ATC240509: Report of the Select Committee on Education and Technology, Sports, Arts, and Culture on the Basic Education Laws Amendment Bill [B2B – 2022], dated 02 May 2024
NCOP Education and Technology, Sports, Arts and Culture
[The following report, replaces the Report of the Select Committee on Education and Technology, Sports, Arts, and Culture, which was published on page 6 of the Announcements, Tablings and Committee Reports, dated 02 May 2024]
Report of the Select Committee on Education and Technology, Sports, Arts, and Culture on the Basic Education Laws Amendment Bill [B2B – 2022], dated 02 May 2024.
The Select Committee on Education and Technology, Sports, Arts, and Culture (the Committee), having considered the subject of the Basic Education Laws Amendment Bill [B 2B -2022] (National Assembly – Sec 76); referred to it as a section 76 Bill, reports as follows:
- Introduction
The draft Bill proposes to amend the South African Schools Act, 1996 (Act No. 84 of 1996), and the Employment of Educators Act, 1998 (Act No. 76 of 1898) (the SASA and the EEA, respectively), so as to align them with developments in the education landscape. This is to ensure that systems of learning and excellence in education are put in place in a manner which respects, protects, promotes and fulfils the right to basic education enshrined in section 29(1) of the Constitution of the Republic of South Africa, 1996. Certain technical and substantive adjustments are also made to the SASA and the EEA. This is to clarify certain existing provisions and to insert certain provisions to cover matters which are not provided for in the existing legislation.
- The Select Committees process followed in processing the Bill.
On the 26th of October 2023, the National Assembly Passed the BELA Bill, which was subsequently referred to the National Council of Provinces. On the 08th of November 2023 the Department of Basic Education (DBE) presented the BELA Bill [B2B-2022] to the Select Committee on Education and Technology, Sports, Arts, and Culture. The parliamentary legal services provided a legal framework on the processing of the Bill. On the 13th of November the Bill was referred to the nine provinces in the country to allow for them to conduct their public participation process on the Bill until the 15th of February. The Select Committee conducted its own public participation process by calling for submissions by all interested parties on the Bill from the 20th of November 2023 until the 19th of January 2024. On the 15th of January various stakeholders and NGOs sent written requests for an extension in making submissions. An extension was granted. The deadline for written submissions was extended to the 31st of January 2024. On Friday the 2nd of February 2024, the Committee Secretary delivered an update on the progress of provinces in terms of public participation. Occurring after the Western Cape provincial legislature requested for an extension until the end of April 2024 to conduct their public hearings on the BELA Bill. The Select Committee, however, issued an extension to all provinces to conclude their public participation process by the 29th of February 2024. In the Select Committee’s call for written submissions, a total of 38 170 submissions were received and analysed. Upon analysing the written submissions to the Select Committee, about 32 organisations requested to make additional oral submissions to the committee, of which the request was granted. From the 06 to 08 March 2024, the Select Committee held oral hearings with all 32 organisations on a virtual platform. The organisations that made oral submissions were as follow:
- AfriForum
- Independent Schools Association of Southern Africa (ISASA)
- SA Onderwysersunie (SAOU)
- Concerned Young People of South Africa (CYPSA)
- Western Cape Forum for Intellectual Disability (WCFID)
- Federation of Governing Bodies of South African Schools (FEDSAS)
- South African Education Development Trust (SAAOT)
- ActionSA
- FW de Klerk Foundation
- Solidarity
- Equal Education and Equal Education Law Centre
- Centre for Child Law
- South African Institute of Race Relations NPC (IRR)
- Fathers 4 Justice South Africa
- Association for Homeschooling
- Gauteng Association for Homeschooling
- Skole Ondersteuning Sentrum (SOS)
- Hoer Landsbou Skool Jacobsdal
- Pestalozzi Trust
- Christian View Network
- Cape Home Educators
- Selborne Primary School SGB
- Laerskool Laeveld SGB
- Northcliff High School SGB
- Independent Micro Schools / Education First Research Group
- Section27
- Learning Kat Remedial Teaching
- Learn Free
- Home School Association South Africa (HSSA)
- Let’s do it 2gether 4 EDUCATION
- The Cape Forum
- Ms Tanya Furniss (Private)
On the 13th of March 2024, the Select Committee held a meeting where the committee report from the written and oral submissions was considered and adopted by the committee. On the 20th of March the committee received a response from the DBE on the issues raised during the submissions in the committee’s report.
- The Negotiating Mandates
On the 27th of March 2024, the committee convened a meeting to receive the provincial negotiating mandates of the BELA Bill, whereby eight of the nine provinces voted in favour of the Bill.
The following reflects the vote of the provincial legislatures in respect of the Basic Education Laws Amendment Bill [B2B-2022]
|
In Support/ Not in Support |
|
|
Gauteng |
In Support |
|
North West |
In Support |
|
Eastern Cape |
In Support |
|
Western Cape |
Not in Support |
|
Free State |
In Support |
|
Northern Cape |
In Support |
|
Mpumalanga |
In Support |
|
Kwa-Zulu Natal |
In Support |
|
Limpopo |
In Support |
The Eastern Cape Legislature supported the Bill but proposed amendments to several clauses to strengthen the provisions. Some of the proposed amendments dealt with monitoring learner attendance, effective search and seizure at schools, training provided to School Governing Bodies, and empowering the Minister to make regulations on learner disciplining methods that are alternatives to the abolished corporal punishment.
- Deliberations on the Clause-by-Clause
From the 17th of April 2024, the Parliamentary Legal Advisor presented a detailed analysis of the constitutional provisions related to education rights. Focusing on the state's obligations to ensure access to basic education and the right to establish Independent Educational Institutions. The need for compliance with international laws and treaties was emphasized. Including the implications of the proposed Amendment Bill on existing legislation and education policies. A detailed explanation of the constitutional obligations and rights related to public engagement, emphasizing the role of legislatures in facilitating public involvement and considering public views in the legislative process was provided. The legal advisor further distinguished between facilitated public engagement and referendums, highlighting the different purposes and processes involved in each. The legal advisor also referred to specific legal definitions and acts to support her points. Though concession may have come from the responses by the Department on their responses, and the fact that they, as the Parliamentary Legal Unit, were also making suggestions of possible amendments, it was still their considered view that the current version of the Bill was perfectly fine, and if it were to be taken for litigation, it may pass constitutional muster, but that is the place for the courts.
The Legal Advisor further made a presentation on procedural matters raised during the Committee meetings on the processing of the Bill. The presentation was prepared considering the questions and requests made during the progression of activities of the Committee in its past meetings. It sought to show the required principles of reasonableness, s36 limitation exercise and striking the balance demanded by the stipulations of s28, 29 and 36 of the Constitution. The legal advisor concluded by cautioning the members not to prioritize technical matters over form and substance on that which will help every child.
The Committee deliberated on the BELA Bill clause-by-clause from the 17th to the 18th of April 2024, considering the submissions from public, and the responses given by the DBE. For each of the clauses the Committee followed the following format:
- The Legal Advisor to read the clause in totality.
- An input by the DBE
- Members deliberations and engagements
- Responses from DBE, the State Law Advisor and Parliamentary Legal Services
- Committee final decision on the Clause (support/not support/object/amend/remove).
The Committee called for amendments of various clauses as listed in the C-List of the BELA Bill [B2C-2022].
- Consideration of the C-List of the BELA Bill
On the 24th of April, the Parliamentary Legal Advisor took the Committee through the list of amendments that were agreed to during the clause-by-clause deliberations stage on the BELA Bill. A total of eight out of nine provinces supported the following amendments as contained in the Committee C-List:
CLAUSE 1
1. On page 4, in line 44, to omit "”;" and to substitute "and".
2. On page 4, after line 44, to add the following paragraph:
"(d) any acts which seek to belittle, humiliate, threaten, induce fear or ridicule the dignity and person of a learner;".
3. On page 4, after line 44, to add the following paragraph:
"(d) by the insertion in subsection (1) after the definition of "Council of Education Ministers" of the following definition:
‘Criminal Procedure Act’ means the Criminal Procedure Act, 1977 (Act No. 51 of 1977);".
4. On page 4, in line 45, to omit "(d)" and to substitute "(e)".
5. On page 5, in line 10, to omit "(e)" and to substitute "(f)".
6. On page 5, in line 15, to omit "(f)" and to substitute "(g)".
7. On page 5, in line 18, to omit "(g)" and to substitute "(h)".
8. On page 5, in line 29, to omit "(h)" and to substitute "(i)".
9. On page 5, in line 30, to omit "(i)" and to substitute "(j)".
10. On page 5, in line 34, to omit "(j)" and to substitute "(k)".
11. On page 5, in line 42, to omit "(k)" and to substitute "(l)".
12. On page 5, in line 52, to omit "(l)" and to substitute "(m)".
13. On page 5, in line 57, to omit "(m)" and to substitute "(n)".
14. On page 6, in line 30, to omit "(n)" and to substitute "(o)".
CLAUSE 2
1. On page 6, in line 52, after "imprisonment" to insert ", alternatively a court may impose a sentence within the court’s discretion as contemplated in terms of the Criminal Procedure Act".
2. On page 6, in line 57, after "imprisonment" to insert ", alternatively a court may impose a sentence within the court’s discretion as contemplated in terms of the Criminal Procedure Act".
CLAUSE 4
1. On page 7, from line 47, to omit paragraphs "(a)" and "(b)".
2. On page 7, in line 52, to omit "(c)" and to substitute "(a)", and to omit "the Head of Department" and to substitute "the governing body".
3. On page 8, in line 8, to omit "(d)" and to substitute "(b)".
4. On page 8, in line 11, to omit "(e)" and to substitute "(c)".
5. On page 8, from line 15, to omit paragraph (e).
6. On page 8, in line 38, to omit "(f)" and to substitute "(e)".
7. On page 8, in line 43, to omit "(g)" and to substitute "(f)".
CLAUSE 5
1. On page 9, in line 5, to omit "(13)" and to substitute "(7)".
2. On page 9, from line 14, to omit subsections (5) and (6).
3. On page 9, in line 19, to omit "(7)" and to substitute "(5)".
4. On page 9, from line 19 to omit "The Head of Department, when considering the language policy of a public school or any amendment thereof for approval" and to substitute "The governing body of a public school, when determining the language policy of the school or any amendment thereof,".
5. On page 9, in line 34, to omit "(8)" and to substitute "(6)" and in line 36 to omit "(7)" and to substitute "(5)".
6. On page 9, from line 38, to omit subsections (9), (10), (11) and (12).
7. On page 9, in line 59, to omit "(13)" and to substitute "(7)" and in line 61, to omit "(7)" and to substitute "(5)".
8. On page 10, in line 1, to omit "(14)" and to substitute "(8)".
9. On page 10, in line 12, to omit "(15)" and to substitute "(9)" and to omit "(13)" and to substitute "(7)".
10. On page 10, in line 15, to omit "(13)" and to substitute "(7)".
11. On page 10, in line 38, to omit "(16)" and to substitute "(10)".
12. On page 10, in line 40, to omit "(13)" and to substitute "(7)".
13. On page 10, in line 41, to omit "(15)" and to substitute "(9)".
14. On page 10, in line 44, to omit "(17)" and to substitute "(11)" and to omit "(13)" and to substitute "(7)".
15. On page 10, from line 52, to omit subsection (18) and to substitute the following subsection:
"(12) If the governing body is not satisfied with the directive of the Head of Department as contemplated in subsection (7), the governing body may appeal against the directive to the Member of the Executive Council within 14 days after receiving the directive.".
16. On page 10, in line 58, to omit "(19)" and to substitute "(13)" and to omit "(18)" and to substitute "(12)".
17. On page 11, in line 1, to omit "(20)" and to substitute "(14)" and in line 2, after "policy" to insert "of the public school".
CLAUSE 7
1. On page 11, from line 33, to omit "just cause shown" and to substitute "account of, but not limited to, the following circumstances that a learner may bring to the attention of the principal or governing body of the school:
(i) cultural beliefs;
(ii) religious observances; and
(iii) medical grounds.".
CLAUSE 8
1. On page 12, after line 19, to insert the following paragraph:
"(d) by the substitution in subsection (5) for paragraph (c) of the following paragraph:
“(c) handed over to the police immediately to dispose of it in terms of section 31 of the Criminal Procedure Act[, 1977 (Act No. 51 of 1977)].” ".
2. On page 12, in line 20, to omit "(d)" and to substitute "(e)".
3. On page 12, from line 27, to omit ", 1977 (Act No. 51 of 1977)" and to substitute "[, 1977 (Act No. 51 of 1977)]".
4. On page 12, in line 29, to omit "(e)" and to substitute "(f)".
5. On page 12, in line 33, to omit "(f)" and to substitute "(g)".
6. On page 12, in line 39, to omit "(g)" and to substitute "(h)".
7. On page 12, in line 43, to omit "(h)" and to substitute "(i)".
8. On page 12, in line 49, to omit "(i)" and to substitute "(j)".
CLAUSE 9
1. On page 12, from line 57, to omit subsection (1)(a) and to substitute the following subsection:
"(1) The governing body may, on reasonable grounds and as a precautionary measure, suspend a learner who is [suspected] accused of serious misconduct from attending school, but may only enforce such suspension [only after the learner has been granted a reasonable opportunity to make representations to it in relation to such suspension.] in the following manner:".
2. On page 13, in line 1, to omit "(b) Serious misconduct by a learner is defined as—" and to substitute "(a) Where a learner is accused of committing the following acts of serious misconduct—".
3. On page 13, in line 24, to omit ", 1977 (Act No. 51 of 1977),".
4. On page 13, in line 25, to omit ".”." and to substitute a comma.
5. On page 13, after line 25, to insert "such learner may be suspended only after the learner has been granted a reasonable opportunity to make representations in relation to the accusation of such serious misconduct; or".
6. On page 13, after line 25, to add the following paragraph:
"(b) where a learner is accused of committing the following acts of serious misconduct —
(i) murder and attempted murder;
(ii) culpable homicide;
(iii) any sexual offence including rape;
(iv) robbery;
(v) theft;
(vi) assault with intent to do grievous bodily harm;
(vii) breaking or entering any premises with an intent to harm or actual harm to other persons;
(viii) any offence under any law relating to illicit possession of any dependence-producing drugs; or
(ix) conveyance or supply of dependence-producing drugs at school and to learners,
which occurs on a school premises or at a school activity, and the learner has been formally charged by the South African Police Service, the governing body must suspend such learner immediately without granting the learner an opportunity to make representations in relation to the accusation of such serious misconduct.".
CLAUSE 10
1. On page 13, from line 32, to omit subsection (2) and to substitute the following subsection:
"(2) Any person who contravenes subsection (1) is guilty of an offence and liable on conviction to a [sentence which could be imposed for assault] fine or to imprisonment, or to both such fine and imprisonment, which a court may, in its discretion, determine after considering the circumstances of each case.".
CLAUSE 14
1. On page 16, in line 16, after "standards" to omit the full stop and insert ": Provided that the governing body—
(a) may, subject to paragraph (b), procure identified learning and teaching support material from a supplier where such procurement will be more cost effective than the central procurement of such material by the Head of Department; and
(b) must provide the Head of Department with documentary proof that the procurement of the identified learning and teaching support material from the supplier referred to in paragraph (a) will be more cost effective than the central procurement thereof by the Head of Department.".
CLAUSE 20
1. On page 18, in line 49, after "personal" to insert "or financial".
CLAUSE 26
1. On page 21, in line 37, to omit "Member of the Executive Council" and to substitute "Head of Department".
CLAUSE 54
1. On page 31, in line 25, to omit "2022" and to substitute "2024".
The members voted for the amendments on the C-List as follows:
|
Province |
In Support/ Not in Support of amendments |
|
Gauteng |
In Support of amendments |
|
North West |
In Support of amendments |
|
Eastern Cape |
In Support of amendments |
|
Western Cape |
Not in Support of amendments |
|
Free State |
In Support of amendments |
|
Northern Cape |
In Support of amendments |
|
Mpumalanga |
In Support of amendments |
|
Kwa-Zulu Natal |
In Support of amendments |
|
Limpopo |
In Support of amendments |
- Consideration of Final Mandates
On the 2nd of May 2024 the members deliberated on the D-version of the BELA Bill [B 2D-2022]. The Final Mandates submitted by the nine provinces were considered on the 2nd of May 2024, which were submitted as follows:
|
Province |
In Support/ Not in Support |
|
Gauteng |
In Support |
|
North West |
In Support |
|
Eastern Cape |
In Support |
|
Western Cape |
Not in Support |
|
Free State |
In Support |
|
Northern Cape |
In Support |
|
Mpumalanga |
In Support |
|
Kwa-Zulu Natal |
In Support |
|
Limpopo |
In Support |
- Outcome of Committee’s consideration of the Bill
The Select Committee on Education and Technology, Sports, Arts, and Culture having deliberated on and considered the subject of the Basic Education Laws Amendment Bill [B 2B-2022], referred to it as a section 76 Bill, reports that it has agreed to it with amendments [B 2D-2022].
- Consideration of the Committee’s Report
The Committee considered the Report and eight provinces voted in support and one province voted not in support as follows:
|
Province |
In Support/ Not in Support |
|
Gauteng |
In support |
|
North West |
In support |
|
Eastern Cape |
In support |
|
Western Cape |
Not in support |
|
Free State |
In support |
|
Northern Cape |
In support |
|
Mpumalanga |
In support |
|
Kwa-Zulu Natal |
In support |
|
Limpopo |
In support |
Report to be considered.