Western Cape Education Department

Date : 29 august 2001

From : brenton joseph - STATE LAW ADVISOR

SUBJECT : education laws amendment bills

My brief is to provide further comments on the final Education Laws Amendment Bill tabled before the Parliamentary Portfolio Committee on Education (National Assembly):

The purpose of this memo is to assist Minister Zille’s oral presentation on the latest changes in respect of the Education Laws Amendment Bill. A number of the changes are consistent with the views of the Western Cape Education Department and as a result thereof, only those changes that are inconsistent with the views of the Western Cape Education Department will be dealt with hereunder.

  1. AMENDMENT OF SECTION 11: REPRESENTATIVE COUNCIL OF LEARNERS
  2. The latest amendment recognises the RCL as the only recognised an legitimate learner body at a public school. This effectively renders the RCL as the umbrella student body at the school which ensures that all other learner bodies and/or organisations "affiliate" themselves to the RCL. Consequently, the interests of the learner body community at any public school will be represented by the RCL and all negotiations will have to be done with the representatives of the RCL at school level.

    The WCED is in principle opposed to the RCL being the umbrella body of learners at a public school.

  3. AMENDMENT OF SECTION 15: STATUS OF PUBLIC SCHOOLS
  4. The recent amendment states that:

    Every public school is a juristic person with legal capacity to perform only such functions and obligations and exercise only such rights as are provided for in terms of this Act.

    The recent amendment has the effect of confining a public school’s functions and obligations as a juristic person to those expressly stated in the South African Schools Act.

    Consequently, a public school will require that its functions be expressly listed in the Act together with its obligations.

    In essence, the proposed amendment to Section 15 suggests that if a function, obligation or right is not prescribed in the Act then the Governing Body may not act without such prescription.

    S36 places an obligation on public schools to supplement the resources supplied by the state in order to improve the quality of education.

    The Governing Body may allow the reasonable use of the facilities of the school for community, social and school fundraising purposes, which may include the charging of a fee or tariff, alternatively collect school fees as a means to raise money. The recent amendment to S37 allows a school the opportunity to open an investment account. Notwithstanding these provisions, there are no other guidelines or express functions that spell out for Governing Body’s how they are to raise monies for the school. S60(4) refers to an "enterprise or business operated under the authority of a public school", yet there is no function which affords a school this right.

    Consequently, the WCED is of the view that the original wording of Section 15 be retained, alternatively the governing body functions, obligations and rights be detailed and supplemented in more exacting terms, to bring consistency in the Act.

  5. AMENDMENT OF SECTION 37: SCHOOL FUNDS AND ACCESS OF PUBLIC SCHOOLS
  6. The amendment of Section 37(3) reads as follows:

    The governing body of a public school must open and maintain one banking account, but the governing body of a public school may, with the approval of the MEC, invest surplus money into another account.

    The WCED has no objection to the recent amendments to Section 37(3) however wishes to add that investment of surplus money into another account should be done in terms of directions issued by the Head of Department. The motivation behind this request is that the department may then be in a position to ensure that investment of surplus money be done conservatively rather than recklessly.

    The WCED is opposed to the addition of S37 (7)(b) and (c). It effectively operates for the future however imposes new results in respect of a past event. In other words, it attaches new consequences for the future to an event that took place before the provision was enacted. It would therefore render a trust, which was established lawfully, unlawful. In addition, all contractual obligations between the trust and third parties will be prejudiced. The proposed provision also does not state how far back this provision will apply.

    Section 37(7)(c) raises similar concerns in respect of the retrospectivity argument as presented in the preceding paragraph. Surely if a governing body calls a general parent meeting, and a decision is collectively taken that monies or contributions from parents are to be collected to establish a fund or a trust such decision taken by the general parent body cannot be considered to be unlawful. In any event, the proposed amendment does not provide assistance to provincial education departments to check that trusts have been formed from school monies or contributions collected from parents.

    Consequently, while the WCED understands the issue that these provisions are attempting to address, it is of the opinion that such amendments will not achieve the desired effect. The WCED is therefore opposed to the amendment.

  7. EDUCATORS EMPLOYMENT ACT 76 OF 1998: AMENDMENT TO FORM C

Except to say that reference should be made to item 5 of the disciplinary code and not item 6, the department has no objection the proposed amendment.


COMMENTS ON DRAFT BILLS : 2001
DATE: 21 MAY 2001

  1. EDUCATION LAWS AMENDMENT ACT (ELA)
  2. GENERAL AND FURTHER EDUCATION AND TRAINING QUALITY ASSURANCE BILL (GENFETQA)

Further to my fax on 11 May 2001. Kindly find hereunder the WCED’s comments on the aforementioned bills for your attention and consideration:

A. EDUCATION LAWS AMENDMENT BILL 2001 (ELA)

1. SOUTH AFRICAN SCHOOLS ACT 84 OF 1996

1.1 AMENDMENT OF SECTION 11

It is accepted that the representative council of learners (RCL) is, in terms of the amendment, recognised as a statutory body authorised to represent learners at any public school. If one has regard to section 23(2)(d), S23(4) and S24(1)(d), it is apparent that this statutory body is established for the purpose of participatory governance at a public school. In other words, to represent learners at the school governing body level.

It is therefore suggested that the amendment read as follows:

"…and this council must be the only recognised learner body at the school for purposes of S23(4)."

The term learner body replaces student to bring the language in line with the Act, and further expressly accepts the role of the RCL as one of representative and participatory governance.

    1. AMENDMENT OF SECTION 15
    2. The proposed amendment has the effect of confining a public school’s actions as a juristic person to those expressly stated in the act. This interpretation has always been applied by implication suggesting that the public school has always been considered to be a creature of statute.

      Having regard to the amendment, it effectively requires that the functions of a public school be detailed. It may be argued that these functions are expressly stated in S20, S21, S9(1) and S36, to name a few.

      In essence, the proposed amendment to S15 suggests that if a function is not prescribed in the act then a governing body may not act without such prescription.

      With reference to S36 (1), it is noted that the stated function is couched in very general terms. The questions that follow are therefore how and by what means may a school supplement state funding?

      In the absence of prescribed functions to carry out such supplementation of state resources, it can only be envisaged that provincial departments will be inundated with requests as to whether or not they may proceed to act in a particular manner or fashion.

      Therefore, the proposal from the WCED is either to retain the existing wording of S15 alternatively consider expressing the functions that have financial implications in more exacting terms.

    3. AMENDMENT OF S20 and S25
    4. The Western Cape Education Department agrees with the proposed amendments of these sections.

    5. AMENDMENT OF SECTION 36
    6. The proposed additions of S36 (2) and (3) effectively prohibits a governing body of a public school from applying for overdrafts or to raise money by means of loans.

      S36(1) affords the governing body of a public school a general function to raise money in order to supplement resources supplied by the state. It is important to note that SASA does not say how a public school should actually endeavor to supplement the resources supplied by the state. It has been acknowledged in recent case law that the state cannot fund schooling totally out of its own budget, therefore a school is obliged to endeavor to obtain further funds from the community in which it operates. In addition, case law acknowledges the right of a school to run a commercial enterprise.

      The proposed amendments to this section are somewhat ironical in that on the one hand the act empowers a school to undertake fundraising activities whilst on the other hand it says you may not enter into a specific form of raising capital which in this instance is by means of an overdraft or loan facility.

      While the department understands the dangers attached to overdraft facilities and loans being granted to schools it is of the view that these legislative additions will not stop the practice of schools obtaining overdrafts or loan facilities. This inadvertently will mean that where a school is in trouble financially, it will request financial assistance from a department, which in the face of the constitution will be obliged to assist a public school.

      Bearing the aforementioned in mind, it is suggested that public schools that request loans or overdraft facilities should be able to do so with the approval of the member of the executive council. This effectively allows each provincial education department to have a hands-on approach to public schools within its jurisdiction seeking such facilities. A further advantage to this measure, would be to the lending institution which would understand that if the MEC does not provide approval such loan or overdraft facility will be granted to the public school at its own risk.

      Consequently, the Western Cape Education Department cannot accept the proposed amendments as they cannot be perceived to be in the best interest of the public school or provincial education department.

    7. AMENDMENT OF SECTION 37
    8. The Western Cape Education Department has no objection to S37 (4A).

      The proposed addition of S37 (4B) creates a retrospective provision. It effectively operates for the future however imposes new results in respect of a past event. In other words, it attaches new consequences for the future to an event that took place before the provision was enacted. It would therefore render a trust, which was established lawfully, unlawful. In addition, all contractual obligations between the trust and third parties will be prejudiced. The proposed provision also does not state how far back this provision will apply. Consequently, the WCED cannot agree to such an amendment.

      S37 (4C) raises similar concerns in respect of the retrospectivity argument as forwarded for the proposed amendments in terms of S37 (4B). Surely if a governing body calls a general parent meeting, and a decision is collectively taken that monies or contributions from parents are to be collected to establish a fund or a trust such decision taken by the general parent body cannot be considered to be unlawful. In any event, the proposed amendment does not provide assistance to provincial education departments to check that trusts have been formed from monies or contributions collected from parents.

      Consequently, while the WCED understands the issue that these provisions are attempting to address, it is of the opinion that such amendments will not achieve the desired effect. The WCED is therefore opposed to the amendment.

    9. AMENDMENT OF SECTION 38

The WCED has no objection to the proposed amendments of this section.

  1. EDUCATORS EMPLOYMENT ACT 76 OF 1998

2.1 AMENDMENT OF SECTION 1, ITEM 2 OF SCHEDULE 2, ITEM 2, 4 AND 5 OF SCHEDULE 2

The WCED has no objections to the proposed amendments.

    1. AMENDMENT TO FORM A OF SCHEDULE 2
    2. The department has no objection to the form in principle, however suggests that a time period be attached to the lodgment of a written objection. In the absence of a time period, an educator may attempt to lodge a written objection to a warning after the six month period has expired. In this regard, the department suggests that the lodgment period be three months from receipt of the written warning.

    3. AMENDMENT TO FORM B and FORM D
    4. The department has no objection to the proposed amendments.

    5. AMENDMENT TO FORM C
    6. Except to say that reference should be made to item 5 of the disciplinary code and not item 6, the department has no objection the proposed amendment.

    7. Your attention is drawn to the fact that S25 does not cater for an educator to appeal a decision taken by the employer in terms of S14(2), not to reinstate the educator. In addition, should there not be a remedy of appeal attached to a dismissal in terms of S11(1)(c) and (d)? Kindly consider these additional comments and revert if possible.
  1. FURTHER EDUCATION AND TRAINING ACT 1998
    1. PROPOSED AMENDMENTS TO SECTION 20 AND 49

    The department has no objections to the proposed amendments to these provisions.

  2. EDUCATION LAWS AMENDMENT BILL 2001: EXPLANATORY MEMORANDUM
    1. Your attention is drawn to paragraph 3.1.4 of the memorandum, in particular the last two sentences of the stated paragraph.

You will note that S25 of SASA deals with the intervention of the Head of Department where a governing body is unable to perform all or some of its functions.

The last two sentences refer to the financial obligations of public schools and it is somewhat difficult to draw the connection between the commentary in terms of S25 and the last two sentences of this particular paragraph.

Kindly clarify the reasoning behind inserting the last two sentences in paragraph 3.1.4.

5. GENERAL AND FURTHER EDUCATION AND TRAINING BILL

5.1 LAYOUT AND TYPOGRAPHICAL POINTS:

The additions/alterations have been italicised:

Point 3.5. "Its main functions are (not is)…"

Point 3.6. First sentence needs editing.

5.2 GENERAL DEFINITIONS NEEDING ATTENTION:

5.3 PROPOSED ADDITIONS:

    1. ISSUES NEEDING CLARIFICATION
      1. Under the heading "Functions of council" the following questions arise:

It is not clear if this means that certificates will be issued each time a candidate has passed one or more subjects or if certificates will be issued on completion of a full exit qualification.

This point needs to be re-formulated e.g. it would be clearer if it ended after the word "bodies".

Would a Quality Assurance body properly have this role: "recommend new standards for qualifications…."? The question here is about the relationships between the statutory bodies and their designated functions. Why would a QA body be busy with "new standards"?

      1. Under the heading "Functions of providers or assessment bodies with regard to external assessments" ALL of the points on Page 33 refer to "papers" and the concept of the examination as an "event". How does this take account of alternative types of assessment e.g. performances, projects, models – examples of which are central to the concept of an outcomes-based system?
      2. Under the heading "Functions of the Director-General with regard to external assessment" point (c) starts with the word "may". This should read "must".
      3. Chapter 3: "Accreditation of Public Providers"
    1. CHAPTER 4: ACCREDITATION OF PRIVATE PROVIDERS
      1. A general question here is: are these providers being accredited to "be providers" (i.e. once they are accredited they have a blanket authority to proceed) or "to provide a specified range of learning programmes which must be screened and approved" (i.e. in that the clauses require them to supply a range of detailed information is the assumption that the accreditation is linked to the provision of those particular programmes?). the question is asked because a) it is not clear how the council might "evaluate the programmes" (Page 37 point 6) and b) what the role of the province might need to be in this (ongoing) relationship. Does the province only deal with the consequences of the decisions made be the council or its agents? Is the accreditation to be based solely on the nature of the programmes envisaged at the time of the application? Do such providers have to conform with ongoing moderation and performance-based assessment (e.g. the performance of the providers could need to be submitted to ongoing examination)?

In that this section gives rise to a number of question and in that Pint 20 (9) states that the council must "develop criteria for accreditation" perhaps a solution is to abbreviate this section of the Bill at this point in the legal process.

Thank you for affording the WCED this opportunity.

ACTING HEAD: EDUCATION