Education Laws Amendment Bill: briefing

Meeting report

EDUCATION AND RECREATION SELECT COMMITTEE
6 September 2002
EDUCATION LAWS AMENDMENT BILL: BRIEFING

Chairperson: Mr D Kgware (ANC) [Northern Cape]

Documents handed out:
Education Laws Amendment Bill [B31-2002]
Briefing Notes on Education Laws Amendment Bill (Appendix 1)
Presentation on Education Laws Amendment Bill (Appendix 2)

SUMMARY
The briefing on the Bill detailed the major issues contained in each clause, and those clauses focused on will now be outlined. Clause 2 lowers the age of admission to Grade 1 by six months, and this is now expressly included in the Bill so as to apply equally to independent schools. The impact of the Harris judgment on this decision was also discussed, and the decision to expressly stipulate this in legislation and not to leave it as a policy concern. For the same reasons Clause 3 expressly includes a statement of the curriculum.

Clause 4 allows parents to accompany the learner to the disciplinary hearing, and Subclause 7 introduces an intermediary which is aimed at making it easier for the learner to adduce evidence. Clause 5 prohibits initiation activities and Clause 6 makes the Code of Conduct applicable to all members of the School Governing Body (SGB), and their services would be terminated should they fail to comply. Clause 7 requires the SGB to make the budget available to parents at least fourteen days before the meeting, so that they may be better prepared.

Clauses 10 and 11 require the consent of the educator, who has been granted a training bursary, before being redeployed. Clause 13 provides that a record of the disciplinary proceedings have to be made available to educators, and the educator would have to bear the cost of such provision. Clauses 14 to 25 deal with the registration of private institutions offering both higher and further education programmes in terms of the Further Education and Training Act.

The discussion on the briefing raised concern with the skills needed to become an intermediary, measures to clarify the sophisticated SGB governing provisions to communities and how these will be implemented and the balancing of the right to choose one's employment with the need to provide a specific service under Clause 11.

MINUTES
Briefing on Education Laws Amendment Bill
Advocate Eben Boschoff, Director: Legal Services in the Department of Education (the Department), informed Members that both the slide presentation on the Bill and the briefing notes (see documents above) provide information over and above the Bill's Explanatory Memorandum. Today's briefing will focus on the more contentious issues.

The Bill amends five existing Acts: the South African Schools Act of 1996 (SASA), the Further Education and Training Act of 1998 (FET), the Adult Basic Education and Training Act of 2000 (ABET), the General and Further Education and Training Quality Assurance Act of 2001 (GENFETQA) and the Employment of Educators Act of 1998 (EEA). The Bill embodies a process of fine-tuning of several issues raised, amongst others, by this Committee and parents have even written to the Minister of Education (the Minister) regarding certain problems being experienced, and the Bill is thus the outcome of this process. The bulk of the amendments are to the SASA legislation.

Clause 1: Amendment of section 1 of Act 84 of 1996
This clause adds the footnotes to the SASA legislation

Clause 2: Amendment of sections 5 of Act 84 of 1996
The proposed insertion of Section 2 provides a very important link to Clause 32 of the Bill, because Clause 32 postpones the implementation of Clauses 2 and 8 to 1 January 2004. There is a typographical error in Clause 32, because "Sections 1 and 8" should properly read "Sections 2 and 8". This clause then lowers the age of admission and has financial implications on the provinces as they face the possibility that younger children can now enter the schools system, and this puts pressure on the provisioning of necessary resources in the classroom. The date of implementation has thus been postponed till 2004 because it would be impossible to implement this by 2003.

The current age of admission for Grade 1 is six turning seven and this is linked to the compulsory age of admission, yet this is not stipulated by any legislation but rather via the Minister's notice. This age was also extended to Independent Schools to who this age requirement had to apply as well in terms of the National Education Policy Act (NEPA), in order to allow for the transfer of learners from independent schools to other schools within the Republic. Yet the independent schools contended that NEPA did not apply to them because policy directives, as a government toll, only applied to bureaucratic institutions and therefore did not apply to them. The courts found in their favour. It was therefore necessary to incorporate the requisite age per grade in the Bill itself and to move away from reliance on the notice, so that the age requirements stipulated in the Bill no longer apply to public schools alone.

The judgment in the case of Harris v the Minister of Education held that the age requirements were too rigid and parents now have the choice whether to send their children to school at a later stage at age six turning seven, or at least six months earlier as of 1 January 2004. This choice is in line with international norms, so that parents may decide on the norm which is best for their child.

The Harris case challenged two aspects: firstly, it held that the age of admission as stipulated in NEPA is not a law of general application because it is a policy instrument and cannot be allowed to limit the fundamental right held by independent schools to not be discriminated against. This age of admission has now been expressly stipulated in the Bill, so that the Department of Education (the Department) can stand up to such challenges in future.

The second aspect is that the Bill now protects the best interests of the child test as contained in Section 28 (2) of the Constitution, so that each individual case would have to be evaluated on its own merits. A provision thus had to be included in the Bill to grant the Head of Department the discretion to admit an under-aged learner into the school system, provided that such learner is prepared and ready for schooling. Yet this does not apply to any learner because this would then create a financial problem and quality education would not be provided to all. A school readiness test has to be devised here so that the process and decision may be fair to each learner.

Many experts have been consulted in this matter and the Department was informed that a readiness test that caters for all the needs of South African children will take ten years to develop properly, because it first has to be tested before being fully implemented. This matter cannot wait for ten years and the constitutional approach was thus opted for, in terms of which a principle is laid down in the test and an obligation is placed on the Department to develop it. Footnote 1 in the Bill sets the grounding principles to be employed in applying the test.

Clause 2(d) states that "exceptional circumstances" would have to exist to warrant such admission and in this regard the challenges would come primarily from those children aged five-and-a-half who presently miss out, because they do not meet the current age of admission requirements.

Clause 3: Insertion of section 6A in Act 84 of 1996
Contrary to the contention raised during the public hearings on the Bill, it was never the intention of the Department to prescribe the exact wording and detail of the curriculum that schools could "go beyond" the curriculum. This only applies to the statement that determines minimum standards to bring it in line with Section 29 of the Constitution. Furthermore, the proposed Section 6A (1)(b) is aimed only at setting basic standards for assessment as a minimum requirement, which is aimed at assessing the outcomes of the national process.

This had to be expressly included in the Bill and not left to the Minister to determine via regulations because the Harris judgment held that such matters cannot be governed by policy, as it would then not be applicable to independent schools. Yet it is not possible to include all the details in the Bill, and therefore has to be incorporated in a framework that would be applicable to both public and independent schools.

Clause 4: Amendment of section 8 of Act 84 of 1996
Many letters have been received from parents regarding the fact that they are not notified of any disciplinary proceedings against their child, and the child would then be suspended from school without even knowing the position or reason for such suspension. When the parents finally meet with the school they are informed that it is not ready to give an answer. This clause then ensures that the disciplinary proceedings via Section 8 of the SASA legislation are formal disciplinary proceedings in terms of the Code of Conduct of the School Governing Body (SGB), and allows the child to be accompanied by the parent or any other designated person in such proceedings.

This is a good principle but the matter was criticised during the public hearings stage. It was contended that parents could also choose to ignore the notice issued by the SGB and fail to attend the disciplinary hearing, with the result that the matter will not be finalised because it cannot proceed without the attendance of the child and the parent or designated person. A provision thus has to be inserted here to provide that the parent or designated person has to attend unless good cause can be shown for the failure to attend.

Subclause 7 deals with the appointment of an intermediary and this concept was taken from the criminal courts, where intermediaries are used to protect the young person would has to deliver evidence in a very stressful situation, such as cases involving sexual abuse or rape. The reason is that children may be intimidated by the environment and questioning techniques used, and a person with the necessary skills would then be appointed in an effort to get the best evidence from the child during the disciplinary hearing.

This could be done via an electronic device or behind a screen where the child would be heard but not necessarily seen, yet this has been criticised as the poorer rural school districts would not be able to implement such measures. In this regard the Department is of the opinion that this is not a problem, because if these measures are implemented and it assists one learner, then success has already been attained. There might very well be financial implications involved but resources can be shared and the provinces have to assist here. There could very well be an administrative burden in ensuring that an intermediary is present at all the proceedings, even in the case of a postponement.

Clause 5: Insertion of section 10A in Act 84 of 1996
This clause is to be inserted based on a report compiled by the Human Rights Commission on initiation practices within South African schools which was submitted to Parliament. The clause is not concerned with team-building exercises, which is also important in creating unity amongst learners, but is instead concerned with those "no-no's" listed in Subclause 3. If it is a the team-building exercise it would not fall within Subclause 3 and would thus be tolerated because it is not a criminal act. The clause also protects learners against bullying which operates under the auspices of team-building, and any person or learner is found guilty of any offence in this clause then the necessary steps have to be taken.

During the public hearings it was thought that only the educator or learner could be guilty of an offence under Subclause 2, but the actual intention is that the clause is applicable to all authorities at the school and therefore includes the governing body as well.

Clause 6: Insertion of section 18A in Act 84 of 1996
In this regard concern was raised by the Kwazulu-Natal province that the individuals comprising the SGB should be included here as well, and only when they are in a position to know what is expected of them would they become aware of the particular mischief being perpetrated. This clause then seeks to make the Code of Conduct applicable to all SGB members and their services would thus be terminated should they fail to comply, or their services could be retained if the mischief is not serious. Yet this provision cannot be used as a "wild card" for trivial reasons such as a personality clash, but an objective framework has to be established.

During the public hearings this clause was criticised because it is to be determined by the provincial head, and the provision has thus been altered to the Head of Department. It was suggested that this has to be developed by all schools, yet this cannot be accepted because the purpose of the Code of Conduct is to set objective standards and if every school is required to do this it would result in variations and would not be managed properly. A Code of Conduct to be devised by each province could still be tolerated, as this would result in only nine different codes. The SGB cannot, however, be allowed to devise such a code because the SGB could represent a number of schools and the code would reflect the positions of that majority and not the smaller number of schools not represented by that SGB. It would thus be best for the provinces to decide the Code of Conduct, so that South Africa can have functional schools.

Clause 7: Amendment of section 38 of Act 84 of 1996
This clause does deal with financial matters and an amendment was effected in this regard in 2001. Yet many letters have since been received from parents who raised concern with the fact that the budget presentations at the school's annual general meetings are too complex and are "just numbers", yet the parents are then expected to make a decision on them despite the fact that they have not looked at the properly or had the chance to make sense of them.

Clause 7 now creates an obligation on the relevant party to make the budget available to parents at least fourteen days prior to the meeting. Yet the difficulty which is then created relates to the costs involved in making such information available to the parents on demand because a large number of parents would require this information, and it was therefore decided that a compromise could be reached by requiring such information to be made available at least fourteen days prior to the meeting. This would allow parents to prepare properly and allow them to engage constructively.

Clause 8: Insertion of section 45A in Act 84 of 1996
This clause repeats the aims and sentiments expressed earlier with regard to Clause 2, except that it deals with the age of admission for independent schools. It now allows four-year olds who are ready to begin their schooling to be admitted to an independent school.

Clause 9: Substitution of section 61 of Act 84 of 1996, as amended by section 5 of Act 53 of 2000
During the public hearings the Christian Action Group contended that allowing the Minister to make such regulations would erode Parliament's powers, yet they failed to recognise that the Minister's powers here are not unfettered. Furthermore, policy issued in terms of the SASA legislation was considered subordinate legislation and was therefore applicable to all, including the independent schools. Yet the courts held that it is not subordinate legislation but were only guidelines aimed at keeping bureaucrats aware of government trends, and thus they have to take the form of regulations to be enforceable against all schools. This has been done by Clause 9.

Thus the whole policy would not be included in the regulation but only those practical issues that need to be enforced via regulations, and these practical issues are those listed in the proposed Section 61(a) to (i) of the Bill.

Clause 10: Insertion of section 6A in Act 76 of 1998 & Clause 11: Amendment of section 8 of Act 76 of 1998, as amended by section 16 of Act 48 of 1999
This is one of the contentious clauses in the Bill and concerns were raised by most presenters who addressed the Education Portfolio Committee during the public hearings. Yet those concerns were raised out of context, and this clause has to be read together with Clause 11.

These clauses are essentially saying that an educator in the public school sector who has received a study bursary by the employer can no longer be made to take up a position determined by the SGB alone, as the consent of the educator now has to be secured before finalising such deployment. Clause 10 deals with student educators or those entering the field, whereas Clause 11 deals with in-service educators.

Clause 11 deals with the situation where funds are spent on training these educators, in mathematics for example, but because the educator is then not recommended for a mathematics post, s/he would have to remain in the previous post. The aim here is to provide the mechanism whereby for resolving this situation, and it does not replace the normal appointment process but only refers to the following limited group of appointments: to educators that are bursary holders, and to those schools in which there is a need for an educator in a specific subject. Clause 11 provides that there has to be consultation with the SGB here, but a recommendation from the SGB is not needed.

Clause 11 does not force educators to be redeployed and requires the educator to be not only consulted but also requires that educator to consent to the redeployment, and thus the final decision lies with the educator. This ensures that no rights are taken away.

Clause 12: Amendment of item 2 of Schedule 1 to Act 76 of 1998
This clause first originated two years ago with the introduction of Schedule 1as an amendment to the EEA aimed at determining the performance standards of educators, so that any incapacity may be identified. It was then decided that these standards would have to be determined by the Minister, but the trade unions convinced the Education Portfolio Committee during the public hearings that these would best be agreed upon via collective agreements. The Minister accepted this approach but granted all relevant parties one year in which to conclude such an agreement. Two years have since elapsed and no such agreement has been reached only the prospect of an agreement, and the Minister thus decided to revert back to the official wording that he would prescribe such standards.

Clause 13: Amendment of item 7 of Schedule 2 to Act 76 of 1998
The proposed Section 13(a) deals with the appeal and record of disciplinary hearings conducted because the present Act is silent on this, and this clause now provides that these records should be made available to the educator in whatever format it is available in. The Department is of the opinion that the costs factor is important here and the educator now has the choice of format in which the records are to be made available to him/her, and if the educator exercises this choice s/he would have to bear the costs. It would be unfair to "take the easy way out" by trying to access both the records and also in the format of the educator's choice because the educator already has to the choice, and if additional costs are involved the educator then has to bear the costs via the Promotion of Access to Information Act.

Subclause (b) deals with the position of the intermediary and during the public hearings concern was raised with leaving the power to appoint the intermediary to the Head of Department to appoint the intermediary and must understand the stress or types of evidence of to be adduced by the witness. It would therefore be unfair for the Head of Department to make such appointment when s/he might have insight into the personal affairs and weaknesses of the person to adduce evidence. It was thus contended that the Head of Department should be replaced with "the presiding officer" so that the hearing may be fair because the Head of Department is also party to the disciplinary hearing, and this would grant further protection the witness.

All those sentiments raised during the earlier discussion on the clause dealing with the disciplinary hearings of learners apply equally here.

Clauses 14 and 16-25
These clauses deal with those provisions in the Higher Education Act regulating the registration of private institutions. In 1998 it was decided to give this power to the national government via the FET Act, because many private institutions were offering higher and further education programmes and the registration of both further and higher education facilities was needed. Since 1998 several movements have occurred in the Higher Education Act. The registration process was then implemented and the amendments effected in 2000 focused on the terminology used, and the original version of the Bill stipulated "registration" and "conditional registration".

Further confusion was caused by the practice of adding additional conditions to conditional registration, which did not make sense, and it was decided to instead to require compliance with certain provisional conditions via the introduction of provisional registration. Also provisional conditions specific to each application received from the individual institution were introduced, so that two categories now exist: the first are the normal registrations and the second are the provisional registrations and both can be subject to conditions, depending on the individual application. These clause thus attempts to do the same for further education, and it is not necessary to go through them all in detail.

Clause 15: Insertion of section 16A in Act 98 of 1998
This clause repeats the intention and sentiments expressed in the earlier discussion of Clause 5. The constitutional court has held that there can be no justification for corporal punishment, and this prohibition has now been expressly included in this clause.

Clause 26: Substitution of section 47 of Act 98 of 1998
The same principles discussed earlier under Clause 9 apply here, except that this clause seeks to amend the FET Act.

Clause 27: Insertion of section 18A in Act 52 of 2000
This clause repeats the intention and sentiments expressed in the earlier discussion of Clause 3, except that it amends the ABET legislation.

Clause 28: Insertion of section 20A of Act 52 of 2000
The same principles discussed earlier under Clause 5 apply here, except that this clause seeks to amend the ABET Act.

Clause 29: Substitution of section 32 of Act 52 of 2000
This clause contains technical amendments aimed at correcting the references to the old South African Certification Council, and replaces it with the GENFETQA legislation.

Clause 30: Substitution of section 41 of Act 52 of 2000
The same principles discussed earlier under Clause 9 apply here, except that this clause seeks to amend the ABET Act.

Clause 31: Amendment of section 5 of Act 58 of 2001
This clause contains a technical amendment aimed at correcting the reference within the existing legislation to the South African Qualifications Authority Act of 1995.

Clause 32: Short title and commencement
This clause was considered earlier under the discussion on Clause 2 of the Bill.

Discussion
The Chair suggested that there is a typographical error in Clause 13(b)(c)(i) of the Bill, as "putt" surely has to read "put".

Adv Boschoff replied that the typographical errors will be corrected, and added that he was informed that this meeting would focus exclusively on the principles underpinning the Bill.

Mr J Tlhagale (UCDP) [North-West] stated that Adv Boschoff had mentioned during the briefing that the intermediary has to be "competent", and asked whether this also includes legally trained persons. What qualifications or skills would the intermediary need to be able to speak on behalf of the child?

Adv Boschoff replied that the Bill states that anyone can become an intermediary here and speaks of the person most suited to perform this function. This person is chosen in terms of whether, in the opinion of the presiding officer, s/he is able to assist the learner during the disciplinary hearing. The intermediaries operating in the criminal courts are appointed by the Minister of Justice and these are only professional people. The Department is of the opinion that following the same route would prejudice rural schools especially, because these professionals would not be readily available in the rural areas.

Thus the learner is protected via the intermediary and the intermediary also has to be sensitive to the rights of the learner, and could even be a parent or someone in the community that is known to be good with children.

Mr N Raju (DP) [KwaZulu-Natal] referred to the trainee educator and the acquiring of "his or her consent" as provided in Clause 11, and asked whether the employer that offers a bursary to the specific educator to enable him/her to study a specific subject further would have the right to deploy the qualified educator to a school needing instruction in that subject without first attaining the consent of the educator. This is an important concern because if that educator's consent would first have to be attained before such deployment, that educator could refuse should the post not meet his/her approval. Thus the need for the post should outweigh the educator's individual interest.

Mr H Sogoni (UDM) [Gauteng] asked Adv Boschoff to explain the position should the educator not consent to the transfer under Clause 11.

Adv Boschoff responded to these questions by stating that this is a sensitive issue, especially if it is forced redeployment in the public service, and therefore the consent of the educator has to be attained. Conditions regulating the service can be included in the contract of deployment to the effect that the educator could be redeployed to any school in the province that needs those services once they are qualified, and the educator could then consent to the contract and the redeployment. Yet the educator cannot be redeployed afterwards without being told of the redeployment beforehand, because the educator would then never have applied for training in the first place.

Mr Raju requested Adv Boschoff to explain the position should another school need the services of that educator, and the educator refuses to consent to being deployed there.

Adv Boschoff replied that this is the very reason for which this amendment has been introduced, so that this might now be made possible. Yet when those in-service educators are recruited and are granted a bursary by their employer, the contract would include a condition that they could be placed wherever the need arises. Should the educator not want to be redeployed, then s/he could be overlooked and the employer could then spent that money on training another educator who would not be averse to the possibility of being redeployed.

Mr Raju suggested that Clause 11 deals with a very small percentage of educators who have been granted bursaries and they are thus obliged to the State for being granted such training. How would the Bill ensure that they meet their obligations to the State?

Ms S Ntlabati (ANC) [Free State] suggested that Clause 11 "stretches democracy too far" to the extent that it compromises the needs of both the community and the learners, all because an educator prefers a luxurious post. It has to be remembered that no right is absolute.

Adv Boschoff responded that it is unusual for him to now be stating the case for requiring such consent, because his involvement in discussions on this aspect have for so long been arguing for redeployment to where the service is needed as an overarching factor. A mechanism or a tool has to be created to make this possible, but even with this tool in place the situation would still be sensitive. A balance thus has to be struck between the two competing interests.

Mr B Tolo (ANC) [Mpumalanga] expressed concern with the prior attainment of the educator's consent and questioned the decision not to impose conditions on the deployment. The current position makes it possible for the educator to transfer from the school to which s/he has been assigned and where there is a real need for those services, to a nice urban school within six months of filling the deployment post. Should a time limit not be imposed here to remedy this situation?

Adv Boschoff replied that this is a difficult issue to address as the individual has the right to make a choice as to his/her position of employment. The central question here is whether people can be prohibited from moving to other places of employment and made to stay against their will. There is no definite remedy here other than trying to convince the person to stay. The period of deployment could be built into the contract, but experience has shown that the South African courts very seldom enforce specific performance in an employment contract. A good example would be the very recent case involving the South African Premier Soccer League coach Gordon Igesund, whom the courts allowed to terminate his contract of employment with Santos FC in an effort to move to fellow Cape Town based football club Ajax Cape Town.

Mr Tolo asked whether the educator would then have to pay the funds used to train him/her back to the employer?

The Chair asked whether the Public Service Act would be relevant here.

Mr Sogoni referred to Clauses 6 and 7 and suggested that it would be difficult for the SGB's in the rural areas to learn about the provisions, because they are very sophisticated provisions. Clarity is also requested regarding the processes of implementation that would face the provinces.

Adv Boschoff replied to these two questions by stating that this is also a problem with the new mechanism and the cycle would then be started all over again. The national body would be dealing with the implementation and on building the capacity of the SGB members, and a forum has been established in which persons could engage with the SGB and decide on the implementation of the Bill. In the end it falls within the hands of the provinces.

Feedback on the general picture will also be made available to the communities and this type of monthly feedback, and once the process is implemented the provinces will give favourable feedback. There are thus processes in place to ensure implementation of the Bill.

Secondly, Mr Sogoni suggested that it has been found that school principals often drive the process leaving the SGB ignorant.

Mr Raju stated that on the ground, except for the former Model C schools, the former House of Delegates and House of Representatives schools do not have viable SGB's. This is a laudable concept on paper but how would the Bill obviate the situation because, as stated by Mr Sogoni, many principals do drive the process and this leads to the principal believing that s/he is a "mini monarch".

Adv Boschoff replied to these two questions by stating that the Department does receive such complaints on a daily basis. The principal acts on behalf of the SGB and also sits on that body as a member, yet is often perceived to be acting as a "loose cannon". These matters have to be dealt with on the merits of every case.

Adv Boschoff welcomed Members to contact him should they need clarity on any provision in the Bill.

There were no further questions or comments and the meeting was adjourned.

Appendix 1

BRIEFING NOTES ON EDUCATION LAWS AMENDMENT BILL, 2002

1. PURPOSE OF THE BILL

The Bill amends the following Acts:
- The South African Schools Act 84 of 1996 (SASA)

- The Employment of Educators Act 76 of 1998 (EEA)

- The Further Education and Training Act 98 of 1998 (FET)

- The Adult Basic Education and Training Act 52 of 2000 (ABET)

- The General and Further Education and Training Quality Assurance Act 58 of 2001 (GENFETQA)

2. PROVISIONS AFFECTED BY AMENDMENTS

- Admission age

- National curriculum and assessment of learner achievement

- Appointment of intermediary in disciplinary hearings in public schools

- Prohibition of initiation practices in education institutions

- A code of Conduct for school governing body members

- Appointment of new recruits and applicants after a break in service

- Transcript on an electronic recording in disciplinary hearings

- Prohibition of corporal punishment in both FET and ABET centers

- Technical adjustments

3. DISCUSSION

3.1 Admission age

The current legal position is as follows:

- admission age to grade 1 in public schools was determined by regulations in terms of section 3(4)(i) of the National Education Policy Act 27 of 1996 (NEPA) and section 5(4) of SASA whereas that of independent schools by policy in terms of section 3(4)(i) of NEPA only. However, the admission age in both cases was the same.

- In both determinations, there was no flexibility. That is, in both cases underage learner may not be admitted to grade 1 irrespective of whether not the child is ready for admission to that grade.

In terms of the Harris v the Minister of Education case, policy does not bind third parties. Since admission age to independent schools was determined by policy, it could not bind them. The Court further held that, for the sake of the best interest of the child, flexibility should be allowed.

The Bill proposes amendments which will harmonize the admission age to grade 1 in both public and independent schools. It will also make room for flexibility. It is common cause that the lower the admission age, the lower the number of applications for the admission of underage learners, Consequently, the admission age to grade 1 will be lowered by six months.

3.2 National curriculum and assessment of learner achievement

The current position is that these are no national curriculum framework and statement of outcomes or standards which learners are expected to achieve. It is therefore necessary to effect amendments which will authorize the Minister determine such framework.

3.3 Appointment of an intermediary in disciplinary hearings in public schools

It has been observed that minor witnesses are often subject to undue mental stress or suffering whenever they are required to testify in disciplinary hearings. Accordingly, it was necessary to effect amendments that will empower the governing body to appoint an intermediary to assist such learners to adduce evidence in disciplinary hearings. The presiding officer may appoint an intermediary in cases involving minor witnesses and educators.

3.4 Prohibition of initiation practices in education institutions

These practices involve ill-treatment of new learners or students at education institutions by senior learners at such institutions. These practices must be banished because they amount to maltreatment, abuse and degradation of or learner or student by another. These practices are actually in direct conflict with the Bill of Rights contained in our Constitution.

3.5 Code of Conduct for school governing bodies

The Code of Conduct will give certainty as to what type of conduct is expected of members of a governing body. Currently, the Act provides that if a school governing body fails to perform its duties, the Head of Department may appoint sufficient persons to perform those duties. However, if a member or members of a governing body are involved in unlawful acts such as fraud or misappropriation of school monies, the Head of Department has no remedy. However, in terms of the amendment, breach of code of conduct by member or members of a governing body, will result in such a member or members either being suspended or his her or their membership being terminated.

3.6 Appointment of new recruits and applicants after one or more years break in service

This amendment enables a Head of Department (HOD) to appoint the above mentioned educators without the recommendation of the school governing body but in consultation with it. The HOD must consult the governing body with regard to their identification of the post and its requirements. He or she must also consult the governing body as to their question of the suitability of the applicant. That is, the question whether the applicant matches the requirements of the post and has the prescribed qualifications. This process is necessary to ensure a fair distribution of well-qualified educators. It will also assist in placement of students who have been awarded bursaries or loans to study either by the employer or by the state, in suitable employment. This kind of employment will encourage many students to follow the teaching profession, because thy expect the employer to help them find employment and coupled with this, is the fact that an educator will make only one application in stead of many applications to different schools. This is a question of savings in terms of time and costs.

3.7 Transcript of electronic recordings

In disciplinary hearings, the procedure is that the presiding officer must keep a record of the proceedings and wherever possible, also make use of a tape recorder. At the end of the proceedings, the presiding officer is expected to draft a report mechanically using the notes and where applicable,. the tape recorder. Should the educator request for the record of the proceedings, he or she is provided with the above-mentioned report. However, in addition to the report, the educator may request the employer to arrange for an electronic transcript of the recordings. These transcripts are made by means of special equipment which is very expensive. Hence, it is fair for an educator to foot the bill for such additional material. This is in line with section 22 of the Promotion of Access to Information Act 2 ot~2000.

3.8 Prohibition of corporal punishment in both FET and ABET institutions

Corporal punishment was only prohibited in schools and not in the above mentioned institutions. This in effect means that the employer may not take disciplinary action against an educator who apply corporal punishment to students or learners in such institutions unless such an educator is found guilty for assault in a court of law. However, if corporal punishment is prohibited in such institutions, the employer may independently of a court of law proceeding, if any, conduct a disciplinary against the perpetrator.

3.9 Technical adjustments

Technical adjustments were effected on sections 23, 24, 26, 31 and 35 of the Further Education and Training Act so as to harmonize the provisions for the registration of private higher education institutions and those of private FET institutions. Textual corrections were also effected on section 5 of the General and Further Education and Training Quality Assurance Act, so as to correct a wrong citation of a section of the Act.

Enquiries: Adv. SIM Nawa (Legal Adviser)

Appendix 2

PRESENTATION ON EDUCATION LAWS AMENDMENT BILL, 2002

1. Current status of the Bill

- Approved by Cabinet
- Certified by Chief State Law Adviser
- Public hearings held on 13 August 2OO2 in Cape Town

2. Main Provisions of the Bill

Admission age to Public School (Clause 2)
- Grade R, four turning five by 30 June in the year of admission
- Grade 1, five turning six by 30 June in the year of admission

HOD may admit an underage learner, provided:
- He or she complies with prescribed criteria by Minister
- Suitable school places and other resources are available
- Good cause is shown

Good cause shown means it can be demonstrated that:
- Exceptional circumstances exist which necessitate such an admission
- It would be in the best interest of the learner
- Refusal would be severely detrimental to the learner's development

Admission age to an independent school (Clause 8)

- Grade R and Grade 1, Ditto - Public School
- School may admit underage learner provided:
• He or she complies with the criteria prescribed by Minister
• Good cause is shown

N.B. Clause 2 and 8 will commence on 1 January 2004. REASON? To enable provinces to prepare for the intake of two sets of learners..

3. First appointment or appointment after break of service of educator (clause 10)

Employer may:

- Receive application from such educators
- Process and Match Applications to vacant posts
- Consult the relevant SGB on requirements of post
- Ensure that applicant has prescribed qualifications.
- Appoint the educator in relevant post.

4. Appointment of educator awarded bursary by employer (clause 11)

Employer may transfer such educator with his or her consent to any:
- Public school
- Further Education and Training Institution
- Adult Basic Education and Training Centre

Reasons: To facilitate the appointment of educators by eliminating the problems of:
- Educators drafting many applications to many different places
- Scarcity of educators in certain areas and in key subjects
- Educators accepting other employment due to inability to find teaching post

5. Regulations: Clauses 9; 26; and 30

They are made on:

- Safety measures
- National curriculum
- National process of assessment of learner achievement
- Prohibition of Initiation Practices
- Norms and Standards for funding
- Age norm per grade

Some of these instruments were contained in documents drafted in terms of National Education Policy Act. Since the Constitutional Court in the Harris Case held that such instruments are not enforceable against third parties, the relevant Acts have been amended so as to transform such instruments into regulations which will be binding on all education sectors.

6. Amendments proposed by Portfolio Committee for Education

- See attached document