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EDUCATION AND RECREATION SELECT COMMITTEE
7 November 2007
EDUCATION LAWS A/B: NEGOTIATING MANDATES; HUMAN SCIENCES RESEARCH COUNCIL A/B & ASTRONOMY GEOGRAPHIC ADVANTAGE BILL: ADOPTION
Chairperson: Mr B Tolo (Mpumalanga; ANC)
Documents handed out:
Astronomy Geographic Advantage Bill [B 17-2007]
Human Sciences Research Council Amendment Bill [B 16B-2007]
Education Laws Amendment Bill [B 33 B-2007]
Eastern Cape Provincial Legislature Negotiating Mandate on Education Amendment Bill [B33B-2007]
Gauteng Legislature Negotiating Mandate on Education Amendment Bill
Northern Cape Provincial Legislature Negotiating Mandate on Education Amendment Bill
North West Provincial Legislature Negotiating Mandate on Education Amendment Bill
Provincial Legislature of the Free State negotiating mandate on Education Laws [B33B-2007]
Kwazulu Natal Negotiating Mandate on Education Amendment Bill
Mpumalanga Negotiating Mandate on Education Amendment Bill
Limpompo Negotiating Mandate on Education Amendment Bill
Western Cape Negotiating Mandate on Education Amendment Bill
Audio recording of meeting
The Committee considered the negotiating mandates of the provinces for the Education Laws Amendment Bill. Various proposals were made for amendment, which were agreed to by the Committee. There was discussion on random search and seizure, and it was noted that this must be in the hands of educators, as the intention was not to criminalise the learners but to deal with this as a disciplinary issue. Furthermore it was agreed that the reference to random searches must be limited to groups, since it was not possible to do a random search for one individual. The submissions that this should be in the hands of the police were rejected. The suggestion to delete clause 8 was approved. Free State proposed that there should be consultation with the members of the executive council, in relation to Section 5, as there should be concurrence between the Minister and the provinces. The committee agreed. It was noted that the obligations should be stated in respect of both sports and recreational facilities, and this was supported by the Committee in respect of Section 5A(2). Clarity was sought on the councils referred to in Clauses 1, 3 and 6. There was a suggestion that alcohol should also be mentioned in the main body of the legislation, not just in the regulations, but this was not supported by the Committee. The Committee agreed to take the issues back to the provinces to enable them to prepare their final mandates.
The Committee then proposed some changes to the Human Sciences Research Council Amendment Bill. These were supported by the Department. The Bill was adopted, with amendments.
The Committee noted that the Department of Science and Technology had proposed some amendments to the Astronomy Geographic Advantage Bill based on what stakeholders had suggested. These were agreed to by the Committee and the Bill was adopted, with amendments..
Education Laws Amendment Bill: Negotiating mandates of provinces
Eastern Cape mandate
It was noted that the Eastern Cape had submitted, in relation to clause 7, that random search and seizure must be left in the hands of the police.
Mr T Setona (ANC, Free State) said that he did not think that the purpose of random searching was to criminalise the behaviour of children in schools. The purpose was rather to enforce discipline, and this was a matter that ought to be handled by educators instead of the police. He said that the issue of the police could only be addressed in the Criminal Procedure Act. Adults manipulated children to carry drugs to school so it would be unfair to criminalise children. He added that the matter must be dealt with in a manner that could rehabilitate children.
The Chairperson agreed with Mr Setona and stated that the police could not be brought into the search and seizure section in the Bill, as he agreed that the reason behind the provision was to enforcing discipline in schools, not to criminalise the behaviour of children.
The Eastern Cape had then made certain submissions also in relation to Clause 14. The Chairperson noted that there should be no charges pressed against the children because clause 7 and 14 were linked. Drugs and weapons must be taken to the police for disposal, but charges must not be pressed against the children.
Members agreed with this view.
The Eastern Cape had suggested that clause 8 must be deleted.
Adv Eben Boschoff, Director, Legal Services and Legislation, Department of Education, stated that the clause was not essential to the legislation and therefore would not affect it adversely if deleted. He said that there was a request from the Minister for the clause to be deleted.
The Chairperson stated that the Committee too had been wary of the clause and since the views of the Minister and those of the Committee coincided, the clause should be deleted.
The Eastern Cape had finally raised the question of financial aid in clause 14.
The Chairperson said that the National Treasury had already addressed the question of admission, and if people did not have the money for admission fees, then National Treasury should be able to give financial aid to cater for this situation as well.
Free State Mandate
Mr Setona presented the mandate of the Free State.
In relation to the new 5A(1) it was proposed that the words “after consultation with the members of the executive council” should be inserted after the word “regulation”. He stated that the argument was that education was a concurrent function. Sometimes it was discovered that regulations were deficient because there was no concurrence between the Minister and the counterparts in the provinces. When dealing with norms and standards there should be concurrence with the members of the executive council to ensure that all were satisfied that the norms and standards were reflective of the unique circumstances in the particular provinces.
The committee agreed.
In relation to clause 5A (2)(vii), Mr Setona stated that the proposal was that the words “sports and” should be inserted before the words “recreational facilities”.
Ms Refilwe Mathabathe, Parliamentary Legal Advisor, agreed with the suggestion.
Mr Setona stated that there was not enough support from the Department of Education (DOE) with regard to sports facilities. He said in some provinces the schools relied on the municipalities to provide sporting facilities for the schools.
Mr M Sulliman (ANC, Northern Cape) asked the Department what the financial implications of adding these words would be.
Mr Boshoff said that there would be a financial implication, which would have to be dealt with between the Department of Sports and Recreation and DOE. The Department of Education had the responsibility of providing sports and sports facilities at schools.
Mr Setona believed that the Department of Education was obligated to provide sports facilities at schools. This was because there was an irrefutable link between education and recreation and education and sport as one could not exist without the other. Sports and recreation were important for the development of the child. Within the context of interdepartmental collaboration it should be the responsibility of the Ministry of Education to ensure that there ere sports facilities at schools.
The Committee agreed with the proposed insertion.
Mr Setona noted that although the negotiating mandate had gone further to suggest that “and support” must be inserted in paragraph (c) (ii), this was in fact now irrelevant, because the sentiment was already captured by the wording of 5A(2)(c), which read that “in respect of provision of learning and teaching support material…”
Committee members agreed.
Mr Setona noted that a proposal had been made in relation to the new Section 8A(2), to the effect that the word “learner or” should be inserted before the words “groups of learners”.
The Chairperson agreed with that proposal.
Mr Boshoff stated that if the word “random” was linked to the provision, then this would create a misnomer between random testing and the criteria of reasonable suspicion. It was problematic to link it to an individual because of peer protection and so it was often difficult for a teacher to determine which student carried the gun. The teacher would have to search the entire group. The criteria of reasonable suspicion could be dismissed because Constitutional principles supported it. The protection afforded by the section is that an individual could not be victimized. The word “random” could not be used with regard to an individual.
The Committee agreed that this change would be problematic.
Mr Setona noted that the new Section 8(4)(b) had been deleted.
Mr Setona stated that he was concerned about the fact that the Bill did not state how schools are meant to acquire the drug testing equipment. He added that there would obviously be financial implications on the schools and he wanted the Department to address that.
Mr Boshoff asked the Committee to turn to page 15 of the Bill where financial implications were addressed and where it had been stated that the minimal financial implications would be covered by provincial school budget allocations.
Ms N Madlala-Magubane (ANC) referred to the norms and standards clause in relation to infrastructure, as contained in the new Sections 5A(1) and 5A(2).
She stated that where the word “must” as used the MEC would be forced to comply with every aspect of the norms and standards, even in the case where there were financial implications that had not been budgeted for. If the word “may” was used, this would create an opportunity for the MEC to assert and prioritise according to the necessary allocations without fear of failure to comply with the norms and standards.
Mr Setona said the matter had also been of concern to the Free State but it had decided to deal with it by asking that norms and standards should be made after consultation with the MEC, to avoid creating undue pressure on provinces.
Ms Mathabathe said the comment by Gauteng was premature, because the words “must” and “may”, when used in that context, related to the discretion of the Minister to either make the norms and standards or not, rather that relating to what was in those norms and standards.
The Chairperson stated that if there as a problem it could be dealt with in the manner suggested by the Free State as that was what would be accommodated.
The committee concurred.
Ms Madlala said in the case of the urine testing there was no indication in the bill whether the principal or any other teacher would have to undergo training on how to administer such a test.
The Chairperson asked whether any training was necessary in order to administer a urine test.
Mr Boshoff stated that training was an implementation aspect and the Department was working on guidelines which would be sent to the schools and which dealt with some of the terminology and some of the methods that should be used.
Ms Madlala noted that the provisions in 7(4) had been deleted.
Limpopo province mandate
There were no proposed amendments by the Limpopo province.
Kwazulu Natal Province mandate
Mr Maharaj, Kwazulu Natal Provincial representative, asked for clarity on whether the Council mentioned in clause 1 was the same as the one mentioned in clause 3.
Mr Boshoff said that this was explained in the definition section. The Council in clause 3 was referred to as the National Education and Training Council. This was a completely different concept and structure to the one referred to in Clauses 1 and 6.
Mr Maharaj stated that the definition of illegal drug as contained in Section 4(b) did not include alcohol.
The Chairperson said that alcohol was not an illegal drug.
Mr Boshoff stated that the regulations it was stated that there was to be no alcohol on the school premises, and this applied to students and teachers alike.
Mr Setona thought that in the definition section, there should be inclusion of or reference to alcohol, to make the clear statement that it was not meant to be on school premises either for purchase or consumption. It should not only be mentioned in the regulations.
Mr M Thetjeng (DA, Limpopo) expressed the same sentiment.
The Chairperson said that since the matter was covered in the regulations, placing in it in the act would just result in unnecessary repetition.
Mr Maharaj was concerned with the use of the phrase “fair and reasonable suspicion” in the new section 8A(2). He asked whether a different phrase could be used in its place because it was too subjective.
Mr Boshoff said there had been consultation with many leading advocates with regards to that concept. The concept was well-recognized and well thought out. The right to invade the privacy of another person must be linked to an objective criterion. It could not be subject to whim.
Mr Maharaj asked who would bear the costs of the auditors referred to in the Bill.
Mr Boshoff said that according to the South African Schools Act the schools would bear the cost. A person with a background in bookkeeping should be appointed so that he or she could prepare financial statements for the school.
It was noted that the negotiating mandate had contained no proposed amendments.
Mr Sulliman said the Portfolio Committee for Education in this Province had raised the concerns that the principal should be cautious when conducting body searches in order to avoid violating the right to privacy of the children. Body searches should be conducted in the presence of suitable and qualified health practitioners. He said that the legislature, apart from making this point, was happy with the Bill.
Mr M Mahlangu (ANC, North West) noted that the new 5A (2)(a) was meant to include transport.
The Chairperson said that scholar transport was not part of the national policy, therefore it could not be included under norms and standards. He said that the best the Committee could do was to ask the department to consider the matter.
Mr Mahlangu wanted clarification on the role of the police.
The Chairperson said that the police only featured when the teacher or the principle submitted a drug or weapon to the police.
Mr Mahlangu expressed concern about the rights of the children with regards to being searched by teachers.
The Chairperson said that there was a regulatory body, which dealt with how the educators were supposed to act. Therefore if there were any problems they would be addressed by that body.
Mr Mahlangu enquired about the right of the learner to consent to be searched.
Mr Setona said that there was a limitation to every right in the bill of rights. Therefore if there was a reasonable suspicion, in that instance the individual person’s right became limited.
Ms H Lamoela (DA, Western Cape) said that most of the issues of the Western Cape had already been dealt with.
The Province had suggested that a list of under performing schools should not be placed in the annual report. She said she was not at the meeting when the mandate was being negotiated, but she had thought that perhaps the list should be in the Annual Report so that the Department would be able to ascertain why the schools were performing poorly. Sometimes poor performance was the result of a lack of resources.
The Chairperson said that the bill was clear, and the school must talk to the head of the Department and to state the issues that needed to be dealt with.
The Chairperson said that these issues must be taken back to the provinces so that a final mandate could be produced.
Human Sciences Research Council Amendment Bill
The Chairperson said that he wanted to inform the Department of Science and Technology on the proposed amendments that were to be made by the Committee to this Bill. He read out the amendments as follows:
- Page 4, line 42, the word “in” to be replaced with “after”, so that the phrase would read “the Minister, after consultation”.
-Page 4, line 42 the words “National Assembly” to be substituted with “parliament”.
-Page 4 line 43, insertion of the words “at least” after the word “and”. As a result of the proposed amendment, the phrase would read, “at least two national newspapers”.
- Page 5, line 21, the words “National Assembly” to be substituted with the word “parliament”.
Ms Majorie Pyoos, Group Executive: Socio Economic Partnerships, DST, stated that the Department welcomed the proposed amendments.
The Bill was agreed to, with the proposed amendments.
Astronomy Geographic Advantage Bill
The Department of Science and Technology had proposed some amendments based on what stakeholders had suggested. These were clarified as follows:
- Clause 18(6): the word “may” should be changed to “must”
Clause 21(2) at line 34, should read that the “Minister may with the
concurrence of the civil Aviation Authority”
- Clause 51(4), at line 39 should indicate clearly that the person “intended to break the law”.
The Committee agreed to the Bill, with these proposed amendments.
The meeting was adjourned.
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