Our comments, to be amplified during the oral presentation, are as follows:

1. CLAUSE 2

1. In general we welcome the fact that provision is now made for precautionary suspension pending a disciplinary hearing.
2. However, there is one major omission.
3. No provision is made for the suspension of a learner after disciplinary proceedings and pending the decision of the Head of Department on the expulsion of the learner.
4. It is possible that a governing body may conclude that the expulsion of a learner after a disciplinary hearing in circumstances where precautionary suspension would not have been appropriate is required.
5. During the disciplinary proceedings when all the facts and circumstances are considered, it is possible that such facts and circumstances shed new light on the learner’s conduct, the seriousness of the transgression, the learner’s disciplinary record, etc and that a conclusion may be reached that it is in the best interest of other learners that the transgressor should be suspended pending the decision to expel.
6. We therefore propose that provision should be made for the suspension of learners pending a decision to expel in circumstances where a precautionary suspension has not been imposed.

 

2. CLAUSE 3 – 4 (FUNDING OF SCHOOLS)

1. The present system of funding of schools is fundamentally flawed and discriminatory.
2. The problem lies in the fact that schools are funded and not learners.
3. If a learner enrols at school A (a quintile 1 school) that learner may receive funding from the state at e.g. R500 per annum. If the same learner enrols at school B (a quintile 5 school) that learner may receive much less (e.g. R25) from the state.
4. In so doing, the learner:

• must be funded, not by the state, but by the parents of the rest of the learners of the school who already contribute for the education of their own children;
• effectively determines the level of funding required from parents who are able to afford school fees.

1. We support the principle that no child whose parents cannot afford school fees or who fail to pay school fees should be discriminated against.
2. However, the present system of funding and the provision that a learner may not be deprived of his or her right to participate in all aspects of the programme of a public school carry in it the potential to destroy many of the excellent programmes public schools offer to our children.
3. The state makes no contribution whatsoever to any extramural or extracurricular activities of schools. These activities are funded by the parents of the school.
4. The burden on parents who can pay is becoming unbearable to the point where private tuition is becoming an attractive proposition.
5. Our own estimation is that the contribution of parents to public schooling in South Africa exceeds R10 billion.
6. There is a very real possibility that the public schooling system will loose that contribution if the school communities are forced to privatise extramural and extracurricular activities, or if those parents who can afford to pay decide to opt for private education.
7. A system of funding on the basis of a subsidy to learners of poor parents irrespective of the schools they attend will eliminate many of the present flaws and discriminatory aspects of the present system.
8. We call for a complete revision of the system of funding of school education.

1. CLAUSE 5 (ENFORCEMENT OF PAYMENT OF SCHOOL FEES)

1. The proposed section 41(3) is, to say the very least, problematic.
2. If a parent only qualifies for exemption in the eleventh month of the year it would imply that the parent would be entitled to repayment of school fees paid in the previous ten months despite the fact that the parent did not qualify for exemption during those ten months.
3. The problem will be solved if the section is worded as follows:

"The exemption from payment of school fees in terms of this Act is calculated retrospectively from the date from which the parent qualifies for the exemption."

4. The provisions contained in the envisaged section 41(4) are unreasonable and effectively negates 41(1).
5. There is absolutely no way in which SGB’s can ascertain whether a parent qualifies for exemption or in which a SGB can force any parent to complete and/or sign the form prescribed by the regulations.
6. The proposed section 41(5) is supported and provides adequate protection for parents who are unable to afford school fees.

 

2. CLAUSE 6 (ALIENATION OF ASSETS)

1. Section 42(a) of the Schools Act already provides that the SGB of a public school must keep records of assets of the school.
2. In terms of section 59(2) the Head of Department already has the right to obtain information from the school.
3. The question of the disposal of school assets is already governed by section 37(6)(b) and (d).
4. This further provision simply constitutes overkill.
5. The proposed sections 58A(2) and (3) are unnecessary, unreasonable and impractical.
6. If the idea is to control the sale or alienation of public school assets, all that is needed is a provision prohibiting same except when reasonably necessary in the best interests of the school and, subject to section 37(6)(d), at market related consideration.
7. We support the proposed section 58(A)(4).

 

3. CLAUSE 7 AND 8 (APPOINTMENT OF EDUCATORS)

1. In Education White Paper 2 published on 14 February 1996 the following policy was stated:

". . . appointments will be made by departments of education on the recommendation of and in consultation with school governing bodies. This balances the prerogatives of governing bodies with the necessity for government decisions, while providing strong safeguards against arbitrary administrative action. The Ministry of Education appreciates that the responsibility of making teaching staff appointments would be the clearest indication of the extent to which real devolution of decision-making power to the school level has taken place . . . All public school governing bodies would have the authority to recommend the appointment of teachers to their respective provincial education department. The department would have the discretion to decline a recommendation on grounds of professional incompetence, inappropriate qualifications, misconduct, or prima facie evidence of improper influence . . . For most governing bodies, this represents an extraordinary gain in authority and influence . . ."

2. Section 28(2) of our Constitution provides as follows:

"A child’s best interests are of paramount importance in every matter concerning the child."

3. Relevant provisions of the African Charter on the Rights and Welfare of the Child are the following:

1. Relevant provisions of the African Charter on Human and Peoples’ Rights are the following:

1. The UN Convention on the Rights of the Child (to which SA is a signatory) provides as follows:

1. All of the above must be contrasted with the following policy statement on page 75 of Education White Paper 1 published on 15 March 1995:

"Involvement of government authorities in school governance should be limited to the minimum required for legal accountability, and should be based on participative management."

2. The above principles and statements are all negated by the proposed amendments affecting the appointment, transfer and promotion of educators.
3. Education is essentially focused on the child: it is about the teaching, training, upbringing, development, of the child.
4. The parent has a fundamental interest not only it what the child is taught, but also in who teaches the child because that person stands in loco parentis.
5. From the above it is clear that it is an internationally accepted principle – in fact law – that the state does not make decisions in this regard on behalf of parents but must respect, protect, promote and fulfil the rights of parents to make and execute such decisions.
6. The educator who teaches a child in loco parentis has an extremely important influence not only on the academic advancement of the child, but on all other aspects of the development of the child, e.g. sport, cultural, leisure, artistic, religious activities etc.
7. All of these activities form an integral part of schooling in South Africa.
8. Who better than the parent to decide what is in the best interest of the child?
9. Who better than the duly elected representatives of the local school community to know, judge, understand, the needs and requirements of the particular school and its learners?
10. The present procedure for the appointment of educators is a well-developed and thorough process of advertising, applying, sifting, short-listing, interviewing and recommendation of candidates with motivation.
11. Ample provision is also made, in accordance with the policy adopted in Education White Paper 2, for the safeguarding of the interests of the state as employer.
12. In stark contrast to all of the above, the Head of Department now becomes the custodian of the rights, interests, activities, etc of learners.
13. He/she may ignore the wishes of parents and learners.
14. He/she may ignore the legitimate expectation and right of educators who have gone through the whole process of applying, sifting, short-listing, interviewing and recommendation, to be appointed to the vacancy.
15. Each and every candidate recommended by the governing body will be entitled to declare a dispute in accordance with the provisions of the Labour Relations Act.
16. There simply is no way in which the Head of Department can know what the requirements and needs of all or any particular school are regarding any number of aspects to be considered in the appointment of any educator, such as language proficiency, ability to assist in extramural and extracurricular activities, leadership, administration, management, etc.
17. In terms of section 20(1)(a) of the Schools Act it is an obligatory function of the governing body of the school to

"promote the best interests of the school and strive to ensure its development through the provision of quality education for all learners at the school;"

18. How can it be expected of a governing body to comply with this most important of its functions if it does not have a decisive say in the appointment of those people who must provide the "quality education"?
19. The Memorandum to the Bill states that the reason for the amendment is an effort to overcome a particular problem, viz. the fact that if the Head of Department declines a recommendation the matter must be referred back and the whole process starts afresh.
20. This statement is not correct.
21. If the matter is referred back, the governing body must merely make another recommendation. See the present section 6(3)©. In any event, in most of the situations where a dispute regarding the recommendation of the governing body has arisen, temporary appointments have been made by agreement between the parties pending the resolution of the dispute.
22. If the motivation in the Memorandum is in fact the only motivation, then the very simple solution would simply have been to provide for a situation where, if the recommendation is declined, the Head of Department may make a temporary appointment.
23. Why would it be necessary to amend the whole process of appointments?
24. Not a single word is spoken in either the proposed amendments or the Memorandum on the need to improve the performance of our learners in the classroom or the quality of education in general.
25. The reality is that the proposed amendments will not serve the interests of learners or their parents or the education system in general and under these circumstances we voice our strongest possible objection to it.

We thank the Chairperson and honourable members of the Portfolio Committee.