, emergency issues and factual information. On the face of it the allowable range of advertising and communication seemed quite wide, but GCIS saw some difficulties in defining factual information and in deciding whether information favoured or prejudiced a party. Even with the broad interpretation there were quite a number of issues that could be excluded. He noted that this amendment had been proposed because of the Ten Years of Democracy campaign being run during an election period. He noted that events to do with our history, commemorative days, messages of religious or community events, or promotion of certain things would not necessarily have commercial value. He was also not sure how matters on second economy initiatives would fit in.

The approach of GCIS would be to define the problem in terms of impact rather than the definition of content, which would not be certain. He noted that the existing regulations and guidelines were distributed to communicators in all spheres. Over the last two years this had been extended also to the legal sphere and, after consultation, to provinces and SALGA. Some guidelines, such as in the current situation, would be sent to the President’s Coordinating Council on Communication. GCIS was ultimately responsible and accountable for government communication.

Ms Mentor explained that normally when the Committee received delegations they were not expecting a definitive answer. She commented that the GCIS delegation was mostly comprised of males.

Discussion
Ms Mentor mentioned that she had a number of points that could facilitate discussion.

The IEC had noted that it would be difficult for them to monitor this proposal as it would require them to enter the campaigning terrain, which was located in the Codes of Conduct under the Electoral Act, administered by the Department of Home Affairs. One possibility would be to defer this matter to the Portfolio Committee on Home Affairs.

In regard to the issue of regulation, Ms Mentor pointed out that Public Service Regulations already prohibited actions during election periods that could benefit or disadvantage any political party. This could apply to inter party local government electoral officials, or officials at government offices who could use government communications. She urged Mr Trew to go and further consider the issue of local government, insofar as communication applied to the public service regulations, because South Africa did not have a single integrated public service right now. Not all the regulations would necessarily apply to local government.

The Committee had underpinned the importance of a debate in the House. The fundamental questions were whether the recourse to citizens was adequate and could it be exercised timeously. She asked if the IEC thought that the recourse as contained in the prohibition was adequate and timeous.

Mr Trew expanded further on what he had said. There was a regulation under Section 36(c) of the Public Service Act which stipulated that an officer or an employee may not draw up or publish any writing or deliver a public speech which promoted the interests of any political party. Then there was a further regulation, which had been agreed with the Public Service Co-ordinating Bargaining Council, that any employee misusing their position would be guilty of misconduct.

Mr Trew said that there had been recourse exercised in the Western Cape but he would need to research whether it was successful. He also indicated that the fastest recourse would be through the Public Protector. He was not sure, from what Mr du Plessis had said, whether the IEC had any standing in the matter.

Mr S Mshudulu (ANC) thanked the Chair for having invited the GCIS and the IEC as suggested, and commented that the guidelines now produced would be of assistance also to the Portfolio Committees on Public Service and Home Affairs.

Mr Mshudulu pointed out that he had been one of the first party agents in 1994. All agents were bound by the Codes of Conduct. He had understood that if there was any suspicion of partisan action this should be reported. GCIS and all government departments must take on their mandate in terms of the guidelines. He had also suggested that Parliament’s legal team advise the Committee on the right of citizens to be informed, as there clearly could not be a cessation of any communication. There was also the issue of bylaws, and procedures had to be followed. He was pleased that the Public Protector was mentioned. He noted that the Committee could not rely totally on international experience. GCIS had communicated that there was a code or guidelines to be circulated to other structures. He would have liked also to hear from the Public Service. He proposed that the Committee invite those departments to the next meeting to gain further information on how to close the gap.

Mr H Bekker (IFP) noted that the regulations and guidelines had been circulated to civil servants and asked whether they were also sent to Ministers of departments and to MECs in the provinces. He thought that some of these adverts would originate from these sources and not from the civil servants.

Mr Bekker said that the period was clearly stated but government business must proceed. He agreed that there could be some unclear areas. If, for instance, the Department of Transport, during an election period, wanted to announce that its Minister had achieved peace in the taxi industry, and included a photograph of him calling on taxi industries to work together, this was business related but might have other connotations also. He cited further examples of members of the executive in municipalities being able to announce their achievements over the past years. He said that a wider focus on communications was needed.

The Committee noted that Mr Morgan would be able to speak to engage with these issues.

Mr G Morgan MP (DA) thanked the Chairperson for the privilege. He said that he had found the IEC comments very instructive because the IEC had not necessarily taken any judgement of the concept. It had made an important proposal in relation to how the concept should be presented. Once again, GCIS could clearly not influence what was appropriate and Mr Morgan’s motivation in raising the matter with them was to indicate the type of advertising that he believed was inappropriate. He had spoken last week about the regulations. When drawing up these regulations government consulted with other organisations like SALGA. Those regulations related to elections, which were the sphere of political parties and not department role- players. The departments interacted with the IEC at local and national level all the time, and they had to work in context with the law. He realised that this was an area of political contest, and would hope the Committee could motivate a debate in the political arena.

Ms Mentor proposed:
-that the Committee would move strongly for a debate;
-that the Committee would underpin, in its report, the issues of democratic principles and agreement with the GCIS principles that actions should not be to the advantage or disadvantage of any party;
-that the Committee would also raise the issue of whether there was adequate and timeous recourse for breaches of this principle.
She stressed that the Committee was neither approving nor disapproving the proposal, but urged a full debate. She would ask the Presiding Officer whether comment should also be sought from the Committees on Home Affairs and Communications.

Lotteries Act Amendment Proposal
Ms Mentor informed the Committee and the sponsor, Mr L Labuschagne, that the Committee could not continue with this matter as the response from the Minister was awaited. She noted that the sponsor had said that the timing of the proposal was unrelated to the present changes in the lottery.

Mr Y Wang (ANC) took over as Chairperson.

South African Schools Act Amendment Proposal
Mr G Boinamo (DA) recapped that last week he had presented a draft proposal, but the Chairperson had not been happy with the form of the proposal and had suggested that it be changed. The proposal had been redrafted and he had circulated copies.

Mr Boinamo submitted that basic education in South Africa was an absolute right for any learner or any person who intended to engage in education.

He then set out the Objects of the Proposed Legislation. Section 29(1)(a) of the Constitution stated that everyone had the right to basic education, including adult education. The provision of basic education, unlike other socio-economic rights, was not subject to available resources.

The South African Schools Act, 1996 (Act 84 of 1996) did not define basic education. The White Paper on Education and Training defined basic education as appropriately designed education programmes to the level of … one year reception class plus nine (9) years of schooling …

His Bill sought to define the scope, content and meaning of basic education within the framework of availability, accessibility, acceptability and adaptability, in line with international human rights law, particularly General Comment 13 of the Committee on Economic, Cultural and Social Rights.

His Bill also sought to make it obligatory for the State to investigate why learners failed to attend school, in order to address the high level of illiteracy caused by learners leaving school before they were fully literate and numerate.

Mr Boinamo maintained that the education of a learner in this country was non negotiable. The government must find resources to ensure that basic education was provided to South African learners. Basic education should not be limited by the age of a learner or the achievement of a particular level of education, as reference to these merely confused the object.

Discussion
Mr Mshudulu explained that the process should be recorded. In the meeting last week the Chairperson had noted that apparently certain information had not come to the Office of the Speaker, and he urged that the Acting Chairperson should ascertain whether this had been done. He confirmed that it was recommended that the objects be redrafted. However, he would suggest, as a matter of procedure, that all relevant documents should be presented also to the relevant Department. He suggested that merely the motivation be made at this stage, but that the further processes be deferred to another meeting.

The Acting Chairperson agreed that this was so, and that the Committee was still waiting on verification that this was not before other Committees. He suggested that Mr Boinamo proceed on that understanding.

Mr C Lowe (DP) had no difficulty with the Acting Chairperson’s proposal. He was concerned, however, that this Committee could be taking on more work than was necessary. This committee was tasked with looking at whether proposals had merit, and the proposal would need to be looked at in detail by the relevant Committees charged with the subject matter of the amendment, in this case the Committee on Education.

Mr Wang indicated that he would be happy to hear Mr Boinamo as agreed last week.

Mr Mshudulu noted that parliament must assist any member in putting forward any proposal. Mr Boinamo had addressed members for assistance because Parliament had the responsibility to assist in redrafting. However he raised concerns that there were matters of principle being raised, and he was not sure whether the White Paper was of relevance.

The Acting Chairperson asked the Department to comment.

Department briefing
Mr du Plessis commented that the basic principle when drafting legislation was to ensure that it was clear and implementable. Much legislation had been developed since 1995 dealing with education deriving from the constitutional principles in Section 29. Section 28 referred to basic education and to further education. Further education had a limitation linked to availability of resources such as schools and teachers. Education covered a range of education, not only as defined in the Schools Act. Thus there were many different approaches to it, and by different entities. There were two White Papers – the first dealing with the general directive of education and the second, from where he presumed this quotation came.

The description of basic education given here was not in line with the approach taken in the National Primary Education Framework Act, which dealt with the provision of various levels of general education, further education and higher education within bands of qualifications. By adding new concepts to the framework of education it also dealt with the issue of what was the substance of the terminology used. The constitution did not give an interpretation of basic education. It left that for Parliament, since it was presumed that this would be dealt with in more than one piece of legislation. The Schools Act dealt with basic education for child scholars. The Adult Basic Education and Training Act covered adult learners. Schools had a totally different concept, having the processes structured to the institutions. Due to the reality in South Africa, where schools had always been straddling both the general education and further education components, it was not easy to make a clean cut. Then there was the Further Education and Training Act, which in reality was just not implementable. It was very difficult to try to compartmentalise education, as this proposal suggested.

Basic education was not internationally defined. It was not even a human rights law, because there was no such thing. Human rights law had an international component, but this was a comment that was made by researchers on the aspect of educational law.

If one looked at the ‘four A’s’ of availability, accessibility, acceptability and adaptability, these were based on facts substantiated and defined within various provisions in the Schools Act. It was also important to note that different authorities were responsible for different matters. The curriculum was determined by the Minister of Education, and not by the MEC.

Mr du Plessis commented that the proposal had difficulties because it did not define implementation, and contained vague concepts. He reiterated that the realities of education made it impossible to give one definition. The Schools Act only sought to cover a sector of the population, and linked basic education to age and level. The Adult Education Act was based on the National Qualification Framework.

The matter was made more complex because the schools were set up on a framework concept, a mindset which had been negotiated in 1996 where the majority opted for the system currently contained in the Schools Act. At that stage there was no guidance in the Constitution, and the approach was based on the National Primary Education Framework Act.

The basic right to education was a very interesting right. Although there was no limitation stated to the particular right, nonetheless the dictates of reality limited the general application of all rights. The Human Rights Commission’s report last year quoted that the accessibility and the attendance rate of learners in the age group seven to fifteen was well into an internationally acceptable range. The approach taken here to amend the legislation was actually to focus on the management of those who were not going to school, and changed a “may” provision into a “must” provision. Section 3(1) dealt with the right to basic education and was a positive “must” provision. There might be good reason for a learner not to be in school, such as being ill, so that it would not be in his interests to be at school, but this would have to be investigated in order to assess whether the non-attendance was excusable.

The aspects raised in this Bill of availability, accessibility, acceptability and adaptability, had all been covered by the current legislation in detail. It was not defined but was based on how the legislation must be implemented.

The Department was therefore of the view that this was a very vague and confusing proposal. The principles might be good, and the department had no fault with the principles, but the way it was introduced and the authority to deal with it would create a lot of confusion. There could be a possible wrong reading of the intention, especially insofar as enforcement was concerned, as it seemed that the onus would be on the Head of Department to actually find truant learners, and this would have financial implications.

Mr du Plessis said the detail around the pieces of legislation could be made available.

Discussion
Mr Wang agreed it was very broad, and the idea behind today’s session was to get the view of the Department. The committee would need more background before considering the merits of the proposal and forwarding it to the Portfolio Committee on Education.

Mr Boinamo maintained that although he had understood the points made, they did not have relevance to his Bill. Basic education that remained undefined in the constitution, therefore no member of the public could assess whether the executive had succeeded or failed in delivery of basic education, and could not be held to account. He was concerned not with further education but with basic quality education, which was the responsibility of the State to provide to every child, and that was non negotiable. It was a right enshrined in the constitution, that clearly needed to be able to be assessed or evaluated.

Mr Wang was not sure whether the committee should engage in debate at this stage.

Mr Mshudulu clarified that the Department had been invited to share its comments with the Committee, and the Committee had benefited from the briefing. The comments made would also help the sponsor, between now and next week, to find a way to make his case clearer so there was no possibility of misinterpretation. Therefore next week Mr Boinamo must make his case and should be able to extract from the discussions today the relevant areas on which he must concentrate so that the Committee could engage fully.

The meeting was adjourned.