GOVERNORS’
Postnet
Private Bag X10016
Edenvale 1610
11
Ref1200
5 September 2007
TO: The
Chairperson of the Education Portfolio Committee – Prof Mayatula
cc –
Ms Phumza Mpoyiya
SUBMISSION
ON THE DRAFT REVISED EDUCATION LAWS AMENDMENT BILL 2007
Governors’
Governors’
Governors’
Introduction
The initial intention of the White Paper on Education
was that school governing bodies would govern what was referred to as “self
managing schoo
It has increasingly come to pass that school governing
bodies are wondering can they really make a meaningful contribution to the
school. The school governing bodies are
concerned as to whether as a school governing body they can put their own stamp
on school life.
The whole underlying policy is being turned on its
head and the parents have been moved to the periphery of the situation. The whole idea of decentralization has been
severely disrupted.
In a number of ways if one has to talk about a
partnership there should be one, but that is not governance by the State. There is hardly any incentive left for
parents to participate in school governing bodies.
We strongly
believe that school governing bodies can make a valuable contribution to the
quality of education being offered at the school.
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Amendment of
Section 5 and 11 of the National Education Policy Act No. 27 of 1996 (as
amended)
The proposed substitutions read with the Memorandum is
supported. Especially now that the
Minister has called for nominations for representatives to the NETC.
We raise a concern of the word “may” used in the text
in Section 11 (1) should this not be “shall”.
Amendment to
Section 1 of the South African Schoo
The insertion of the definition of “dangerous object” is still too
wide. Our recommendation is that the
Minister carefully considers and specifies the objects in the Gazette to identify
more specifically the dangerous objects.
There have been a number of cases where the “school’s scissors”
have been used to cause serious injury at schoo
We are must be mindful of the Regulations for Safety
Measures at Public Schoo
We must consider that the items defined as dangerous
which would include fire arms would not be restricted to the application of the
learners only. The SGB would need to ensure that any person(s), including
teachers, non teaching staff etc., entering the school property would be
restricted from bringing such “dangerous objects” on to the school property.
The
insertion of the definition “illegal drug” needs
further consideration. Alcohol for
instance would be considered to be intoxicating, but it is not necessarily
“unlawful” to possess. The purchase and
usage of alcohol by minors could be considered “unlawful”.
Learners and person(s) use “over the counter”
medication to get various highs. The over
the counter medication is not necessary considered unlawful to possess, but
would need to be included in the list of substances which would not be
permitted on school property.
The
insertion of the definition of “school activity” remains
unclear without a definition of “official”.
The definition reflected in the “revised” version of the ELA leaves the
word “sporting” out of the definition, is there a reason for this.
We recommend that “official” be clearly defined by
stating that the SGB had sanctioned the “official school activity”.
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Insertion of
Section 5A in the South African Schoo
Norms and
Standards for basic infrastructure and capacity in public schoo
In 5A (1)(b) refers to norms and standards regarding
the number of learners a school can admit.
The terminology changes in 5A 2(b) capacity of a school, with regard to
utilisation of available classrooms of a school and classroom size etc. Then in 5A (c) provisioning of learning and
teaching support material is mentioned.
We are presuming that the State would be responsible
for providing these “prescribed minimum uniform requirements” in this section
5A.
We raise a concern that mention is made in 5A 2(b) of
curriculum and extra-curriculum choices, these functions are already allocated
to the SGB under Section 21 (b), in terms of curriculum policy.
Then in 5A(3) and (4) mention is made of the SGB
having to comply with these Norms and Standards when considering policy under
Section 5 (5) and 6 (2) – we
consider these sections under the Norms and Standards
to be restrictive and prescriptive and would impact on the functions and powers
of SGB’s, which already exist in terms of the SASA.
Amendment of
Section 8 of the South African Schoo
Substitution of subsection (5) (a) (b)
(5) (b) This amendment is supported.
Insertion of
Section 8A in the South African Schoo
Random
search and seizure and drug testing at schoo
The reason given in the Memorandum for the
introduction of these provisions is unconvincing. The random searching of the bodies of minor
learners and the taking of urine samples from them is unconstitutional and the
introduction of these provisions neither changes that nor “strengthens” the
Regulations for Safety Measures at Schoo
Any educator who conducts the searches or testing
contemplated will violate the constitutional rights of learners unless those
rights may be limited under Section 36 of the Constitution. The minimum requirement for the limitation of
such rights is the existence of reasonable grounds for believing that a
justifiable prohibition has been
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breached.
Unconstitutional behaviour will make educators and the department
vulnerable to civil action.
It is questionable whether the State has any right to
pry into the contents of a child’s urine when the child’s conduct is neither
disruptive, nor aggressive, nor abnormal in any way. The state must avoid paternalism. Such paternalism towards learners is
offensive in its disregard for the parental role. If the State is not prepared to introduce
such provisions in Universities, Colleges or Parliament then it must be asked
why it does so in the case of minor learners at school.
Learners will be exposed to irrational, unreasonable
and grossly unconstitutional conduct by educators, purporting to act under
these provisions, without the benefit of effective and timeous recourse to
parents or others who may protect them from such conduct.
A definition of “possession” is needed and must
include the de facto custody and control of the offending item and the
intention to exercise custody and control.
The scope for the “framing” and unreasonable scarring of learners is
huge and such a definition is the minimum of protection that must be afforded
them.
Provision for a witness during the search is cold
comfort and no guarantee against unlawful and unjustifiable treatment, unless
the witness can be a neutral observer selected by the learner.
One wonders how principa
The
provisions of Section 8A (10) (a) –
“within one day, inform the parent that a random test
or search and seizure was done in respect of his or her child:”
This provision disregards the parental role and
rights, as well as the right of the learner to parental representation and
protection and support. Parents should
have every opportunity of representing their children’s interests both in
challenging the right to search or test and the accuracy of the testing of any
sample.
**The role of the governing body (SGB), as well as the
provisions of Section 9 of SASA has been sidelined in the provision of 8A. We
refer specifically to Section 9 (1) (1A) (1C) (1E) (10) of the SASA. Section 9 – Suspension and expu
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Subsection
8A (14) (a) (b) – No criminal proceedings may be instituted by the school
against a learner in respect of whom - …………..
This provision does not enhance the provisions of the
National Policy on the Management of Drug Abuse by Learners in public schoo
Insertion of
Section 16A in the South African Schoo
Functions
and responsibility of principal of public school
We do not concur that the principal of the school on
the governing body (SGB) represents the Head of Department. His or her role on the SGB would be that of a
member under Section 23 or Section 24 of SASA and it would be expected that the
principal as a member would attend all governing body meetings and participate
in proceedings as a member of that body.
If one looks at Section 16 of the SASA it is clear
that the governing body (SGB) stands in a position of trust towards the
school. The professional management of undertaken by the principal under
the authority of the HOD. The governance of the public school is
vested in its governing body.
The governing body of a school does not need the assistance
of principa
**Several of the sections of 16A, for instance 16A (3)
is an encroachment and marginalisation of the governing body (SGB) with regard its
functions and that of its powers.
Section 16A
(4) a principal may not on behalf of the
governing body give evidence against the Minister ……..
– we raise a doubt on the constitutionality of this section.
Amendment of
Section 20 of the South African Schoo
Section 20
of SASA – Functions of all governing bodies
Insertion of
Section 20 (eA) –
We find the insertion of Section 20 (eA) to be
inappropriate in that, when read with the Memorandum to the Bill, it implies
that the school governing body would be a party to a decision made by a HOD
without being able to exercise its own right to consider the case without bias.
In a specific situation where a
principal or educator is found to be “incapable and unable to carryout their
duties effectively”.
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Substitution
in subsection (1) for paragraph (g) –
We find the substitution
of Section 20 (g) unfortunate as it
would impact on the functions and powers originally intended to be that of the
governing body. This would marginalize
the governing body even further.
Insertion of
20 (jA)
We agree with the insertion.
Amendment of
Section 43 of the South African Schoo
Audit and examination of financial records and
statements
We concur with this technical amendment.
Insertion of
Section 58B and 58C of the South African Schoo
Section 58B
Identification of underperforming public schoo
We believe that the action and procedure contemplated
in 58 (1)(2) (a) (b) is unilateral, undemocratic and unconstitutional. We refer to Section 33 of the Constitution.
Compliance
with norms and standards
Section 58C
– Implementation of Norms and Standards for basic infrastructure and capacity
in public schoo
We raise a concern that there has been no consultation
with stakeholders on the so called Norms and Standards for basic infrastructure
and capacity in public schoo
We find it difficult to comprehend the implications for
schoo
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Amendment of
Section 60 of the South African Schoo
Section 60 –
Liability of the State
Substitution
for subsection (1) of the following subsection 60 (1) (a) (b).
The contention is that as per Section 60 the State
would be liable for any damage or loss caused as a result of any act or
omission in connection with any “school activity”, regardless of whether the
“school activity” has been covered by way of insurance being taken out by the
governing body or not.
Purchase of
prescribed testing device
The financial
implications mentioned in the Memorandum for the purchase and
responsibility of cost of purchasing the prescribed
testing device or other non-invasive testing equipment is vague. We do not believe this to be in line with the
actual cost of such testing equipment which can only be used once. Does this mean that the Allocation of Funding for ordinary public schoo
Yours faithfully
Original signed – this is electronically transmitted
Matthew Scott-Wi
Chairperson