SOUTH AFRICAN HUMAN RIGHTS COMMISSION

Submission on the Education Laws Amendment Bill,

(B-33- 2007)

Portfolio Committee on Education

6^th September 2007

16

1. Introduction

The South African Human Rights Commission (‘Commission’) is concerned about the high levels of violence in schools. The Commission‘s Report of the Public Hearing on the Right to Basic Education highlights that the high levels of violent crime, experienced in our society, has spilled over into school classrooms and playgrounds[1]. During the public hearing it was brought to the Commissions’ attention that some schools are infiltrated with gangsterism, vandalism and drugs. After the release of the aforementioned Report and following a number of highly publicized incidents of violence in schools around the country, the Commission, in September 2006, held public hearings on school-based violence. These hearings attempted to understand the manifestation and impact of violence in schools[2]. School based violence is a matter of national concern and there is a need for clear measures to be put in place to ensure that learners are in a safe environment at school. The Commission welcomes the Education Laws Amendment Bill (the “Amendment Bill’) as a step towards ensuring that an environment is created at schools where learners and educators are safe.

In May 2007, the Commission commented on the Draft Bill. It is pleasing to note that some comments made therein have been accepted.

1.1. The South African Human Rights Commissions’ mandate

The Commission’s mandate is set out in Section 184 of the Constitution. Section 184 (1) states that:

“ The South African Human Rights Commission must-

a) Promote, respect of human rights and a culture of human rights;

b) Promote the protection, development and attainment of human rights; and

c) Monitor and assess the observance of human rights in the Republic.”

1.2. The Right to Education

Section 29(1) of the Constitution guarantees the right to basic education and adult education. In terms of this section:

“Everyone has the right-

a) to a basic education, including adult basic education; and

b) to further education, which the state through reasonable measures must make progressively available and accessible.”

The right to basic education is a central facilitative right, the realization whereof is key to the enjoyment of other rights. The fulfillment of this right is a precondition that creates conditions for the attainment of substantive equality and social justice. The right to education is negatively impacted upon and compromised where learners are exposed to a hostile and violent environment at school. In extreme cases, the fear or experience of violence may even result in a child being denied access to basic education due to his or his fear to attend school.

It must also be borne in mind that South Africa is a signatory to the Convention on the Rights of Child (CRC) and that this Convention reiterates many of the rights protected in South African Constitution. Thus at an international level, South Africa is obliged to ensure that legislation is in conformity with its international human rights law obligations. UN General Comment 2 on the CRC places a duty on national human rights institutions (such as the Commission) to engage with all legislation that seeks to advance the best interest of the child[3].

2. Proposed Amendments

The Amendment Bill seeks to amend a number of pieces of education legislation[4]. This submission will look at the amendments to the South African Schools Act (SASA) [5].

2.1. Random search and seizure and drug testing at school

The Amendment Bill seeks to address issues that the 2006 Regulations for Safety Measures at Public Schools did not adequately address. The purpose of these clauses in the Amendment Bill is to strengthen the regulations by allowing random search and seizure and drug testing at schools. The new proposed amendments seek to “stop the proliferation of dangerous objects and drugs at school and to provide clear guidelines about circumstances under which search and seizure and drug testing should be conducted. [6]

General Comment

a) There is a need to proceed with caution when limiting rights.

The presence of dangerous objects and drugs on school premises is not conducive towards creating an acceptable environment in which learning can occur. More poignantly, there is a need to ensure that dangerous objects and drugs are not on school premises in order to prevent serious acts of violence being perpetrated against learners and educators. The proposed amendments seek to provide principals with the necessary powers to intervene in narrow circumstances where there is reasonable suspicion that the learner is carrying a dangerous object or drug.

Search and seizure and random drug testing have been introduced in schools in a number of countries around the world. These provisions will inevitably lead to much debate and even legal challenge as they result in the limitation of children’s rights. Due to the high levels of crime in South Africa, search and seizure and drug testing practices need to be considered in certain instances. However, there is a need to reconcile the rights of both learners and educators when executing search and seizure and drug testing in schools.

The context however, of high levels of violence within our schools will influence the determination as to what a reasonable limitation of a learner’s right would be.

It is the obligation of the Department of Education to ensure that a learners’ right to basic education is delivered in an environment that is safe. This is not a right that is subject to progressive realization. In assessing whether the proposed amendments would be in line with our constitutional obligations it needs to be holistically considered whether there are in fact other steps that would be more effective and infringe rights to a lesser degree. The limitation of rights is not a matter to be taken lightly and requires careful consideration. It would also be preferable that the limitation of rights seeks to have a rehabilitative rather than a punitive effect and outcome on the learner.[7]

b) Preventative strategies need to be put in place

Preventative strategies are needed to address violence in schools and drug abuse. There is an urgent need for the Children’s Amendment Bill, the Child Justice Bill, the Sexual Offences Bill and the Prevention of and Treatment of Substance Abuse Bill to be finalized and implemented in order that there is a legislative framework in place that will address these issues. Although, strategies do not all fall within the mandate of the Department of Education, there is a need for the relevant government department to play their respective roles once these pieces of legislation are finalized.

2.1.1. The circumstances in which a body search or drug test may occur

Clause 7 of the Amendment Bill provides for the insertion of Section 8A (1) into SASA and reads as follows:

Random search and seizure and drug testing at schools
”8A (1) unless authorised by the principal for legitimate educational purposes, no person may bring a dangerous object or illegal drug onto school premises or have such object or drug in his or her possession on school premises or during any school activity”.

8A (2) “subject to subsection (3), the principal or his or her delegate may, at random, search any group of learners, or the property of a group of learners, for any dangerous object or illegal drug, if a fair and reasonable suspicion has been established-

a) that a dangerous object or an illegal drug may be found on school premises or during a school activity; or

b) that one or more learners on school premises or during a school activity are in possession of dangerous objects or illegal drugs.”

Comments

a) The Bill provides for narrow grounds in which search and seizure and drug testing may be conducted. Clause 7 Section 8A (2)

Section 8A (2) advocates for random search and seizure and drug testing on any group of learners or the property of a group of learners. The Commission notes that the Department of Education has taken its previous comments on board by removing the narrow grounds on which search and seizure was conducted. The current provision provides less discriminatory procedures and individual stigmatization and discrimination is lessened.

Thus, the current provision provides for general searching and drug testing to be conducted on an ad-hoc basis. In addition, the search will be done based on a reasonable suspicion that a group of learners are in possession of a dangerous object or illegal drugs.

The Commission is concerned about the borders that would be drawn for reasonableness and the guidelines that would be provided in this regard. The Commission is also aware that the reasonable person test would be used to measure reasonable suspicion.[8] However, it is questionable whether principals have the necessary skills to apply such a test.

b) The provisions could negatively impact on the culture of learning within a school environment

The Commission is of the view, that it would not be conducive to a learning environment to have educators carrying out police functions. Use of the provisions could damage the trust relationship between educators and learners. Youth at risk and in conflict with the law may be less inclined to approach an educator for support and guidance if there is the possibility that this could lead to the educator using his or her other search and drug testing powers.

b) The extent of the search is unclear

The proposed section 8A(3)(b) states that the body search “must be conducted in a manner that is reasonable and proportional to the suspected illegal activity”. This does not indicate whether the body search will include a ‘patting down’, strip-searching or internal cavity searches. The more invasive the search the more concerning the proposed amendments become. The Commission would find it difficult to support body searches that include physical contact between educators and learners as the potential for a violation of rights becomes too high. (See comments in 2.1.2(b) below)

c) It will be difficult to implement in schools where gangsterism is rife.

In those schools where gangsterism is rife it may place an educator’s safety at risk if he or she were to carry out search and seizures and drug testing. Gang members may threaten the educator. This could render these provisions futile in such schools. This is however a strong argument as to why it would be more suitable for the police to carry out searches. It would also be argued that an additional provision should be inserted to allow the principal to opt out from the search due to legitimate security reasons.

2.1.2. Identifying who may carry out body searches and the conditions under which a body search may be carried out

Section 8 A (4) “Where a search contemplated in subsection (2) entails a body search of the learners in question, such search may only—

(a) be conducted by—

(i) the principal, if he or she is of the same gender as the learner;

or

(ii) by the principal’s delegate, who must be of the same gender as

the learner;

(b) be done in a private area, and not in view of another learner; and

(c) be done if one witness, of the same gender as the learner, is present.”

Comments

a) Will educators be willing to take on this ‘police role’?

The Commission is concerned about the practical implementation of the above provisions. The implementation of this provision depends on the capacity of schools. Currently, many schools are overcrowded and there is a shortage of teachers. Educators will be expected to perform duties that are outside their employment contracts and core responsibilities. It is thus highly questionable whether teacher unions would respond positively to these proposed amendments.

b) More limited random searching would be preferable

The Commission of the view that random searching of learners possessions, requesting them to remove their outer clothing such as blazers and jerseys and turning out their pockets may be acceptable. However, any search that goes beyond this, ought to be carried out by police officials. The risk and probability of violating learners’ rights (to privacy, bodily integrity and dignity) are considerably increased in the proposed amendments. It is questionable whether the proposed amendments would survive a challenge and meet the requirements of the limitations clause as set out in section 36 of the Constitution[9].

c) The provision is potentially discriminatory

Section 9(1) of the Constitution guarantees the right to equality[10]. There is the possibility that the provisions could be implemented in a discriminatory fashion. For example, a learner may by way of dress and hairstyle appear to be part of a culture of violence and become a target for search and seizure.

2.1.3. The provision of a reporting Mechanism in clause 7 Section 8A (5)

Section 8A (5) provides that: “Any dangerous object or illegal drug that has been seized must be-

a) Clearly and correctly labeled with full particulars, including

i) the name of learner in whose possession it was found;

ii) the time and date of search and seizure;

iii) an incident reference number;

iv) the name of person who searched the learner;

v) the name of the witness; and

vi) any other details that may be necessary to identify the item and incident.”

The Commission welcomes the proposed Section 8A (5) as it tightens the process, ensuring that proper records are kept and reporting mechanisms are followed. This would in turn serve as a monitoring mechanism to ensure that dangerous objects are kept out of school premises.

2.1.4. Random Drug Testing

There is a clear need in South Africa to take decisive measures in combating the scourge of drugs that is destroying the potential and lives of many of our children. Whilst, we should not shy away from such decisive measures, it needs to be ensured that the measures are in compliance with the constitutional rights of learners and that they will contribute positively to the enjoyment of the right of access to basic education.

The proposed Clause 7, Section 8A (8) provides that the “principal or his or her delegate may at random administer a urine or other non-invasive test to a learner who is on fair and reasonable grounds suspected of using illegal drugs, after taking into account all relevant factors contemplated in subsection (3).”

Comments

a) The clause provides for targeted drug testing of children

Again, it must be noted that it is in narrow circumstances in which a urine test may be administered. The testing is not random in that the proposed section 8A (2) limits the circumstances in which a test may occur. The provision does not provide, for example, for suspicionless random testing of an entire school or grade at a school. Rather, it is clearly targeted at learners who have come to the attention of educators as being at risk and partaking in drugs.

b) It needs to be determined what the most effective intervention would be

The Commission is not aware of research that has been conducted in South Africa on models of combating drug usage amongst children. It is therefore difficult to assess the impact of the proposed clause on the fight against drug use in schools. This makes it difficult to support the violation of learners’ right to privacy, dignity, equality and security of the person, which would necessarily be violated in terms of these random drug-testing provisions. There is a need for empirical research to demonstrate whether random drug testing would act as a deterrent to children who are using drugs or whether there may be other unintended consequences that may flow from the knowledge that a random drug test may occur such as: leading to non-attendance at schools; impacting negatively on relationships with parents and caregivers; picking up non-problematic drug use, etc.[11]

c) More appropriate authorities should carry out drug tests

It would be preferable for the appropriate authorities such as the Department of Social Development, the Department of Health and/or the South African Police Services to be called in to address a situation where the provisions of the proposed section 8A(2) come to the attention of school authorities. A person specifically trained in administering such a test should administer a drug test.

It is not preferable that educators are expected to take on the role of policing the drug usage of learners. This may impact negatively on relationships and the culture of learning within the school environment.

d) More restrictive drug testing measures are needed

The Commission finds drug testing on reasonable grounds, targeted against learners in very specific and narrow circumstances, similar to those set out in Section 8A(2) more acceptable. However, the persons responsible for carrying out the test and the procedure needs to be carefully considered. For example, the principal should first attempt to have the local district nurse carry out the test. If this person is not available, only then can trained and specifically designated preferably administrative staff, carry out the test. Every time such a test is conducted a detailed report must be submitted within strict time periods to the Department of Education. This must be submitted within a strict time period to ensure that a monitoring and oversight role can be played. Also, there is a need to ensure that the outcome of the testing will have a positive result and will lead to rehabilitive steps being pursued rather than punitive disciplinary steps being taken against the learner.

2.1.5. The provision on Criminal proceedings clause 7 Section 8A (14).

The proposed clause provides that the school may not institute criminal proceedings against a learner.

Whilst, the Commission is of the view that a preventative and caring approach should be adopted particularly in circumstances where learners bring dangerous objects to school or use illegal drugs, the provision is superfluous, as schools do not have the power to institute criminal proceedings. Private and prosecutorial proceedings are rare and seldomly used. The state has the prosecutorial prerogative.

2.1.6. The Amendment Bill does not identify clearly who is responsible for bearing the costs associated with drug testing

The proposed Section 8(11) provides that the Minister will identify the device that may be used for the drug test. The proposed Section 8(13) provides that the schools’ Code of Conduct provide for support measures or structures for counseling a learner.

Comments

a) It is unclear who will be responsible for bearing the costs associated with drug testing

Neither of these clauses indicates who will bear the costs of purchasing the drug test and providing support measures or structures for counselling. Furthermore, the proposed amendments could potentially lead to large numbers of learners being tested. Should it be implied that the SGB is responsible for purchasing the drug tests and paying for support measures and structures for counseling learners, the Commission is concerned that this will have a disparate impact on schools in poor and rural areas where SGB’s are already, in many instances, failing to function adequately.

b) The Department of Education should rather facilitate drug testing

There is certainly a role for the Department of Education to play in combating the war against drugs. The Department could facilitate relationships with relevant government departments and in consultation with parents, caregivers and learners allow school premises to be used for purposes of random drug testing. This however, should be done, when sufficient and appropriate support services are put in place prior to the drug testing being conducted. Parents should sign consent forms for random drug testing. Where parents fail to sign such consent forms then the school cannot conduct a random drug test on the respective learner. Random testing that is not conducted with the purpose to punish but rather to prevent drug dependence through early identification of drug use in a confidential manner has been demonstrated to be effective.[12]

c) Learners may develop concealment techniques

Drug testing devices only test for specific drugs. It may lead to learners exploring other drugs that will not be picked up in the drug test as identified by the Minister. This has been demonstrated in counties that have conducted drug testing in school. It has also led to learners abusing alcohol as this substance passes through the bodies system more quickly. Also, learners have been found to switch to prescription based drugs that are not identified by the testing device.

2.1.7. The proposed amendment does not recognize child headed households and children who are cared for by caregivers other than their parents

Clause 7 proposes the insertion of section 8A (10) in SASA and provides that the principal must-

“(a) within one day, inform the parents that a random test or search and seizure was done in respect of their child; and

(b) inform the learner and his or her parents of the result immediately after it becomes available.”

Comment

a) The Amendment Bill fails to recognize the existence of child-headed households and children who are cared for by caregivers other than their parents. These categories of children are particularly vulnerable and it is thus necessary to state clearly what ought to be done when these children are body searched or tested positive for drug usage. For example, relevant authorities such as the local social worker could be contacted and requested to make an intervention.

b) The Commission welcomes Section 8A (10) (b) that now provides that learners and parents be informed of the test result be they positive or negative. Where the learner’s test negative this should be used as an opportunity to positively reinforce the learner.

3. School Governing Bodies clause 11 Section 58B

There was concern expressed against the issuing of warning notices to SGB’s that a school is underperforming. The Commission shares many of these concerns and notes the statement by the Minister of Education, Naledi Pandor that this provision is badly worded and hence has been misunderstood. The Commission notes the amendments to the Bill placed before Parliament.

4. Norms and standards for basic infrastructure and capacity in public schools

Clause 5 of the Amendment Bill seeks to introduce a section 5A into the South African Schools Act. The clause provides that “...the Minister may prescribe by regulation minimum norms and standards for-

(a) school infrastructure;

(b) capacity of a school in respect of the number of learners a school can admit:; and

(c) Provision of learning and teaching support material.”

The proposed clause goes further to set out, in more detail, the matters on which the Minister must make Regulations and that the SGB must comply with the norms and standards.

Comment

a) The SAHRC recommended in its Report of the Public Hearing on the Right to Basic Education as follows:

“m) It is recommended that government ensure as urgently as possible that a minimum level of infrastructure is provided to all schools throughout South Africa. Such a minimum level would include for example: buildings, access to water, electricity, basic electrical equipment, sufficient toilets for the number of children attending the school, fences and a library.

(n) The Department of Education should engage with the Department of Arts & Culture on the provision of adequately resourced libraries in communities, in order that outcomes based education can be more effectively taught.”[13]

The Commission welcomes Clause 5 of the Amendment Bill as it responds directly to the recommendation of the Commission. However, the Commission is concerned that the word “may” is being used instead of the word “must” in Section 5A (1). It would be preferred if the word “must” be used as was done in the draft.

5. Functions and responsibilities of Principal

Clause 8 of the Amendment Bill inserts a section 16A(4) that states:

“Unless a court of law directs otherwise, a principal may not on behalf of the governing body, give evidence against the Minister, Member of the Executive Council or Head of Department in any Court case where the Minister, Member of the Executive Council or Head of Department is cited as a party to the case.”

The Commission was concerned with this clause in the Draft Bill as it could potentially violate the rights of the principal contained in section 34 (access to courts) and section 35 (arrested, detained and accused persons) of the Constitution. It could also violate the rights of others who wish to have a dispute resolved “by the application of law decided in a fair and public hearing before a court” if the party is not entitled to call the principal as a witness. The Commission notes the amendment in the Bill before Parliament. However, the clause is still somewhat vague and unclear. Thus the Commission’s previous criticism of this clause remains.

South African Human Rights Commission

Contact Person: Judith Cohen, Head of Programme Parliamentary Liaison

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[1] SAHRC, “Report of the Public Hearings on the Right to Basic Education”, 12- 14 October 2005, 22

[2] Jody Kollapen (Chair person of the South African Human Rights Commission) ‘School Violence’ accessed at www.sahrc.org.za/sahrc_Cms October 2006 This report will be released in the second half of 2007

[3] General Comment No. 2 (2002), The Role of independent and national human rights institutions in the promotion and protection of the rights of the child”, Committee on the Rights of the Child, CRC/GC/2002/2.

[4] National Education Policy Act 27/1996 (NEPA); South African Schools Act 84/1996 (SASA); National Student Financial Aid Scheme Act 59/1996 (NSFASA); South African Council for Educators Act 31/2000

[5] Act 84 of 1996

[6] Memorandum to the Objects of the Bill (B 33-2007)

[7] Section 36 (1) of the Constitution Act 108 of 1998 provides that:

36 (1)“ The rights in the Bill of Rights may be limited only in terms of law of general application to the extent that the limitation is reasonable and justifiable in an open and democracric society based on human dignity, equality and freedom, taking into account all relevant factors, including-

a) the nature of the right;

b) the importance of the purpose3 of the limitation;

c) the nature and extent of the limitation;

d) the relation between the limitation and its purpose; and

e) less restrictive means to achieve the purpose.

2) Except as provided in subsection (1) or in other provision of the Constitution, no law may limit any right entrenched in the Bills of Rights.

[8] Education Portfolio Committee: Briefing by the Department of Education on the Education Laws Amendment Bill (B 33-2007) 21 August 2007accessed on www.pmg.org.za.

[9] Section 36 (1) provides that: The rights in the Bill of Rights may be limited only in terms of law of general application to the extent that the limitation is reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom taking into account all relevant factors including;

a) the nature of the right

b) the importance of the purpose of the limitation

c) the nature and extent of the limitation

d) the relation between the limitation and its purpose and

e) less restrictive means to achieve the purpose

[10] Section 9 (1) of the Constitution provides that: ‘Everyone is equal before the law and has the right to equal protection and benefit of the law.’

[11] A recent overview of drug testing and its impact and consequences was prepared in response to the UK implementing random drug testing provisions. See McKeganey, N, “Random drug testing of schoolchildren A shot in the arm or a shot in the foot for drug prevention?”, Joseph Rowntree Foundation (2005)

[12] Ibid, 3

[13] Op cit note 1, p46 par 4.3.5.