The GBF has always made full use of every opportunity to interact with the State in the development of a sound legislative and policy framework for making quality public schooling available to all the learners in South Africa. In keeping with this approach the GBF submitted detailed comments on the Education Laws Amendment Bill within the required timeframe. This oral presentation must be seen as supplementing these original comments.

OUTLINE SUBMISSION

The Bill in its present form deals essentially with four aspects of the provision of public schooling in South Africa as follows:

1.the disciplinary process in relation to suspect serious misconduct by a learner

2.school funding

3.school assets

4.the selection, nomination and appointment of educators in state posts

All four of these aspects have a bearing on the legal responsibilities and competencies of the governing bodies of public schools and it is appropriate that the GBF inform the members of the Portfolio Committee [a structure of Parliament with a crucial role to play in the finalization of education legislation] of its reactions to the amendments contained in the latest version of the Bill.

In summary the responses of the GBF to above aspects are:

1. Disciplinary process - concerns about the forms of suspension and the possible use of alternative sanctions by the Head of Department.

2. School funding - various aspects of the exemption process.

3. Educator appointment - the potential reduction of the role of parents as represented by the governing body to choose the educators who will teach their children.

ORAL PRESENTATION

Amendment of section 9 of Act 84 of 1996 [Learner discipline]

• The GBF supports the introduction of suspension of a learner on reasonable grounds as a precautionary measure. This is an essential provision given the increase of forms of serious misconduct that represent a threat to other learners and to staff.

• Formulation of the various forms of suspension is confusing - suspension on reasonable grounds[1], suspension for a week as sanction[1C], extended suspension pending decision on expulsion [lE]

• Importance of process for speedy decision making - period for holding of disciplinary proceedings/ extension of suspension pending decision to expel. What happens if SGBs are unable to obtain extensions in time? These decisions need to be made close to schools as possible.

• GBF supports the time limit given to Heads of Department to decide on expulsions. Examples of KZN.

• GBF questions, however, why there is no similar time limit within which the MEG must finalise appeals against decision to expel. GBF made strong recommendation to this effect in written submissions.

• According to the provisions of the Bill the following is possible [and highly likely]

1.learner is suspended on reasonable grounds [6 days - possibly longer]

2.SGB recommends expulsion [HoD has 14 days and may or may not agree to extend existing suspension until decision is made. If extension is granted learner is away for 20 days so far]

3.HoD expels and parent appeals on day 13 [learner away for 33 days]

4.MEG can take time to decide appeal during which time learner could depending on HoD decision be at school or not [even though receiving education through an alternative method]

5.MEG upholds appeal and learner comes back to school after possibly 60 plus days.

• There remains no avenue - other than the courts - for SGBs to deal with a decision not to expel a learner.

• The GBF believes that it is inappropriate for the HoD to impose a sanction on a learner where expulsion is not granted. It is inappropriate without an intimate understanding of the disciplinary context of the school and could well cut across existing sanctions and lead to inconsistency. lt would be better for all such cases to be referred back to the SGBs for an alternative sanction. SGBs are required after consultation to put into place a Code of Conduct for the school. Recent court decisions have indicated that these responsibilities are not to be overridden by PEDs lightly.

Amendment of section 35 of Act 84 of 1996 [School funding]

• The GBF notes the inclusion in this section of the fairly detailed basis for the placing into quintiles of all public schools. Previously this detail was in the Norms and Standards themselves. The GBF also notes the use of the financial means of learners as the basis for such classification of schools and believes that this is a fairer way of determining the norms and standards funding that will come to schools. The fact that the final Norms and Standards for School Funding are, however, not known makes it impossible to comment further.

• The GBF supports the inclusion of subsection 39(5) and (6) making it clear that schools may charge agreed to school fees only. The GBF has always advised its member schools that this is the case and has discouraged any attempts to charge registration and other fees. It is presumed that the wording of 39 (6) allows for differential fees for different grades.

• The GBF supports the implementation of no fee schools but emphasizes the need for the adequacy benchmark level of funding per learner to be realistic. This system places further demands on the PEDs to collect, process and publish data and it is presumed that provision will be made for the necessary capacity to do so. Amendment of section 41 of Act 84 of 1996 [School fee payment]

• The GBF supports fully the existence of a system of fee exemptions -both partial and full exemptions. It also supports fully [and has always advised its members accordingly] the non-victimisation of learners whose parents are unable to pay fees and who qualify for exemption.

• In the absence of the final Regulations for Fee Exemption it is not possible to comment in detail about the future impact on fee exemptions on the ability of fee -paying public schools to generate fee income. However, on the basis of the earlier draft Regulations the GBF surveyed its members and the projected impact is significant with some school projecting a doubling of the number of parents qualifying for exemption.

• The existing Regulations have proved difficult to apply and have been open to various interpretations. It is hoped that the final revised Regulations will be clear and workable.

• The GBF not in favour of granting fee exemptions retrospectively as is provided for in 41(3). In fact, this new provision is at odds with section 136 of the existing Regulations. In addition there is no guarantee that parents who qualify for exemption later in a year were not in a position to pay the fees for the first part of the year. A change in status for the whole year would also make it difficult for a school to budget accurately. The GBF believes that fee exemptions should be retrospective at most to the start of the school term in which application is made.

• The GBF believes that the proposed amendments place considerable responsibility on SGBs to prove that parents do not qualify for some sort of exemption rather than on parents to prove that they do. There is still considerable scope for parents to frustrate this process through not-cooperation and non-provision of information. The GBF is in no doubt that people with limited means need to be protected against exploitation, but that there should be greater emphasis on such people to prove that they qualify. Once again, the absence of the final Regulations makes it difficult to comment further.

Amendment of section 6 of Act 76 of 1998 [Nomination and appointment of educators]

• The GBF registers the strongest objections possible to the proposed amendments to section 6 of the EEA on the following grounds:

1.The proposed amendments effectively diminish if not remove governing body control over the selection, nomination and subsequent appointment processes. For parents this remains the crucial element of devolved power without which the whole concept of partnership in the provision of schooling to which the state committed itself is significantly weakened.

2.The proposed amendments go way beyond the state's undertaking to restrict its involvement in governance to the minimum required for legal accountability.

3.The proposed amendments will leave little time for employees to exercise their labour rights and subsequent disputes could create even greater uncertainty for school communities.

4.The various reasons supplied at different times do not reflect the realities of the present system in that:

• the real delays in the system of nominations and appointments are to be found in the incapacity of education departments to administer vacancy lists, the applications received and the nominations made. In some provinces there have not been formal vacancy lists for a number of years.

• Learners are not usually disadvantaged during the normal appointment process as substitute/temporary appointments are catered for and made. Normally governing bodies nominate their second choice if the first is declined and this process is subject to time limits by section 6(d) of the EEA.

• It is not unusual for the employer in education to limit its influence over appointments to a regulatory framework. This has also been the case in South Africa for many years.

• Section 6(3) (f) is totally unacceptable to the GBF. On what basis would the Head of Department make such a choice? It is clear that the decision could be based on much more than the failure of the governing body to apply the conditions set out in section 6(3) (b). Section 6(3) (f) also makes no provision for the Head of Department to provide reasons for the decision - a decision that is surely an administrative act in terms of existing legislation.

• Section 6(3) (g) contains no clarity concerning the basis the Head of Department could use in considering all the applications submitted for the post in question apart from applying the criteria in 6 (3) (b). In any case this consideration of all the applications will of itself be a time-consuming and cumbersome process if done properly. It will also result in a decision being made outside the normally accepted processes of interviewing, etc

• The appeal process to the MEG provided for appears to be limited to the actual temporary appointment made not to the decision to over-rule the 5GB or to re-advertise. This is obviously inadequate.

• Section 6B. Despite its inclusion amongst the other amendments to section 6 this amendment does not appear to be limited to the situations dealt with by the other amendments. The GBF is also not convinced by the argument that the conversion of a temporary appointment to a permanent one is acceptable because the governing body would have approved the original selection. In reality this is not true and in any case there are times when a person acceptable for a temporary appointment under certain circumstances is not acceptable for permanent appointment. The GBF cannot therefore support accept this amendment.

CAPE TOWN AUGUST 2005