Education Laws Amendment Bill; Higher Education Amendment Bill: briefing

The South African Schools Act, 1996 (Act No.84 of 1996)

- The Employment of Educators Act, 1998 (Act No.76 of 1998)

- The Further Education and Training Act, 1998 (Act No.98 of 1998)

- The Adult Basic Education and Training Act, 2000 (Act No.52 of 2000)

- The General and Further Education and Training Quality Assurance Act, 2001 (Act No.58 of 2001)

1.2 These Acts are amended so as to make the necessary technical adjustments and to incorporate matters which are of necessity for the proper implementation of the Acts.

Section 5(4) of the Act is amended for the sake of clarity and certainty regarding the admission age to Grades R and I at public schools and not at schools contemplated in its predecessor. The definition of the term "school" refers to both public and independent schools. However, the heading of section 5 is "Admission to Public Schools". Hence, the use of the term "schools" in section 5(4) is in conflict with the heading. Furthermore, the amendment, unlike its predecessor, stipulates the admission age. The minimum age of admission is lowered by six months. However; this does not imply that the compulsory school going age is, in terms of section 3 of the Act, affected by this adjustment. It remains the same, seven to fifteen years or after completing grade 9. During the first year of the implementation of the Act, two categories of children will be admitted in Grade R and I, respectively, as follows:

- In Grade R, those who are five and turning six, and those who are four turning five by 30 June in the year of admission.

- In Grade 1, those who are six and turning seven, and those who are five turning six by 30 June in the year of admission.

Section 45A is inserted in the Act for similar reasons with regard to independent schools.

Section 6A is inserted in the Act pursuant to a cabinet decision (20 June 2001) to the effect that there should be a national curriculum and assessment of learner achievement. This implies that there will be one common national process for 'the assessment of learner achievement in the Republic as opposed to various provincial processes for the assessment of learner achievement. For similar reasons, section 1 8A has been inserted in the Adult Basic Education and Training Act regarding private and public institutions.

Section 8 of the Act is amended to authorize the appointment of an intermediary in disciplinary hearings. An intermediary is a competent person who is appointed to assist a minor learner in giving evidence as a witness during a disciplinary hearing. This approach is designed to increase the rate of successful prosecutions in disciplinary hearings and it is in line with section 1 70A of the Criminal Procedure Act, 1977 (Act No. 51 of 1977). Similarly, section 10A of the Employment of Educators Act is inserted in the Act for the same purpose.

Section 1 OA is inserted in the Act pursuant to a recommendation by the Human Rights Commission to the effect that initiation practices at schools can only be abolished by means of regulations. This recommendation was based on extensive research conducted by the Commission on initiation practices at schools, of which the outcome was that such practices are rife at schools. Accordingly, section 10A is inserted to authorize the prohibition of such initiation practices at schools.

Section 1 8A is inserted in the Act so as to introduce a Code of Conduct for governing body members. In the absence of such a code of conduct, it is difficult to deal with misconduct by members of the governing body of a school. A breach of the code of conduct by members of the governing body may result either in suspension or termination of membership of such a member by the Head of Department after a fair procedure has been followed.

Section 61 of the Act, section 47 of the Further Education and Training Act and section 41 of the Basic Education and Training Act were amended as a result of a Constitutional Court Case, namely, Minister of Education v Harris, 2001(11) BCLR 1157 (CC). In this case, the Court found that policy determined in terms of the National Education Policy Act, 1996 (Act no. 27 of 1996) creates no obligations of law that bind provinces, or for that matter parents or independent schools. The effect of the judgement is that third parties may only be bound by legislation or subordinate legislation in the form of regulations in terms of an Act of Parliament These amendments are made with the aim to incorporate in the aforesaid Acts, provisions which authorize the making of such regulations.

Section 6A is inserted into the Act to enable a provincial department to make appointment of new recruits or applicants after one of more years' break in service without the recommendation of a governing body. The reason for this is that the province will be in a better position to distribute these educators, especially to schools which are in rural areas. These schools find it difficult to recruit educators since most educators prefer to teach in urban areas or as a last resort, to areas which are adjacent to urban areas. This process will ensure a fair distribution of well-qualified educators. It will also assist in the placement of students in suitable employment, who have been awarded bursaries or loans by either the employer or the State to study.

Item 2(2) of Schedule I to the Act is amended to enable the Minister to prescribe performance standards by regulation because no collective agreement in this regard is foreseeable for the immediate future. The reason for this is that negotiations on these standards are suspended due to the dispute between the South African Democratic Teachers Union (SADTU) and the employer regarding the implementation of the whole school evaluation policy.

Item 7 of Schedule 2 of the Act is amended to cover expenses as a consequence for providing an educator with a transcript of electronic recordings in cases of disciplinary hearings. Educators who demand such transcript will have to foot the bill for such transcripts. This is in accordance with section 22 of the Promotion of Access to In formation Act, 2000 (Act No.2 of 2000).

Section 1 of the Further Education and Training Act has been amended so as to define certain concepts for interpretation purposes.

Section 1 6A is inserted in the Act to ban corporal punishment in any Further Education and Training institutions and to make it a criminal offence to administer corporal punishment to a student. Similarly, section 20A is inserted in the Adult Basic Education and Training Act to prohibit corporal punishment in any Adult Basic Education and Training centre.

Section 23 of the Act is amended so as to designate the Director- General as the registrar of FET institutions and to vest the Minister with the power to designate any employee of the Department to assist the registrar.

Sections 24, 26, 28, 31 and 35 of the Act have been amended so as to effect textual corrections. The term "provisional" is substituted for the term "conditional" so as to ensure clarity and certainty. The term "provisional" is the most appropriate term under the circumstances because it means that a private FET institution is registered temporarily for a certain period. This is aimed at allowing the institution to comply with conditions which may be laid down by the registrar.

One of the conventions in drafting legislation is that the language used in one Act should fit with the language used in other Acts dealing with the same matter. Hence, section 27 of the Act has been amended so as to ensure that the language used in these sections fits with language used in the Higher Education Act.

Section 5 of the Act is amended to effect textual corrections. The citation of section 5(1)(b)(i) was inadvertently included in the provision. The correct citation is section 5(1)(a)(ii)(bb).

This Bill was referred to the Departments of Finance, State Expenditure and Labour for comment. It was also published to obtain comments from role players. 98 Role players made comments on the Bill.

It seems that there will be huge financial implications by admitting the categories of learners contemplated in paragraph (2.1) during the first year of implementation in the form of employment of more educators, erection of more classrooms and the supply of more learning materials.

The Department of Education is of the opinion that the procedures contemplated in sections 73 and 76 of the Constitution of the Republic of South Africa, 1996 (Act No. 108 of 1996) should be followed since the Bill falls within the ambit of Schedule 4 of the Constitution.

Appendix 2:
EXPLANATORY MEMORANDUM OF THE HIGHER EDUCATION AMENDMENT BILL, 2002

1. INTRODUCTION

This Bill seeks to amend the Higher Education Act, 1997 (Act No.101 of 1997).

2. REASONS FOR AND SUBSTANCE OF THE BILL

2.1 Clauses 2,3,4 and 5 of the Higher Education Amendment Bill, 2002 relate to labour, student matters and consequential issues as a result of declarations and mergers of public higher educaflon institutions These amendments are necessary to clarify and bring legal certainty to issues that the Act is currently silent or ambiguous on. These include-

* transitional arrangements relating to, for example,. the academic programmes offered by institutions prior to a merger or declaration. Provision is made to enable these programmes to be offered by the new institution under the same rules applicable to the old institutions until such programmes are amended by the new council;

* labour relations - there is potential legal uncertainty with regard to the applicability of section 197 of the Labour Relations Act, 1995 (Act No.66 of 1995), in relation to the Higher Education Act, 1997 (Act No.101 of 1997). The amendment seeks to make it clear that all contracts of employment will be automatically transferred by law to the new institution. This is in line with section 197 of the Labour Relations Act, 1995 (Act No. 66 of 1995);

* clarity on the authority to take the decision to merge and to give a name and a physical location to the new institution. Currently the Act provides through reference [section 23(3)] that the merged institution is deemed to be established as a higher education institution and that the Minister therefore has the authority to take such decision. This amendment is also in line with section 20 and 21 of the Act.

2.2 Clauses 6, 7 and 14 of the Higher Education Amendment Bill reduce the number of members from internal constituencies and determine the maximum membership of councils The Act currently requires that the nominations of certain internal constituencies to council and the institutional forum must always comprise two or more individuals. As a consequence many public higher education institutions have large and unwieldy councils, especially as the Higher Education Act~l997 (Act No.101 of 1997), requires that 60% of council membership must comprise "outside" members. The amendment seeks to address this by providing for a minimum number of internal members per category and putting a maximum to the total membership of a council.

2.3 Clause 8 of the Higher Education Amendment Bill clarifies when the approval of the Minister is required in terms of borrowings by higher education institution. The Act's current provisions are interpreted in more than one way regarding ~e need for Ministerial approval in terms of borrowings by higher education institutions.

2.4 Clauses 9 and 13 of the Higher Education Amendment Bill extend the power of the Minister to make regulations. These amendments seek to ensure that policies are contained in regulations. This is important in order to implement policies a both the level of individual public and private higher education institutions as well as across the system.

2.5 Clause 10 of the Higher Education Amendment Bill provides for the appointment of an administrator when it is deemed that a council of a higher education institution has resigned. The Act provides that an administrator must be appointed if there is a serious undermining of the effective functioning of a public higher education institution. This appointment can only be effected if it is based on an audit report or on the report following an investigation by an independent assessor. The Act also deems that a council effectively resigns if mote than 75 % of the members resign at a meeting. This can leave an institution without a council and thus no authority to govern the institution until an independent assessor can confirm that there is such a vacuum. This amendment therefore seeks to enable the Minister to immediately appoint an administrator to perform the governance function and to reconstitute a new council

2.6 Clauses 1 and 12 of the Higher Education Amendment Bill make certain textual alterations to clarify certain aspects of the Act

This bill is published to obtain comments from all role players. Advice will be formally sought from the Council on Higher Education (CHE).

4. FINANCIAL IMPLICATIONS FOR THE STATE

No additional costs are foreseen as result of these amendments.

5. PARLIAMENTARY PROCEDURE

it is the view of the State Law Advisers and of the Department of Education that this Bill must be dealt with in accordance with the procedures established by section 75 of the Constitution since it contains no provision to which the procedure set out in section 74 or 76 of the Constitution applies.