NAPTOSA’S COMMENTS ON THE (REVISED) EDUCATION LAWS AMENDMENT BILL: GAZETTE 23559 OF 26 JUNE 2002

  1. AMENDMENTS TO THE SOUTH AFRICAN SCHOOLS ACT (NO 84 OF 1996)

  1. Section 1 of Act 84 of 1996 (New)

    2. The amendment is supported.

  2. Section 5 of Act 84 of 1996

    3. NAPTOSA supports the provisions made for exceptional cases but is concerned that these refer only to underage learners. There is no provision for cases which relate to learners with special needs where the admission age may need to be delayed. Such learners may be older than the ages specified in the Act. Although these learners are provided for (to some extent) in the existing legislation under Section 5(6), NAPTOSA believes that such circumstances should also be provided for under the amended Section 5(4)(a) to (d). Mention should also possibly be made of minimum and maximum ages for LSEN.

  3. Insertion of Section 6A in Act 84 of 1996

    4. Whilst NAPTOSA welcomes the changes to the proposed amendments ie. the references, at (b) and (2), to "a national process" rather than "instrument" there are still some concerns. It is not clear whether "process" refers to school-based (continuous) assessment of whether it refers to an external process as would be managed by the General and Further Education and Training Quality Assurance Council (as provided for in the GENFETQA Act (no 58 of 2001) … or something different.

    NAPTOSA believes that this amendment needs to be clarified (exactly what is intended?) as it could even refer to the process of managing the external assessment at exit points (which is a provider responsibility ie. provincial departments and independent schools (private providers). As it stands it is not clear.

    1. Amendment of Section 8 of act 84 of 1996

      2. NAPTOSA welcomes the changes to the amendment.

    2. Insertion of Section 10A in Act 84 of 1996

      3. NAPTOSA welcomes the additions to the proposed amendment.

    3. Insertion of Section 18A in Act 84 of 1996

      4. NAPTOSA welcomes the changes to the proposed amendment.

      What is the position if there is not an association of governing bodies in that province. Should then allow the draft different governing structures to comment on the draft.

    4. Amendment of Section 38 of Act 84 of 1996 (New)

      5. NAPTOSA supports this new amendment as there are obvious advantages which simplify the process for schools without compromising accountability.

    5. Insertion of Section 45A in Act 84 of 1996

    NAPTOSA supports the provisions made but is concerned that "overage" learners with special needs are not accommodated. (See comments at #2 on Section 5 of the Act.)

    1. Substitution of Section 61 of Act 84 of 1996

    (Regulations)

    NAPTOSA offers comment on the clauses under Section 61 as follows:

      1. Amendment is supported.

      2. This clause should be linked (at the end) to clause (i) (as it is captured in (c) of the Schools Act as it now stands). NAPTOSA welcomes the removal of the reference to the National Education Policy Act (27 of 1996) as was included in the previous Bill.

      3. NAPTOSA supports the amendment regarding a national curriculum applicable to public and independent schools.

      4. NAPTOSA has serious concerns regarding this clause. Much greater clarity is needed on what the exact intention is as this could be extremely confusing. (See NAPTOSA’s comments at #3 on the Insertion of Section 6A.)

      5. NAPTOSA also has concerns in respect of this particular clause which (as it stands) is also open to different interpretations. It is not clear what the prescription of "a national process for the assessment, monitoring and evaluation of quality education in public and independent schools" means or what process it refers to. There are several possibilities:

        • It could refer to the prescription of national examinations at exit points (Grades 9 and 12) and that these would apply to public and independent schools. In this regard: prescriptions regarding the quality assurance of external assessment would infringe on the responsibilities of the GENFETQA Council as it is regarded as being the quality assurance body for schools (public and independent).

            • A national "examination" (if this is what is meant) would clearly erode the autonomy of both the independent schools and the provincial departments. This is likely to be contested.

            • It could refer to Quality Management Systems and processes (QMS) (rather than Quality Assurance processes) which include, for example, Whole School Evaluation (WSE) and Systemic Evaluation (SE) – and even Developmental Appraisal and other Teacher Development initiatives. Whilst NAPTOSA supports evaluation of all parts of the system (teacher, schools, district offices and departments (including the National Department)) it needs to be made clear, exactly what this refers to. The enforcement of this kind of control over independent schools is likely to be strongly contested.

            • It must be pointed out that independent schools will have to meet requirements in terms of specific criteria in order to be accredited by the GENFETQA (as part of its quality assurance responsibility) but that, since in the public sector it is provincial departments that are to be accredited by the GENFETQA Council as providers, the same quality assurance requirements do not apply to public schools.

        It will have to be decided whether this clause refers to Quality Assurance (the responsibility of Umalusi) or Quality Management (the responsibility of the Department) and whether independent schools (because they are accredited private providers), will have to be quality managed if they are already quality assured by the GENFETQA Council (in order to become accredited as providers).

          1. Supported.

          2. Supported in principle (but allowing for circumstances affecting learners with special needs).

          3. Supported.

          4. See comment at (b) in this submission.

        1. AMENDMENTS TO THE EMPLOYMENT OF EDUCATORS ACT (NO 76 OF 1998)

        1. Insertion of Section 6A in Act 76 of 1998

          2. NAPTOSA offers comment on this section as follows:

          (1) Applications should be submitted to the SGBs rather than the Departments.

          NAPTOSA cannot accept this amendment under any circumstances. The changes from the first draft do not make any substantive differences to the intention of the Minister to further limit the powers of Governing Bodies and restrict the choice of educators and communities. The amendment makes it clear that the Head of Department need only consult with the Governing Body on the requirements for the post and not consult on the person to be appointed. In addition we strongly believe that this will act as a deterrent to recruitment into the profession. This has been supported by the views of the students at one of the top teacher training institutions.

          (2)(a) NAPTOSA believes that this clause erodes (and provides for overriding) the rights of School Governing Bodies (SGBs). It will be necessary to not only consult with the relevant SGB, but to negotiate with the SGB if necessary (and to reach consensus on such appointments). SGBs should make recommendations.

          (c) Accepted.

        2. Amendment of item 2 of Schedule 1 to Act 76 of 1998 (New)

          3. This amendment is extremely problematical and contentious. There are two problems:

          1. The amendment refers to Section 4 of the Act which relates to salaries (and other conditions of service) so the assumption is that the "performance evaluation" referred to implies that it has consequences for pay progression. It would seem that what is intended is for the Minister to by-pass the ELRC (and Parliament(?)) in order to implement the Performance Management and Development Strategy (PMDS). NAPTOSA believes that Performance Appraisal has a very specific purpose ie. pay progression (with possible "punitive" consequences for those who do not meet the standards) and that, as a result, this cannot be developmental (which has a very different purpose). However the same instrument could be used for developmental purposes. If the proposed standards are to be used for both pay progression and development, the "development" aspect of what is intended will not be realised. Whilst the Standards for Performance Appraisal and Developmental Appraisal may be the same, the purposes (and therefore the "scoring") need to be kept separate. Both need to be dealt with in the context of a coherent Quality Management System in order to make these (and other) policies implementable (by avoiding repetition; by deploying the limited human resources as effectively as possible and by emphasising the development of self-evaluation competence (and confidence)).

          2. The declaration of policy in this regard without agreement in the ELRC is likely to result in contestation and conflict. This policy needs to be agreed upon by all parties in the ELRC in order to ensure greater buy-in and acceptance. This is extremely problematical given that there are other evaluations (DAS and WSE) which affect teachers and about which there could be enormous confusion … and resistance. NAPTOSA is not against performance appraisal (or any other evaluation of the system) but believes that the system is likely to suffer severe overload if all similar initiatives and policies are not addressed collectively in a coherent plan which deals holistically with all quality management processes. A coherent, sensible implementation plan (which takes the capacity of the system into account) has, at least, a chance of succeeding. Such a plan needs to be negotiated first.

        3. Amendment of Item 7 of Schedule 2 to Act 76 of 1998

          1. Accepted.

          2. The change from "presiding officer" to "Head of Department" is supported. However, the protection of underage witnesses should be aligned with the measures specified in the South African Schools Act (No 84 of 1996) in order to ensure that the provisions made in the two Acts are the same.

        NAPTOSA is concerned also that learners with special needs (LSEN), who may be 18 or older, are not specifically protected by similar measures.

        3. FURTHER EDUCATION AND TRAINING ACT (NO 98 OF 1998)

        1. Amendment of Section 1 of Act 98 of 1998 (New)

        NAPTOSA offers comment as follows:

        (a) Accepted.

          1. Correction: "further education and training" should read "further education and training institution". The reason for the change from "conditional" to "provisional" registration is not clear. Surely, for both, conditions would apply as well as time-frames for meeting these conditions.

          2. Accepted.

          3. Accepted.

          4. NAPTOSA believes that this subsection needs further clarification. NAPTOSA’s concerns arise out of possible confusion about which existing institutions (public and private) qualify as FETIs and what the implications of this may be. Whilst the intention becomes clear from Chapter 3 onwards of this Act, it is not clearly stated up-front in the preamble nor in the definitions. Perhaps FETIs should be defined as institutions which offer education and training exclusively? (or mainly?) in the FET band. This would however be problematical in the light of NAPTOSA’s concerns expressed under the 5th ● in this section or the submission (see bullet #5).

            • With regard to the reference to "learning and training" programmes – surely, "training" programmes are also learning programmes.

              • In respect of the reference to qualifications,("registered" needs to be added to qualify "qualifications") on the NQF, the amendment should also include a reference to Unit Standards (or Standards) registered on the NQF. Many institutions offer "short" courses which could be Skills Programmes, single Unit Standards or part qualifications based on registered Unit Standards. It is particularly the single purpose private colleges (or FETIs) which may be affected.

              • Providers also need to be registered (with the Department) and will need to be accredited by the relevant ETQA (the GENFETQA Council?) and qualifications or part qualifications would have to be quality assured by the relevant ETQA. NAPTOSA believes that this is a serious omission and is not dealt with anywhere in the Act, and this implies that many providers would not have to be registered (although they may wish to be accredited by the ETQA). Given the lack of clarity regarding what kind of providers are considered to be FETIs, the lack of reference to the kind of qualifications (also part qualifications or standards-based short courses) could cause confusion. The difference between accreditation and registration should be made explicit.

              • A further omission is the lack of reference to the need for providers (as defined in the GENFETQA Act) to be accredited. It must be pointed out that registration (by the Department) and accreditation (by the ETQA) are not the same. The requirements and criteria are not the same. However, apart from the need for being registered, it needs to be specified that FETIs will only be recognised and registered if they are accredited by the relevant ETQA(s). Perhaps it would be useful for accreditation to be a condition for registration. In the interest of providing quality education and protecting public interests (especially in respect of "fly-by-night" institutions), the relationship between and need for both accreditation and registration needs to be made explicit. As it stands, it is not clear.

              • Whilst the FET band is clearly defined as being above general education and below higher education and the qualifications referred to are "from levels 2 to 4" on the NQF, a serious concern relates to the following:

          The new FETIs (that were technical colleges prior to merging) clearly fall within the FET band and will offer qualifications or Standards (part qualifications/Skills Programmes or short courses) at NQF levels 2, 3 and 4. However, there are qualifications (or part qualifications/Skills Programmes or short courses) at NQF levels 1 and 5 that will not be offered by any other public providers. For example: NQF level 1 qualifications for hairdressing or tourism which follow on (through levels 2, 3 and 4) to hairdressing or tourism qualifications at NQF level 5. Clearly, schools will not have the capacity to offer the level 1 qualification and technikons are not equipped to offer (nor are they interested in offering) the level 5 qualifications. This means that whilst the institution may be defined as an FETI, it would have to offer qualifications outside of the FET band. Clearly, the Further Education and Training Act needs to make provision for these circumstances. Without this kind of provision, the public "technical colleges" would be seriously disadvantaged by not being able to offer the full progression of qualifications (from level 1 to at least level 5) for particular career paths which have enormous potential for income generation. Private providers would be in a position to compete with public FETIs in a way that could result in the public colleges not realising their full potential to contribute to the transformation of education and training in South Africa. Such (‘unfair’?) competition could result in the demise of public FET providers. The Act should make provision for these circumstances (where the levels 2 to 4 qualifications are offered by a provider) by specifying a procedure/process that needs to be followed in order to obtain approval for offering qualifications or standards that fall outside of the FET band… and which cannot be offered elsewhere in the public sector. An audit of the kinds of new qualifications/standards (with specific career paths in mind) that are presently being registered on the NQF will reveal the enormous potential that the "technical college" sector has for contributing to transformation by increasing access to qualifications such as these. It makes no sense to limit FETIs to qualifications and/or standards at levels 2, 3 and 4 when access can only be gained via level 1 qualifications which cannot be offered elsewhere, and which lead on to level 5 which cannot be offered elsewhere. Whilst NAPTOSA acknowledges the definition of the FET band, it believes that in order for provision in the FET band to meet the transformational vision of the NQF – and the needs of learners, limitations in respect of the level of qualifications offered in this sector make no sense.

              • Section 12(e): NAPTOSA is of the opinion the FETIs should not be generalised to include all institutions which offer FET. There are tremendous implications for curriculum, governance and funding. Any or all of these have the potential to destroy the current delivery of education at FET level.

              • Finally, the responsibilities of the GENFETQA Council in respect of quality assuring the provision of education by providers in the FET band need to be mentioned. The relationship between (and purpose of) registration and accreditation need(s) to be explicit.

          1. Insertion of Section 16A in Act 98 of 1998

            2. This amendment is accepted, but NAPTOSA believes that it will either be necessary to define the initiative practices in this Act or to refer to the definition provided in the South African Schools Act.

          2. Amendment of Section 23 of Act 98 of 1998 (New)

            3. Accepted.

          3. Substitution of Section 24 of Act 98 of 1998 (New)

            4. NAPTOSA suggests that it may be useful to add "and accredited or provisionally accredited in terms of the GENFETQA Act" (although this may be covered by the amendment of Section 26 of this Act). It would depend on whether accreditation is a requirement for registration.

          4. Amendment of Section 26 of Act 98 of 1998 (New)

            5. NAPTOSA suggests that at (ii) the following should be added: "and is accredited or provisionally (or conditionally) accredited by the Council".

          5. Amendment of Section 27 of Act 98 of 1998 (New)

              1. There is, again, no mention of the necessity for accreditation in terms of the GENFETQA Act. NAPTOSA believes that accreditation should be a requirement for registration.

            (3) Accepted.

            (4)(e) In the interest of protecting the public, NAPTOSA believes that it would be useful to include a statement of the conditions (terms?) and period for provisional registration in the published notice.

            (6)(b) Although NAPTOSA accepts the notion that provisional registration will lapse if the necessary conditions are not met in the required time frames, it is perhaps necessary to make provision for extension and for possible withdrawal of the provisional registration (not only lapsing) provided conditions are clearly specified.

          6. Amendment of Section 28 of Act 98 of 1998 (New)

            7. NAPTOSA wishes to reiterate the following concerns that were raised when the GENFETQA Bill was released for public comment:

            In various acts pertaining to the provision of education, the provincial departments are defined as "providers" for the public sector. In the GENFETQA Act, this same definition is used for the public sector but for the private sector, institutions are defined as providers. Clearly, this is an anomaly which has implications for this section of this Act.

            Whilst (1) and (2) under Section 28 are simple to apply in the case of private providers, it is, clearly, more difficult to do so in the case of public providers – which are provincial departments. Whilst all providers need to be accredited by the GENFETQA Council, does this mean that in terms of registration there will be differences? The question is whether public providers (ie. provinces) or public institutions (schools, colleges) will have to be registered.

            In terms of accreditation, private providers, who fail to meet the requirements, can be de-accredited. Can this be enforced in the case of public providers (provinces)? Can provinces (as providers) or public institutions be de-registered, and on what grounds? If not, how can quality education be assured? Whilst this concern is not a direct comment on the amendments proposed for Section 28 of this Act, it does have broader implications for public institutions and does reveal inconsistencies as the legislation would be applicable to the public and private education sectors.

          7. Amendment of Section 31 of Act 98 of 1998 (New)

            8. Accepted.

          8. Amendment of Section 32 of Act 98 of 1998 (New)

            9. Accepted.

          9. Amendment of Section 33 of Act 98 of 1998 (New)

            10. Accepted.

          10. Amendment of Section 35 of Act 98 of 1998 (New)

            11. NAPTOSA believes that it is necessary to define "reasonable grounds" in order to ensure consistency in the application of this Act. Reasonable grounds may include: failure to comply with conditions and deadlines, loss of accreditation by GENFETQA, low through-put and poor performance of learners at exit points etc.

          11. Amendment of Section 37 of Act 98 of 1998

            12. The deletion of subsection (4) under Section 37 is concerning as this seems to imply that operations can be suspended. If this is the case, then some indication (re-assurance) needs to be provided as to what circumstances would lead to a suspension of operations.

            Deletion of the proposed insertion 38a in the previous version of the draft bill (new)

            The deletion is accepted provided these issues, regarding curriculum and assessment processes, are sufficiently covered by the amendments proposed for these sections in the South African Schools Act. However, the Schools Act only applies to public and private schools. As stated previously in this submission, the provision of education in the Further Education and Training band needs to be more clearly defined. As the definition stands it would include a variety of provider types, some of which are not covered by the South African Schools Act.

            NAPTOSA suggests that a section 38A needs to be inserted (but in a modified version) which is aligned to how these issues are dealt with in the South African Schools Act.

          12. Amendment of Section 47 of Act 98 of 1998

            13. Regarding "Regulations" NAPTOSA offers comment as follows:

            [1](a) Supported.

            [1](b) NAPTOSA believes that this clause seriously erodes the autonomy of the provincial departments as well as private providers. A further consideration is that whilst national examinations (assessment of learner achievement) in this sector may or may not be appropriate, the GENFETQA Council would be responsible for quality assurance in these institutions for the purposes of awarding qualifications. Clearly, this provision in the Act may result in contestations as to whether the Minister or the GENFETQA (or other ETQA in the case of single-purpose providers) has this responsibility.

            [1](c) This provision is also not acceptable as it also erodes the autonomy of provincial departments and private providers – and has implications which may impact on quality assurance processes instituted by the GENFETQA or other relevant ETQAs.

            Although not stated explicitly, it appears that this clause refers to initiatives such as Whole School Evaluation (and possibly also Developmental Appraisal or MLA in the context Systemic Evaluation). Whilst NAPTOSA accepts that the Minister is responsible for the quality of delivery of education and that he may declare policies across a range of Quality Management processes and procedures which could include teacher development, developmental and performance appraisals, whole school evaluation and systemic evaluation (including MLA), NAPTOSA believes that these need to conceptualised holistically within a coherent implementation plan. Since these affect conditions of service, NAPTOSA believes that a lot of work has to be done to develop the necessary plans and that these all need to be negotiated in order to ensure large-scale buy-in.

            [1](d) Supported – provided unacceptable initiation practices are more clearly defined (as in the South African Schools Act).

            [1](e) This catch-all clause is accepted.

            Collectively the clauses under Section 47 suggest greater centralisation and an erosion of the responsibilities of provincial departments and the private sector which is likely to result in contestations. Clearly, it is necessary to achieve a balance regarding the centralised power of the Minister and the autonomy of provincial departments (and private providers).

            Section 48: Conflict with other laws

            This section needs to be deleted as the SAFCERT Act (No 85 of 1986) has been repealed and replaced by the GENFETQA Act.

            NAPTOSA also suggests that, since the preamble and definitions pertaining to this Act do not differentiate between the schools and technical college sectors, there is potential for conflict with the South African Schools Act (No 84 of 1996). As stated elsewhere in this submission, there is currently some confusion. This Act assumes an understanding of what the FET sector is and what FETIs are, but this only becomes evident from Chapter 3 onwards. It would be useful to make it clear from the outset in the preamble and in the definitions.

            4. ADULT BASIC EDUCATION AND TRAINING ACT (NO 52 OF 2000)

          13. Insertion of Section 18A in Act 52 of 2000: Curriculum and Assessment

            14. NAPTOSA’s comments on these amendments are the same as those expressed for Section 6A of the South African Schools Act (No 84 of 1996) and for Section 47(b) for the Further Education and Training Act (No 98 of 1998).

          14. Insertion of Section 20A in Act 52 of 2000

            15. Accepted.

          15. Amendment of Section 32 of Act 52 of 2000

            16. As stated elsewhere in this submission, there is a clear difference between quality assurance (by the GENFETQA Council in terms of the GENFETQA Act) and quality promotion and management which is the responsibility of the Minister and Department of Education. These would include Performance and Developmental Appraisals, Whole School and Systemic Evaluations etc.

          16. Amendment of Section 41 of Act 52 of 2000

            17. NAPTOSA’s comments on the provision made (under "Regulations") for highly centralised decision-making by the Minister are the same as those made for the South African Schools Act (No 84 of 1996 as amended by Section 5 of Act 53 of 2000), and the Further Education and Training Act (No 98 of 1998). NAPTOSA acknowledges that the difference here is that the member of the Executive Council is included. This seems to imply that there are differences between schools (SASA), FETIs (FETA) and ABET. NAPTOSA suggests that MECs should be included as being responsible for regulations in the schooling sector (and the further education and training sector), as regulations that affect these sectors should be a joint responsibility. This would also help to prevent over-centralisation and, in some measure, retain the balance in respect of the autonomy of provincial departments.

            5. GENERAL AND FURTHER EDUCATION AND TRAINING QUALITY ASSURANCE ACT (NO 58 OF 2001)

          17. Amendment of Section 5 of Act 58 of 2001

          NAPTOSA has previously made submissions regarding this particular clause of the GENFETQA Act, also to the Portfolio Committee on Education. The problem is not the section in terms of which the Council must be regarded as having been accredited, but that the GENFETQA Council does not have to meet any of the criteria, determined by SAQA for the accreditation of all sectoral ETQAs in order to become accredited. This is therefore no indication of the capacity of the GENFETQA, nor any indication whether it will be able to fulfil its intended function in this very large sector.

          2002-08-07