FEDSAS Federasie van Beheerliggame van
Suid-Afrikaanse Skole
Federation
of Governing Bodies of South African Schools
Chairperson
Voorsitter FICHARDTPARK 9317
CEO/HUB Paul
Colditz website/webwerf www.fedsas.org.za
2
6 September 2007
The Chairperson and Members
Portfolio Committee on Education
National Assembly
COMMENTS ON THE DRAFT EDUCATION LAWS AMENDMENT BILL,
2007
1.
INTRODUCTION
FEDSAS responds to the
invitation to comment on the draft Education
Laws Amendment Bill, 2007 (“the Bill”) published as B33-2007. These comments are
submitted in a genuine attempt to make a positive and constructive contribution
to the best possible legal and regulatory framework for public school education
in
2.
LEGALITY
At the outset, it is submitted that
the Minister may not pilot any legislation involving broad policy and strategy,
until she has consulted the National Education and Training Council (“NETC”)
which is referred to in section 11 of NEPA (in respect of which she has
recently called for nominations for membership). Until she does so, the passage of the Bill
ought not to proceed further until such a process has been consummated. At the time (1999) when the then Minister
published the Regulations, he invited nominations in terms of the regulations
published in the Government Gazette, and nominations were submitted. The Minister failed to take any steps
however, and no members were appointed to the NETC. Last year, the current Minister received a
demand to populate the NETC, and in response, she has now published a further
advertisement, inviting yet again, nominations for a Chairman and the 29
designated additional members of the NETC.
Such an invitation is a peremptory requirement of the Act, and the
Minister will then be required to consider those nominations and then make
appointments in terms thereof. She has
no discretion in these matters, for her functions arise ex lege.
It is
submitted that the Minister could not have introduced the Bill without having
consulted the NETC as envisaged in NEPA.
The submissions on the draft
Education Laws Amendment Bill, 2007 which follow are predicated upon the
foregoing caveat.
3.
THE PREAMBLE (LONG TITLE)
There is a rather disquieting
feature of the preamble to the Bill.
This is the provision that the Bill is intended to create as the
standard for “norms and standards for infrastructure and capacity in public
schools” a “minimum”.
Setting up minimums as standards,
represents the antithesis of good governance and management. This lowest common denominator mindset has
been a worrying phenomenon for considerable time. (Cf. the explanation in the Memorandum to the
effect that the intention is to ensure “uniformity”). Minimalistic standards are inevitably set up
as the benchmark which serves to stifle those whose standards already exceed
those minima. It begs the question as to
why the Bill does not seek to establish as a norm, an objectively determined
standard as to what is desirable, necessary and good. This approach is mirrored in what one finds
in the Bill itself with regard to the proposed amendments to NEPA.
4.
CLAUSE 1
Government White Paper 1 on
Education paved the way for a genuine democratic approach to education and
installed parents as the custodians of education in public schooling in
The proposed amendment serves no
other purpose than to exclude stakeholders from making any meaningful input
into the education of the children of this country. It should be
abandoned.
The present section 5 reads as
follows:
[a27y1996s5]5 Consultation on national education
policy
(1) Policy contemplated in section 3
shall be determined by the Minister after consultation with such appropriate
consultative bodies as have been established for that purpose in terms of
section 11 or any applicable law, and with-
(a) the
Council;
(b)
such
national organisations representing principals of institutions providing
further education and training as defined in section 1 of the Further Education
and Training Act, 1998 (Act 98 of 1998), as the Minister may recognise for this
purpose;
[
(c) the trade
unions represented in the Education Labour Relations Council referred to in
section 37 (3) (b) of the
Labour Relations Act, 1995 (Act 66 of 1995), read with paragraph 3 (2) of
Schedule 1 to that Act;
[
(d) such
national organisations representing governing bodies of schools as the Minister
may recognise for this purpose;
[
(e) such
national organisations representing students as the Minister may recognise for
this purpose;
(f) such
other national stakeholder bodies as the Minister may recognise for this
purpose.
In the Memorandum it is inter alia
explained that “representatives from the national governing body association
(sic) engage with the Minister in other forums, such as . . . the Forum for
National Governing Body Associations.”
With regard to this explanation the
following comments are apposite:
4.1
The Forum was established by Minister Bengu pursuant
to a request by FEDSAS;
4.2
A copy of the Founding Document of that Forum is
attached to this submission;
4.3
The Forum has no legal status and is an informal
structure not recognized by any legislative provision: (cf. for example the
situation with the Education Labour Relations Council);
4.4
The Forum is not functioning as it was envisaged at
the time of its establishment;
4.5
There is no legislative obligation on the Minister to
table any issues at meetings of the Forum and/or to engage in consultations
with members of the Forum pertaining to
proposed legislation, regulations or policy;
4.6
Regarding the Bill under discussion the meeting of the
Forum was told that no comments made at the meeting pertaining to this Bill
would be considered.
5.
CLAUSE 2
On the face of it this clause
appears to represent only a technical correction to section 6 of the NEPA by
replacing the reference to the Education Labour Relations Act, 1993, with a
reference to section 40 of the Labour Relations Act, 1995. To the extent that this is in fact only a
technical correction the proposed amendment is supported.
However, the caveat referred to
above is aptly illustrated by the proposed amendment.
The present section 6 reads as
follows:
6 Consultation on legislation
Legislation on a matter referred to in
section 3 shall be introduced in Parliament or, in the case of regulations, be
published in the Gazette only
after consultation between the Minister and-
(a)
the
Council, in respect of education at education institutions; and
(b) all the
parties in the Education Labour Relations Council established by section 6 of
the Education Labour Relations Act, 1993 (Act 146 of 1993), in respect of any
matter falling within the objectives of that Act.
The Bill under discussion was
introduced by the Minister without consultation the main stakeholders in
education, viz. the parents.
6.
CLAUSE 3
This
section is exceedingly problematical. It
seeks to make provision for the Minister in her discretion to establish
a body styled as the National Education and Training Council (NETC). The section clearly overlooks the fact that
the Minister has already (in terms of the existing peremptory provisions of
NEPA), established the NETC. (See
Government Notice R587 contained in Government Gazette 20044 of 30 April 1999).
We
contend that the notion foreshadowed in the Bill, that the Minister may
now re-create the NETC, is ultra vires the existing legislation, and would fall
to be set aside.
It
therefore follows that the proposed amendment is not competent.
At present, NEPA not only authorises the Minister to
establish the NETC, it compels her to do so.
It probably is the intention that the obligation to establish the NETC should fall away under the
proposed amendment to s 11(1). However the
amended legislation will only make sense if the word “may” is interpreted not
as a permissive power, but as “shall”.
Otherwise this amendment would be inconsistent with the proposed
amendment to s 5, which provides that policy ‘shall’ be determined by the
Minister after consultation with the NETC: if there is no NETC, the obligation
to consult with it is without content.
This
clause of the Bill should therefore be expunged.
7.
CLAUSE 4 (read with
CLAUSE 7)
Whilst
we support the principle of measures aimed at improving safety and discipline
in schools, given the existing legislation, the requirement for this section is
not understood. The explanation in the Memorandum simply makes no sense. If the Regulations did not adequately address
the mischief, why would inclusion in SASA address it adequately? The problem is not the lack of law but a lack
of support by education authorities to governing bodies and principals in the
maintenance of discipline and the application of safety measures.
In
any event, the way in which the word “random” is used and probably intended to
be understood, suggests that the approach is not random at all, but governed by
considerations of the relevant exigencies at the time – i.e. if the
circumstances warrant it, or if reasonable cause exists for a search. (This is the current situation as governed by
regulation 4(3) of the REGULATIONS FOR
SAFETY MEASURES AT PUBLIC SCHOOLS as promulgated in Government Notice 1040
of 12 October 2001 as amended by GN R1128 of 10 November 2006). The notion of random searches presupposes
arbitrary circumstances where no reasonable causes exist. Accordingly, the use of the word together
with a phrase such as “fair and reasonable suspicion” is a contradiction in
terms. It will need to be revised as it
renders the entire clause 5 in the Bill redundant because the existing
provisions of the safety measures cover the same ground.
Furthermore:
7.1
The definition of “dangerous object” as it is proposed could
include scissors, a ruler, and a multitude of instruments required for
educational purposes in subjects such as mathematics, physical science and
technical drawing.
7.2
The definition should therefore exclude objects required for
bona fide educational purposes.
7.3
The introductory phrase “Unless authorised by the principal
for legitimate educational purposes” does not address this defect adequately. Circumstances may arise where a learner
brings an instrument onto the school premises in the bona fide belief that it
is required for educational purposes but the principal then decides, ex post
facto, not to authorise the possession
or bringing onto the school premises of such instrument. This allows for arbitrary conduct by the
principal.
7.4
It is recommended that the format of the Regulations should
be retained, i.e. the retention of the words “unless such objects are used for
educational purposes” at the end of the definition.
7.5
The definition of “illegal drug” excludes intoxicating
liquor. It refers only to “unlawful” substances
that have a psychological or physiological effect.
7.6
Intoxicating liquor could have devastating physiological
effects and is in fact a huge problem in schools, especially during
extra-curricular activities.
7.7
The definition should therefore be framed in such a way that
intoxicating liquor is included.
7.8
The proposed section 8A (2) refers to a “fair” and
reasonable suspicion. The use of the
word fair is superfluous and unnecessary and can only lead to confusion. Normally conduct is described as fair or
unfair. Can a suspicion ever be “fair”
or “unfair”?
7.9
It is recommended that the word “fair” be deleted.
7.10
The words “illegal activity” suddenly make their appearance
in section 8A (3)(a)(iii) and (b).
7.11
Illegal activity is not defined in the Act and the Bill does
not propose the insertion of a definition of illegal activity.
7.12
Normally a search is justified by the existence of
circumstances justifying such a search, such as reasonable cause that a crime
has been committed.
7.13
In this particular proposed section (8A) a search is
authorised if “a fair and reasonable suspicion has been established” (subsection
(2)), but at the same time it may only be conducted after certain factors have
been taken into account (subsection (3)).
What, then, is the purpose of authorising a search upon fair and
reasonable suspicion? As it stands it
proposes two separate tests for the legality of any search making it extremely
confusing and almost impossible to implement.
7.14
The administration of a urine or other non-invasive test
(referred to in subsection (7)) is also made subject to the provisions of subsection
(3). The same criticism is applicable to
this subsection.
7.15
The right to administer such a test should be extended to
learners suspected of “being under the influence of illegal drugs or
intoxicating liquor.”
7.16
The provisions of subsection (14) are completely
unacceptable. On what basis whatsoever
can it be justified that criminal proceedings be instituted against a learner
who is found to be in possession of an unlicensed weapon outside of the school
premises but a learner who commits the same criminal offence at school may not
be criminally charged?
8.
CLAUSE 5
We
have already addressed this above.
The
approach in this proposed amendment appears to be a “one size fits
all-approach”. We predict that the
outcome will be “one size fits none.”
Unless
the idea is to really create a totalitarian state in which the lowest
denominator is the norm for each and every school (or as referred to it in her
Budget Speech by the Minister, “mediocrity”) this can and will never work. In practice it will never be possible for the
Minister to determine norms and standards that could conceivably cater for or cover
all schools. Moreover, that the Minister
now seeks to establish them by simple regulation, without input from legitimate
stakeholders, is considered insupportable.
The
range of factors, circumstances, availability of resources, etc would make it
impossible for anybody to prescribe the issues relating to the capacity of a
school as envisaged in the proposed section 5A(2)(b).
It is
submitted that these are broad policy and strategy matters upon which the
Minister is required to consult the NETC.
9.
CLAUSE 6
We
support this clause. However:
9.1
It is not clear whether the intention is that counselling
should be provided during the disciplinary proceedings or after a
conviction in a disciplinary hearing as part of the sanction that may be
imposed.
9.2
Very often counselling services (in remote areas) are simply
not available or may involve financial implications. Schools and governing bodies are not
financially compensated or capacitated to be able to afford such expenses.
9.3
It must also be borne in mind that schools are not provided
with guidance educators.
10.
CLAUSE 8
The
Memorandum suggests that the purpose of this section is to define the functions
and obligations of the principal which are not provided in SASA. The functions and obligations of principals
are however already set out in detail in Chapter A of the PERSONNEL ADMINISTRATION MEASURES ( PAM) promulgated in terms of
the Employment of Educators Act, where they are defined as his/her CORE DUTIES AND RESPONSIBILITIES. As for the principal’s responsibilities vis-à-vis
the SGB, those responsibilities are already clear. The principal (when he/she serves on the
SGB), acts as a governor (and not the department’s representative), and acts as
such just as the other members of the governing body do – not as
representatives of any particular group but as persons who have been elected to
hold a position of trust towards the entire school and are therefore obliged to
act in the best interest of the school and not to represent sectional interests
as if they represent opposing interests.
If governing body members were to be seen to represent sectional
interests it would constitute a ground for a split in the school.
The
proposed amendments to SASA in this regard, are viewed as sinister, a violation
of the principles of good governance, and an attempt to undermine the fiduciary
relationship which the principal qua governor bears to the SGB, (whose only
duty is to the school). At best, the
proposed amendment demonstrates a worrying misunderstanding of the concept of
school governance and the principles of fiduciary duty and good governance in
general. When he/she is not serving on
the governing body or executing functions as a governor, the principal is of
course, subject to the authority of the Head of Department, but that is a
different matter altogether. When he/she
is acting as governor, he/she is in exactly the same position as every other
governor of the school. This proposed
section seeks to prevent the principal from executing governance functions
because his/her governance powers have been removed.
The
proposed subsection (3) in particular, demonstrates at best, a fundamental
misunderstanding of the principal’s role as a governor on the governing body,
and at worst, an attempt to undermine the functions and the operation of the
governing body. Schools are frequently
confronted by unlawful instructions received from departmental officials. To expect principals to adopt a supine
approach in the face of such circumstances, is not acceptable, and nor is it
lawful. This is a clear attempt to
muzzle principals from performing their duties as governors, and thus to
manipulate governing bodies. It will bring
the principal into sharp conflict with the remaining governors – a certain
recipe for conflict within and eventual failure of the school. A principal qua governor simply cannot
represent the department as it would be ultra vires section 16(2) of SASA.
The
idea of prohibiting a principal from giving evidence in any court case, no
matter what its content or import, is a clear violation of his/her
constitutional rights set out in the Constitution. In fact, it undermines the very essence of a
constitutional dispensation under the rule of law. (It also bears a sinister resemblance to the
kind of legislation which assailed our community during the repressive apartheid
regime).
This
proposed section again illustrates the fundamental misunderstanding of the role
of the principal as governor. Whilst it
can possibly be justified that the principal of a school should not easily be
allowed to testify against his employer regarding matters relating to the
professional management of the school, as governor he stands in a position of
trust towards the school and in that capacity is obliged to promote and protect
the best interests of the school which may include testifying against whoever
wishes to bring the school into disrepute or may cause damage to the school.
Furthermore:
10.1
The functions/duties envisaged in (1)(b) to (2)(a) and
(2)(e) – (g) are all duties and functions that aught to be included in PAM (to
the extent that they are not already included there).
10.2
The obligation to “attend and participate in all meetings of
the governing body” is an obligation of all governors. Why single out the principal? In any event, SASA was amended in 2002 to
make provision, in imperative terms, for the MEC of the province to determine a
code of conduct for SGBs. (To this date
this has not been done in some provinces).
10.3
The section reads as follows:
[a84y1996s18A]18A Code
of conduct of governing body
(1) The
Member of the Executive Council must, by notice in the Provincial Gazette, determine a code of conduct for the members
of the governing body of a public school after consultation with associations
of governing bodies in that
province, if applicable.
(2) The code
of conduct referred to in subsection (1) must be aimed at establishing a
disciplined and purposeful school environment dedicated to the improvement and
maintenance of a quality governance structure at a public school.
(3) All
members of a governing body must adhere to the code of conduct.
(4) The code
of conduct must contain provisions of due process, safeguarding the interests
of the members of the governing body in disciplinary proceedings.
(5) The Head
of Department may suspend or terminate the membership of a governing body
member for a breach of the code of conduct after due process.
(6) A member
of the governing body may appeal to the Member of the Executive Council against
a decision of a Head of Department regarding the suspension or termination of
his or her membership as a governing body member.
[S. 18A inserted by s. 6 of Act 50 of
2002.]
10.4
This provision should be adequate to address the situation.
10.5
The obligations to provide the governing body with a report
about the professional management relating to the school ((2)(c)) and to assist
the governing body in handling disciplinary matters ((2)(d)) are supported but
this hardly justifies the inclusion of the whole of the proposed section 16A. It can also be included in the PAM.
11.
Clause 9
11.1
The proposed subsection (eA) is in conflict with the
principles underlying governance and management and is not acceptable. It is clearly aimed at compelling governing
bodies to comply with directives issued by the department to principals, even
if they are unlawful or constitute intrusion on the domain of governing
bodies. It also serves to undermine the
autonomy of governing bodies which is enshrined in sections 15 and 16 of
SASA. The department has no right to
intrude on the affairs of governance, any more than governing bodies have a
right to intrude on the professional management of schools which operate via
their principals under the authority of the Head of Department. The proposed subsection will effectively make
governing bodies the agents of employers in the employment relationship. The responsibility to address incapacity of
principals and educators is the sole responsibility of the employer and is
extensively dealt with in the Employment of Educators Act. We fail to understand why it is at all
necessary to confuse the obligations of Heads of Department (as employers) and
governing bodies. The Memorandum fails
to provide any clarity on the necessity for such a provision.
11.2
The proposed amendment to section 20(1)(g) is in direct
conflict with section 13 of SASA and the common law principles of occupation and
usufruct. SGBs with section 21 functions
have the obligation to maintain and improve the property of the school
(including building and lands) and hardly receive any assistance from
departments is this regard, yet they will now be compelled to succumb to
decisions which may severely impact on their obligations. Although it is provided that it may only be
decisions “in terms of any law or policy” we experience in practice that
conflicts on what is provide in law abound.
The reference to policy should at the very least be deleted as it is
more often than not extremely difficult to determine what exactly is to be
regarded as policy and what is not.
Officials often regard mere statements by politicians as policy. In any event, in a constitutional democracy
under the rule of law there is no room to regard decisions based on policy as
compliance with the doctrine of legality.
11.3
We do not oppose the inclusion of subsection (jA).
12.
CLAUSE 10
We support this amendment.
13.
CLAUSES 11 and 12
The
goal of seeking to emasculate governing bodies is exemplified in these proposed
sections which either goes on to draw them into a section that deals with
issues that do not really relate to governance (proposed section 58B) or seeks to
eradicate their significance (section 58C).
To
the extent that is necessary the existing sections 22 and 25 already provide
the remedies for situations where action against the governing body is
required.
We
have no intention of interfering in the relationship between the Head of Department
and principal relating to matters concerning the professional management of
schools and to that extent limit our comment on section 58B only to the
inclusion of governing bodies in this section.
Despite
the fact that the envisaged section 5A would only authorise the Minster to
determine minimum norms and standards, the Head of Education must by a simple decision determine the
maximum capacity. By a mere stroke of the pen a Head of
Education will now have the power to practically delete section 20(1)(a) form
the statute and relegate the position of parents to bystanders in the education
of their children.
14.
CLAUSE 12
Apart
from the practicalities of the proposed section 60(1)(b) which appear not to
have been considered, we do not have serious concerns about this clause.
15.
CONCLUSION
It
is abundantly clear that the draft Bill was prepared without the benefit of advice
from experts such as one would expect would be serving on a body such as the
NETC. We have no doubt that we could
also have made significant contributions if only there had been an opportunity
to consult constructively if the Ministry had felt that certain areas of the
law governing public school education needed revision. We expected constructive debate and
engagement during the National Consultative Forum meeting of 25 May 2007 but to
our utter dismay were informed that such engagement would serve no purpose.
We
are proud to say that we represent the majority of the most successful schools
and this country and that our members and their school communities contribute literally
billions of rands and many hours of voluntary service towards realising the
objective of the promotion of the best interests of their schools to ensure
their development through the provision of quality education for all learners
at the school as envisaged in section 20(1)(a).
We call on this Committee not to amend the law in such a manner that it
would act as a message to parents and school communities that their efforts are
stifled or discouraged.
We
wish to quote from the Minster’s budget speech and associate ourselves with the
following statements:
Once
more I urge parents to assume responsibility for the future of their children,
to insist on teaching and learning and to support our young people to realize
their fullest potential.
This year I call on all of us to affirm excellence and challenge mediocrity in the interest of advancing the objective of quality education for all.
I make this call to assert excellence because it is clear that all of us have to give far greater attention to achieving positive outcomes through our work. Such a focus by all of us will ensure that we give effect to our obligation to offer real learning and achievement opportunities to all our learners and students. Furthermore, given that there are schools, principals, teachers, learners, colleges and universities that work well, we should acknowledge, replicate and reward positive performance.
We
find very little in this Bill that echoes those sentiments.
MIKE
RANDELL
NATIONAL
CHAIRMAN
FOUNDING DOCUMENT
THE
PREAMBLE:
WHEREAS the Ministry of Education of
the Republic of South Africa is desirous of establishing a forum to facilitate
formal negotiations, discussion and interaction between itself and bona fide
organisations representing governing bodies of public schools in the Republic
of South Africa at a national level;
AND WHEREAS the said Ministry seeks,
by establishment of such a forum, to promote communication with such
organisations concerning national educational issues affecting the interests of
public schools, in general, and the governance of public schools, in
particular, in pursuance of the notion of partnership in education between the
State and stakeholders in public schools, as represented by such governing
bodies;
AND WHEREAS the Ministry has been
requested to establish and has recognized the need for the establishment of such
a forum for the aforementioned purposes;
NOW
THEREFORE IT IS HEREBY AGREED AND PROVIDED AS FOLLOWS:
1.
THE FORUM:
1.1
A national communication forum is hereby established.
1.2
The name of the forum shall be THE NATIONAL COMMUNICATION
FORUM FOR NATIONAL PUBLIC SCHOOL GOVERNING BODY ORGANISATIONS.
1.3