Gerber’s Legislative Proposal to amend church school founding acts

Private Members' Legislative Proposals and Special Petitions

13 June 2008
Chairperson: Adv P Swart (DA)
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Meeting Summary

At the previous meeting Mr Gerber, MP, had submitted a proposal to amend four Acts governing educational church institutions, and it was decided that the representatives from those institutions should address the Committee. At the outset each mentioned the shortage of time allocated for comments, and indicated that further time would be required. The reasons for the proposal were explained and were appreciated by the institutions, although it was pointed out that the full impact of the repeals – for instance on property and vested rights – would need to be examined. The Church of England pointed out that one of its governing Acts had been a Natal statute of 1910, which would take some time to source and check. It had been agreed that it would in any event be useful for these institutions, instead of being governed by Statute, rather to draft and rely on their own constitutions. It was agreed that fourteen days would be allowed for comment and that if it seemed that there would be far-reaching ramifications requiring more time, this should be indicated in the submissions. The Committee might call for oral evidence if necessary.
The proposal in relation to the Employment Equity amendments stood over to the next meeting.

Meeting report

Gerber’s Legislative Proposal To amend St Andrew’s College, Grahamstown, (Private) Amendment Act No. 82 Of 1985, Diocesan College, Rondebosch, (Private) Amendment Act No. 7 Of 1942,
Natal Ecclesiastical Properties And Trust (Private) Amendment Act, No. 60 Of 1975

The Acting Chairperson recapped that Mr P Gerber MP had presented his proposals to repeal these Acts at the previous week’s Committee meeting, and it was decided to invite stakeholders to make submissions to the Committee on that proposal, and to highlight any problems that they foresaw with the repeal.

Saint Andrew’s College, Grahamstown Submission
Mr T Brukman, representative of St Andrew’s College, noted that it was only on the previous day that he had been asked to attend, and he noted that the College had been given only three days notice of the meeting, which had been insufficient time to prepare full comments. He requested a postponement. 

The Acting Chairperson replied that the letter went out last Friday and asked the Committee Secretary to explain how it was sent.

Mr Mocumi responded that it was sent on 6 June and received at the school by a Mr Petersen, who confirmed that he would give it to the Principal, but when checking on Tuesday the Principal said he had not received anything from Mr Petersen.

The Acting Chairperson suggested that this matter stand over for further discussion. He asked for preliminary comments.

Mr Brukman said the College would need time to prepare as there were potentially far reaching implications.

Mr Gerber responded that the Committee would like to be informed of the far reaching implications before a decision could be taken, but stressed that there was not a lot of time available.

Mr Brukman suggested that perhaps the College would need about six weeks.

The Acting Chairperson explained that Parliament would be rising on 23 June and there was not much time in the rest of the year, as committees would be dealing with other legislation, so that six weeks was not really an option.

Mr Brukman asked what the urgency of the proposal was.

The Acting Chairperson explained that the proposal was before the Committee and since Parliament was reaching the end of its term, the proposal would lapse if not dealt with before April. He explained that the legislative proposal was just the first stage of the procedure. If this Committee accepted the desirability of the proposal, then a Bill would be prepared for presentation before the relevant Portfolio Committee – in this case Education. If the Committee did not think it was desirable, the matter would end there. Time was not the issue for this Committee so much as for the next Portfolio Committee to deal with the matter.

He suggested that Mr Brukman ask the Principal to submit a written argument on the proposal, perhaps within 14 days. If necessary, the College could be called again to give oral submissions. No rights would be prejudiced as this was the initial process.

Mr Gerber stressed that even if this Committee decided the proposal was desirable the Portfolio Committee on Education could still reject the following Bill.

Mr Brukman asked for minutes of the last meeting so that he could see the motivation.

The Acting Chairperson said that this was sent to the institutions, and could be found under “Objectives of the Proposed Legislation.” 

The Committee agreed that the College be invited to furnish a written submission within fourteen days.

Diocesan College, Rondebosch Submission
Mr Grant Nupen, Principal, Diocesan College, noted that this College was established in 1849 by the Anglican Church and had been in operation since then. The College supported the principles of democracy. However, it was concerned that the proposal seemed to suggest that the composition of the College was discriminatory. This was not understood. The College was a religious school. Sections 29(3) of the Constitution empowered anyone to create an institution, and Section 31 allowed for freedom of religion. He believed that the proposal must be withdrawn. It was conceded that perhaps the reference to a “clergyman” might be discriminatory on gender grounds, but he asked for clarification.
The Acting Chairperson clarified that in similar proposals before the Committee in the past the argument from Members of Parliament was that institutions such as colleges and churches should not be governed by national legislation. They were more than welcome to have their own constitutions, regulations and internal arrangements, but there was no need for them to be governed by an Act on the statute books. If some were so governed, and not others, then every church, college or religious group could argue that they too wanted to be protected by legislation, and it was not desirable to create further legislation. In addition, it had been found that many of the old pieces of legislation were anachronistic in their references to gender, race and other stereotypes that had now fallen away.

Mr Nupen accepted that institutions should not be relying on statues any longer. He indicated that it was possible – and indeed it had already been discussed with the Independent Schools Association - that institutions like themselves should draft their own constitutions, from an efficiency point of view.

The Acting Chairperson agreed that was the whole idea; but noted that in this case the proposal made reference to discrimination along gender lines.

Mr Nupen also asked for fourteen days in which to prepare a submission.

Adv M Bridgman, Cape Bar Council, representing Church of England in South Africa, said that made a great difference. He agreed with Mr Nupen regarding considerations of efficiency and sound government, and noted that it did make sense for institutions to have their own constitutions rather than Acts of Parliament.

The Acting Chairperson explained that there were words in old legislation that were not consistent with the values of our Constitution.

Mr Nupen suggested that in order to speed up and reach finality that the Primary Act and the Amendment Act be repealed at the same time.

The Acting Chairperson clarified that the Primary Act was part of the proposal.

Adv Bridgman and Mr Nupen indicated that they had not received this, and asked for copies.

The Acting Chairperson pointed out the references to the legislation.

Adv Bridgman noted that he did not have full instructions on the issue but he mentioned that the Act that was covered by the proposal, in respect of the Natal Ecclesiastical Properties and Trust, was an Amendment Act 60 of 1975. This had amended the provisions of the founding Act, Natal Act 9 of 1910. He asked whether that original Act should not also be dealt with. He noted that it would take some time to deal with the repeal of this Act, since it covered properties, and there would probably need to be amendments made to the title deeds in the Deeds Office. He pointed out that the ramifications could be far-reaching, as some of the properties could have been subdivided and in some cases churches had been built on portions of properties, and should be allowed to continue. Whilst the Church of England would be happy to cooperate in the process he appealed for time to do that properly.

Mr Nupen reminded the Chair that his request for fourteen days was just to make a written submission, and he too would be making the same point as the Church of England. It would take years to put a new Constitution in place of the primary legislation. This College also had property owned by the Diocese of Cape Town and were in the same position.

The Acting Chairperson clarified that everyone understood that what was being discussed was the proposal to create a Bill that would then, once passed, repeal the Acts relating to these institutions – both the founding or principal Acts and the amending legislation. He confirmed that the Acts would be sent to Mr Nupen and Adv Bridgman. In the fourteen days, the parties were asked to put together a document that would outline the problems and arguments, and to indicate what they still would need to do. Property protected in terms of the Acts could be problematic, and there might also be tax implications. However, Bills often made provision for transitional situations and it was possible that this could be considered when drafting the Bills. The Committee would appreciate if the submissions gave some indication of the time frames that might be required for specific transactions or Deeds Office amendments. Parliament had great respect and appreciation for the work and values of the institutions, and would treat them accordingly.

Adv Bridgman was aware of other Acts of a similar nature dating back to the 1800s in the old Cape Parliament, and asked whether these were also being dealt with.

The Acting Chairperson responded that the Committee had recently dealt with repeal of legislation relating to the Bible Society, the Dutch Reformed Church, the Methodist Church and the Apostolic Faith Mission. Parliament was trying to address these matters in a dignified and consistent manner.

Mr Nupen was not sure how the School Council, being the governing body, would respond but predicted that they would ask for further time.

Mr B Cameron, General Secretary, Church of England in South Africa, appealed for help. The 1910 principal Act referred to was an interesting piece of legislation that was rushed through the Natal Parliament a few weeks before the Act of Union came into existence. The Church of England in South Africa had been adversely affected by the unfortunate history and this Act, and it was possible that the repeal would benefit the Church as it could receive the properties or the proceeds back. He asked for assistance in getting a copy of the Principal Act of 1910; it referred to schedules of properties and they had no idea where those properties were.

The Acting Chairperson said Mr Mocumi would assist in that regard.

The Acting Chairperson concluded that after receiving the submissions the committee would study them and decide whether it was necessary also to hear oral submissions. He reiterated that this was the first stage of the process. 

Mr Gerber asked Adv Bridgman what the situation was with the Board, as the founding Act had empowered the Administrator of the Cape to appoint a Member to the Board. He wondered if now three members were being appointed in respect of the three Cape provinces.

Adv Bridgman responded that he was not aware of that; it was not done in practice.

The Acting Chairperson announced that the proposal in respect of the Employment Equity Act would stand over to the next meeting.

The meeting was adjourned.

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