5
COMMENTS
ON THE
EDUCATION LAWS AMENDMENT BILL, 2007
1.
We,
JOHN FINBARR MULLINS S.C. and JITENDRA HARGOVAN, are members of the Governing
Body of a public school as defined in the South African Schools Act, 84 of 1996
(“SASA”).
We are authorised by the Governing
Body to make these submissions.
2.
In
what follows, we shall deal with the Amendment Bill on a section-by-section
basis.
3.
As
an introductory point, which serves as background to what follows, we speak
from personal experience in saying the following:
3.1
We
and the other members of the Governing Body on which we serve are committed
South Africans.
We regard
the function of a governing body as being to take all reasonable steps to
ensure a quality all-round education for all members of the community served by
the school, rich or poor. The elected
members of the governing body are reflective of the demographics of the school.
3.2
We
see governing bodies, schools and the relevant departments as partners in the
same enterprise: ensuring that the
quality of education offered to all
3.3
There
is a danger that this partnership can break down where overbearing power is
given to one party over the other.
3.4
We
have (and we say this with respect) observed that over the years amendments to
SASA have often had precisely the aforegoing effect: there has been a gradual erosion of the
independent powers of the school governing bodies, in whom (in terms of Section
16 of SASA) governance of the school vests.
This has
had the effect that members of governing bodies in many respects see themselves
as unable to determine the direction and thus the success or failure of their
school. The potential of school
governing bodies to improve education standards should not be under-estimated,
and we fear that this gradual erosion has the effect, and has had the effect,
of demotivating parents from serving on governing bodies. This should, we suggest, be avoided.
3.5
We
can fully understand that, the more power governing bodies have, the greater
the potential there is for abuse and for governing bodies to take actions which
are inconsistent with their obligations in terms of our Constitution. But (and this point cannot be sufficiently
stressed) we are all (members of the Executive and citizens alike) subject
to the Constitution with the result that adequate safeguards exist to curb
such abuses without the need for the baby to be as it were thrown out of the
bathwater.
3.6
The indisputably worthwhile cause of improving the standard of education
for all our children will not be advanced by heaping responsibility on
governing bodies whilst at the same time leaching away the power to exercise
that responsibility.
3.7
What
follows must be seen against the aforegoing background.
4.
We
have no comment on Sections 1 to 3.
5.
Sections
4 and 7 must be read together and appear to us to be sensible in terms of both
aim and content.
6.
Section
5 (as explained in the explanatory memorandum) appears to be reasonable.
Against the background of what we
said in paragraph 3 above, we draw your attention to the twin facts that:
6.1
Most
of the items listed in this proposed Section involve expenditure;
6.2
By
and large, at many schools this expenditure is being met, or largely met, by
the parents through their school fees.
Hence the partnership to which we referred above.
7.
Section
6 appears to be reasonable.
8.
As
far as Section 8 is concerned:
8.1
With
the exception of the proposed sub-Sections 16A(3) and 16A(4) (on which we
comment below), the explanatory memorandum fairly describes Section 16A.
8.2
There
is much in section 8 (the proposed new Section 16A) which is laudable.
8.3
For
example, we think that Principals will benefit from the specific provisions
outlining their powers and responsibilities.
8.4
The
proposed sub-Sections (3)(b) and (d) are in order.
8.5
We register grave and obvious objection to the proposed sub-Sections
(3)(a) and (c) and (4).
8.6
Before
dealing in detail with these three sub-sections, we outline the following:
8.6.1
These
are very far-reaching provisions which, we suggest below, are in fact
unconstitutional. The explanatory
memorandum, we must emphasise, does not even touch on the far-reaching nature
of these provisions.
8.6.2
As
we point out in 8.7 below, the proposed sub-Section 3(a) is either unnecessary,
or sinister.
8.6.3
If
sub-Section (3)(a) is merely aimed at ensuring the support of a Principal where
the instructions of the Head of Department are lawful and proper, it is
unnecessary: that is what a Principal is
supposed to do in terms of SASA, in keeping with his obligation to lead the
school with a view to improving the quality of education provided by the school
to the learners at the school.
If, on the
other hand, it is aimed at ensuring that the Principal supports the actions or
decisions of the Head of Department whether correct or not, then it
takes on a sinister aspect.
8.6.4
Our
submission is that a Principal should not be deprived of the right to
independently consider, and act on, issues that inevitably come up concerning a
school and to, if necessary and appropriate, differ from the Head of
Department.
In these
constitutional days, this should with respect be perfectly obvious.
8.6.5
We
therefore respectfully suggest that Section 16A(3)(a) appears calculated to
have the effect of further disempowering governing bodies. See the point made in paragraph 3 above.
8.6.6
We
make the point in paragraph 8.8 below that the proposed sub-Section (3)(c) is
plainly unconstitutional.
It is with
respect in itself of concern that a proposal of this nature which in simple and
naked terms purports to muzzle evidence, was ever proposed, let alone has
proceeded this far.
8.6.7
We
make the point in paragraph 8.9 below that the proposed Section 16A(4) is, we
suggest, equally plainly unconstitutional.
It is aimed at muzzling evidence.
It is not saved by the provision to the effect that such evidence is not
permitted “[u]nless a court of law directs otherwise”.
8.6.8
See
our detailed comments in what follows.
8.7
The
proposed Section 16A(3)(a) is of grave concern to us. In this regard:
8.7.1
Our
comments in paragraph 8.6 above apply.
If an
instruction from the Head of Department is in accordance with legislation or
policy, then of course it must be obeyed and there is no need for sub-Section
(3)(a). But what if it is not, or if
there is no legislation or policy and the Principal is convinced that the
instruction is contrary to the interests of the school and the children in the
school?
With
respect, there should be no need for sub-Section (3)(a), and the proposed
introduction thereof constitutes a potential further erosion of the powers of
school governing bodies in that they are potentially deprived of the support of
their Principal by the simple fiat of an instruction from the Head of
Department.
8.7.2
So
viewed, we respectfully suggest that the proposed sub-Section (3)(a) is in fact
unconstitutional in that on a proper construction thereof it either:
(a)
Is
entirely unnecessary. However, it is an
accepted canon of statutory interpretation that a provision is presumed not to
have been intended to be unnecessary, so that meaning must (if reasonably
possible) be given to it; or
(b)
Has
the intention of requiring a Principal to obey the instructions of his Head of
Department where they conflict with the views of the governing body, irrespective
the rights and wrongs of the matter.
This is unconstitutional. It
should not have been contemplated.
8.8
The
aforegoing reasoning applies with even more force to the proposed sub-Section
(3)(c).
8.8.1 Envisage a situation in which there is a dispute between a
school governing body and the Head of Department (which there very well might
be). The reported decisions demonstrate
incontrovertibly that the mere existence of such a dispute does not imply that
the Head of Department is necessarily correct.
The governing body might well be correct. Imagine, further, that the Principal is a
crucial witness for the governing body.
It might even conceivably be that without the Principal’s evidence the
governing body is unable to establish its case.
The proposed sub-Section (3)(c) would in such circumstances deprive the
governing body of the evidence of the Principal. It is, we respectfully submit,
unconstitutional in that it breaches the governing body’s rights in terms of
Section 34 of the Constitution, and the Principal’s rights in terms of Sections
16 and 18 thereof.
8.8.2
There
is quite simply no need for the proposed sub-Section (3)(c) unless it is to
be utilised in order to prevent a Principal from being of assistance to the
governing body in the event of a dispute between the governing body and the
Head of Department. The school
Principal is an employee of the Department.
As such he or she owes the duties of an employee. Sub-Section (3)(c) in its present form is
open to abuse (in fact, the point we respectfully make is that there is no need
for it unless it is to be abused!) and it should be removed.
8.8.3
What
is of particular concern to us is that we have made these points before. Yet this proposed sub-section is still on the
table. Surely the unconstitutional and,
with respect, improper, nature thereof is evident?
8.9
We must in the strongest terms condemn the proposed sub-Section (4).
We do so
for the reasons outlined in paragraphs 8.4 to 8.8 above. Sub-Section (4) is plainly
unconstitutional. We find it startling
(and we say so with the greatest respect) that the Minister could even
contemplate a situation in which a Principal is prevented from testifying as to
the truth of a matter. We add that it
must be of concern that the explanatory memorandum makes no mention of this
crucial provision. To simply say, as
the explanatory memorandum does, that the proposed new section “clearly spells
out the functions and responsibilities of the school Principal” does not nearly
describe the purpose, the purport, the impact and the effect of the proposed
sub-Section (4).
The
proposed sub-section is not saved from unconstitutionality by the provision to
the effect that a Principal may testify with the leave of a Court. This would require separate application, and
would in any event require the Principal to outline the proposed evidence in
order to obtain that leave.
Ordinary
employers, citizens of this land, do not have a right to prevent their
employees from testifying against them, or to prevent them from testifying
against them unless a Court allows them to do so. There is absolutely no reason why the Head of
Department should be treated any differently as an employer. We made the point in paragraph 8.8.1 in
connection with sub-Section (3)(c) and repeat it now in connection with
sub-Section (4): the proposed provision
is unconstitutional in that it breaches the governing body’s rights in terms of
Section 34 of the Constitution, and the Principal’s rights in terms of Sections
16 and 18 thereof.
The
proposed sub-section has no place whatsoever in this constitutional day and
age. It would not pass constitutional
muster. We respectfully suggested in our
comments during the public participation process that the Minister should, with
respect, immediately withdraw it.
However, the Minister chose to retain what we believe to be a draconian
clause.
8.10
What
is particularly disturbing is that we have made these submissions before. Our submissions along the aforegoing lines
will have been included in the “37 comments from various categories of
stakeholders” referred to in paragraph 3 of the explanatory memorandum. Yet these submissions appear to have fallen
on deaf ears. We are submitting our
comments to the National Assembly who, we trust, will take a different view.
The last
thing we want to do is to be confrontational.
The school we represent concentrates on one thing only, and that is
ensuring that all the children in our area, rich or poor, are given the
same education in conjunction with one another, and that it is an excellent
all round education. Both aims are
crucial, and both aims must be met for the good of our country and the children
of our country. We must surely be able
to do that in partnership with the authorities, not in conflict with them. The provisions in question assume, with
respect, that if there is conflict in this regard it is we who must be
wrong. That assumption is contrary to
the principles of constitutional democracy.
Not only should those provisions never see the light of day in legislation,
but we should with respect root out the very thinking that led to a national
department putting these provisions forward.
Let’s work on building the partnership, let’s work on making
8.11
We
are prepared to present our submission before the Honourable Members of
Parliament and the Portfolio Committee.
9.
We
agree with Section 9.
10.
We
agree with Section 10.
11.
Section
11 has been severely criticised in the press.
We are fortunate to serve a school
which is unlikely ever to be identified as under-performing. But we respectfully suggest that there is
merit to the criticism that we have read in the press to the effect that the
proposed new Section 58B imposes further responsibility on governing bodies
whose powers to influence performance at their schools have been gradually
eroded.
12.
Section
12 seems reasonable.
13.
We
have no comment on Sections 13 and further.
DATED at
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JF