NAPTOSA
4
EDUCATION LAWS
AMENDMENT BILL 2007 (6 SEPTEMBER)
Submitted to Ms Phumza Mpoyiya
PORTFOLIO COMMITTEE ON EDUCATION
INTRODUCTION
NAPTOSA has previously submitted comments on
the Education Laws Amendment Bill 2007.
The changes that have been effected as a result of the public
consultation process are significant.
In the majority of cases, the changes to the amendments bring about
greater clarity. However, some of the
concerns described in our original submission, remain concerns. Also, there are also some new amendments on
which NAPTOSA has not yet had the opportunity to comment.
NAPTOSA offers comment on both the changes and
the new amendments as well as those aspects of the Bill that have not been addressed
in the September version. The numbers
and headings used in the Bill are those that are used in this submission.
·
NATIONAL EDUCATION POLICY ACT (NO 27 OF 1996) NEPA
1. Amendment of Section 5
NAPTOSA’s concerns, mentioned in our previous
submission, in respect of Section 5, (in the context of amendments of Section
11), remain concerns.
Paragraph 2.2 (Substantive Amendments),
regarding the Minister’s consultative function (on p13 of the Memorandum on the
Objects of the Education Laws Amendment Bill 2007) states: (with regard to the
Minister’s consultative function):
“The Bill seeks to
amend section 5 of the NEPA so as to avoid a measure of overlapping with
section 11 of the NEPA. The effect of
the amendment would be that paragraphs (a) to (f) would be deleted. Those paragraphs refer to bodies that have to
be consulted when policy is determined.
Trade unions and representatives from the national governing body
association engage with the Minister in other forums, such as the Education
Labour Relations Council and the Forum for National Governing Body
Associations. Trade unions also meet the
Minister on request to discuss policy on labour issues. In addition, the Department always provides
the unions and the national governing associations with policy and legislation
for comment before those documents and finalised”.
This statement does not
offer any reassurance that the Minister must or will, indeed,
consult with all interested affected parties.
Any consultation would then take place in mostly (?) informal
situations. The Department does not
always provide unions with policy and legislation for comment. Slippages occur. NAPTOSA is of the view that, given the
importance of the unions in the education sector, that consultations must take
place in formal setting within a formal structure such as the NETC.
Also, (referring to the
quoted paragraph) Sections 5 and 11 do not “overlap” in the sense that they are
saying the same thing. They are
complementary paragraphs that, together, ensure that unions (and other
stakeholders) are represented in a consultative structure. The amendments remove this requirement and
leaves consultation with unions on an informal basis, especially with regard to
non-labour matters.
Also, the quoted paragraph above refers to the
deletion of paragraph (a) to (f) but the September version of the ELAB 2007
does not make any reference to the deletion of (a) to (f) under 5(1). Does this mean that paragraphs (a) to (f)
(and especially (c)) will not be deleted? NAPTOSA believes that paragraphs (a) to (f)
are crucial for ensuring that the unions, and other stakeholders, will
be formally consulted. If not,
NAPTOSA’ original comment remains applicable.
NAPTOSA is of the view that the amendments proposed for sections 5 and
11 would limit the involvement of the unions.
On page 26/27 of the May version of the ELAB, (2007) which deals with
the main features of the Bill, the statement is made that “there is no need for
the Minister to consult with the unions as a separate body” if the
unions are represented in the NETC established in terms of section 11. However, amendments to section 11
state that the Minister “may” establish a body known as the National
Education and Training Council (NETC) or “other bodies” (which are not
specified in the amendments). The composition
of the NETC is not specified in the Bill and the reference to the
composition, specified in the present Section 5 (I)(c), (not 5(i)(c)) has been
removed. There would therefore be no
reference to the organised teaching profession in the Act. The combined effect of the two
amendments to NEPA would remove all legislative imperatives for the
Minister to consult with the organised teaching profession. Consultation would only be possible if,
in the regulations (to be developed of in terms of 11 (2)), provision is
made to accommodate the teacher unions in the NETC. This, or any future Minister, may
elect not to include teacher unions and there would be no “protection”
for the unions in the law. This may have
the consequence that valuable consultation does not take place. Policy must be contemplated in
consultation with the unions and these amendments remove this requirement. NAPTOSA cannot support this amendment if
union representation is dependent on Regulations, which have yet to be
developed, when the Act only states that “members shall be prescribed by
regulation”. This is no guarantee.
These amendments, collectively, are clearly intended to remove any legal
requirements for the Minister to consult with any of the interested and
affected constituencies such as colleges rectors/principals, teacher unions,
parent organisations, student organisations or any other national
stakeholders. The fact that these
amendments are being suggested in the first place is indicative of the
intentions of the Minister to limit consultation and to possibly exclude
important constituencies such as the teacher unions. In terms of the amendments, the Minister
would be in a position to consult with the “Council” only i.e. the MECs
(as defined at 1(iii) in the definitions).
The bottom line is that IF the Minister intends to consult with
constituencies, such as the teacher unions, then the amendments are not
necessary. The fact that the legal
requirement to consult with teacher unions would be removed is signalling what
is, in NAPTOSA’s view, an ominous intention.
NAPTOSA finds this completely unacceptable.
NAPTOSA believes strongly that there is,
indeed, a “need for the Minister to consult with the unions” in a formal
setting and structure.
2. The
amendment to Section 6 of NEPA is completely new and was not included in
the May version.
If the unions are not specifically included in
Section 5, then the establishment of the NETC (under section 11) will exclude
unions and, in terms of section 6, unions would not be consulted on
legislation.
NAPTOSA find this completely unacceptable, for
the same reasons as the amendments to section 5 are unacceptable.
3. Section 11: For all of the reasons cited above (and cited
in our previous submission) the amendments to section 11 are not acceptable.
IT REMAINS UNCLEAR JUST WHY
THESE AMENDMENTS ARE BEING CONSIDERED AND WHAT THE INTENTIONS ARE, OTHER THAN
TO EXCLUDE THE UNIONS. NAPTOSA is
struggling to understand what the possible reasons/advantages are for the
proposed amendments and would be grateful for an explanation in this regard.
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·
SOUTH AFRICAN SCHOOLS ACT (no 84 of 1996) as amended
4. Amendments to Section 1 of the SASA serve to clarify the
definitions and are supported.
5. Amendments to Section 5A of the SASA provide more detail
and greater clarity and are therefore supported. The amendment also provides for greater
accountability.
Whilst NAPTOSA accepts that the Minister should prescribe, by
regulation, what the minimum national norms and standards should be in order to
establish some kind of comparability across schools, there may be problems in
three respects:
·
Different provinces may
interpret or implement the norms differently.
There will have to be monitoring and reporting mechanisms … and
provision will have to be made to intervene where provinces/schools are not
compliant. The critical role of the
district offices needs to be clarified in this regard.
·
It is not only the
provision of adequate resources that is the issue, but also the “quality” of
these resources.
·
It is not clear how
principals, governing bodies and schools should deal with instances where
schools may be over-enrolled in terms of these norms and where learners in a
geographical area may have no other options.
NAPTOSA also strongly suggests that it would be important to consult a
range of principals, SGBs and SMTs in order to determine what the norms should
ideally be and what norms are practicable in the context of the
circumstances that prevail in schools.
Capacity of a school must relate to prescribed teacher: learner ratios, and classroom sizes, and curricular
as well as extra curricular offerings.
Monitoring for compliance and steps to be taken for those schools that
are not compliant – including schools that are oversubscribed as a result of
accommodating learners in the area – must be spelled out. Class sizes (i.e. the physical space) will be
different for different subjects e.g. music rooms need more space. Also, there needs to be sufficient space to
move along corridors etc.
Provision should be made for governing bodies to deviate from the norms
for, for example, the number of classrooms in instances where learners do not
have other practicable options. It is
assumed that such a situation would be temporary and would be corrected in
instances where schools are forced to accept more learners than the norms and
standards make provision for. District
offices need to be involved in monitoring the situation and, if necessary,
following a process to enable providing the necessary resources. NAPTOSA
has observed that the tension is greater between district offices and SGBs when
schools are compelled to admit more learners than the school could reasonably
cope with.
However, schools need a measure to determine
conclusively that the school is full and cannot accommodate more learners. Even though there could be space, a teacher
cannot teach effectively, or cope, with a class of 50 learners. The space allocated by some provincial
departments (per learner) does not take curriculum demands into account e.g.
for the Sciences and Technical subjects.
Health and Safety measures must be factored into both the physical
classroom space and the number of learners that can safely be taught a
particular subject by a single teacher.
The way in which the amendment is stated, is that it is the governing
bodies that “must comply” and that they will have little freedom to make
sensible decisions which may not be compliant.
Principals and District offices must be involved in all such decisions
so that the reasons for non-compliance can be understood and remedied in the
short term.
6. Amendments to Section 8 of the SASA are new and NAPTOSA is
commenting on the changes for the first time.
The addition of 5(b) is supported.
However it is not clear whether teachers (specifically) are also
sufficiently protected. Given the recent
incidents affecting teachers, NAPTOSA believes that it may be prudent to also
include references to teachers.
7. Insertion of Section 8A
NAPTOSA is of the view that the changed
amendments are more comprehensive and that the process is made clearer.
Suggestion: 8A (3)(a)(iii) may be more
appropriate as 8A(2)(c) as all of 2(a),(b) and (c) would then apply to the
circumstances which give rise to a random search
8. Insertion of Section 16A: This whole section is “new” but
covers the same points as previously included in the proposed Section 21A. 16A is, in essence, little changed from
Section 21A in the May version. (This is
simply and observation).
Broadly, this section serves to bring into law
that which is already stated in policy in the PAM of 1999. The clarification of the roles of the
principal is supported and gives this the same status as the roles of SGBs. It also serves to make principals more
accountable.
Note: Omission. The South African Schools Act remains silent
on the functions of District offices … and their
responsibilities. In terms of the SASA,
there is nowhere that District offices/officials are held accountable for
leadership, for managing the district or for ensuring compliance in terms of
Section 5A of the Bill. Nor are they,
anywhere, held accountable for providing support for schools and teachers,
especially in respect of the schools’ and district improvement plans and the
IQMS. NAPTOSA believes that this is a
serious omission in the South African Schools Act.
Whilst there have been changes to 16(A)(4)(ex
21(A)(4) in the May version) this is a severe limitation and this should not be
dependent on a court of law directing that a principal may/should give evidence
against the Minister, Member of the Executive Council or the Head of
Department.
Apart from the fact that principals could be placed in an invidious
position, NAPTOSA believes that there is a fundamental flaw if any law prevents
anyone from giving evidence in any case where such evidence is required,
irrespective of a directive from a court of law. It is, and should be, an issue of conscience. In any other organisation or business, an
employee giving evidence against an employer would not be an issue and would,
surely, be considered normal practice if evidence was required. Why the limitation in this instance?
9. Amendment to Section 20
·
20(eA)
Clearly, principals and educators are employed by the State. Incapacity of employees is, clearly, an issue
of management, not governance.
In terms of legislative provisions, incapacity of either the principal
or educators must be dealt with by the Head of Department through either
District officials or through the principal and District officials
(respectively).
If District officials and principals were managing schools/principals
and educators (respectively) effectively, then the need for governing body
involvement in management would not even be raised as a possibility. Management is management and governance is
governance. Governing bodies should be
focusing on governance e.g. issues of policy and strategic planning for the school.
This clause is highly problematical and is likely to cause more problems
than it solves.
NAPTOSA recommends that this section be
removed.
· 20(1)(g) NAPTOSA is also not convinced that
any SGB will be in a position to “administer” and “control” the
school’s property, buildings etc.
Surely, these are management functions not “governance”
functions. Administration and control
are clearly about managing State property.
A governance structure, made up of elected volunteers, will not be in a
position to become involved with management.
This clause needs to be deleted or amended to clarify the difference
between management and governance and the relationship between the two and to
limit the SGB’s function to governance issues in respect of State property.
10. Amendment to Section 43
Who will bear the costs of such and
audit? Schools unable to afford this
will be non-compliant with the law. This
clause should be deleted or amended to make provision for exemption in terms of
affordability.
Whilst it is not unreasonable to expect
schools to keep proper financial records, it is not prudent to write into law a
requirement that many schools may not be able to be compliant with because of
financial constraints.
11. Insertion if Sections 58B and 58C
·
58B The processes and procedures described in the changes
to the amendments bring far greater clarity and seem to be indicative of a more
developmental approach as reflected in 58B(3)(a) and (b) and, especially, in
(4) and (6). The more developmental
approach is strongly supported by NAPTOSA.
However, NAPTOSA recommends that there should be a much more
consultation with principals in order to arrive at procedures that will help
schools to function more effectively.
NAPTOSA also believes that
a thorough investigation needs to be carried out first to determine the
causes of underperformance or the degree of dysfunctionality as the causes may,
in some instances, lie outside of the school – e.g. lack of support from
District offices.
Public naming of under-performing
schools should be avoided as this would inevitably damage any restorative
measures in progress. Likely
consequences may be the withdrawal, from named schools, those learners who are
concerned about their progress (normally the most capable learners) or the
refusal by parents to enrol learners at the school, resulting in a decrease in
numbers, a decrease in staffing and an outflow of the best teachers. There would also be huge enrolment pressures
and consequent problems for surrounding, better-performing schools. We believe that the implementation of a
policy of “name and shame” would have exactly the opposite effect to the
outcome intended. The actual specific
causes of under-performance must be established before any corrective action
can be contemplated in order to ensure that the measures taken are
appropriate. Public naming would be
punitive and must be avoided. Whilst it
is acknowledged that references to a “punitive” approach have largely been
removed (in favour of a more developmental approach in the September version),
NAPTOSA recommends that it would be useful to prohibit “naming and shaming”
because of the serious consequences of such an action.
· 58C In this context,
the change to “compliance with” is more appropriate than “implementation of”.
NAPTOSA supports the addition of 58C(2)(before (3) – which deals with the
need for reporting.
NAPTOSA also believes that the addition of (4)(a) and (b) is an
improvement to the original proposed amendment and will ensure that
contestations are dealt with in the correct context and in terms of prescribed
procedures.
Section 5(a) to (e) and (6)(a) and (b) are also improvements to the
original proposed amendments.
Note: Would it not be more logical to insert the proposed amendments at 58B
and 58C before section 58 on “Expropriation”?
12. Amendment to Section 60
This amendment was not
included in the first version of the ELAB 2007.
The change from “any educational activity” to “any school activity” is
supported as this would then include a wider range of activities
organised/endorsed by the school. Also,
the inclusion of (b) also makes the intention of the Act, and the
responsibility of the school in this context, more explicit.
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·
NATIONAL
STUDENT FINANCIAL AID SCHEME ACT (NO 56 OF 1999) (NSFASA)
13. Amendment to Section 1
The additional definitions
are acceptable as well as the changes affecting the legal naming of public FET
colleges.
Comment
It is not clear why students at FET Colleges will be the only
beneficiaries … and not students at general (academic) schools, given the
similarities between the NCV and NSC programmes. It is also not clear whether the bursaries
would be available only to students embarking on the 11 departmentally approved
programmes or whether students in other programmes would also qualify. Section 1(e) appears to make this possible. Provided this interpretation is correct, then
NAPTOSA would be prepared to support the amendment.
14. Substitution: Section 2
Accepted.
15. Amendment of Section 5
NAPTOSA is concerned about the omission of any mention of the organised teaching
profession in terms of the composition of the board. “Organised labour” is a far bigger
constituency and many not necessarily include the teaching profession.
Correction: (b)(vi) should read
“further education and training colleges” (or “public colleges”?) “and
higher education principals”. The
sentence does not appear to be correct.
16. Amendments to Section 20
Accepted
17. Amendments to Section 25
Accepted
18. Substitution of long title
Accepted
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·
SOUTH AFRICAN
COUNCIL FOR EDUCATORS ACT (2000) (SACE)
19 Deletion Section 1
Accepted.
20 Amendment to Section 3
Accepted
21. Amendment to Section 6
Accepted
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·
ADULT BASIC
EDUCATION AND TRAINING ACT (NO 52 OF 2000)
22. Amendment to Section 1
Accepted
23. Amendment to Section 8
Accepted.
24. Amendment to Section 24
Accepted in principle. However, the appointment of an auditor
involves costs and it is not clear from the amendment who (the ABET centre?,
the governing body of the ABET centre? or the Department of Education?) will be
responsible for meeting these costs.
There could be consequences in terms of non-compliance with this
Act (and APA?) if a governing body cannot afford to meet these costs.
Also, do members of the
governing body have a personal fiduciary responsibility if costs are incurred
and the ABET centre is unable to meet the costs?
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·
GENERAL AND
FURTHER EDUCATION AND TRAINING QUALITY ASSURANCE ACT (NO 58 OF 2001) (GENFETQA
ACT)
25. Amendment to
Section 1
Accepted.
26 Amendment to
Section 15
Accepted.
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