1. INTRODUCTION

This document serves as the official submission from the CEPD on the Education Laws Amendment Bill (notice 1447 of 2000) and the Adult General Education and Training Bill (notice 1505 of 2000). The document carries inputs of the CEPD with respect to the amendment of the South African Schools Act of 1996, the Employment of Educators Act of 1998 and the AGET Bill 2000.

The CEPD welcomes the commitment of the Ministry to reviewing legislation as a way of taking further the transformation of the education and training system. Generally, the CEPD is in agreement with the thrust of the amendments suggested in the bills. The following sections outline the specific comments and recommendations of the CEPD

2. AMENDMENT OF THE SOUTH AFRICAN SCHOOLS ACT (no 84) OF 1996

While the insertion about ‘expropriation’ is critical in ensuring that school education activities on private property are unhindered, it is suggested that this provision be made as a separate section which provides for expropriation of ‘land or real right in or over land’ only in the case of failure to achieve an agreement between MEC and the owner of property-as contemplated in section 14.

The inserted section on expropriation should allow free access to the piece of land where the school is situated, that is, free movement should be allowed through the un-expropriated land leading to the expropriated island.

The CEPD is against giving this open responsibility to the HOD given the limited capacity of the nine Provincial Departments of Education to support SGBs. Even if the HOD had the capacity to do so, the right of the school community to govern would be undermined for the period that the HOD would be responsible for governance at the school.

We suggest that the HOD be given a responsibility to establish an interim governance structure comprised of the stakeholder groups represented in a governing body. The interim structure should govern the school for a period not exceeding three months. This period should be extended by a further three months if a fully fledged governing body has not been established in terms of the South African Schools Act (No. 84 of 1996).

We welcome the overall intentions of the insertion. However, we suggest an adaptation of section 13 and an inclusion of sections 14 and 15 as outlined below.

Section 13: If the membership of a governing body is not representative of the racial composition of the learners of the school, the governing body may co-opt not more than three parent members with voting rights from that part of the learner community that is not represented.

The use of may allows governing bodies to exercise decision making with respect to ensuring representivity and if this does not happen, the parents from the excluded communities may take the course provided by section 14 and 15.

The increase of the number from two to three makes provision for responsiveness required in multiracial settings. For instance, if there are more than two racial groups underrepresented.

Section 14: Parents from excluded communities that feel under-represented on the governing body may apply in writing to the governing body for co-option as anticipated in section 13. The governing body concerned must respond to the application in writing within a period of 90 days.

Section 15: In the case where an application contemplated in section 14 is declined, the declined parents may lodge their complaint with the MEC, who will take a ruling after consulting with both parties.

It should be noted that the Bill's proposed amendment does not give clear provision regarding under what circumstances such a co-option ceases.

The suggested insertion is not necessary, as there are other significant issues to be regulated by the MEC. Continuation of these kinds of unnecessary and narrow insertions will make the Act cumbersome. For instance, there are equally important issues of health ( e.g. availability of running water and proper sanitation) and social welfare ( poverty and child labour) that need to be regulated.

In addition the insertion does not deal with the security issue adequately. There is a dedicated portfolio on safety and security that should be consulted and be used in these cases. The insertion must be completely left out to avoid watering down the powers of the MECs to regulate on anything as and when necessary to do so.

3. AMENDMENT OF THE EMPLOYMENT OF EDUCATORS ACT, 1998 (Act 76 of 1998)

The amendments made in terms of the above Bill are welcome in terms of the following:

• Use of simpler language which makes the Act more accessible to educators
• The separation of procedures (in the form of schedules) from the main concepts. This

makes the Act more reader friendly.

The proposed section 16 (Incapable Educators) and section 18 (Misconduct) could lead to major implementation problems, and therefore hinder rather than promote labour peace.

The proposed amendments, for example:

1. Pre-suppose that a performance appraisal system exists for educators. This is suggested in the proposed section 16 on Incapable Educators which indicates that the employer must assess the capacity of the educator. The proposed section 18 on Misconduct also rests on the supposition that employers are able to assess whether the educator performs poorly or inadequately for reasons other than incapacity (subsection l). In addition, schedule 1 also requires the employer to evaluate the educator’s performance in relation to the job (2.2 b). It is our contention that the absence of a performance appraisal system for educators, and the historical sensitivity linked to educator evaluation creates an unworkable context for the effective implementation of these amendments. What must be noted is that currently the appraisal system for educators is a Developmental Appraisal System (DAS), rather than a performance appraisal system. The aim of DAS is to facilitate the personal and professional development of educators in order to improve the quality of teaching practice and education management and is therefore not aimed at assessing the performance of the educator. The absence of a system which facilitates the evaluation/performance appraisal of the educator will hinder the application of the above amendments, and is likely, instead, to create greater confusion and contestation in the labour front.
2. Pre-suppose that well-defined job descriptions exist for all educators. Whilst this is true for school-based educators (as detailed in the DAS model), this is not the case for office-based educators who currently have generic job descriptions rather than job descriptions designed for their particular post.
3. Assumes that performance standards are in place. Whilst DAS does suggest some form of performance standards in the form of Definitions and Expectations, the proposed amendments do not suggest that performance standards are equivalent to the Expectations of DAS.
4. Ignores the existence of DAS, and in particular, refrains from linking the proposed section dealing with Incapacity with DAS. Both the Incapacity Code as well as DAS are concerned with matters related to the development of the educator. The absence of any linkages between the two systems, and clarity on the relationship between the two systems is cause for concern.
5. Uses the concept of Poor work performance in sections dealing with both Incapable Educators and Misconduct. The application of this concept in two separate sections which are not linked together in any way, is likely to create confusion about how and when the notion of poor work performance is classified as being due to Incapacity or Misconduct.
6. The proposed amendments use the concept of Serious and Less Serious Misconduct in the schedules; however these concepts are not utilised in the main sections of the Act. This tends to create confusion.

1. That the proposed sections on Incapable Educators and Misconduct be re-visited to take into account the above.
2. That definitions on key concepts such as incapable educators be provided in a glossary of terms.

3. ADULT GENERAL EDUCATION AND TRAINING BILL, 2000

The CEPD welcomes the move to establish a national Adult General Education and Training (AGET) system. In particular, the provision for clear responsibilities with regard to the organisation, resourcing, and the governance of the AGET centres. Generally, the intentions reflected in this Bill award the AGET sector a status that matches its significance vis-à-vis the literacy levels and the economic challenges faced by the nation.

The CEPD has the following specific comments to make on the Bill:

Sub-section 2 provides for the HOD to "request the governing body of a public school to allow a reasonable use of the facilities of the school by the public centre". As per sub-section 3, the HOD must enter into an agreement providing for the use of the facilities.

It is implied in the Bill that the two respective governing bodies will work together on a long term basis. Therefore we suggest that the request for the use of facilities be made by the public centre’s governing body to the school governing body, and the agreement should be entered into by the two parties and not with the HOD. The HOD should be given the responsibility of assessing and ratifying the agreement and of making a ruling in the case where the two fail to reach an agreement.

Section 7 (2b): We suggest that ‘reasonable opportunity to make reasonable representations’ to the MEC be further defined in terms of timeframes. We recommend that possible representations be accepted within a period of 90 days.

Section 8 (1) reference to the Schools Act of 1996 needs to be checked. The link between these two is not clear.

Section 8(2): We suggest that the membership of a public centre’s governing body be restricted to elected members, ex-officio members and co-opted members. Representatives of sponsoring bodies, organisations of disabled persons and experts should be involved as co-opted members because these categories do not exist in all centres’ communities and in particular sponsoring bodies and experts do not have a primary interest in the affairs of the centre. Contribution of human and non-human resources does not imply a primary interest.

Section 8(6): It is unthinkable that in the case of a public centre operating in a public school, the governing body of the centre may co-opt SGB members without voting rights. This sends a confusing message about the powers of the SGBs over the facilities of a public school and its relations to a public centre.

There is a need to make provision for a governance framework that provides for a strong relationship between the two respective governing bodies. We recommend that in the case of a public centre operating in a public school the two respective governing bodies should establish a joint committee with a clear responsibility for a set of core functions defined by the Minister of Education. This arrangement encourages common responsibilities over common activities such as maintenance and security. Decisions of the joint committee should be enforceable on both governing bodies.

Section 8(10) The subsection gives the responsibility of governance to the HOD over a newly formed public centre until a proper governance structure is elected in terms of section 3. This provision deprives the immediate centre communities of their right to directly interact with the centre and also adds to the burden that the HODs already hold over governance issues.

We suggest that the HOD be given a responsibility to establish an interim governance structure comprised of the stakeholder groups represented in a governing body. The interim structure should govern the centre for a period not exceeding three months. This period should be extended by a further three months if a fully fledged governing body has not been established.

Section 11(1)(a) reads: "to promote the best interest of the public centre and to strive to ensure its development through the provision of quality education for all learners at the centre". We suggest that the bolded part be deleted as it limits the way the governing body can develop the centre. In other words the ‘development of the public centre’ can be ensured through more ways than provision of quality education to all.

Section 11(1)(c): We suggest that access to information about the centre should not be limited to the HOD. Provision should be made for other interested parties to access the information about the activities of the centre.

Section 18(2) provides for applicants to make their application for admission to the HOD. This provision is not practical and will make admission cumbersome. We therefore suggest that the applications be made to the head of the centre within a framework provided by the HOD.