30 July 2002
TO: PORTFOLIO COMMITTEE ON EDUCATION (NATIONAL ASSEMBLY)
ATTENTION THE CHAIRPERSON – PROF MAYATULA
ATTENTION THE SECRETARY MS N MANJEZI

INTRODUCTION
We welcome the opportunity to comment on the draft Bill.
We received a copy of the Bill on 23 July 2002 and our comments have reference to that copy.
Our comments are also restricted only to the proposed amendments to the South African Schools Act, 84 of 1996 ("SASA") and the Employment of Educators Act, 76 of 1998 ("EEA").

1. CLAUSE 2 : ADMISSION AGE
1. We understand (and support) the principle of the introduction of the determination of an admission age in the South African Schools Act, 84 of 1996 ("SASA").
2. We also support the introduction in SASA of the norm for admission to a public school. However, we believe that such norm should be flexible. We also question the reduction of the norm to "age 4 turning 5" and "age 5 turning 6" respectively for admission to Grade R and Grade 1. We believe that this would lead to serious implications for schools in terms of capacity, staff provisioning, financial implications, etc. We prefer the approach adopted in the Regulations promulgated during 2001.
3. We agree with the insertion of Section 5(4)(b).
2. CLAUSE 2 : CURRICULUM AND ASSESSMENT (The clause number has been duplicated)

A National Curriculum Statement and a Process for Assessment, as envisaged, touches the dearest interest of all South Africans, both present and future. We find it strange that the Minister seeks to avoid the scrutiny of parliament in this way. The determination of a National Curriculum Statement and a Process for Assessment is a matter of incredibly momentous nature . We urge reconsideration and the necessary steps to provide for those matters in a separate act.

3. CLAUSE 3 : INTRODUCTION OF SECTION 8(6) TO 8(9)
1. We support the introduction of Section 8(7) to (9)
2. We express our serious reservations about the new Section 5(6). The phrase "disciplinary proceedings" is wide and encompasses even the situation where an educator engages with a learner regarding a relatively minor transgression requiring and resulting in no more than a reprimand. If the parent is required to be present in all disciplinary proceedings, there will be a steady stream of parents to and thro on every school day, the parents’ work will be needlessly disrupted, the educators will not be able to get down to work, and the learners will loose valuable tuition time. We are confident that the Ministry did not intend this to be the case.
3. In terms of the present wording, parents can prevent any disciplinary proceedings against learners by simply not accompanying the learner or by refusing to designate a person to accompany a learner.
4. We suggest that:
1. The issue of parent presence and representation be dealt with more fully in suitable regulations catering for various eventualities, such as the degree of seriousness of misconduct, the refusal or recalcitrance of parents to attend and/or represent an/or accompany the learners concerned, etc;
2. (alternatively) the scope of the provision be limited to disciplinary procedures involving serious misconduct and to cater for cases where parents are unwilling or unable to be in attendance and/or to designate another representative.

 

4. CLAUSE 4 : PROHIBITION OF INITIATION PRACTICES

 

1. With this must be read the proposed introduction of a Section 61(f) to empower the Minister to make regulations consistent with SASA on "initiation practices at public and independent schools".
2. We have some difficulty with the Ministry’s approach to this matter. It is not so much that the Ministry is concerned about harmful initiation rituals (we are too).
3. Earlier this year the Minister wrote a letter to Citizen Newspaper. This is what he had to say about school uniforms:

"In addition, we might in fact recognize that in many countries in the World school uniforms are not compulsory. This is really a left over from the colonial system based on strict regimented systems of schooling, much like the army".

4. It is our fear that there is within the Ministry and/or Department a bitter antagonism towards, and intolerance against the traditions and values of substantial sectors of modern day society in South Africa. It is also our fear that that attitude is the driving force behind the proposed amendment, more than concern about harmful practices at public schools.
5. There is surely a difference between harmless poking fun in a good and positive spirit and criminal practices such as injurious assault and malicious assaults on dignity. Yet, that line is not drawn.
6. It has been stated repeatedly that it would be futile to legislate values and coerce people into living by them. Coercive laws do not change peoples’ minds. They produce rebels – often just because of the coercion.
7. Insult, assault and crime are dealt with as such. So much is apparent from Section 8 of SASA and the Ministerial Guidelines and determinations of MEC’s which have arisen therefrom. Why is it necessary now to deal with it in the name of initiation practices? Surely, identified misconduct or crime remains such whether one calls it "initiation practices" or anything else. There is no rational answer and the symptom of that will be seen in the apparent difficulties in defining "initiation practices".
8. In the South African Pocket Oxford Dictionary (New Edition) (Oxford University Press) "initiate" is defined as, inter alia:

"admit (a person into a society, office, etc, esp. with a ritual").

 

9. This is wide enough to cover even the insistence of a matric learner that a Grade 8 call him "sir" or "meneer"!! Will the matric learner be prosecuted for that?
10. We think the proposed new Section 10(A) is superfluous and a case of "over-kill" and should not be proceeded with.
11. Mandatory prosecution constitutes not only inconsistency, but also a persecution measure. No room is left for counseling or persuasion, even though that is an approach encouraged in the Labour Relations Act, 66 of 1995, and the Employment of Educators Act, 76 of 1998, before prosecution is resorted to.
12. It seems that the gravity of this offence surpasses that of murder, rape or sexual harassment, in respect of which there are no provisions compelling prosecution.
13. The insertion of the definition in the Act, rather than regulations, is legally correct. Yet, the scope of it emphasises the skewed perspective demonstrated in 4.12.
14. Section 10A(2)(b) is yet another example of skewed perspective. It is also inept, with respect.

 

15. A more democratic solution is needed, which will work because it is "owned".

 

5. CLAUSE 5 – CODE OF CONDUCT FOR SGB’s

 

1. We support the principle of good governance but we recommend that provisions should rather be introduced to empower SGB’s themselves to discipline members who breach standing orders or a code of ethics and conduct which the SGB itself must work out. We offer our support for the development of provisions along these lines. This approach would conduce to the preservation of the SGB as a separate, self-standing and self-regulating organ of school governance.
2. We fear that these provisions will have far-reaching and negative consequences for the notion of school ownership, partnership and autonomous school governance. This incentive will also deprive SGB’s of skills and conduce to inefficiency and apathy, rather than "dynamos of activity" envisaged by some.
3. We believe that in one province alone there are 26 associations of governing bodies. In this regard we note with particular interest the fact that reference is made only to "consultation with an association of governing bodies in that province". Which association would it be?
4. We are somewhat affronted by the Ministries proposal to deal with school governors – democratically elected parents, adult educators and adult non-educators.
5. Educators are subject to the Code of Conduct determined by the South African Council of Educators ("SACE"), but that code is the product of self regulation. There is no national council for SGB’s or SGB members empowered (and funded) as SACE is, to regulate itself. Perhaps it is time for such a council and for the remuneration for SGB members for the work they do, so that they can have the same standing as professional educators, the same union representation and professional self regulation.
6. SGB’s are not the subordinates of the HOD of a provincial education department. The SGB owes a fiduciary duty to its school in terms of Section 16 of SASA and is accountable to the stakeholders it represents. It is also accountable in terms of laws imposing duties or responsibilities on it. It is a statutory body and not the subordinate of the HOD – nor, do we believe, was a SGB ever intended to be.
7. There are already sufficient provisions in place to deal with members of SGB’s who abuse their positions. Section 28(c) of SASA empowers a MEC by notice in the Provincial Gazette to determine the procedure for the disqualification or removal of a member of a governing body for sufficient reasons. In Gauteng, for example, the MEC in the Regulations Relating to Governing Bodies of Public Schools, published in the Provincial Gazette on 28 February 1997, in Regulation 13, set out just such a procedure in relation to: "A member whose conduct in relation to the governing body is prejudicial to the best interest of the school".

This is the proper approach, because the member is not accountable to the HOD, but to the SGB and the school (stakeholder). State intervention should go no further than that.

 

6. CLAUSE 6 – SECTION 38(3) OF SASA

We agree with the insertion of these provisions.

 

7. CLAUSE 8 – REGULATIONS

 

1. We refer to what has already been stated above.
2. It appears as if the Minister seeks to give himself the power in SASA to dispense with Parliament altogether, indeed to dispense with SASA altogether, and make regulations on virtually every matter affecting the organisation, governance and funding of schools. We question the constitutionality of this provision. SASA has its boundaries.
3. The new Section 61(h) is to enable the Minister to regulate on "norms and minimum standards for school funding". The Minister already has the powers under Section 35 and 39(4). Why does he need more?
8. CLAUSE 9 – INSERTION OF SECTION 6(A) IN ACT 76 OF 1998

 

1. The proposed amendment is the fourth one, affecting the relevant functions of school governing bodies (SGB’s) regarding the appointment of educators in vacant posts in the staff establishments provided to public schools by the State, in the well nigh six years since the coming into operation of SASA, and the simultaneous amendment of the then Educators’ Employment Act, 1994 – the precursor of the Employment of Educators Act No. 76 of 1998 ("EEA").
2. Once again, but this time more earnestly and seriously than ever before, we must perforce revisit the foundational rationale of the new system of education ushered in by SASA and, in tandem with it, the then Educators’ Employment Act, 1994. In doing so, we question the good faith of the Ministry of Education and inquire now after the motives of the State regarding the governance of public schools and the role of parents and other school stakeholders, but more particularly SGB’s, in that parents are now put to reflecting upon the value or worth of sacrificing time or effort in voluntarily participating on SGB’s.
3. Education White Paper 2, 1996 contains the Ministry’s proposals regarding the basis of a new system of education.
1. The Ministry espoused the principle of the ownership of the school by the community it serves, of a genuine partnership between a local community and a provincial department of education, and of the limitation of the PED’s (provincial education departments) in school governance to the minimum required for legal accountability (para. 3:17).

4. That, then, was a feature of what was in para 3:17 of EWP2 referred to as:

3. It is with regret and concern that we observe that the Ministry has

10. "Well qualified" is not defined – indeed it is not mentioned in the

proposed section.

11. The assumptions that educators returning after a break in service,

and first-time entrants into the system are well qualified, and that schools in urban or adjacent areas are well stocked with qualified educators, are not necessarily correct.

12. If (as the Ministry seems to presuppose) a PED has power

constitutionally or at labour law to force new entrants to the system, and re-entrants to the system after a break in service, to take up a post at a school of its (note) choice, and if a PED seeks to target rural areas as points of entry, or re-entry, to the exclusion of urban and adjacent areas, that is no valid reason for dispensing with the power of prior recommendation of SGB’s before an appointment can take place. The new entrants and re-entrants can be restricted to applying for posts in designated (rural) areas (again, if the law will countenance that), without depriving SGB’s in those areas of their power of prior recommendation.

13. The provisions concerned are not capable of a construction

restricting their scope and purpose to benefiting rural schools, nor do we believe they will be so applied in practice.

14. The provisions can be equally used to bring about a "fair"

distribution of unqualified or under qualified educators or educators who, though they may have qualifications on paper, are unsuitable for posts targeted for them.

15. The provisions are not restricted in their application to the

placement of students having bursary obligations to the PED. In any event, suitable candidates, who have such obligations are bound to find employment in schools in any area, including urban areas, so that the implied concern of the Ministry about such cases is without any foundation. Moreover, suitability and quality cannot be held to ransom by some new found urge to accommodate those two select groups.

16. Educators already in the system will be unfairly prevented from

competing for vacant posts for the many legitimate reasons for which they may wish to compete for posts. SGB’s, which are in duty bound by SASA to ensure the development of their schools through the provision of quality education will be inhibited from doing so (see Section 20 (1) (a) ).

17. No valid, reasonable or acceptable reasons have been given for the

proposed amendment. There appears to be no rationality or proportionality between the proposed amendment and the reasons given therefor. The reason appears to be the difficulty some schools have in recruiting educators. Surely, this difficulty is not the result of the existence of a SGB or the recommendation function of the SGB. The problem certainly is the employment conditions and the real problem should be addressed. What then is the true reason? Why are the democratic principles not being applied?

18. In a recent programme on Radio Sonder Grense, a representative

of the National Department of Education struggled to defend the proposed amendments. One of his responses was that only a small number of posts would be affected, and that the amendment would not affect the some 300 000 teachers currently in service. We disagree, as set out in 8.16 (above). Moreover, this is not about the effect the amendment is likely to have on other educators. It is about the groundless and substantial inroads now being made into the functional area of SGB’s and the violation of the democratic principles on strength of which functions were granted to SGB’s. It seems that degree by degree the State is using its immense legislative power to wrest ownership of schools away from the communities they serve.

19. Finally, we believe the proposed insertion to be a violation of the

entrenched fundamental right to fair labour practices (cf.Constitution, Section 23). We also believe the proposed provisions to be in direct conflict with certain provisions of the Labour Relations Act, 66 of 1995, and the Employment Equity Act, 55 of 1998.

20. Since the first publication of the Amendment Bill in the Government