SAOU
EDUCATION LAWS AMENDMENT BILL, B 33 - 2007
[ As
introduced in the National Assembly ]
COMMENT
14
1. INTRODUCTION
1.1 General
The SAOU
wishes to respond to the invitation to furnish comment on the Education Laws Amendment
Bill, B 33 - 2007 (ELAB 2007) as introduced in the National Assembly.
The SAOU
welcomes the opportunity to make comment, and does so in accordance with its
policy of constructive engagement with the education authorities on
professional matters.
1.2 Consistency with the provisions of the
Constitution of the
All
legislation must be consistent with the provisions of the Constitution. In this regard the SAOU wishes to refer, by
way of example, to the provisions of clause 16A(4) which prohibits a School Principal
from giving evidence on behalf of a Governing Body against the Minister, Member
of the Executive Council or Head of Department under circumstances which are
further described in the clause in question.
If this
provision is considered in terms of the Constitutional provisions with regard
to (a) equality of all persons before the law, and (b) the right to freedom of
speech, the SAOU is of the opinion that both these principles are violated in
clause 16A(4): the first in that the Minister, Member of the Executive Council
or Head of Department are accorded precedence over the School Principal before
the law; and the second in that the School Principal’s freedom of speech to
give evidence in defence of a matter is seriously curtailed. If it is borne in mind that in the
operational and line function environments of the education system the
Minister, Member of the Executive Council or Head of Department take precedence
over the School Principal, this provision places the School Principal at a
double disadvantage. It should therefore
on these grounds alone be eliminated from the Bill.
Quite apart
from the provisions of the Constitution, however, questions as to the extent to
which the right of a party or parties to subpoena a witness in any matter of
litigation is impacted by this provision, need to be examined and
satisfactorily answered.
2. SPECIFIC COMMENT
Amendment of section 5 of Act 27 of 1996
The SAOU
wishes to preface its comment on the amendments proposed to Act 27 by referring
to the potential evils which arise from (i) creating a situation which does not
compel a Minister of Education to operate within a specific legislative
framework, and (ii) creating a situation in which policy declaration by
regulation becomes possible.
In the view
of the SAOU the amendments proposed to Act 27 come perilously close to such a
situation, as will emerge from the more specific comment on the two sections to
be amended.
The
amendment to section 5 proposes the deletion of paragraphs (a) to (f). These paragraphs list specifically the bodies
the Minister is required to consult, one of which is the Council. If the amendment is implemented, the only
body will be the Council. The SAOU
opposes the proposed amendment.
Amendment of section 11 of Act 27 of 1996
The capacity
assigned to the Minister to bring into being by regulation not only an NETC but
other bodies for purposes of consultation cannot be endorsed. The assurance given in the Memorandum that
trade unions will be represented in the NETC could be interpreted as
mischievous, given that the proposed amendment to section 5 eliminates all
reference to trade unions, and that the proposed amendment to section 11 permits
the Minister to designate any party or parties of choice. The reality is that there is no compulsion on
the Minister to consider any union for appointment. Furthermore, there is no imperative that such
a Council must be established at all. It
is presumed that the drafters of the legislation understand the difference
between the imperative shall and the permissive may. Crudely put, where the current provisions
require the Minister to establish a Council and consult it, the proposed
provisions enable the Minister to set up and consult such a body if he or she
feels like it. In a country such as
Amendment of section 1 of Act 84 of 1996 as amended by section 1 of Act
100 of 1997, section 6 of Act 48 of 1999, section 1 of Act 50 of 2002 and
section 1 of Act 24 of 2005
Proposed definition of “illegal drug” Can this be taken to mean that
lawful intoxicating or stupefying substances would be permissible?
Proposed definition of “school activity Does this mean any activity or only an activity
which involves learners?
Insertion of section 5A in Act 84 of 1996
Proposed 5A(1)(b) The
proposal should specify that capacity must be determined in accordance with the
agreed-upon educator-learner ratios as determined by negotiation in the ELRC
and embodied in the Personnel Administration Measures.
Proposed 5A(2)(a)(b)(c) The vagueness of the provisions gives cause for
concern. For example, how is it
contemplated that the quality of performance of a school would have an affect
on, or be affected by, size? Does
superior performance imply that more pupils could be admitted, for example?
Amendment of section 8 of Act 84 of 1996
The
requirement to counsel after discipline adds an unnecessary burden on the
school – how to pay for comprehensive counselling would be among the concerns.
If the
Department insists on an elaborate program it should be made the responsibility
of the respective support services of the Department.
Insertion of section 8A in Act 84 of 1996
The SAOU
welcomes the provision for search seizure , and testing procedures. As always, however, the question arises as to
the degree to which these provisions are practical.
Various
questions arise.
(i) Body searching is a
specialised activity. Is it contemplated
that all principals or their delegates would be trained in how to conduct such
searches in order to avoid offending the dignity of the persons involved?
(ii) Certain religions have
profound objections to body searches in general, and in particular if such
searches are carried out by persons of another faith grouping. How will this be dealt with?
(iii) Many schools are
situated at very great distances from the nearest police post or station. How is it proposed that dangerous objects be
preserved until they can be handed over?
At whose expense should the storage and transport of the object/s take
place if the police cannot collect same?
(iv) Urine testing is a
specialised activity. Will persons be
trained in how to deal with issues of this kind?
vi) Why should parents be
informed if a random test or search was conducted and no evidence of unlawful
possession or of prohibited substances was found?
(vii) What is to be done if a
learner refuses to co-operate in a random search and seize or urine test
procedure?
(viii) Has consideration been
given to the potential cost implications of these provisions, and to the agency
which would have to bear these costs?
Many schools have no spaces of the kind which would be necessary for
body searching or urine tests. Who pays
for the testing device in the case of urine tests? What provision is made for expert evidence
should there be appeals against the outcomes of such tests? What provision is to be made for the storage
capacity which could be required? Has
there been consideration of the possible personnel implications and of the time
implications of the procedures concerned?
The SAOU
wishes to reiterate its support for the principle espoused in the proposed
amendment. The practical implications
need to be fully considered, however, if the provisions are to be successful.
Insertion of section 16 A in Act 84 of 1996
The
functions and duties of Principals are fully described in the relevant
provisions of the Personnel Administration Measures (PAM). It is noted that the Memorandum expresses the
opinion that greater clarity on this matter is required. It is not convincingly suggested why this
should be thought to be the case.
Proposed 16A(1)(a) This
provision is inconsistent with other provisions in the legislation which make
it clear that the Governing Body operates in the interests of the school. Although various constituencies are utilised
to comprise the Governing Body, once they are there the primary loyalty of
those persons is not to their constituency, but to the well-being and
advancement of the school. The SAOU
cannot accept the notion that the Principal is there to represent only the
interest of the Head of Department – a school has a far wider scope than that
envisaged by the provincial authority.
The SAOU is opposed to this provision.
Proposed 16A(1)(b) In
the first instance, this provision ignores the situation of ELSEN schools. There are many pupils who are incapable of
benefiting from academic improvement plans as a result of the unfortunate
physical and mental conditions which necessitate their attending such
schools. At the very least some
provision should be made for such schools.
Proposed 16A(c) Why,
when the Act makes clear that the academic and professional management of the
school are under the direct control of the Principal, is it thought necessary
to involve the Governing Body in the academic improvement plan? Governing Bodies do not have a legal
responsibility in this regard. It is not
beyond contemplation that there will be governing bodies which lack the
capacity to become involved in such improvement plans in any case. The SAOU is of the opinion that it is the
primary responsibility and a fixed duty of the education department to furnish
guidance on school management and the improvement of the academic performance
of the school to the principal: this is not, and should never become, a
responsibility of the governors of the school.
If it be borne in mind that the Principal is in any event a member of
that body, how is it envisaged that the conflict of role this necessarily
brings for the Principal, be dealt with?
The SAOU cannot agree with the proposed amendment in its present form.
Proposed 16A(3) The
SAOU wishes to make the general comment that there are, unfortunately,
occasions when directives from the Head of Education in a province, or those
delegated by him/her, are not consistent with legislation or policy, and that
to act in accordance with what are in effect unlawful directives is tantamount
to making the School Principal an accessory to unlawful actions. The provisions of this section are in the
view of the SAOU (a) unacceptably restrictive of the right of the School
Principal to insist that actions required of him/her are lawful; and (b) that
the legal roles of all the players in the school environment be properly and
adequately recognised. The SAOU cannot
support this provision in its present form.
Proposed 16A(4) The
SAOU has already expressed its view that these provisions are not in accordance
with the Constitution of the country. In
addition, they are unfair (pages 1-2 of this submission). As the line heads of the School Principal,
the Minister, the MEC and the Head of Department may make demands on the
Principal to testify on their behalf, but he/she is precluded from bringing
evidence which would under certain circumstances compel the Minister, the MEC
or the Head of Department to act lawfully.
The SAOU is opposed to this provision.
Amendment of section 43 of Act 84 of 1996
The SAOU
endorses the proposal.
Insertion of sections 58B and 58C in Act 84 of 1996
A general
observation is that the logistical demands implied by the provisions of 58B are
potentially enormous – if, for example, 10% of the country’s public schools
were for whatever reason to be identified as under-performing, some 2 800
reports would have to be read at the level of the Provincial Education
Department and thereafter at the level of the National Minister of
Education. Thereafter a process of
naming and shaming seems to be what is contemplated. At no stage is provision made in the proposal
for the usual forms of interaction between educational institution and the
educational authority in the district of province concerned.
Proposed 58B(1) On
what basis will it be determined to what extent the reports submitted are, in
fact accurate?
Proposed 58B(2) The
proposed section 16 has been at pains to indicate that the School Principal is
responsible for the professional and academic management of the school. It is not clear why 58B(2)(a) is given as the
first avenue of recourse.
Proposed 58B(3)(4) There
is no provision in this process for application of the principle of audi alteram partem, or for the school
to lodge an appeal with the Head of Department, prior to the initiation of a
political process. This is in principle
unacceptable.
Proposed 58B(5) What
happens if the Minister rejects the notice as contemplated? Must the Head of Department withdraw it? If so, within what timescale? Why is there no provision for recourse by a
school under circumstances of this kind?
Proposed 58B(6) A
process of naming and shaming seems to be contemplated by the proposal. To what end?
Why is it necessary for the names to be published at the national level,
assuming that any useful purpose would be served thereby? Surely this is a provincial matter which
should be dealt with at the provincial level?
In summary: The
SAOU believes that it is correct to put into place a mechanism in terms of
which under-performing schools can be identified. The SAOU does not believe that the proposals
made in 58B will make a positive contribution in this regard. It is further believed that some of the processes
proposed are inherently unfair, and that all of them are in the first instance
based on information for the verification
of which no provision is made, and that the capacity of the system is in
the second instance totally inadequate to deal with the potential
administrative and logistical consequences which would arise from the
implementation of the proposals.
The SAOU is
therefore of the view that this proposal should be re-worked in its entirety.
With regard
to the proposed section 58C, it is noted that the Memorandum on the objects of
the Amendment Bill excludes all reference to the intentions of the
proposal. This is unfortunate, as some
assistance is needed with understanding what the intention of these proposals
is. 58C(1) is mandatory and prescriptive
– the MEC must … 58C(2) then
makes provision for (a) a report on the extent to which the mandate has been
carried, and (b) for an account of the measures to be taken in order to ensure
their implementation (presumably at some point in the future). 58C(3), however, states that the Head of
Department must implement all norms and standards within a
specific school year, and must report before a given date on the
state of implementation.
The SAOU is
of the view that the first three proposed sections are in their present form at
the least somewhat inconsistent – it would be helpful if the imperative content
of the sections were more clearly put, and the apparent options to avoid or
evade implementation of the relevant norms and standards eliminated.
Proposed 58C(6)(a) The
exposition of the duty is not consistent with the provisions of the proposed
section 5A.
Proposed 58C(6)(b) The
proposal does not indicate what sanctions if any will apply in the case of
failure to notify by the set date. The
SAOU wishes to point out that the numerous provisions of this kind which
already exist in education legislation are more often honoured in the breach
than in the observance of them. If this
proposal is to stand and to have any meaning at all, it is imperative that it
be indicated what is to happen should such determinations not have been
timeously made or communicated.
Proposed 58C in general One of the deficiencies of the proposed sections is that
there is an attempt to combine operational with policy issues. The organisational and academic matters of
the school are intertwined in a strange fashion with those of the Governing
Body, the remedies proposed to deal with governance issues are intermingled
with those relating to professional and academic management issues, and it is
the view of the SAOU that the consequence is confusion. In our view these provisions need to be
substantially re-worked, and our recommendation is that the proposals confine
themselves to policy rather than to operational issues.
The SAOU
wholeheartedly endorses the principle of improving the performance of schools,
and shares the view of the education authorities that steps need to be taken to
identify and remedy deficiencies. We are
not at all convinced that the proposals in section 58C taken as a whole will
accomplish this end.
Amendment of section 60 of Act 84 of 1996
The SAOU
cannot support any measure that attempts to diminish the assumption of
liability by the State.
Litigation,
attracted by things that happen at schools, is on the increase. The State should as a matter of policy protect
schools and individual teachers by assuming the risk concomitant on the
provision of, and participation in schooling, in general – and not attempt to
minimise its exposure by passing this on to the school.
Amendment of section 5 of Act 56 of 1999
Proposed 5(2)(b)(ii) “deep knowledge and understanding” is a vague term
not easily susceptible of hard-edged interpretation in this context.
Proposed 5(2)(b)(iv) “appreciates the role …” is a vague term not easily
susceptible of hard-edged interpretation in this context.
3. CONCLUSION
It is a
principle of education policy formulation that such policy must be clear,
workable and as far as possible incapable of misconstruction. Insofar as education legislation embodies
policy, the same general principles apply.
The amendments proposed are in some instances deficient in one or more of
the qualities mentioned. It is hoped
that the proposals made in this submission will make a contribution towards
rectifying some of those deficiencies.