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EDUCATION PORTFOLIO COMMITTEE
10 September 2007
EDUCATION LAWS AMENDMENT BILL: PUBLIC HEARINGS
Chairperson: Prof S M Mayatula
Documents Handed out:
Education Laws Amendment Bill [B33-2007]
Soul City submission
Catholic Institute of Education: Submission on Education Laws Amendment Bill 2007
FEDSAS comments on the Draft Education Laws Amendment Bill
Governing Body Foundation submission
Lynwood Ridge Primary submission
Governors' Alliance submission
Human Rights Commission submission
Contribution prepared by Isaac Jabulani Sithole
Education Laws Amendment Bill [B 33-2007] submission
Brookdale Primary School submission
Province of kwaZuluNatal submission
Girls & Boys Town South Africa submission
Audio recording of meeting [Part1];[Part2]& [Part 3]
The committee held public hearings on the Education Laws Amendment Bill. Oral submissions were given by the Catholic Institute of Education, Resources Aimed at the Prevention of Child Abuse and Neglect (RAPCAN), Federation of Governing Bodies of South Africa, The Governing Body of Lynwood Ridge Primary, the Governors’ Alliance, the National Professional Teachers’ Organisation of South Africa, the Suidafrikaanse Onderwyse Unie, and the Human Rights Commission.
Common issues of concern included the issue of search and seizure in schools, the role of the principal, the issuing of drug tests, and certain of the definitions. Several submissions commented that the National Education Training Council was still not properly set up, and that the failure to consult with Council may lead to invalidity of the Bill. Further issues of unconstitutionality were suggested in regard to the manner of representation of principals on governing bodies, their right to differ from the Head of Department, the fact that principals were not supposed to give evidence in certain matters, and the sidelining of Governing Bodies. Further submissions addressed the ambiguity of some of the clauses, and the fact that learners over 18 were regarded as adults. Questions by Members addressed possible measures for drug testing, the age at which programmes should start, the Department of Education's comment on the constitutionality aspects,
Catholic Institute of Education (CIE) : Submission
Mr Kevin Roussel, Advocacy Researcher, Catholic Institute of Education, made various submissions on the Bill. In relation to the amendments to the National Education Policy Act, he proposed insertion of a definition of the National Education Training Council.(NETC). The substitution of Section 1 of the Education Laws Amendment Bill must make it clear that the Minister should provide for public participation. The technical amendment in clause 2 was supported. The substitution in clause 3(a) was again criticized as it removed the need to establish advisory bodies. In relation to the changes to the South African Schools Act, Mr Roussel stated that CIE welcomed the changes to clauses 4 and 5. It further suggested that a clause be inserted obliging the MEC for Education to make a budgetary allocation to ensuring application of minimum norms and standards in the province. The CIE welcomed clause 5.
In respect of clause 7, CIE suggested that the new section be linked to current regulations and policy around safety. CIE recommended that search and seizure activities by the principal at school be conducted in the presence of a Police official. CIE raised concerns over body searches at schools as this raised some concern over the right to privacy and it was open to abuse. CIE further said that the urine test used to detect drugs was not effective, as it did not pick up some substances (drugs); a hair test could be used instead. Parental consent should be considered in all matters prior to the testing of learners.
The CIE supported clauses 8 to 26. It noted that the insertion of the new Section 58B (5)(b), pertaining to withdrawal of the powers of the governing body, must be exercised with caution, and it should be shown that the removal was in the best interests of the school.
Mr R van Der Heever (ANC) asked whether the fact that the NETC was highlighted in the legislation would not also the fact that it was regarded as important in advising the Minister.
Mr Roussel responded that the legislature had in the past made it clear to the Minister that the body should be constituted, yet this had not happened. There had never been a call to constitute the body. He further said that there was fear that the Minister was not going to constitute that body and something more substantial was needed.
Mr A Mpontshane (IFP) asked what suggestions CIE had to avoid the dignity of learners being interfered with during drug searches
Mr Roussel responded that people took drugs due to societal issues and the only real type of intervention was having advocacy types of campaigns, meaningful education and liaison with the police.
Mr R Ntuli ( ANC) acknowledged the viability of the principle to get parental consent before testing a child for drugs. However this was not always possible in disadvantaged communities because parents were not always available or were not interested in getting involved. He asked if there was some alternative to circumvent this problem.
Mr Roussel replied that CIE acknowledged that there could be difficulty in getting hold of each parent and thus recommended that the principal should get the consent of the School Governing Body (SGB), and that at least the Chairperson of the SGB must be informed if a test would take place. At least one democratic structure would thus have been consulted.
Mr B Mthembu ( ANC) asked Mr Kevin Roussel to propose other methods of conducting drug tests that would complement the urine test. .
Mr Roussel acknowledged that this was a tricky issue globally. He was not proposing more tests, but intervention at the family level and said that the clauses in the education bill with regards to the issue of drugs should be married in other social development bills.
Resources Aimed at the Prevention of Child Abuse and Neglect (RAPCAN ) Submission
Ms Samantha Waterhouse, Advocacy Manager, RAPCAN focused on clause 7 of the Bill in relation to random search and seizure and drug testing at schools. It was important that any intervention to address drugs and violence at schools was based on reliable information, including information on gang violence, victimization of both learners and educators, and the nature and extent of crime. There was lack of reliable information. RAPCAN recommended that the Department of Education undertake a comprehensive situation analysis of violence in schools and that it should also develop a comprehensive National safety Policy based on reliable research.
RAPCAN believed that the provisions made in the bill represented only a narrow element of what was needed, and that the plan should focus on prevention and management rather than reactive responses. School crime, violence and substance abuse must be reduced by developing comprehensive safe school plans. Research was needed into best practice educators and school staff must act as role models. The results of research in the USA were tabled.
RAPCAN submitted that the current Bill failed to balance the rights and was particularly concerned about the searching of learners by a wide range of people. This made learners more vulnerable to victimization and abuse by educators. RAPCAN recommended that searching of learners by educators should be limited to searches of the property of learners and not the body of a learner. Searches must only be conducted by persons trained to manage potentially dangerous situations to ensure the safety of all concerned and complaints procedures and accountability mechanisms to address complaints regarding search and seizure had to be in place and made available to learners. RAPCAN further suggested that the term "random" should be deleted from 8 A (2) and 8A ( 8) and the term "reasonable suspicion" should be changed to "reasonable grounds" and be defined. Further definitions were needed for property of a learner, and guidelines for the place and method of searching the property of a learner must be prescribed.
With regard to 8A(4), RAPCAN recommended that this section be amended to ensure that body searches may only be conducted in extreme circumstances, that only police officials or qualified security officials could conduct a search, and they must be specially trained to work with children. A witness should be present during a search.
On the matter of urine tests, RAPCAN believed that random urine tests should not be done at school, but that testing of learners suspected of using drugs must only be done within a framework.
Mr Mpontshane asked the presenter to suggest methods in which searches by outside people could be done.
Ms Waterhouse replied that there would need to be discussion on the financial implications of employing others. She said that many educators had the interests of the children at heart, but RAPCAN had also heard horrific stories of treatment of learners by educators at some schools, and believed that total reliance could not be placed on educators.
Mr B Mosala (ANC) asked at what age RAPCAN believed the programme for safety should be started.
Ms Waterhouse replied that research showed that it should start at pre-school as it was important to talk about drug prevention, violence prevention and behavior management to even such young children.
Mr I Mfundisi (UCDP) asked if the presenter thought that corporal punishment was still administered in schools
Ms Waterhouse replied that the Department of Education had confirmed that at least 60% our schools were still using corporal punishment; at one school RAPCAN were told that corporal punishment had not been practised for two weeks but on the same day a learner was caned by an educator. Corporal punishment was still rife, especially in Limpopo and the Eastern Cape
Federation of Governing Bodies of South Africa (FEDSAS)
Mr Mike Randell, Chairperson and Mr Paul Colditz, CEO, FEDSAS, limited their comments to the proposed amendments to the National Education Policy Act (NEPA) and the South African Schools Act (SASA). Mr Randell said that the Minister should not have introduced the bill without having consulted the NETC, which did not yet have members. Quite apart from the question on legality, FEDSAS then outlined its other concerns.
FEDSAS criticised the long title stating that the norms and standards should be aiming to an objectively determined standard, and not minimums. Clause 1 amounted to undermining of the parents' role in education, as it placed education exclusively in the hands of the Minister.
FEDSAS said that Clause 2 appeared to represent a technical correction to section 6 of NEPA by replacing the reference to the Education Labour Relations Act, 1993, with a reference to section 40 of the Labour Relations Act, 1995. That part of it was supported, but once again FEDSAS said that in terms of Section 6 the legislation should have been introduced only after consultation with education stakeholders.
Clause 3 was problematic, as it was making provision for the Minister in her discretion to establish a body styled as the National Education and Training Council (NETC). This overlooked the fact that the Minister had already established the NETC. The amendment was not competent.
FEDSAS voiced support for the principle of measures aimed at improving school safety and discipline in schools, but believed that the explanation in the memorandum made no sense. FEDSAS saw the problem as not being the lack of law, but that of lack of support by education authorities to governing bodies and principals in the maintenance of discipline and the application of safety measures. The juxtaposition of the words "random searches" with "fair and reasonable suspicion" did not make sense. The definitions needed to be looked at again, and a number of suggestions were tabled. The provisions of subsection 14 were unacceptable as they suggested that a learner found in possession of an unlicensed weapon on the school premises could not be charged.
Clause 6 was generally supported but further thought must be given to whether counseling should be provided during the disciplinary proceedings, or after a conviction. No provision had been made for the financial implications.
Clause 8 defined the obligations of the principal, but it was pointed out that the Personnel Administration Measures (PAM) already set out the functions and obligations of principals, who wee to act in the best interests of the schools. The proposed amendments in this clause violated the principles of good governance, and undermined the relationship between the principal and the SGB. They indicated a misunderstanding of the principal's role as a governor. Prohibiting a principal from giving evidence in a court case was a violation of constitutional rights.
Clause 9 was seen by FEDSAS as being in conflict with the principles underlying governance and management. It was clearly aimed at compelling governing bodies to comply with the directives issued by the department to principals, and undermined the autonomy of the governing bodies as enshrined in sections 15 and 16 of SASA. Incapacity of principals and educators was already deal with in the Employment of Educators Act, and such provision was not necessary. The amendment proposed to Section 20(1)(g) was in conflict with Section 13 of SASA.
FEDSAS supported the amendments included under clause 10 and 12.
Clause 11 was also of concern and the existing sections 22 and 25 already provided for remedies. This clause once again was relegating parents to bystanders in the education of their children.
FEDSAS concluded by saying that it was clear that the draft bill was prepared without the benefit of advice from experts such as one would expect to find on a body such as the NETC.
The Chairperson asked the Department of Education representative to answer the comment of FEDSAS that the Bill was unconstitutional, since NETC was not consulted.
Adv Eben Boshoff, Director: Legal Services and Legislation, Department of Education said that the Department had received legal advice that the Bill was constitutional.
Mr Mpontshane of the IFP asked if it was correct that existing legislation addressed matters in the bill, such as safety at schools, and asked if there was a need for this Bill.
Adv Boshoff replied that there were different laws - such as the Fire Arms Control Act, which declared all schools firearm-free zones. Most of the other legislation covered the broader spectrum and did not focus particularly on schools. It also focused more on the criminal procedure, and not on how schools should deal with the matter, or how schools should address the problems.
A Member of the Committee asked FEDSAS to explain its understanding of the principal’s role as a governor.
Mr Randell replied that the principal had a dual role - firstly as professional manager of the school, under the authority of the Head of the Department, and secondly as governor by virtue of provisions of Section 23 of the Act.
Governing Body Foundation (GBF): Submission
The presenter of the Governing Body Foundation submission said that he would not repeat, but agreed generally with, the points raised by FEDSAS.
The GBF did not support the removal of the duty on the Minister to consult with a number of education stakeholder bodies. It too expressed concern that Ministers over the last 11 years had failed to establish the compulsory advisory body of the NETC, and noted that only certain parties remained guaranteed representation on that body.
The GBF was concerned about the definition of school activity.
With regard to Section 5A of Act 84 of 1996, the improvements made to the organisation of the proposed section were noted. It supported the need for a framework policy to ensure that all public schools in South Africa were provided with a basic, essential infrastructure and the capacity to achieve relevant outcomes. However, it was concerned that there was no indication of the form and substance of the minimum uniform and norm, no clarity on the term uniform, and no provision to encourage communities to improve infrastructure and capacity of a school.
There was also a need for clarity concerning the inclusion of the new 8A. It noted improvements to the practical arrangements, and the reporting procedures, and repeated its support for workable steps to reduce the impact of violence and drugs. It supported the expanded provision to use of delegates in place of the principal, but said that there was a need for further clarity. Clarity was also needed on the new 8A(14).
In respect of section 16A of Act 84 of 1996, GBF endorsed the attempt to define and clarify the management role of the school principal but warned the need to ensure that school governance and governing bodies should not be adversely affected. The clearer role of the principal should not divide principal and governing body. Some aspects of the section were unworkable and possibly unconstitutional.
GBF was pleased to note the change of the phrase ‘written warning" to "written notice" in Section 58B(2). However, many issues relating to under-performance did not fall under the governance competence of the governing body and most were professional management issues. In Section 58C the principle of holding education authorities accountable was supported, but this must be balanced against community participation and contributions.
Mr B Mthembu (ANC) asked the Department to clarify the issue of minimum norms and standards and to also talk about how these would be applied.
Adv Boshoff said that the issue of capacity was important and needed to be monitored and it was implementable. The intention of the clause on capacity was to provide quality education.
Mr Mthembu asked the GBF why it thought that the Bill was discouraging people from contributing funds towards making schools better.
The GBF replied that the Bill did not make provision for parents’ contribution at all, although parents were still being and should be encouraged to contribute towards school..
Lynwood Ridge Primary School Governing Body: Submission
Mr Jitendra Hogovan, Member of SGB, Lynwood Ridge Primary School, noted that SGBs should take all reasonable steps to ensure quality all-round education for all members of the community. Governing bodies, schools and departments must be partners in the same enterprise. It was concerned about the gradual erosion of the independent powers of the school governing bodies, which could demotivate parents from sitting on the governing bodies. The cause of improving education would not be met by heaping responsibility on governing bodies while taking away their power to exercise their responsibilities.
The school did not wish to comment on Clauses 1 to 3. Clauses 4, 5, 6 and 7 seemed reasonable. Clause 8 had some laudable features. However, Mr Hogovan objected to the proposed sub-sections (3) (a) and (c) and (4), echoing the submissions that were made by previous presenters. He submitted that some of the provisions could be regarded as unconstitutional. The Principal should not be required to support the actions of decisions of the Head of Department, whether correct or not. The principal should not be deprived of the right to independently consider, and act on, issues that inevitably came up concerning a school and to differ from the Head of Department. Section 16A(3)(a) also appeared calculated to disempower governing bodies. Subsection (4) was equally condemned and would not pass constitutional muster. These comments had already been made to the Department.
Governors' Alliance: Submission
Ms Kathy Callaghan, Secretary, Governors' Alliance, introduced the Governors’ Alliance as a public school governing body association. She expressed concern on the erosion of the contribution of the governing body and the movement of parents to the periphery.
Governors’ Alliance raised concern on the word “may” in the text of the amended Section 11(1) of the National Education Policy Act, and asked if this should not be “shall”.
In respect of the amendments to the South African Schools Act, Ms Callaghan further said that the definition of “ dangerous objects” was still too wide and that the Minister should carefully consider and specify the objects. The definition “illegal drug needed further consideration, because learners still could be abusing alcohol or over-the-counter medications. The definition of "school activity" was unclear.
With regards to the insertion of Section 5 A on norms and standards, Governors’ Alliance was presuming that the state would be responsible for providing these “prescribed minimum uniform requirements. The functions under 5A(2)(b) were already allocated to SGBs. The requirements in subsections (3) and (4) were unduly restrictive and would impact on the powers and functions of SGBs.
The amendment of Section 8 of the S A Schools Act was supported. The insertion of Section 8A on random search and seizure was not supported. The reasons given in the Memorandum for the introduction of the provisions was unconvincing. The random searching of bodies of minors and the taking of urine samples was unconstitutional. The State must avoid paternalistic attitudes. There was no definition of "possession", nor any indication how principals and educators could develop expertise enabling them to identify unlawful drugs. The role of the governing body was sidelined.
The new 8A (14 did not enhance the provisions of the National Policy on Management of Drug Abuse by learners in public schools.
Governors' Alliance did not concur that the principal of the school represented the Head of Department on the SGB, as suggested by Section 16A. The governing body did not need the assistance of the principal to conduct disciplinary matters. The provisions amounted to marginalisation of the SGB. The constitutionality of 16(4) was questioned. The introduction of Section 20(g) would marginalise a governing body further. It was concerned with insertion of Section 58B, and questioned the lack of consultation with stakeholders on the norms and standards. Finally the financial implications were vague.
National Professional Teachers Organisation of South Africa (NAPTOSA): Submission
Mr Dave Balt, Chief Executive Officer, NAPTOSA, stated that NAPTOSA had previously submitted comments and welcomed the clarity that had been brought about by some of the changes. However, certain issues had not been addressed.
In regard to the amendment of Section 5 of the National Education Policy Act, NAPTOSA remained concerned that there was no reassurance that the Minister would consult with all affected parties. It believed the amendments to Sections 5 and 11 would limit the involvement of the unions. They should be consulted in a formal structure such as NETC.
NAPTOSA also commented in the written submission on the problem inherent in the minimum national norms and standards, which could be interpreted in various ways, the lack of mention of quality rather than mere existence of the resources, and what would happen in the case of over-enrolments. There was lack of consultation on norms and standards. Provision should be made for governing bodies to deviate from the norms where there were not practicable options. Schools should be able to determine when a school was full. NAPTOSA believed that more protection must be given to teachers.
In regard to the new Section 16A. this had been raised already in the morning session and NAPTOSA agreed with those submissions. The S A Schools Act remained silent on the functions of district offices and their responsibilities. There were concerns that these officers were not doing their work and were not being held accountable.
The principle raised in 16(4) was severe and a court of law should not have to direct that a principal could give evidence against a Minister. Many of the questions had been raised in previous submissions.
Comments were also contained in the written submission that Section 20 should be removed, that
the costs of the audit in Section 43 must be dealt with, and that there should be more consultation with principals under new Sections 58B and 58C. It accepted the amendments under the National Student Financial Aid Scheme Act, but asked why only students at FET Colleges should be beneficiaries. Costs of Adult Basic Education and Training were raised.
Suid-Afrikaanse Onderwysersunie (SAOU) Submission
Dr Davis, Suid-Afrikaanse Onderwysersunie (SAOU), noted that there were problems with two definitions of the amendment bill. One related to the definition of illegal drugs. There was a gap here in that any lawful intoxicating or stupefying drugs would be permissible and in theory could be brought into the schools. The definition of school activities was given as any official education, cultural, recreation or social activity within the school or outside. Dr Davis wondered if it was not wise to draw a distinction between those school activities that involved school learners and non- learners. Many school activities were arranged in the evening or where no learners were involved and that did not change the circumstances.
Further comments were made on the codes of conduct, which were to provide the support measures, structures, counseling and discipline, and this would involve cost. However, there was no indication who would support the schools in these codes of conduct. There was no mention of the capability or competence of teachers to be involved in these support measures. Obviously teachers needed qualifications to be able to counsel students. Poor advice could lead to severe implications and liability of both teachers and schools.
The SAOU was further concerned about the provisions in relation to random search and seizure, and took the view that educators should not do the searches as they were not trained to do so, and that this provision did not take into account cultures and traditions.
SAOU was further concerned that by definition learners over 18 could be regarded as adults. It was concerned that the learners may be able then to make adult decisions in relation to testing for drugs and other substances.
Mr R Ntuli (ANC) referred back to the definitions and asked for clarity whether, during official school functions, alcohol could be allowed in the school.
The Chairperson asked what would be the problem if no school learners were present. Each school had its own code in relation to alcohol.
Mr Dave Balt responded that there was a wide range of drugs that was not included in the current definitions; many did not fit within the definition, such as enhancing drugs. The request was that a refined definition was in fact needed for school activities, to distinguish between those functions involving learners, and those not involving learners.
A Member said that the code was correct, but consideration must be given to those who might properly be taking prescribed medicines with traces of alcohol.
Mr Mpontshane commented that if a person was at a school or organisation then automatically that person was subject to the rules and regulations of the school, and it should not make a difference whether the learners were over or under 18.
Mr Balt replied that no one was suggesting that a person over 18 was absolved from following the rules of the school, as the Schools Act was very clear on that .There would be some difficulties with challenges relating to searches and testing as learners over 18 had the right to make decisions like adults.
SA Human Rights Commission (SAHRC): Submission
Ms Judith Cohen, Deputy Director, SAHRC, referred to an article in the Sunday Times to illustrate that teachers were experiencing enormous difficulty in their professions. Violence was a national concern, and the SAHRC had been working on this problem for a while. Violence, gang-problems and vandalism had spilled over into schools. The SAHRC had undertaken an investigation into violence in schools in September last year and a proposal was expected shortly. If drastic measures were needed then the legislators must not shy away from them. The current Bill was welcomed as a step towards ensuring that a safer environment was created.
Ms Cohen summarised the mandate of the SAHRC and the right to education under the Constitution, as well as the international obligations of South Africa. The right to education was the key facilitating right in terms of our democracy.
Ms Cohen noted that there was a need to proceed with caution when limiting rights, including the testing and search and seizure provisions. The USA had done extensive studies on this issue. Dealing with drugs must be seen not in isolation but as a holistic approach. It would be preferable to make the limitation of rights geared to rehabilitative outcomes. Further attention was needed on who would be carrying out the search and their training. Any provisions must be tailored so that they were not discriminatory. The provisions for testing a group were confusing. It must be recognised that drug users could avoid being caught by using drugs that did not show up on testing, or move to prescription drugs. There was a need for constant awareness and monitoring. Another issue was who would be the most appropriate authority to administer the tests, and the SAHRC suggested that this would be district nurses or social welfare appointees. The risk of school dropouts to avoid testing was established in other countries. There would have to be certainty on who would bear the costs - as it clearly would not be feasible to fund the testing through school fees. When a child was identified as having a problem, the Bill was silent on whether the Department or the school must get involved in counseling. The statement that a "parent" must be informed did not address the situation in Child headed households
The SAHRC was concerned about the provisions in relation to the principal giving evidence, as this impacted upon Sections 34 and 35 of the Constitution and the right of access to courts. The purpose of that provision was unclear.
In relation to minimum norms and standards, the SAHRC was concerned about the wording of "may" or "shall" and there was a need to establish and make know n the basic minimum infrastructure.
A Member asked whether there would need to be involvement also of clinical psychologists.
Ms Cohen commented that the question demonstrated the difficulty of implementing the Bill. The call for a holistic approach meant that all the role players would need to be involved, from Department to parents to religious communities. In order to address violence a broad based approach was needed, and the school could not be expected to do all the work. There was a need for more psychologists in schools. Gangs in schools had become a problem to the extent that learners were scared to attend school. Psychologists were needed to deal with the trauma.
A Member stated that the present bill had serious problems of implementation, and that the implementation was further dependent on capacity. Capacity would not exist outside Gauteng or Western Cape.
Ms Cohen agreed that the limitation of rights would require consideration also of capacity issues, and perhaps further consultation was needed..
Ms D van der Walt (DA) commented that there was sometimes inconsistent use of the words "may" and "must". This Bill should be seen as addressing the rights of the "good" learners.
Ms Cohen responded that the legislation had started from the premise that learners were in fact bringing guns on to school premises. There was a need for acknowledgment that this was because something had gone wrong in the life of that child. That was why there was a need for care and support. The State must not shy away from rights to liberty and clearly if a learner committed a crime something must be done about it. However, there was a need to check that the limitation of rights was not taken to extremes.
A Member wanted clarification on the principal not testifying.
Ms Cohen responded that the current wording of the provision would seem to limit the rights of the principal to act as witness. It was not clear what the provision was trying to achieve.
The Chairperson noted that clearly the extent of the search and seizure provisions must be defined.
The meeting was adjourned.
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