Education Laws Amendment Bill [B33-2007]: discussion
Basic Education
12 September 2007
Meeting Summary
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Meeting report
EDUCATION
PORTFOLIO COMMITTEE
12 September 2007
EDUCATION LAWS AMENDMENT BILL [B33-2007]: DISCUSSION
Chairperson: Prof S
Mayatula ( ANC)
Documents handed out
Education Laws Amendment Bill [B33-2007]
Audio recording of
meeting
SUMMARY
The committee met to consider the Department’s further comments on the
submissions made during at the public hearings, and amendments made by the
Department to the Education Laws Amendment Bill. The Department’s legal
representatives clarified the issues of constitutionality raised around the
National Education and Training Council, under clauses 1 and 2, and explained
that questions of policy could not be considered. The establishments of the
Council would ensure teacher representation.
Clause 4 had been criticized as not including certain objects but the
Department was satisfied that sufficient recourse was open to the school to
allow or disallow objects and substances under clause 8A and the Codes of
Conduct. Minor technical amendments were proposed to clause 5. The concepts of
“random tests” and “fair suspicion” were explained in relation to clause 7. It
was suggested that the word “urine” be taken out in relation to the testing. In
clause 8 Members suggested clarification of a date in relation to the Head of
Department, and the Department clarified the role of the principal as
representative of the Department. The arguments raised in the public hearing on
freedom of association and giving of evidence were discussed. Members felt that
the clause was not worded clearly. Under Clause 10 it was clarified that where
no auditors were available, the MEC could designate another person. The
representation of the school was also clarified in relation to Clause 11.
Technical changes were proposed to Clause 15. The Committee did not have
specific comment on clauses 6, 9, 12 to 14, and 16 to 27. The final decisions
on the Bill and the formal adoption would be given on 14 September 2007.
MINUTES
The Committee met to discuss the clauses of the Education Laws Amendment
Bill (the Bill) and was assisted by the legal advisor and representatives of
the Department of Education (DOE)
Clauses 1 to 3
The Chairperson felt that Clauses 1 and 2 should be discussed together as
they were both speaking of norms and standards.
Adv Eben Boshoff, Head:
Legal Services, Department of Education, said that the clause prescribed that a
Minster must consult certain appropriate bodies before making any policy.
Mr A Mpontshane
(IFP) noted that during the public hearings it had been suggested that this
amendment would be unconstitutional.
Mr Duncan Hindle, Director
General, DOE, replied that there was nothing unconstitutional in this clause.
There had been a provision for a National Education and Training Council (NETC)
in past legislation, but it was never established. The Department wanted to
ensure that it would be formed and above all would be formed appropriately. The
change was not to the concept, but to the wording, and the NETC would be able
to deal with specific issues. The Department has not listed the actual structure
as it felt that this would be inappropriate. He said further that all
constituencies that wanted to be involved would be represented. DOE wanted to
establish a council that would have proper representation of the teaching
community. All legitimate constituencies would be included in advising the
Minister.
Mr R Van den Heever ( ANC) expressed that this explanation took care of the
concerns about unilateral representation, and clearly explained the clause.
The Chairperson asked
the Department to clarify the issues raised around unconstitutionality of the
process, and why there had not been reference to NETC when amending the Bill.
Adv Boshoff replied that the argument that policy
must be referred to the NETC was unfounded. The National Education Policy Act
(NEPA) provided that the Minister must consult this body only on labour
issues that were taken to parliament. NEPA did not provide for any of the
things being addressed in the Bill. The Minister was not involved in the
process of the Bill, as this function belonged to parliament, which was not
subject to NEPA.
Clause 4
The Chairperson said that there was concern over the fact that this clause
did not include a reference to scissors and alcohol, but he noted that the new
Section 8A addressed this concern as it provided that the principal could authorise or disallow certain things from coming into the
school, and schools also had code of conducts that would also include such
items.
Clause 5
Mr Van den Heever
proposed that “ the” be omitted in 5A 2(a), so it would read “ in respect of
school infrastructure”. “Biology” on the top of page four should be changed to
“Life Science”.
Mr A M Mpontshane
(IFP) asked what difference would the change to “the” make.
The Chairperson replied that it would change the sense from a specific school
to schools in general.
Clause 6
Members had no comment on this clause.
Clause 7
Mr R Van den Heever
said that the ANC believed that the word “random” needed further explanation
and they wanted subsection 1 in line 36 to explain the concept.
Mr Mpontshane asked what would be regarded as “fair
suspicion”.
Adv Boshoff said that the principle of fairness was
introduced by the labour laws and the Constitution.
This was applied when dealing with issues of abuse and discrimination, as an
action could be reasonable, yet would not necessarily be fair. The concept of
fairness went beyond reasonableness.
Ms C Dudley (ACDP) asked who would judge whether something was fair or
reasonable, and commented that it was likely that specific training might be
required to deal with these issues.
Mr Hindle replied that it
would be the disciplinary committee at the school, or the principal or his delegate, that would make this judgment. No one should need
training as all had a good understanding of what would be reasonable.
Mr Van den Heever proposed
that on page 5 after line 4 the Committee inserts “The principal, within one
day, must inform the parent that a search was conducted with regard to their
child.
Ms Dudley suggested that parents should also be contacted before a search
or test was conducted on their child.
The Chairperson noted that the test and the search would not be random if these
words were inserted.
Mr Van den Heever
proposed that on page 5 subsection (a ) should specify that an adult witness be
present during the search, and line 49 should read “ inform parents before the
urine test is done if practicable in respect of his or her child.”
Adv A Gaum (ANC) suggested
that “urine” be taken out, so that it could apply to any drug test as
mentioning urine excluded all other tests.
Clause 8
In line 25 of page 6, Mr
Van den Heever proposed that after “Head of
Department’ there should insertion of “on a date determined by him or her”.
The Chairperson asked the Department to clarify the role of the principal as he
believed that there were some misunderstandings with regards to this matter.
Adv Boshoff recapped that during the public hearings
it was noted that a principal was a member of the governing body, and was in a
position of trust to the governing body. The public hearings had complained
that the amendment would run counter to the principal’s constitutional right to
freedom of association and expression. Adv Boshoff
believed this was not correct. The principal was appointed by the State, and
was in a position of trust towards the State. The Principal was also delegated
by the Head of Department.
With regard to the arguments about freedom of association, the principal’s role
must be seen within the framework of his or her job. In any job an employer
could forbid his staff from speaking to the media about job-related issues. The
principal’s
involvement with the School Governing Body (SGB) was directly
related to his or her job. Some of the rights to freedom of expression were
restricted in the employment contracts.
With regards to the issue of the principal giving evidence in court, the
principal was the representative of the Head of Department.
Mr Mpontshane commented
that legislation should be couched in simple language. He did not believe that
this clause had been expressed simply and clearly.
A Member commented that the way in which the clause was crafted caused
misinterpretation and a sense that it violated Section 35 of the Constitution.
The Chairperson commented that, in his or her personal capacity the principal
could give evidence. However, the MEC and the Head of Department were
represented by the principal in the school, so that it was in a representative
capacity that the principal could not be giving evidence against those being
represented.
Mr Mpontshane noted that
this clause had generated a lot of debate in the public hearing and within the
Committee.
Ms L Maloney (ANC), asked if the principal could
excuse himself or herself from discussion in the SGB on an issue that would be
in conflict with his or her position.
Adv Boshoff replied that a principal could excuse
himself or herself if there was a conflict of interests. It was necessary for
them to be at the SGB meeting if there was no conflict.
Clause 9
Members did not comment on this clause.
Clause 10
The chairperson commented that this clause could
be an unfounded mandate, as auditors were not available, especially in rural
areas – he cited Mqanduli as an example.
Adv Boshoff said that in that case, legislation
provided for the MEC to appoint an accounting teacher from another school to
conduct an audit for another school.
Clause 11
Adv Boshoff pointed out that there was a
misunderstanding in regard to this clause as to who was representing the
school. The school was a legal entity and the functions were performed by both
the governing body and the principal, as representative of the Department. The
notice must go to both the principal and the SGB.
Clauses 12, 13 and 14
Members accepted these clauses.
Clause 15
Mr Van den Heever
proposed that sub clause ( 5) be changed to read “University of Technology” and
that subclause (6) be changed to read “Further
Education and Training College”
Clauses 16 to 27
Members had no comment on these clauses.
Members would meet on 14 September to adopt the Bill formally.
The meeting was adjourned
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