ATC170620: Report of the Portfolio Committee on Basic Education in respect of the South African Human Rights Commission report on the National Investigative Hearing into the Impact of Protest-related Action on the Right to a Basic Education in South Africa dated 20 June 2017
Report of the Portfolio Committee on Basic Education in respect of the South African Human Rights Commission report on the National Investigative Hearing into the Impact of Protest-related Action on the Right to a Basic Education in South Africa dated 20 June 2017.
The Portfolio Committee on Basic Education, having considered the South African Human Rights Commission (SAHRC) report on the National Investigative Hearing into the Impact of Protest-related Action on the Right to a Basic Education in South Africa, reports as follows:
On Tuesday, 16 May 2017, the Portfolio Committee on Basic Education convened a meeting to consider the SAHRC report on the National Investigative Hearing into the Impact of Protest-related Action on the Right to a Basic Education in South Africa. The report had been referred to the Portfolio Committee on 1 March 2017 for consideration and reporting back to the National Assembly, as prescribed in the Constitution and related Rules of the National Assembly.
As part of its approach, the Portfolio Committee called the Department of Basic Education (DBE) to form part of the meeting in order to give their perspective and response to the findings and recommendations of the report.
2. Mandate of the SAHRC
The SAHRC is one of the state institutions established in terms of Chapter 9 of the Constitution to support constitutional democracy. In terms of Section 184 (1), the SAHRC has the mandate to promote respect for human and a culture of human rights; to promote the protection, development and attainment of human rights; and to monitor and assess the observance of human rights. In line with this mandate, Section 184 (2) empowers the SAHRC to investigate and report on the observance of human rights and to take steps to secure appropriate redress where human rights have been violated.
3. Report on the National Investigative Hearing into the Impact of Protest-related Action on the Right to a Basic Education in South Africa – Commissioner A Gaum
In his opening remarks, Commissioner Gaum gave a detailed overview of the mandate of the SAHRC and the background to the National Hearings conducted by the SAHRC into the impact of protest-related action on the rights to a basic education in South Africa (including the affected schools, provinces and impact). The National Hearings followed the events in Vuwani, Limpopo in 2016 where it was reported that 29 schools were burnt affecting 10 233 learners and 102 schools disrupted affecting 52 827 learners.
- Purpose of the National Hearing – The National Hearing was convened with a view to:
- Determine the extent of the phenomenon of protest-related action impacting on the right to a basic education; and
- Seeking solutions through generating a range of recommendations towards ensuring that future protest-related action does not disrupt and thereby deny the right to a basic education.
- Approach to the National Hearing - The National Hearing was convened under the South African Human Rights Commission Act as well as the Commission’s Complaints Handling Procedures. Although a formal investigation, the hearing process was inquisitorial in nature. Stakeholders were invited to answer questions and make submissions and the panel examined and evaluated the evidence and submissions before it and made findings and recommendations.
- Main Areas of Inquiry and Submissions - Detailed, specific questions were addressed to stakeholders, forming the basis of the submissions received. Stakeholders were also invited to prepare any further submissions of relevance. The Portfolio Committee received a broad overview of the main areas of the investigation and inquiry.
- Findings - The main findings of the National Hearing were as follows:
- The DBE and the South African Police Service (SAPS) were slow to respond and lacked uniform policy or approach in dealing with such incidents;
- The lack of proper and efficient communication between authorities and affected communities had resulted in communities seeking ways to draw attention to their plight and targeting schools, even though by targeting schools children’s right to a basic education was undermined;
- The responsibility to ensure the safety of learners, educators and schools did not rest with a single department, and it was unclear which department took the lead in cases where protest-related action targeted schools;
- In some instances, the breakdown of leadership at the local government level had a negative effect on efforts to address problems that arise thereby undermining the right to a basic education;
- No evidence of adequate early warning systems could be established;
- No reported action had been taken against persons who deliberately interfere with the right to a basic education;
- There was a slow or inadequate response by government departments to incidents that affect schools, which in turn affects the recovery process; and
- There was a need for government departments, especially at the local level, to better engage with communities on important community matters. People needed to be encouraged to find new ways of expressing their concerns so that their actions did not result in a negative impact on other rights e.g. the right to a basic education.
- Recommendations - The Commission made the following recommendations:
- The DBE should constitute an interdepartmental National Public Protest Response Team (National Response Team);
- The National Response Team should include relevant government departments; particularly, SAPS and the Department of Cooperative Governance and Traditional Affairs (CoGTA) and other relevant stakeholders;
- The National Response Team should develop Guidelines that:
- set out clearly the roles and responsibilities of the various government departments within the context of school disruptions; and
- establish early warning systems and responses to be taken in the event of school disruptions due to protest action.
- The National Response Team should share its reports and information with the National Planning Commission so that the impact of public protests on the realisation of the right to a basic education can be considered in the on-going review of the NDP;
- The National Response Team should consider Section 3 of the South African Schools Act (SASA), and determine whether the criminal provisions, contained therein, are sufficient to be used to prosecute persons engaged in public protests who deny learners access to education;
- The National Response Team should make a determination as to whether the statutory criminal sanctions are a sufficient deterrent. Should it be determined by the National Response Team that amendments to SASA are necessary; the DBE should initiate the process to bring about the necessary amendments to the legislation;
- The National Response Team should develop a community awareness programme that can be rolled out at provincial level;
- Community awareness programmes should articulate that the Constitution guarantees the right to protest where this is done lawfully and peacefully;
- The structure of the National Response Team is to be replicated at provincial level and, where necessary, at local level;
- Provincial and Local Response Teams can tailor the Guidelines (as developed under recommendation 3 of the Report) to local conditions;
- The DBE to provide a report within 9 months (15 June 2017) on the activities of the National Response Team. The report should include the Guidelines developed and set out the progress that has been made in implementing these recommendations at the national and provincial level;
- The DBE to provide a further report on the activities of the National Response Team within one (1) year (by 15 June 2018); and
- The Commission is to determine whether further progress reports are necessary.
The Commission had also sent correspondence to the Department requesting a progress update on the implementation of the recommendations as well as a reminder of its Report on implementation, due on 15 June 2017. The Commission appealed to the Portfolio Committee for its assistance in exercising oversight over the implementation of the Commission’s recommendations.
4. Briefing by the Department of Basic Education on the SAHRC Report
The Minister apologised for the lapse in communication with the SAHRC on the report tabled. She agreed with the concerns raised by SAHRC and the impact on learners, the safety of teachers and learners as well as damage to school infrastructure. She was concerned that schools had become easy and soft targets during protest action. The Minister indicated that in areas affected by protest action, she had engaged with the MEC to ensure the safety of learners. She reiterated that the protest action and unrest had very little to do with education and was mainly service delivery disputes/protest by communities. The Minister assured the SAHRC that the Department would respond officially to the SAHRC report. In respect of issues pertaining to Vuwani specifically, the Minister was of the view that it was the prerogative of the President to set-up an inter-ministerial committee in terms of his powers and decide who would form part of such a committee. The issues raised by disgruntled communities were mainly the responsibility of the Department of Cooperative Governance and Traditional Affairs (COGTA). The DBE’s approach on the matter was to ensure communities cooperated with the Department in removing learners from volatile areas and created a relationship with the affected communities.
The Minister was of the view that the events were mostly sporadic and the SAHRC recommendations were not acceptable, and would not assist the situation. The Department, in the recent past, was able to mitigate dangers to schooling by engaging with protesters and communities to move their protest action away from the school precinct. The Minister requested that the she be given an extension in responding to the SAHRC Report and allow her to table the report in Cabinet before responding.
The Director-General, Mr Mweli noted that the Department appeared before the SAHRC and made a 29-page submission to the hearings. He would make the submission available to the Portfolio Committee. He indicated that the findings and recommendations were not made in consultation with stakeholders. Mr Mweli was of the view that it was important to pre-empt the impact of service delivery protest action going forward.
5. Portfolio Committee Observations
- The Portfolio Committee raised the following concerns generally:
- Community protest action centred on service delivery and was not education-sector-related
- The education sector bore the brunt of these protests with learners prohibited from schooling and damage to school infrastructure. It was concerning that schools were seen as easy and soft targets
- Recommendations from the SAHRC report were miss-directed to the DBE when these should be directed to specific Departments affected e.g. COGTA, the Electoral Commission of South Africa (IEC) etc
- The Portfolio Committee queried whether the SAHRC did a proper analysis of the reasons for communities to target learners and school infrastructure – and whether the SAHRC actually visited these areas and engaged with communities.
- The Portfolio Committee sought clarity on the statistics in respect of the number of learners affected by protest action over the past five years as well as the specific months of the year when protest action seemed to swell.
- The Portfolio Committee further sought clarity on the steps taken by the Department against Unions where strike action emanated from within the education sector which affected learning and teaching. It was disturbing that no action had been taken against perpetrators identified in damage to infrastructure.
- The Portfolio Committee queried whether the recommendations of the SAHRC, as a Chapter 9 Institution, were binding and what powers they had to ensure recommendations were carried out.
- The Portfolio Committee further queried whether educators were compensated for the extra hours they put in to ensure learners were able to catch-up on lost teaching time.
- The Portfolio Committee queried reasons why the Safety Units, as effectively utilised in KwaZulu-Natal, were not being replicated in other provinces.
- The Portfolio Committee was curious to learn from the SAHRC engagements with other Departments affected by protest action.
- Portfolio Committee Recommendations
The Portfolio Committee on Basic Education, having considered the South African Human Rights Commission (SAHRC) report on the National Investigative Hearing into the Impact of Protest-related Action on the Right to a Basic Education in South Africa, recommends that:
- The Minister of Basic Education be afforded the opportunity to refer the SAHRC report to Cabinet for further consideration given that its recommendations affect different Departments. In this regard, the SAHRC should consider giving the Minister of Basic Education an extension to respond to the recommendations contained in the SAHRC report.
- The Minister of Basic Education should ensure that the Department submit to the Portfolio Committee a copy of its submission made to the SAHRC during the National Hearings.
- The Minister of Basic Education should ensure that the DBE collaborates with the SAHRC in reviewing the recommendations in their current form as well as directing them to the relevant line-function Departments.
Report to be considered.
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