NAPTOSA offers comment in three parts:

• Comments of a general nature in respect of broader issues or principles.

• Detailed comments on specific sections of the Bill.

• Broad comments that relate to LSEN schools on issues that are not specifically dealt with in these amendments.

1. The amendments to section 9 of Act 84 of 1996 (SASA) are, in some aspects, an improvement in that time stipulations will assist the disciplinary process. The stipulation of a fixed period for a decision by Heads of Department is welcomed. However, the problem still exists that the MEC is not bound by a time limit to make a decision and that a learner could remain at the school for an indefinite period pending the decision of the MEC. This is not acceptable. The amendment creates the strong impression that the rights of the learner found guilty of serious misconduct (sufficient to result in a recommended expulsion upheld by the Head of Department) are more important than the rights of the other learners, possibly victims and educators at the school. In cases of serious offences (eg. rape, assault, drug trafficking), the rights of innocent learners to education and a safe environment, should take precedence. Whereas some cases of expulsion may be of such a nature that the continued attendance by such a learner at school while an appeal is being considered by the MEC, is not prejudicial to other learners, educators or the learning process, this is not generally true.

At the same time, the right of a learner to education until expulsion is upheld (or not) by the Head of Department, is recognised. Such a learner should not, however, be returned to the school where he or she is enrolled while an appeal is being considered by the MEC. Alternative schooling arrangements should be made by the Head of Department. While it is acknowledged that the amendment to SASA allows for the Head of Department to "determine the manner" in which a learner may attend school, this will generally mean at the school in which the learner is enrolled.

2. The amendment of section 35 of Act 84 of 1996 (SASA) introduces a number of important changes to the legislation concerning the norms and standards for school funding. The attempt to address problems that are currently experienced is supported.
3. The amendment of section 39 of Act 84 of 1996 is supported in so far as it makes provision for parents of learners in the poorest quintiles to be exempted from compulsory school fees. However, in these cases, the school should have a right to access information (if necessary) that would validate a parent’s request for exemption. See detailed comments in part 2.
4. The amendment of section 41 of Act 84 of 1996 is supported in part with some recommended alterations.
5. The insertion of section 58A of Act 84 of 1996 should be altered to provide for a greater degree of flexibility where a school governing body wishes to dispose of assets purchased from school funds raised by parents.
6. The amendment of section 6 of Act 76 of 1998 is questioned in so far as it seeks to

1. reduce the powers and influence of the school governing bodies of a school; and
2. interfere with the normal application and appointment process.

1. The insertion of section 6B of Act 76 of 1998 may have distinct value provided the school governing bodies retain their powers. Recommendations in this regard follow.

1. SPECIFIC COMMENTS AND RECOMMENDATIONS

References below refer to the section numbers as contained in Notice B23 - 2004.

1. Section 1 – Definitions (SASA)

1 (a) – accepted

1 (b) – accepted

1 (c) – 1 Sec 1 (c) Surely defining ‘school fees’ as "any form of contribution in cash or kind … in relation to the … participation .... in any programme of a public school" is too broad and not what is generally understood? This means that the extra charges for a tour to another city or overseas are ‘school fees’.

1 (d) – It is not clear why "national quintile" has not been included in the definitions.

RECOMMENDATION

The definition of a national quintile should be amended to emphasise the actual economic level (poverty) of the families of the learners in a school for deciding the allocation into a quintile.

2. Section 9 – (SASA)

• The learner concerned has been found guilty, after a fair hearing, of serious misconduct (as defined in the applicable Provincial Education Act); the sentence of expulsion has been handed down by the Head of Department, presumably after an examination of all the evidence and the procedures.
• The learner has been suspended during the process leading up to the decision to expel him/her.
• The nature of many of the instances of serious misconduct as contained in a provincial act is such that it can by no means be deemed unreasonable for a governing body to believe that it would be detrimental to the safety of the other learners for the guilty learner to be allowed back into the school.
• It is illogical to suggest (as in the accompanying "Rationale") that the constitutional imperative to act in the best interests of a learner who has been found guilty of serious misconduct is somehow greater than the need to act in the best interests of those learners at the school who have not been found guilty of such misdemeanours.
• The right to education of a learner who has been found guilty of serious misconduct can easily be upheld by his/her attendance at another institution.
• It should always be remembered that the nature of the majority of the defined instances of serious misconduct (in a Provincial Act) are such that the relevant incident(s) are likely to be common knowledge within the school community. Learners who hear that a fellow student who has been found guilty of the misconduct suddenly re-appears at the school, will get the wrong message about the consequences of serious misconduct.

1. Section 35 – (SASA)

35(1): Supported with due concern for the definition of national quintiles.

35(2): Supported.

2. Section 39 (SASA)

1. If a school were to include the costs of additional curricular expenses (certain subjects, learning areas) and extra-curricular activities (sport, cultural trips, certain activities which are inherently more expensive), then the compulsory school fees for all learners would increase; OR
2. If the compulsory school fees are kept at an affordable level for the average parent of learners at the school, many of the additional curricular and extra-curricular activities would be curtailed or cancelled.

1. Section 41 (SASA)

1. "the parents……. of this Act provided that a registered letter informing the parent of the right to apply for exemption to the address entered in the records of the school has been sent as evidence of an attempt to ascertain whether the parent qualifies for exemption".
2. "The parent ….. to the regulations provided that the governing body has evidence of a request for the parent to complete and sign the form shall be sufficient".

1. Section 58A (SASA)

Note: The amendment is not consistent in the way that public Adult Basic Education and Training centers are sometimes included and sometimes excluded in these provisions. For consistency, schools, FET Institutions and ABET centres should all be referred to since this is obviously the intention (indicated by 6(3)(m)(iii).)

No explanation is given as to why the Head of Department might choose to ignore the ranking of the governing body and the interview committee, nor is there any indication as to the circumstances in which this might occur. The term ‘suitable’ requires clarification. Parents have to spend hours serving on interview committees and on the face of it, this amendment would suggest that such service could be treated lightly. They are not likely to agree to serve in the future if this amendment is not modified.

The SA Schools Act enshrines a joint responsibility on the part of parents and the State to facilitate education, and it consequently devolves numerous responsibilities onto parents and governing bodies. An amendment of this nature will reflect a lack of good faith on the part of the State.

1. The notion of a governing body conducting interviews and then creating a preference list is fundamental to the process. The reason for this is that the governing body is best placed to determine what is best for the school and what is required. The idea of the Head of Department being able to ignore the list of candidates produced by the governing body is completely inappropriate, since the Head of Department never visits schools and would therefore have no knowledge as to who would be the most appropriate candidate for appointment to the post. There is no purpose in having the governing body spend hours on carefully scrutinising applications, creating a short-list, conducting interviews with great expenditure of their time and expertise, only for a state official to defeat that whole process and choose a different candidate without any reference to the school’s requirements, educational prerequisites or other material criteria. In effect, the governing body’s efforts would be set at nought.
2. The proposed amendment allows that the Head of Department does not even have to produce reasons for what, in effect, would be the appointment of educators by arbitrary decree.
3. If the amendment is introduced, the governing body’s role with regard to appointments will be completely emasculated. Very soon parents will not be prepared to serve on governing bodies because they will simply argue that their role is irrelevant as it is neutralised by bureaucratic and arbitrary decree.
4. The only rationale set out in the Bill for the proposed amendment is to "streamline" the process and to obviate unnecessary delays. It is argued by implication in this rationale, that the existing process is a cumbersome one where the Head of Department, in declining a governing body’s recommendation, has to refer the matter back to the governing body.
5. It is submitted that there is nothing cumbersome about this process. It is consonant with fairness and logic. The real delays in the appointment of educators are invariably caused not by school governing bodies, but by departmental officials who fail (or as in the case of the Eastern Cape Province, refuse) to publish open education bulletins advertising vacant posts, and/or cause inordinate delays in considering governing bodies’ recommendations. The time limitations which the Bill now seeks to introduce would, to a large extent, remedy this difficulty. To that extent, the Bill is to be welcomed.
6. However, the Bill seeks to go further and propose limitations on the powers of a governing body which have no rational connection to the rationale advanced in the Bill. There certainly is no "streamlining" in depriving a governing body of its function and role in the appointment of educators and re-investing that function in a single official. It is submitted that this is not a streamlining process, but is an emasculation which is simply not warranted.
7. It is therefore contended that the amendment sought to be introduced is not rationally connected to the purpose it is intended to achieve.
8. The proposed amendment is also at variance with the government’s own White Paper No. 1 which provides inter alia that:

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

(Page 75 – White Paper No. 1 – Hunter Report – GG 15^th MARCH, 1995).

9. The amendment will, in all probability, not survive an inevitable constitutional challenge in terms of Section 33 of the Constitution of the Republic of South Africa, Act No. 108 of 1996, which provides that administrative action of the State should at all times be lawful, reasonable and procedurally fair. By giving governing bodies the authority to conduct short-listing, interviews and make recommendations, and then effectively removing that authority, is considered to be neither reasonable nor procedurally fair.
10. It is doubted whether parents, in the face of this proposed amendment, would be prepared to serve on governing bodies, because they will simply argue that their role is neutralised by bureaucratic and arbitrary decree, and that anything of value which they could have brought to the school and the process of appointment of educators would be defeated by a departmental official.

The proposed amendment of Section 6 of the Employment of Educators Act, to the extent that it limits or defeats the powers of governing bodies cannot be supported.

1. The rationale is contradicted in the case where an educator has been transferred temporarily in terms of 8(5) of the EEA without a recommendation contemplated in subsection 8(2) (ie. the so-called excess educators).

6B An educator who has been appointed temporarily to any post on the educators’ establishment of a public school or a further education and training institution, may be appointed in that post on a permanent basis by the Head of Department on the recommendation of the Governing Body or the Council as the case may be.

Whilst the South African Schools Act does not specifically address issues relating to LSEN schools, given the nature of the proposed amendments, NAPTOSA believes that it is also necessary to take the following into consideration:

3.1 Section 5 amending section 41(6)(a) of the SA Schools Act.