THE GOVERNING BODY

FOUNDATION -

NATIONAL OFFICE

COMMENT TO THE PORTFOLIO COMMITTEE ON EDUCATION [NATIONAL ASSEMBLY]

EDUCATION LAWS AMENDMENT BILL [B33 – 2007]

1

INTRODUCTION

The Foundation submitted written comments on the Draft Education Laws Amendment Bill, 2007, earlier this year. The Foundation welcomes the opportunity of commenting further on the Bill as revised after the initial comment and wishes to record the following general observations before commenting on specific provisions:

1. The Foundation is committed to supporting the provision of quality public schooling and draws its membership from a wide variety of public schools that serve diverse communities.
2. The Foundation understands the State’s obligation to monitor and ensure quality outcomes for all learners and supports all reasonable legislative, policy and administrative steps required to achieve this.
3. The Foundation believes, however, that these steps must always be flexible enough to encourage school performance in excess of any minimum norms and standards and not retard initiatives by individual communities provided that these are constitutional and not unfairly discriminatory. This is essential if South Africa is to meet the demands for skills.
4. The alterations and corrections to the original Draft Bill have been noted. Some of these are viewed as improvements while others are not.
5. The absence of comment on specific sections does not necessarily imply agreement with the intention or content of those sections.
6. The comments provided should be read in conjunction with the application made by the Foundation to make oral presentation to the Portfolio Committee. During such oral presentation, some of these comments will be expanded upon.
7. Given the nature and purpose of the Foundation, the focus of the comments in this document is on matters that have a bearing on school governance.
8. The Foundation remains concerned that the legislative and policy trend over a number of years has steadily undermined the capacity of Public School Governing Bodies to meet the expectations of their school communities and their responsibilities to the State. This trend is given further impetus in this Bill.

COMMENT ON SPECIFIC SECTIONS

[Numbered as per Bill]

Sections 5 and 6 of Act 27 of 1996

The Foundation has clearly indicated that it cannot support the various amendments to these two sections for the following reasons:

• The amendments effectively remove any compulsion on the Minister to consult with a number of education stakeholder bodies. Certainly there will now be no compulsion to consult with national organisations representing public school governing bodies. The existing National Consultative Forum in which a number of governing body organizations participate has no statutory basis and is in many ways ineffectual.
• To argue that this shortcoming will now be compensated for in the National Education and Training Council is misleading. The current Regulations for the Establishment pf the NETC do not make provision for stakeholder groups from which membership must be drawn. In addition, the functions of the NETC are clearly advisory and not consultative. These two functions are not the same.
• The amendments seek to remove any compulsion on the Minister to establish and populate the NETC. The fact that such establishment is now to take place by regulation also does not guarantee its on-going existence as regulations can more easily be changed. The fact that various Ministers have failed over period of 11 years to establish what is at present a compulsory advisory body does not augur well for the NETC.
• The Foundation notes that only certain parties remain guaranteed representation on the NETC.

Section 1 of Act 84 of 1996

The Foundation notes that the proposed definitions have been significantly improved and that the not very useful definition of random has been removed. However, the Foundation remains concerned about the definition of school activity in that:

• There is still no indication of what makes an activity official
• The relationship between this definition and the concept of educational activity in section 60(1) of the Act
• There is no provision for a distinction between school activities involving learners and those involving only adults.

Section 5A of Act 84 of 1996

The Foundation notes the improvements made to the organisation of this proposed section and its more logical grouping of the various features of school infrastructure. The Foundation supports the need for a framework policy to ensure that as quickly as possible all public schools in South Africa are provided with a basic, essential infrastructure and the capacity to achieve the relevant outcomes. However, the Foundation cannot support this amendment without qualification on the following grounds:

· There is no indication of the form and substance of the minimum uniform norms and standard

· There is no clarity concerning the inclusion of the term uniform in this context. This term was not in the Draft Bill.

· The need to avoid any measures that would discourage parents and communities from adding to infrastructure and capacity of a particular school. These parties will not be encouraged to improve such infrastructure and capacity if this were merely then to be absorbed in these norms and standards. There are a number of provisions in the proposed 5A(1) and (2) (b) that would raise strong reservations in this regard.

· The linking of policies in terms of sections 5(5) and 6(2) of the Act to these norms and standards and the new provision to review all existing such policies within 12 months in terms of these norms and standards.

Section 8A of Act 84 of 1996

The Foundation notes the improvements made to the practical arrangements of this section and the improved provisions for reporting to parents. The Foundation also repeats its support for all reasonable, workable and lawful steps to reduce the impact of violence and drugs in schools.

While the Foundation also supports the expanded provision for the use of delegates in place of the Principal there is still no clarity concerning whether this delegate must be a members of the teaching staff of the school, other staff of the school, an approved outsider, etc. This clarity is important because of the additional burden being assumed by the school and because of the possible legal implications.

There is also a need for clarity concerning the inclusion of the new 8A (14) given the obligation to report a suspicion that a crime has been committed.

Section 16A of Act 84 of 1996

The Foundation endorses the attempt to define and clarify the professional management role of the school principal. This has long been a shortcoming of the Act. There is, however, a need to ensure that this clearer definition is not obtained at the expense of the functions of governing bodies. For instance, it is presumed that the inclusion of 16A (2) (vi) is limited to the implementation of policy and legislation with a bearing on professional management and not school governance.

There is also a need to ensure that the clearer role of the principal does not drive a wedge between the principal as principal and the principal as a member of the governing body. In this regard, some aspects of 16A (3) and (4) are very problematic and may prove to be both unconstitutional and unworkable. It is highly questionable why the Head of Department as an employer should be treated in any way differently from other employers in South Africa.

Sections 58B and 58C of Act 84 of 1996

The Foundation is pleased to note the change of the phrase written warning to written notice in 58B (2). It is also noted that the written notice is issued to the school and not to the governing body of the school. Given the provisions of section 16(1), it is presumed that the notice will still have to be dealt with by the governing body.

This implies that it is the governing body that will have to provide the plan for correcting the situation.

However, many of the issues relating to under performance do not fall under the governance competence of the governing body. Most are in fact professional management issues. This is, in fact, acknowledged in the range of possible responses by the Head of Department in that allowance is made for action against both the principal and the governing body.

The Foundation supports, in section 58C, the broad principle of holding education authorities more accountable for their responsibilities. However, there is a need to balance these against considerations such as community participation and contributions. The determination by the Head of Department in 58C (6) of the maximum and minimum capacity of the school seen against the background of facilities and staff provided for by the parents, governing body or the school community is an example of this.

MIKE KESSEL

GOVERNING BODY FOUNDATION

SEPTEMBER 2007