Education Laws Amendment Bill [B33-2007]: discussion

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