7
Submission on
Education Laws Amendment Bill [B 33-2007]
From Mr
Hendrik du Toit- Centurion,
Section 7 – Section 8A in Act 84 of
1996
The
following changes are not aimed against the leaner but against the drug dealer
or runner that may be named by the leaner.
Drug
dealers are known to employ crafty lawyers to keep them out of jail on
technicalities.
A
learner may not be willing to name a dealer when it is known that the dealer
might be released on technicalities and possibly victimise the leaner. No
amount of counselling will undo the fear.
Random search
The
word random imply = chance, arbitrary, unsystematic, haphazard, hit and miss.
Deliberate
is an antonym.
Example:
when there is a suspicion that a specific learner may be in possession of a
dangerous object or an illegal drug the statistical probability of being
selected for search is too low.
But
realizing that the search is called a random to relieve stress on the innocent
learners the following is proposed.
Remove
the words “at random” from subsection (2), the word “random search” must be
retained in the heading.
The
motivation for this is that a perception of a random search is created but that
it is not enforced. (No heading can be
used in the interpretation of law)
It
may be advantages to add the following provision to Section 1 of the Act:
“Explanatory
notes, printed in bold at the commencement of Chapters and Parts must not be used in the interpretation of any
provision of this Act.”
Leaner vs Student
The
Act defines and uses the word student while the draft refers to them as
learners.
The
2 words are synonym but the deliberate choice of another word could be
interpreted as follows:
It
should be clarified.
Immediately
It
would be impossible to comply to the provision,. The word immediately in
subsection (5)(c) should be changed to “as soon as reasonably possible”
Immediately – within one day – Subsection (10)
Sub
(10)(a): It could be at the Childs best interest to have a parent informed
immediately. But immediate may however be impossible.
Sub
(10)(b): Immediately may be impossible.
Both
should be changed to “as soon as reasonably possible”.
Motivation:
Right to instigate criminal proceeding, Subsection (14)
It
seems fair to exclude criminal proceedings against a learner whom is already
subject to disciplinary proceedings. But
since the interest of other learners might be at stake depending on the
circumstances the provisions of the Constitution and other applicable law
should apply.
The
motivation for including this provision is not available and therefore no
comment can be presented at this time.
It should however be debated because it may interfere with other law.
Law, legislation and policy and plan
Section
9 –Section 20 of Act 84 of 1996 and Section 10 – Sections 58B and 58C of Act 84
of 1996 seems to intend to propagate the rule of law.
The
“any law or policy” (S20(1)(g)) could however be interpreted as making the
principal subject to outside policy, for example policy of the ruling party
that has not been implemented as Law yet.
Proposal:
Add
the following definition to Section 1 of the Act(s)
“Educational
Law” includes all educational law and anything done in terms of that law.
The
wording in the sections should be changed to “educational law”
Note
this will include Regulations, policies, notices, plans, directives etc.
Duties of Principal
Section
8 – Section 16A (3)(a) Principal must assist the governing body implement
instructions of the head of department.
No
instructions inconsistent with law need to be implemented. The subsection can therefore be removed as
the meaning is already satisfied by (b).
16A(3)(b)
should be reworded to “educational law”
16A(3)(c)
The principal can only be required to honour the reasonable obligation towards
the head of the department etc. The
interest of the learners, the provisions of the Constitution would dictate the
actions. The word reasonable should be
added.
Evidence against the Head of department etc on behalf of the governing
body.
This
provision seems to attempt to shield the persons or offices against procession
in the event of abusing and illegal use of powers.
Nobody
can be considered above the law and should not be provided with undue
protection against prosecution. The interest of learners, the provisions of the
Constitution and other law must determine the appropriate action.
To
satisfy the above requirements the principal should be free to give evidence
against the persons or offices unless it can be shown that the evidence can
influence education negatively. The court should be empowered to decide on the
acceptability or validity of the evidence.
The
motivation of the subsection is unknown.
The
subsection do not contribute to education or the interest of learners and
should be removed. If retained the onus
of proof should be placed on the state.
Proposed
wording
Section
16A(4) The Minister, Member of the Executive Counsel or Head of the Department
may apply at a competent Court to exclude evidence by the principal on behalf
of the governing body if the evidence can be shown to be detrimental to
education or the interest of the learners.
Sections 13 to 20 – Act 56 of 1999.
Public college vs college – and Act 31 of 2000.
There
seems to be some differentiation regarding the applicability to public and
other colleges. It should be considered
of defining the word college in an Act and then use the word college in the
provisions.
Using
the words designated institution in one section and only institution in the
next may also be confusing.
As
an alternative the word institution can be defined in the Act as including
public colleges and institutions and used to replace the need to use “designated
public colleges and designated higher education institutions”
The
definition should clearly define what it includes and what is excluded.