Basic Education Laws Amendment Bill: public hearings

Basic Education

08 November 2022
Chairperson: Ms B Mbinqo-Gigaba (ANC)
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Meeting Summary

Video (Part 1)

Video (Part 2)

BELA Bill Explainer

White Paper on Education One

White Paper on Education Two

The Portfolio Committee on Basic Education held oral hearings on the Basic Education Laws Amendment Bill (BELA).

Eight organisations and stakeholders presented oral submissions to the Committee. This included presenters from the ChristianView Network, Suid-Afrikaanse Onderwysersunie (SAOU), Equal Education (EE) and Equal Education Law Centre (EELC), SA Human Rights Commission (SAHRC), Western Cape Commissioner for Children and Child Government Monitors Submission, Skole Ondersteuningsentrum (SOS), World Changers and the FW De Klerk Foundation.

Common concerns raised included the admission and language policies, the powers of school governing bodies, alcohol being sold on school premises and the criminalisation of parents.

The ChristianView Network emphasised that this was one of the most important Bills being looked at over the last decade. The Bill would be the biggest change in education over the last 25 years. The presentation highlighted concerns related to school governing bodies, school curriculums, parental rights being respected, home schooling, and the issue of language medium in schools. The presentation noted that there was a provision that school governing bodies were required to declare all their financial interests was unreasonable. The requirement for independent schools to have quarterly financial statements for subsidies was onerous. The presentation highlighted that many parents were unhappy with their local school. Many parents were opting for home education due to a number of concerns. The solution would be to empower parents through governing bodies, through home schooling choice, through respecting parental authority and to enable renting of facilities. Parents should be empowered to make decisions for their children.

The SAOU said that there was now only one dominant role-player in basic education and that was the State. The presentation highlighted the aspects of the Bill which the SAOU supported and then discussed the amendments it found contentious. The SAOU fully supported that there should be no unfair discrimination on the basis of race, gender or any arbitrary ground. It also supported that should facilities should be utilised fairly and educationally accountable. The SAOU raised concerns relating to the admission policy, the language policy, disclosure of the financial interests of SGB members, centralised procurement and the capacity within public schools.

EE and EELC made a joint presentation. The presentation focused on four key areas of concern. The first issue was the SGB powers. This related to school admissions, teacher appointment and language policies. The second issue was alcohol in schools. The third issue was required documentation. The fourth issue was criminalisation. The presentation noted that BELA was a much- needed re-thinking of the balance between SGB’s crucial role and the State’s need to protect the public good. BELA confirmed case law. The role of SGBs was critical, but the State had an important and final oversight responsibility to ensure equity. The presentation emphasised that there was a need to guard against language policies used as proxy for racist practices. There should be a clause clarifying that school language policies be applied by the Department when placing entry-phase learners, subject to HOD’s power to alter the language policy. EE and EELC recommended that all sections proposing to criminalise parents be removed entirely.

The SAHRC welcomed most of the provisions in the BELA Bill, but expressed concerns over selected provisions. These concerns were on the clauses related to Grade R, admission of learners without documentation, the abolishing of corporal punishment, admission and language, code of conduct and home education. The SAHRC welcomed the inclusion of Grade R in the definition of a ‘basic education’. The SAHRC proposed adding a clause to the effect that the Head of Department must take all reasonable steps to ensure that Grade R education is accessible in public schools for all qualifying learners and that public schools where Grade R is offered receive the necessary resources to enable the schools to provide adequate Grade R education. The SAHRC was concerned about the absence of provisions that regulated online and blended learning.

The Western Cape Commissioner for Children and Child Government Monitors made recommendations in relation to the parents’ role in their child’s education, allowing alcohol to be sold on the school property, the principle of non-discrimination and understandings of discipline at schools. The presentation noted that many factors may influence a child’s attendance at school. A recommendation was made not to criminalise parents for learner non-attendance. Another recommendation included the need for a more inclusive orientation when language policies are developed and that a higher authority decide on these policies, to guard against discriminatory practices.

The SOS presentation highlighted the decrease in the number of Afrikaans schools compared to the increase in the number of Afrikaans learners. Afrikaans learners had increased by 8% from 2012. During that same period the number of Afrikaans public schools decreased by 16%. Single-medium Afrikaans schools made up 5% of the total number of public schools in South Africa. The concerns raised in the presentation related to the centralisation of State power, the language policies of the Bill and the attack on Afrikaans schools and language. Some of the proposals in the presentation included the withdrawal of the current version of the BELA Bill and to allow SGBs to determine school policies and make decisions which is in the best interest of their learners and the community which they serve. Protection and support needed to be given to all language and cultural communities.

The World Changers presentation primarily focused on the allowances of alcohol on school premises, as proposed by the Bill. The presentation stated that no drugs, in any form, under any circumstances should be allowed at schools. World Changers called for the removal of clause 8 of the BELA Bill, which allowed schools to sell alcohol for the purposes of fund raising and at school functions. The presentation noted that if this Bill was passed then the future of South African children would be thrown down the drain.

The FW De Klerk Foundation wanted to draw the Committee’s attention to several areas of concern it identified in the current version of the Bill. This included the extension of power to the Head of Department, the impact on mother-tongue education and the impact on undocumented learners. The presentation detailed that SGBs were best positioned to ensure democratic school governance and deal with the admission and language policy of a school. With regard to the Bill’s impact on mother-tongue education, the presentation noted that section 29(2) of the Constitution stated, ‘everyone has the right to receive education in the official language(s) of their choice’. Mother-tongue education improved learning outcomes and academic performance. The presentation also noted that undocumented learners must not be denied access to basic education because of their status.

Members of the Committee discussed the issue of the rights of parents. It was asked to what extend had the State and the Minister, especially with this legislation before the Committee, limited the rights of parents.

The issue of undocumented learners was one of the burning issues in the oral hearings. The Members understood that documentation was required and that there was a frustration that some learners may not be able to produce the required documents. This was probably because of issues arising from Home Affairs. There might be a problem for those who were unable to provide such documents. However, there may be a situation where parents submitted false documents. It was asked if that should be condoned.

Members discussed the powers given to SGBs. If SGBs were given more power, then every SGB would have its own policy, though regulated at a national or provincial level. At the end of the day the SGB would have more power than the HOD, the MECs and even the Minister. A number of Members asked what was the extent to which school-language policies were used to exclude particular learners? The Committee thanked all the entities for their submissions.

The Committee indicated that it had noted the concerns that were raised. All of the concerns and comments made would form part of the Committee’s consolidated report.

Meeting report

The Chairperson greeted the Members and all the entities making oral submissions to the Committee. The Chairperson noted that there was a delegation from Uganda observing the meeting. The entities present had an interest in the Bill and wanted to make oral presentations. The Committee would start with the ChristianView Network. After the presentation, the Members would be allowed to ask questions. Once the ChristianView Network was done then the Committee would move quickly to the next entity. After the entities gave their presentations they could either continue sitting in the meeting or leave. There were about nine stakeholders making presentations today.

The Chairperson asked the Members to introduce themselves. The entities would be given 15 minutes to present. The Members’ clarification questions should also be straight to the point so that the entities could respond.

ChristianView Network Submission

Mr Philip Rosenthal, Director, ChristianView Network, made the presentation.

He noted that this was one of the most important Bills being looked at over the last decade. The Bill would be the biggest change in education over the last 25 years. The presentation highlighted a number of concerns. These concerns related to school governing bodies, school curriculums, parental rights being respected, home schooling and the issue of language medium in schools.

The ChristianView Network noted that there was a provision that school governing body members were required to declare all their financial interests, those of their spouses and their children. That was unreasonable and a lot of parents would avoid being on governing bodies because they did not want to do that.

The ChristianView Network highlighted parents’ outcry on the Bill. It wanted an increase flexibility on alternative curriculums. The requirement for independent schools to have quarterly financial statements for subsidies was onerous.

The ChristianView Network noted that there was a number of reasons why parents were unhappy with the local school. Many parents wanted a say on governing bodies. Many parents were opting for home education due to a number of concerns. These concerns included sexual sin education, pornography, gangs, teenage pregnancy, abortion referral, drugs, gender confusion, bullying, woke religion, interfaith religion and the removal of the Bible from schools.

The ChristianView Network highlighted the issue of home schooling. Parents currently risked being jailed for not registering for home schooling. The penalty clause in the Bill should be distinct. Imprisonment should be for people who violently intimidated learners to stop them from going to school. It should not be for parents who decided to choose home schooling instead. A lot of parents were upset with the curriculum being pushed by the Department of Education, particularly on the issues of gender and sex education. Other concerns facing home schooling was the increased costs, increased paperwork and less choice over the curriculum.

The ChristianView Network said that the solution would be to empower parents through governing bodies, through home schooling choice, through respecting parental authority and to enable renting of facilities. Parents should be empowered to make decisions for their children.

(See Presentation)

Discussion

Dr W Boshoff (FF+) said that there was this dilemma of having a secular state, which according to the Constitution was religiously neutral, and then there were also very religious people. Members had to navigate within that. For many people, it was a personal and public concern. How was one supposed to navigate within the secular state as a Christian, or in another person’s case a different religion? It had a very strong bearing on education. It was one of the most important questions within public schools which used public money. It could also become relevant to independent schools, where someone might argue that because of the secular nature of the state not even independent education should be allowed to promote a certain religion in school. That would be an extreme application of the secular nature of the Constitution. The real Constitution shifted all the time while the written Constitution remained unchanged for decades. The real Constitution of the country changed all the time and it was changing away from religion in schools. That had been fairly standard in the early stages of the current dispensation. How should religious groups navigate within the secular state? Should one look at pushing back and shifting the Constitution to go the other way than that which was becoming the norm?

Mr E Siwela (ANC) said that he listened to the presentation very carefully. Dr Boshoff had covered him on the issue of the secular state. He wanted to know in what way the Bill was taking away the rights of parents to decide on their children’s education. He raised the issue of language. Was Mr Rosenthal comfortable with the current situation where language was used to exclude certain groupings within the education system? He wanted to hear Mr Rosenthal’s view.

Ms N Adoons (ANC) said that she was covered on the issue of language policy and the clause that sought to amend it. She wanted to know whether the Department of Education was present in the meeting to clarify some of the information that had been presented. It was not clear which clauses Mr Rosenthal was referring to. Maybe going forward the presenters would highlight the specific clauses they had concerns with. There were about 56 clauses that the Department was seeking to amend. She asked for the entities to be specific on those clauses they had concerns with. She wanted clarity on the registration of home schooling. She asked for the Department could elaborate on the penalties if parents were not registered. She discussed the SGB powers that were assumed to be taken if the Bill was passed vis-à-vis the empowerment of the SGBs. She asked for clarity on that.  

Mr B Nodada (DA) said that what was presented fitted into some specific clauses of the Bill. He wanted some clarity on what the ChristianView Network orally submitted to the Committee. He discussed the statement made that there were more powers being given to the Minister versus those powers being taken away from parents, who the ChristianView Network believed were best suited to decide on the future and education of their children. He noted the presentation mentioned powers being taken away from school governing bodies. It was mostly parents who were represented there. Those powers included determining the admission and language policy. Was the ChristianView Network submitting orally to the Committee that the school governing body powers to determine admission and language policy should remain with the parents? Or was there an alternative to that? If that was the case, why did it believe that? He noted that most of the points that were presented were around the issue of choice. That parents should be able to choose despite what their beliefs were. Is this assertion correct? Was the ChristianView Network presenting to the Committee that parents needed the ability to choose where they would like to send their children and not necessarily be told what schooling their children would get. There was a point made around home schooling education. ChristianView Network believed that there should not be consultants that parents were forced to get to determine whether the conditions in which they taught their children were correct. What alternative could then be put in place as a proposal to the amendment of the Bill? He believed that there did need to be some form of accountability in some way when a child was home schooled so that that child’s right to education was not infringed. That needed to be monitored. He noted a critical point that was made in the presentation. That the Bill should focus on broken schools and not fix what already worked. In many instances parents, chose schools that were far away from their communities because they would be served with better quality education. Or they choose to send their children to those schools for whatever their reasons were. Along the way, they skipped quite a lot of schools. His parents were one of those parents who did that because the schools close by were not good enough for what they believed he should get. Part of the proposal was to say that fix what was broken. Do not disempower school governing bodies and parents who were working. Rather focus the energies in making sure that those schools which were being driven past by parents were actually functional. The proposal that was being put forward was for that to be curbed specific powers around admissions and language needed to be taken away. Did the ChristianView Network believe that that would solve the problem? By taking away those school governing body powers from schools that were already functional away from them to balance the scale with schools that were not functional in terms of their school governing body powers. What alternative proposal would the ChristianView Network put in place for Parliament to amend the law to ensure that it uplifted those school governing bodies that were actually dysfunctional in schools that parents drove past because they believed those schools were not adequate? It needed to be ensured there was an increase in access to quality and language offerings in schools. He discussed the issue of language. Did the ChristianView Network believe that mother tongue education improved the depth of knowledge of a child and the quality of education that they received? For example, if someone studied maths in whatever mother tongue they had at home, did the ChristianView Network believe that there was better quality and depth of education that they could receive? Should the Bill not actually be focusing on building mother tongue education rather than getting rid of single medium schools and balancing the playing fields, rather than building the capacity of those schools that may not necessarily offer the mother tongue education? He noted that in specific provinces people inherently spoke their mother tongue.

Ms M Sukers (ACDP) raised the issue of the rights of parents. The presentation stated that the rights of parents should be respected and recognised. The powers of the Minister should not limit the rights of parents or undermine that. She asked for the ChristianView Network to expand on its view by looking at the current legislation and its experience in the education sector. To what extent had the State and the Minister, especially with this legislation before the Committee, limited the rights of parents? She added that the rights of parents universally were recognised. In the Constitution, the rights of parents were accepted and therefore it was not stated. Did it foresee that such an amendment should be made in the Constitution given its experience and the risks of the Bill? 

Mr P Moroatshehla (ANC) said that a lot was said in the presentation. Maybe a lot needed to be clarified. The first challenge was that the ChristianView Network might be projecting the fear of the unknown. He had not seen a situation where the South African education system patronised one religion at the expense of the other. He had not seen that. Maybe he needed to be clarified. He discussed the violation of the rights of parents. He was still waiting to be convinced if indeed there was any such insinuation in the Bill which appeared to be threatening the rights of parents in the education of their children. There was a part of the presentation that discussed the home schooling. Ms Adoons made reference to it that parents took a risk of a jail term so that home schooling could be realised. The Committee needed to take into cognisance that the South African education system exposed education in such a way that it became a public asset. Where education became a public asset then the system at the end of the day would trample on the rights of some people who wanted to privatise education in one way or the other. A public notion would infringe on the rights of somebody who wanted to privatise things and see education run according to their own taste. One of the pragmatic challenges in South Africa was that people would love to have education as a private commodity. At the same time, they wanted the State to fund the infrastructure and to fund the remuneration of educators. How could one reconcile that? He discussed the role of SGBs. For any organisation or institution to stand, the centre needed to hold. With many different schools and many different SGBs, where was the centre? The centre would have to lie with the MEC, the Director-General, and the Minister. They needed to be the centre in order to direct the education of the country and children. Going forward everyone needed to be on a common footing with a common understanding.

The Chairperson said that the Department needed to respond to some of the clarification questions.

Adv Shalili Misser, Chief Director: Legal and Legislative Services, Department of Basic Education, discussed points of clarification on a few issues that were raised. She discussed home schooling. There seemed to be a concern with how the Department wished to take responsibility for ensuring that learners were schooled. That needed to be clarified. In a meeting held with the Minister in 2020, the Department had engagements with representatives who represented the home schooling sector. There the Minister had explained that she embraced home schooling because it was a very important part of the education system. At that particular meeting, the Department agreed that a once-off registration for home schooling when the child began home schooling would be required. Thereafter, when the child moved from phase to phase it would just be a notification process. That was what the Bill reads. She discussed the fears of conviction. The conviction clause in the Bill. Looking at the Act itself, section 6 always had this penalty clause. All that had been done was to increase the period of imprisonment, which was six months, to 12 months. One of the reasons for increasing it to 12 months was because of the high dropout rate in schools. It was not targeted at home schooling at all. It was not targeted at any individual group at all. The Department thought that if it increased the penalty clause parents would take the issue of ensuring that their child attends school more seriously in order to prevent the high dropout rates. That was the purpose of that particular conviction clause. She discussed the admission policy and language policy. The Department had given powers to the HOD to approve an admission policy or a language policy where there had been amendments made to it. The reason for this was to align it with case law which indicated that the control over the implementation of admissions may rest with the HOD. It was not within the exclusive function of the SGB. Hence, the Department gave that position to the HOD. Many schools were using the admission policy and the language policy to exclude learners. Hence, the Department made these changes. There was also a deeming clause in the Bill. When the SGB submitted its admission policy and language policy to the HOD for approval if the HOD did not approve it within the time period that had been specified in the Bill, a 60-day period, then it was deemed to be approved. If there were fears that there would be an admission policy that would not be approved this could be allayed by the deeming provision within the BELA Bill. She discussed the financial interests of the SGB and members declaring their financial interests. She discussed the reason for having included that clause. It was a provision that was sponsored after consultation with the Council of Education Ministers (CEM). It was felt that the Department needed to stamp out corruption within the education sector. She provided an example. When a school needed to be fenced and she was on the SGB, she would then quickly open up a company in her son’s name and gave the job to her son. In order to prevent and avoid that kind of situation from occurring and to foster good governance even among SGB members the Department, after consultation, put in that particular clause. She discussed the rights of parents when it came to home schooling. The Minister embraced home schooling. The Minister expressed that at the meeting the Department had with representatives of the home education sector. The issue of the competent assessors was a mechanism to ensure that the schooling that was being provided at home by parents for their learners was to a standard that was equivalent to that that was presented at a public school.

Mr Rosenthal responded to the questions of Dr Boshoff. He challenged the perception of South Africa as a secular state. He considered it a myth. It was very misleading on a number of points, especially with regard to education. Firstly, the Constitution started with a preamble that acknowledged God. There was a specific clause on education in the Constitution that allowed for religious observances. The Constitutional Assembly wanted to avoid an American-type situation of the incorrect interpretation of the American Constitution that then excluded religious observances in the schools. That clause in the Constitution needed to be read in parallel with the Schools Act, which was written in 1996, and the wording was almost identical. It further clarified that the authority intended by the Constitution to make that decision on religious observances was the school governing body. At the time, there was a huge protest from parents about the risk that South Africa would have a secular state. There was a promise, specifically from Mr Cyril Ramaphosa, that South Africa would not be a secular state. That was reported in the newspapers. There was also Minister Bengu’s policy which he instituted, the first Education Minister after the Constitution, which allowed for different schools to have complete freedom to choose a single-medium religious instruction if they wanted to. There were many ways of accommodating differences within the parent body that included different schools having different policies and people choosing that. Within a school, there could be streams where people could have different religious observances if they wanted to. Then there could also be conscientious objection which was the third level to accommodate parents. Since Minister Bengu’s good policy of religious freedom and parental rights, there had been a progressive erosion. Minister Kader Asmal took a huge chunk out of that freedom with his 2003 religion and education policy. Minster Asmal had a meeting, at which Mr Rosenthal was present, where he presented his policy. He had listened to parents and religious bodies that protested against it. Mr Rosenthal had put ten points forward that he had not agreed with. He was thrown out by security. ChristianView Network did not agree to that policy. It continued to protest against that. There was the court judgement in 2017 where six schools were challenged on their religious observances. ChristianView Network believed that was a wrong court judgement. It should have been appealed and it would be appealed in the future. That was not a correct interpretation of the Constitution. He was open to discussing this matter with anyone who was interested. He believed that the Bill was a power grab by the State from parents and away from religious freedom. The parents wanted that power back again. The parents must, through those structures, decide how those public monies were distributed in various ways according to their preferences. He responded to the question about the BELA Bill taking away the parent’s right to decide. These were small incremental erosions every time a decision-making power was taken away from parents and given to central government. The ChristianView Network wanted maximum devolution to the lowest possible level for decisions to be made for children in home schools, private schools and all schools. He responded to the comment about language being used to exclude people. There were one in 20 schools in the country that were using Afrikaans language. He did not personally want to speak Afrikaans. He had a friend who was English but had chosen to send his children to an Afrikaans school because he liked the religious ethos of that school. Any parent should have that choice. His ancestors were German-speaking when they came to the country. They had to learn English but they could have carried on in German if they decided to be home schooled. This was the choice that the ChristianView Network wanted to give to parents. Things were not perfect in any society when common decisions had to be made but it needed to be decided which problems the state needed to intervene in. Where there were really serious problems and parents wanted help, then the state should get involved in those things. He responded to the question of which clauses the ChristianView Network had concerns about. He was happy to read through each clause but he would make another submission with the summary of the clause numbers to refer to all the concerns raised. He would send it to the Committee Secretary. He discussed the penalties with regard to home schooling. He accepted that it was not the intention of the Department to do this. However, it did not want power that could be misused by a political leader in the future. Having followed the political process for 30 years he had seen unintended consequences many times. He had warned about them and then it happens. He would not put it past that this would happen. Criminal obstruction should be separated from parental choice so that no parent was ever at risk of going to jail on these things. The ChristianView Network wanted to maximise the powers given to parents through those three tiers that he had given of the school governing body making a policy of streams within a school, of conscientious objection and that included the right to opt out of things like sex education or religious things that the parents were not happy with. He responded to the question of how one verified home schooling. He would propose that each parent should keep a portfolio of what they had been teaching their children which would be available for inspection if necessary. That would not require consultant costs. The accountability would be if some relative or friend claimed that the children were not being educated. The parent could then produce that portfolio of what they had been teaching. He responded to the question of focusing on broken schools. If there were problems of a child not getting into the school that they wanted to because of the language policy that was a pretty minor problem. There were crisis problems in some schools of complete dysfunction, of gangs dominating the school. Those were the schools the Education Department needed to be focusing on. Most of these schools did not have a functional SGB. Those were the schools that needed help from the Government and not the schools that had a functional SGB having their powers taken away from them. He responded to the question on mother tongue education. He argued that that was a debatable question which was for those parents to answer and not for him to answer. He had a friend who started a school in Zululand with English medium and a lot of parents were happy to send their children to that school. Other people would prefer Zulu medium or other people would prefer Afrikaans medium. That was not for the ChristianView Network to decide. That was for those parents to make that decision according to the choices that were available to them. He wanted that wide choice to also include cottage schools. He discussed the question of not limiting the powers of the parent. It only wanted to limit the power of parents with respect to other parents where there was a need to force a common policy. Within the framework, he proposed there was maximum diversity and empowerment of parents. He discussed the amending of the Constitution. He did not think that the Constitution needed amendment on the education clauses. It already allowed for religious ethos. It was just that it had been wrongly interpreted by the court. He had a discussion with one of the lawyers that were involved with drafting the Constitution. The lawyer said his one regret was the failure to include a clause on the protection of the family. That was possibly an amendment that needed to be included paralleling the Universal Declaration of Human Rights, which said that parents had a prior right to choose the education that should be given to their children. That was also in the Western Cape Constitution. Possibly that would be a good idea, but he did not think that the problem was the Constitution. The problem was the way the Constitution was being misinterpreted by secularists and woke people who believed that their interpretation was the only one allowed in schools. He did not think it was correct. He responded to the rebuttal of the Department. He appreciated that it did not have that intended effect but he had been involved in the submissions of many laws that had unintended effects. He did not want the possibility of those effects. What was the greater evil that was trying to be avoided as opposed to the other problems? The greater evil was avoided by giving maximum power to parents to make decisions. There would be some flaws but that was the best way forward. He discussed the avoidance of corruption. He agreed that corruption needed to be avoided. However, this was complete overkill. Corruption was avoided by strong SGBs and accountability to the parents that would get the best people on the SGB. Section 36 of the Constitution required looking at the less restrictive means to achieve an end. The least restrictive means would be that any business a SGB person had with the school should be publicly disclosed and preferably they should not be allowed to do any business at all. They do not need to declare every single thing that they were doing. They were sacrificing a whole lot of time and skills to help the school and good people were going to be discouraged from that. The Department did not need to get parents to violate their financial privacy. The solution was empowering parents and letting them sort out problems rather than trying to sort out all the problems for them. Government should not put its effort into micro-regulating home schooling and functional SGBs. Government should put its effort into dealing with these enormous problems where there were gangs and drug pushers that were dominating certain schools. Those schools needed to be strengthened so that they were parent-led situations. In terms of improvement, there were two proposals. He had spoken to the SGB associations and they had offered to help other schools that did not have good governing bodies to help them become functional. That proposal had not been accepted. The second proposal was that charter schools, which were partnerships with independent organisations, be allowed. The independent organisation would put money and time and effort into that school. That school would become semi-private. There was never a situation where everyone was happy with the Department of Education’s policy but a framework for diversity was the one best solution that the ChristianView Network could come up with.

The Chairperson thanked ChristianView Network for its submission. She noted that Mr Rosenthal had taken quite a lot of time. She hoped that the next presenters were quicker. The Committee noted what was raised by the ChristianView Network. The Committee would note all the presentations and what they said. This was the oral submission phase. The Committee would still go to a phase of public participation, which was going to be public hearings very early next year. It was still a process.

Suid-Afrikaanse Onderwysersunie (SAOU) Submission

Mr Chris Klopper, Chief Executive Officer, SAOU, made the presentation.

The presentation highlighted the aspects of the Bill which the SAOU supported and then discussed the amendments it found contentious. The SAOU fully supported that there should be no unfair discrimination on the basis of race, gender, or any arbitrary ground. It also supported that should facilities should be utilised fairly and educationally accountable. The SAOU raised concerns relating to the admission policy, the language policy, disclosure of the financial interests of SGB members, centralised procurement and the capacity within public schools.

Contentious amendments

  • Section 5: Admission policy, with specific reference to subsection (5).
  • Section 6: Language policy, with specific reference to subsection (6).
  • Section 9 and 10: Learner discipline. The SAOU agreed with the principle of prohibition of corporal punishment, but not enough was being done in regard to the rights of educators and the silent majority of learners in school versus the rights of the perpetrators who were guilty of serious misconduct.
  • Section 18A: Disclosure of all financial interests by SGB members. The SAOU believed it would fall foul in terms of POPIA.
  • Section 20: “Unilateral” utilisation of school facilities. It was not acceptable that in practice the local district office may be allowed to control the utilisation of school facilities.
  • Section 21 (3)(A): “Compulsory” centralised procurement. The centralised procurement of PPEs during the Covid-19 period graphically illustrated this danger.

 

(See Presentation)

Discussion

Dr Boshoff asked the SAOU to elaborate on the difference between a public school system and a state school system. Mr Klopper had briefly referred to it but he thought it was a central part of this discussion. He asked Mr Klopper to elaborate on the differences and the pros and cons.

Ms Sukers said that she had a point of clarity. She asked Mr Klopper to expand on the issue of when a school was considered full. It was mentioned in the presentation that the rights of the majority should not exceed that of the minority. She asked Mr Klopper to expand on that. She used the example of the Western Cape. It was very concerning, especially at the beginning of the year, where there were children not in school. This was already happening in February or March. The Committee was faced with some schools where 30 in a classroom was considered too many in a school and the school would say that they were full. Then there was another school in the same district with 40 children in a class and that school made an allowance for children to come in. How did the SAOU foresee the rights of children where they shared a language and lived in the same areas? How should the issue of placing children be dealt with? This Committee dealt with that quite a lot. The issue of language and full schools quite easily became a political matter. South Africans needed to deal with the best interests of their children outside of any other political issue. She wanted the SAOU to speak to that issue. She thanked the SAOU for the clarity of the presentation.

Mr Nodada said that he had four points. He noted that the clause-by-clause comments made raised some critical points. For example, when it was compulsory for a child to go to school. There were valid points that had been made in terms of age and other things. It would be helpful when the Committee dealt with oral submissions to actually take into consideration the clause-by-clause comments that had been submitted by SAOU. The comments were quite helpful. A point was made around compulsory Grade R education. It was in principle supported. Then a calculation was made as to how many teachers, learners, and classrooms may be required. Was that a calculation that the SAOU had done itself? He asked this because he requested the National Treasury to make a determination on the practical implementation of Grade R being compulsory. Would it not cause a Constitutional challenge at a later stage when Government could not implement it? The Department would then be inundated with court challenges because it could not implement that. Was that a calculation that the SAOU had done itself? If the SAOU did do that itself, it would be interesting to share that calculation with the Committee. His request to invite Treasury still stood to come and present to the Committee whether this was practically implementable. Maybe when Adv Misser spoke she could enlighten the Committee about that. He discussed the centralisation of procurement. It was clause 21(A). What proposal did the SAOU put in place? He did see a presentation indicating that there were public schools that competed with private schools to get a 100% bachelor’s pass for their learners and the various criteria that were put in place on what could be used to determine whether a school could procure that by themselves or not. What proposal would the Department then make around this particular clause? He visited a school in the North West where he stormed out. The SGB had cut a tree for R40 000 having appointed somebody who was a friend of the SGB’s chairperson. There were instances where this did happen. He did not know whether centralising the procurement would actually work. How would one deal with a situation where there was a school and the chairperson of the SGB could abuse their power, appoint a friend, and cut a tree for R40 000? The presentation was clear on which clauses the SAOU submitted on. He was disturbed by a comment made by Adv Misser. Adv Misser said that the Department wanted to arrest parents to curb dropouts. That puzzled him. He needed clarification on that. What did it mean? He wanted clarity on that.

Adv Misser said that some of the provisions that were raised with regard to centralised procurement were not mandatory. The HOD may use their discretion. It would be done in consultation with the governing body to centrally procure identified learning and teaching support material for public schools. The reason for this was to ensure cost-effectiveness and to utilise public funds in a cost- effective manner. It was not compulsory when it came to the issue of central procurement. She discussed the issue of Grade R. The Department had been in talks with Treasury about providing the funding for the introduction of Grade R as compulsory. The Department was still in talks with Treasury. This would be appropriated from the existing funds of the Department. She provided clarity with regard to the clause dealing with the conviction and arrest of parents. That was not the intention. The intention was that this more severe penalty clause would serve as a deterrent so that parents took monitoring their children and ensuring that their children did not drop out of school more seriously. The intention was not to arrest more parents but rather to increase the severity of the punishment so that parents could take the education of their children seriously. She discussed the issue of the review of the language policy after three years. It was not mandatory. After three years, the language policy of a school could be reviewed. That was the intention of that particular clause. If it needed to be reviewed, then it would be. The Rivonia judgement was the very same case law that said the HOD of the Department was not rigidly bound by a school’s admission policy when exercising the authority to admit learners. The policy served as a guide and did not bind the HOD inflexibly. Those were some of the judgements that the Department believed supported giving the HOD the power to make the final approval. 

Mr Klopper discussed the difference between the public school system and the state school system. The public school was an extension of the particular community. It was regarded as a democratic institution and it reflected the values and norms of that particular community. The community took decisions that were in the best interest of the community and the children. A state school system was when the school was controlled from a central point of view. Where the final authority with regard to everything rests with the Department of Education. He understood the principle that for many schools it was absolutely necessary. That was why there was a provision for a section 20 school and a section 21 school. The reality is that the public school system that South Africa had now is that the power rested with the SGBs, as the third tier of governance. That was the principle discussed in this House in 1994, 1995 and 1996. Before the SA Schools Act was accepted. It was based on the White Paper on Education. It was based on the principle of cooperation, mutual trust, and partnership. The SAOU would like to see that particular matter taken forward. The plea was to retain the current wording. It reflected that particular principle. The Department needed to trust parents and those parents who did not comply should be addressed. The Department should not punish those who were not offending anyone in the process. That was the plea of the SAOU. He responded to the question of when a school was full. That was exactly the question that the SAOU was asking. He noted the numerous times that particular question arose. When he participated in a public debate under the guidance of the Human Rights Commission, he said that the education system needed this. He was told by an MEC that he would decide when a school was full. Now that was not being accountable. There needed to be one yardstick on how to determine when a school was full. Then the argument would be off the table. That was what the SAOU was asking for. Regulation 9 of the Minimum Norms and Standards provided that. There were a large number of students who would not be accommodated at the beginning of next year. That was a symptom of a school building programme that was not adhered to. There needed to be adherence to the school building programme because that was a symptom of it. That was why the SAOU had now asked, in terms of the Promotion of Access to Information Act, the Department to explain exactly what had happened with the school building programme in Gauteng and in the Western Cape. He believed that it would be found that the Department had not complied with the school building programme. That was an important issue that needed to be addressed. That is also related to the issue of overcrowding in schools. He noted that with the principle of overcrowding there was a direct relationship between overcrowding and the quality of education. If South Africa aspired to a quality education system, then the Department needed to comply with the school building programme. He discussed Grade 1 and the one million learners. Looking at the current system, there were approximately one million learners in every age cohort. In all probability, Grade R would add one million learners to the system. The moment it became compulsory it would add a further million learners to the system. That would place severe challenges on the system, post provisioning, classes and school building programmes. He discussed the proposal with regard to the centralisation of procurement. He understood that the Department would like people to declare their interests. The reality was that the Department could not go and check 144 000 people’s credentials. It was impossible. Maybe the Department should consider using something similar that was used in the Companies Act. That at each and every meeting there needed to be a declaration of a conflict of interest. That was what happened at some of the large companies. People in the community knew when other people had a conflict of interest. That particular person needed to be recused, whether they were the chairperson of the committee or not. The Department needed to implement that. He discussed the principle of central procurement. He noted what happened in practice. At the beginning of the year, textbooks and equipment were delivered to schools. Then that was deducted from their school allocations for that particular year. That was central procurement and it happened each and every year in provinces like Limpopo. It happened in many provinces. The school should be given a choice. The Department should trust teachers and trust the SGB. There needed to be trust. There would always be bad people but the majority of people were good-natured and those people needed to be trusted. He was happy that the Department was having discussions with Treasury with regard to the financing of Grade R. That SAOU would like to participate in that. There were also 33 000 posts that would be created but there were only 10 000 people who were qualified. What was the Department going to do about the other 20 000? How was the Department going to train them? How were they going to be registered through the South African Council for Educators (SACE)? The Department could not contribute to the principle of dumbing down the profession. There needed to be qualified teachers and they needed to be registered with SACE. That was another question that needed to be asked and the SAOU had asked many questions in this regard. The SAOU had not received clear answers on that particular matter. He discussed the review of the language policy. The SAOU had expanded on that particular matter enough. He discussed the HOD’s role. He could not emphasise it enough that the HOD would not take that particular decision. It would be done at the level of the district office and that was where the conflict was going to arise. That was where trust was needed. That was how this particular system needed to be managed. It was based on the principle of trusting one another. The exception should not be used as the rule.

The Chairperson thanked SAOU for its submission. The Committee noted the SAOU’s presentation. She noted that the SAOU was endorsing most of the provisions that were related to the Employment of Educators Act. She noted that he had spoken about the misconduct of learners.

Mr Klopper thanked the Committee for the opportunity to present.

Equal Education and Equal Education Law Centre Joint Submission

Ms Jane Borman, Parliamentary Officer, EE, and Ms Anjuli Maistry, Senior Attorney, EELC, made the presentation to the Committee. The presentation focused on four key areas of concern. The first issue was the SGB powers. This related to school admissions, teacher appointment, and language policies. The second issue was alcohol in schools. The third issue was the required documentation. The fourth issue was criminalisation. The presentation noted that BELA was a much-needed re-thinking of the balance between SGB’s crucial role and the State’s need to protect the public good. BELA confirmed case law. The role of SGBs was critical, but the State has important and final oversight responsibility to ensure equity.

SGB Powers – School Admissions

EE and EELC support the inclusion of the provision requiring SGBs to be consulted before learner placement, and that SGBs be given an opportunity to appeal.

SGB Powers – Language Policies of Public Schools

EE and EELC stated that there was a need to guard against language policies used as proxy for racist practices. It was not for the SGB itself to apply language policy in the admission of entry-phase learners. The SGB may not refuse to accept applications from learners whose language of learning and teaching (LOLT) differs. The SGB may not refuse to include learners on admissions waiting lists. There should be a clause clarifying that school language policies be applied by the Department when placing entry-phase learners, subject to HOD’s power to alter the language policy.

Sale of Alcohol at Public Schools

EE and EELC urged that this clause be removed in its entirety from the Bill. Alcohol abuse is a serious crisis that affects communities across the country. It will harm learners, both access to alcohol and being around inebriated adults. It will not be implemented and monitored properly. The amendment is in direct contradiction to various national and provincial policies and safety guidelines that repeatedly emphasise the need to keep schools as alcohol and drug-free zones

Criminalisation

Several of the amendments either increase or introduce criminal sanctions for parents/caregivers. EE and EELC recommended that all sections proposing to criminalise parents be removed entirely.

(See Presentation)

Discussion

Mr Nodada asked what alternative amendment would the EE and EELC propose for section 20(i) of the SA Schools Act. If EE and EELC were proposing that it be completely done away with it would be interesting to hear that. He noted the proposals around the determination of language policies and admissions policies. There was a statement that said EE and EELC demand that those single mediums schools be changed to dual medium schools. Did EE and EELC do an analysis of the Constitutional breaches that that demand came with? Considering that the Constitution said that where the Government was able to provide single medium education, and it was practically possible, then it should do so. Did EE and EELC look at what the Constitutional implications of that proposal would be? He wanted to know if he understood the EE and EELC correctly on two points. He noted that there was a difference between decision-making and oversight. He noted that if these policies adopted by the SGB were being utilised to maybe exclude certain learners, then the HOD or MEC had an oversight responsibility to intervene there. Decision-making was when someone selected a policy that they would like approved. The HOD had the power to either approve or disapprove that. There was a difference between decision-making and oversight. He hoped he captured the presentation correctly. He noted that giving the HOD powers to approve language policies was a decision-making process and not an oversight responsibility. An oversight responsibility was when there was a school that was using those policies to discriminate against certain learners then that affected individual may appeal to the Department or the HOD to then intervene to ensure that those policies were not utilised to exclude certain learners, because constitutionally there were not supposed to do that. Did EE and EELC support the decision-making process of that or were they saying that the SGBs must still retain their powers to determine admissions and language policies? However, there needed to be an appeal mechanism where if those policies were then used to exclude certain learners, then the HOD and the Department could intervene. He wanted to understand their proposal on that so that he was clear. He noted that in the presentation there was more power for HODs that EE and EELC advocated for at a later stage. The presentation said that HODs must establish the extent of access from similarly resourced schools. Was the issue here of access based on resourced schools or just access generally around schools? The reason he asked this question went back to the first presentation that was given today. Do parents want to access schools because the schools were available or did they want to access well-resourced schools? Therefore, that was why there was a bone of contention that some of these powers must then be given to the Department to impose those learners to those particular schools because they were well-resourced and had quality teaching. Should it not be the other case? Whereby there needed to be schools that were well-resourced and well-capacitated so that the demand on the well-resourced schools, some of them single medium and some of them dual medium, should not be the focus of the law. How should the Department capacitate the schools that were not well-resourced, that were not under demand, and that people drove past? Rather than changing the policy to access the best schools which in themselves were limited schools. Did the EE and EELC not think that the public-private partnerships in schools could be a solution in mitigating the challenge of well-resourced schools versus not well-resourced schools? Should that not be a consideration taken by the Committee or Parliament? To look at what mechanisms and laws should be put in place to encourage public-private partnerships so that those schools were actually well capitated and well-resourced. This should be done rather than relying on access to a limited number of schools that were well-resourced, well-run, and well-governed. How did EE and EELC recommend addressing admissions policies in single-medium schools to mitigate the exclusionary practices while still preserving the benefit of mother tongue education?  

Mr Siwela said he understood the issue around the documentation that was required and the frustration that some of the learners may not be able to produce the required documents. This was probably because of issues arising from Home Affairs. He understood that that might be a problem for those who were unable to provide such documents. However, clause 38 created a criminal offence for parents or caregivers who knowingly submitted forged or misleading information when applying for admission or for exemptions. The EE and EELC proposal was that all clauses proposing criminalising parents be removed entirely. There may be a situation where people submitted false documents. Should that be condoned? He wanted clarity on that because documentation was required for identification purposes.

Ms Adoons said that there was a lot of good work that EE and EELC were doing all over the country. She wanted to get clarity of their view on undocumented learners, more especially on the side of the parents. The presentation spoke a lot about undocumented learners. Nowhere in the presentation was the responsibility of the parents considered. She did not believe that the children landed themselves in South Africa. They came with their parents. What should be the responsibility of the parents? She noted that EE and EELC felt strongly that there should be no criminalisation in the Bill. What should happen when such cases arose?

The Chairperson said that there was a slide in the presentation that mentioned the geographical areas where learners were attending single-medium schools. She did not understand what they were actually saying with the geographical areas. What exactly was EE and EELC saying? What exactly did EE and EELC seek to achieve by raising such an issue? Both of the previous Members had raised the issue of documentation, which the presentation kept on raising. She took it that the documents were birth certificates and immunisation certificates. If she was wrong, then they could correct her when they responded. What had EE and EELC done to try and solve the problem? The fact that they kept on raising the problem meant that it concerned them. What had the organisation done to address the problem? She was interested in knowing what was EE and EELC’s developmental agenda. She had a personal understanding of the previous two organisations and what they dealt with. Where did the funding for EE and EELC come from? Who funded the organisation? It was important that the Committee understood who it was dealing with. Those were the issues she wanted clarity on.

Adv Misser responded to the issue of alcohol that was raised. She wanted to set the record straight. It was abundantly clear in the BELA Bill that no person may bring liquor into the public school premises or have liquor in his or her possession or continue to sell liquor on public premises or during any public school activity. The chances of learners coming into contact with alcohol outside the school premises was far greater than within the school premises, even with the provisions as they were. The Minister supported zero tolerance of alcohol at schools. However, it could not be denied that in many schools these activities involving alcohol were occurring. The Department needed to find ways in which to regulate it. When there were fundraising activities then sometimes schools had a beer garden. School halls were let out for church services. There was wine and alcohol at weddings. The Department was trying to regulate the possession, consumption and sale of alcohol at schools. The Department was not saying that it was allowing this because it wanted to give learners better access to liquor or alcohol at schools. That was incorrect. The Department was trying to prevent that. That was the reason for regulating so that if there was an occasion for the school to have alcohol on the premises then it would be regulated properly. That learners would be kept away from it and that it was managed properly so that they were protected. The Department acknowledged the social ills that were associated with alcohol, but the Department thought it was important to this in the Bill so that the instances where alcohol was consumed on the school premises was regulated properly. She discussed the issue of documents. The Department was on the same side when it came to documentation. The BELA Bill was trying to ensure that learners that were documented. She noted the provisions that had been inserted in the Bill. These included the mechanisms that had been provided of the Provincial Inter-Governmental Committee and the National Inter-Governmental Committee. It was to try and assist parents who did not have documents for their children to get the documents. South Africa could not be a country where people lived without documentation. Hence, the Department was trying to find a middle ground. The Department was trying to find a more effective way of getting Government Departments to work together, particularly with the Department of Home Affairs, to ensure that learners got the documents that were required so that they were documented within the country.  

Dr Boshoff said it was clear from the presentation that the organisations had an ideology more centred around the State, especially regarding education, than the previous two presentations. Where would EE and EELC draw the line between the responsibilities of the State and the community? If EE and EELC’s understanding of the SGB was accepted, then where should the community’s involvement come in?

Ms Borman responded to Mr Nodada’s question about the alternative for section 20(i). The specific recommendations were listed in its submission. She mentioned a few brief recommendations. These included avenues, whether it be a hotline or increased protection for whistleblowers, so that there was increased accountability while keeping SGB involvement. She noted oversight versus decision-making power. There needed to be increased oversight rather than just bringing in decision-making power of the provincial education departments. Their submission also included comments on the capacitating of provincial education departments and also ensuring that there was no malpractice and corruption at State level. So, that the Department could adequately provide oversight. She answered the second question about the constitutionality of changing single-medium schools to dual-medium schools. The position EE was coming from was that the Constitution was a document that required the balancing of rights. There was the right to be taught in the language of one’s choice. There were also rights around cultural and religious freedoms, but on the other hand, there was the right to basic education. In a situation where learners were able to access fully, well-resourced schools that taught solely in their preferred language, then that would be the ideal situation. EE was not saying that as a principle, schools should be dual-medium. It was looking at the reality of what was being faced, which was that there were learners who were unable to gain access to adequate schools and in some cases schools at all. On the other hand, there were under-capacitated schools that were single-medium schools and had the ability to prevent learners from attending those schools on the basis of language. They believed that public schools, in their entirety, was a public good. Public schools should be equally shared and should equally be the burden of everyone. It could not be that some public schools with better resources were able to keep their admissions rates down, were able to fight overcrowding, and were able to have good resources. The implications of that were that other learners had to simply accept going to overcrowded schools and that they could not access schools that were close to them purely because this other Constitution right must somehow take preference over that. The ideal situation would be that all learners were taught in schools that provided education in their language preference. This was also a reason why EE was calling for a higher degree of decision-making by the HOD and not just oversight. EE had seen that there were a number of schools, across multiple provinces, that had been able to exclude learners from admission based on language policies. Ideally, there could be an oversight role by the HOD but they would not necessarily need to step in to remedy a school’s language policy. Ideally, communities would be able to make decisions for themselves. Ideally, communities would be able to decide their needs. However, it had been seen across the country that certain schools had not done that. They had created schools that excluded learners from the area. That created overcrowding in other schools versus under capacity in their schools because of language policies. In those instances, EE did not believe that that should simply be allowed to stand. If this situation was not the case, then there would not be a need for HODs to be actively involved in this. However, this was being seen. This had not been remedied at a community level and at a school level. It was needed that there was not just an oversight capacity because that put the burden on learners, parents, and communities to constantly fight for access to schools. EE and EELC wanted the HODs to be actively involved and not just react when they realised there was a problem, but actively involved to ensure that these language problems do not arise. Learners could raise issues, and while that was part of the democratic environment, but what if that took six months to resolve? That was six months of a learner’s year and that was something deeply concerning. She noted that South Africa needed urgent and immediate interventions by the HOD. The HOD needed to be aware of a school’s language policy so that they were able to spot these issues in advance. There should not be a situation where learners were sitting out of school and had to fight for access to a public good. She responded to the question about access to similarly resourced schools or just access to other schools. EE was pushing for access to similarly resourced schools. The public education system was a public good. It could not be that school resources could be held onto and there was one well-resourced school that the communities around them were not able to access. EE was not asking for learners from a different province to have access to a school that it thought was well-resourced in another province. EE was asking for learners in the area where a well-resourced and under-capacitated school was present to not be barred from having access to those schools and those school resources purely on the basis of language. She discussed collaboration schools. EE was involved in looking at the Western Cape Provincial School Amendment Act. She was not personally involved in that. Although it provided important funding, which EE always agreed was positive for a school, EE had picked up a number of crucial areas that comes with bringing in private actors into the public schooling system. EE acknowledged that was a potential solution to the funding issue, but right now EE could not say that it fully supported collaboration schools as they were currently imagined. EE agreed that it was important to look at other models that looked to remedy the issue of limited resources in schools. She responded to the question of geographical areas from the Chairperson. With regard to school language policies, it had been seen that when one just said communities arguments had been made that communities constituted a more abstract body. A community could be constituted through language or through culture. Some schools had gotten around the issue of needing to provide for communities in their area by saying that the community they provided education for went across provincial barriers. It could not just be the community one imagined its school served. It had to be geographically located. It had to take regard for the actual community living around the school and within access to the school. She discussed EE’s developmental agenda. EE and EELC fought broadly around the issues of the right to basic education. Its core message was that all learners had the right to quality and equal education. It was not only an NGO. It is a membership-based grassroots organisation. It had groups of learners in schools across five provinces as well as parents and post-school youth who provided the agenda for the movement. It had a number of different campaigns that targeted different provinces. Its overall aim was to work with the State, and where needed, to engage with the State on areas it felt were critical to development. EE and EELC played a critical role in pushing for uniform minimum norms and standards for public school infrastructure. It had been able to work with the Department and had pushed for that. It was primarily concerned with the right of basic education, but also with all issues that impacted children’s education including their well-being, their parents, and their communities. EELC was a public interest law centre and represented EE on a lot of its cases. EE and EELC did a lot of amazing work within the communities it served. She discussed the question of funding. That was on the EE website. She was not personally involved with the funding. It did disclose its funding. She could provide that to the Committee if required. She knew that it was available on the EE website. It had a variety of different funding. Its funding changed year on year. It was primarily an organisation that took its mandate from learners and parents. She clarified the organisation’s input on the alcohol clauses. The EE had no doubt about the intention of the Department. EE and EELC always operated in good faith. It hoped that its input was taken as such. It was intended to be constructive feedback informed by the parents and learners. It did not believe that the Department was trying to increase the accessibility of alcohol in schools. It was saying that from the experience of its learners and parent members, as well as research, that the likely consequence of this policy would be increased access. The parent members felt very passionately about this. They were excited to discuss this issue with the Committee when the public hearings commenced. She responded to Dr Boshoff’s question about the statist ideology about how it distinguished between the responsibilities of the State versus that of the community. EE strongly believed in the ability of people to determine their own outcomes and the ability of people to have a say in their own lives. However, there were overarching principles of dignity, equality, and fairness. If communities and individuals were not able to access those in their communities or if communities who held power were unwilling to relinquish certain resources or stop perpetrating certain discriminatory tactics, then it was the duty of the State to get involved. Ideally, there should be no need for the State to get involved. The reality of the situation was that this had not been remedied by communities and SGBs. Invariably the State needed to intervene to protect Constitutional rights.

Ms Maistry responded to the question of criminal offences for parents or undocumented learners who provided fake documents and what was the best solution for when that happened. Now that undocumented learners were able to access school without having to provide any form of documentation the incentive to provide fake documentation had lessened to a greater degree. That was something to bear in mind. She discussed the instances in which that still occurred and what needed to be done. Any form of punishment that was thought of or thought to be imposed had to take into account how the child was affected by it. Was the child going to be out of school as a result of wanting to punish the parent for putting together fake documents? Was the child’s parent going to be locked away and then the child would be left without a parent or a caregiver? This was undesirable and not in the child’s best interests. EE and EELC were not necessarily against consequences or repercussions as a result of providing fake documents. There needed to be a balance between insuring that there was an understanding of what the underlying causes were. That any consequences that happened in relation to the provision of fake documents did not have a punitive effect, were not overly harsh, and did not impact the children negatively since they had nothing to do with the offence that was committed. That was the submission. It was attempting to try and find a balance that sought to end the forging and provision of documentation that was fraudulent while taking into account ensuring the children were not punished through parents, with overly harsh penalties such as prison or through the children then being removed from school. She noted that EE and EELC did not have any great opposition to documents being provided at school. Those were necessary. School administration was necessary in order to verify the age and identity of the learners. She noted that some of the documents within BELA did not seem to serve that purpose. She provided an example. One of the documents that were required in respect of refugee and asylum seeker children, they needed to provide their asylum seeker permit. Then within three years of being admitted to school, they needed to provide their refugee permit. It was unclear what the school needed the refugee permit for when the only reason that the school required these documents was in order to verify the age of the learner and their identity. In the initial submission of their asylum seeker documentation, that was clarified. For EE and EELC, and a number of other civil society organisations that have similar issues with BELA, the first port of call has always been to ensure that children obtained documentation. That was the first strategy that EE, EELC, and other organisations had taken. There had been numerous challenges that had been brought. High-level engagement had been had with the Department of Home Affairs. She provided a few examples of those. There had been a challenge that was taken all the way through from the High Court to the full bench of the High Court to the Constitutional Court in respect of the Births and Deaths Registration Act, which prevented single unmarried fathers from being able to register the birth of their children where the mother was absent or deceased. The single unmarried fathers were the only persons who were able to register those births but in terms of the Act they were unable to. So, South African fathers and South African children were not able to respectively register the births and receive the birth certificate. That challenge was successful in the Constitutional Courts less than a year ago. Yet, it was still not being implemented. When civil society actors tried to take that judgement to the Department of Home Affairs in order to make sure it was implemented, a kick back was still received from the Department in respect of its implementation. There had been challenges in respect of refugee children who were recognised refugees and obtained derivative status under their parents’ files. As soon as the child arrived in South Africa at a stage later than the parents arrived the automatic response from the Department of Home Affairs was that the parents had not declared the children on their application form or they had arrived later. The Department of Home Affairs would say that they were not sure that these were the children of the parents. Children would then just become undocumented and then would require legal intervention or court applications to make sure that they were documented. She did not go into the whole list of ways that EE and EELC attempted to get documentation for children as a first port of call. That was where the strategy started. It got so difficult to make sure that children were obtaining documentation and in the interim, they were being prevented access to social services, healthcare and education so EE and EELC needed to ensure that there was access to that too. That was how there was a judgement that undocumented learners were able to access education. EELC wanted to protect that and make sure it was respected through BELA.

The Chairperson thanked EE and EELC for their responses. The Committee had noted their contributions. She had just checked EE’s website and it was last updated in 2020. The annual statements were last updated in 2020. The Chairperson said that she was asking out of her own interest.

SA Human Rights Commission Submission

Mr Andre Gaum, Commissioner, SAHRC, made the presentation.

In general, the SAHRC welcomed most of the provisions in the BELA Bill, but expressed concerns over selected provisions. These concerns were on the clauses related to Grade R, admission of learners without documentation, the abolishing of corporal punishment, admission and language, code of conduct and home education.

Grade R

  • The Commission welcomes the inclusion of Grade R in the definition of a ‘basic education’.
  • Equally, the Commission cautions that the necessary resources ought to be made available to follow the inclusion of Grade R into mainstream teaching and learning.
  • The Commission proposes adding a clause to the effect that the Head of Department must take all reasonable steps to ensure that Grade R education is accessible in public schools for all qualifying learners and that public schools where Grade R is offered receive the necessary resources to enable the schools to provide adequate Grade R education.

Abolishing corporal punishment

  • Consistent with its previous position, the Commission welcomes the abolishing of corporal punishment in schools and hostels. The Commission has held before that corporal punishment is inconsistent with Constitutional values. The Commission welcomes the extension of the definition to include additional degrading treatment of learners.
  • However, the Commission recommends that the definition and prohibition of corporal punishment be extended to protect all learners, and not only children, seeing that many learners in school attain the age of majority during their school years and are deserving of the same protection against corporal punishment and other degrading treatment.

Home education

  • The Commission notes and welcomes this provision, however it is concerned about the absence of provisions that speak to and regulate online and blended learning.
  • The Covid-19 Pandemic and challenges in the education sector has led to the creation of an alternative means to teaching and learning, online schooling.
  • This may ensure that learners and parents are not taken advantage of and that new innovative teaching and learning means are encouraged but regulated.

(See Presentation)

Discussion

Dr Boshoff said he wanted to ask Mr Gaum a question, but he already knew that the answer was going to be that he was not in a position to speculate. He was going to ask Mr Gaum to speculate a little bit. The presentation said that with the 24 000 schools the Department would not have the time to evaluate all their policies. Did Mr Gaum think that there might be some categories of schools thatwould be pointed out for investigating their policies? There was a category of schools that existed in popular law called ‘model-C schools’. Did Mr Gaum think that these schools might be singled out for looking at the admission policies? Would there be any rational base for the Department to evaluate school policies randomly? What did the SAHRC expect?

Mr Nodada noted the statement that the nature of the exclusion on language had not been probed. Therefore, there needed to be facts before providing a blanket approach in answering the access to schooling or the determination of who made admission and language policies for schools. It was important for the Committee to get this type of information from the Department about how many single-medium schools were actually there across all provinces, broken down per province? Had there been a determination as to what was the occurrence of language admissions policies used to exclude certain learners? Were the proposals put in the Bill, that was refuted by the SAHRC, actually helpful and actually based in fact on the widespread issue? Or was it quite specific when the Committee considered the Bill in its entirety? There was a point that was raised around clause 37 on home education. It said that clause 37 was welcomed as is, however, there were concerns regarding the absence of provisions on online and blended learning. He was not sure if he was understanding their point properly. With all the requirements that had been put on that particular clause, was it supported by the SAHRC? Was this inclusive of parents’ homes being invaded for the purposes of ascertaining whether a child went to school? Was that in line with the Constitution? He noted that particularly now there was a legal lacuna in terms of the law to facilitate online and blended learning. Did the SAHRC have any specific proposals around what clauses should be included to ensure that online and blending learning that had come out very strongly after Covid was not left out? Online schools or a form of home education were now being chosen by parents. However, there was only a draft framework and it did not find expression in this particular Bill. He was interested to hear if there were any specific proposals from the SAHRC. The rest of the presentation was very clear and explicit in its proposals around protecting the rights of all South Africans.

The Chairperson asked the SAHRC what was its view was on the language proposals. She was asking out of interest’s sake because the SAHRC represented everyone and the rights of South Africans. Did the SAHRC see the amendments as proposed by the Department in the BELA Bill being helpful moving forward? What was the SAHRC’s view?

Mr Gaum responded to Dr Boshoff. Dr Boshoff was quite right. He was not able to speculate. If the facts showed that there was a selective approach of singling out certain schools in terms of checking their language policies and approving or not approving those policies, then that would be irrational. That approach would be unconstitutional if it happened. He could not speculate as to how things would pan out. The SAHRC thought it was important for the Department to provide the necessary information as to exactly what the mischief was pertaining to exclusion relating to language and the extent of it. In which schools was this taking place? All those facts were very important for consideration from the side of the Committee as to what specific intervention needed to be made. Then the Committee could consider whether the proposed interventions in the BELA Bill would be the adequate answer to that particular mischief. He responded to the matter concerning home education. The SAHRC did not have specific proposals at this stage. It was something that the SAHRC needed to look into. The Committee could also request the SAHRC to specifically look into that, which it would be happy to do. There was a need for a regulatory regime to be included in this Bill on online and blended learning. He noted that some schools like the UCT Online School were not acting within the confines of legislation and therefore there might be questions as to how lawful their activities were. That school also indicated that in some provinces they had problems with registration because there was no legislative framework. That was certainly something to look at. He discussed the home education provisions. He took the point that some of these provisions need to be looked at in more detail. Like the loophole that was created where homes could be invaded. There might be, on closer scrutiny, constitutional issues pertaining to some of the provisions. The SAHRC was generally in favour of regulating schooling in this particular way and making provision for this in the SA Schools Act. He responded to the Chairperson on the SAHRC’s view on the issues relating to the language proposals. One of the SAHRC’s concerns was the 60 days that were provided to HODs to access the language policies provided to them and then to take a decision within such a short period. The SAHRC believed that it was not possible to cover all the schools within that 60-day period. It may make the legislation irrational in that respect. The SAHRC proposed to swing around the process so that negatively affected people could appeal decisions from schools. For example, every five years schools were provided with the opportunity to take into consideration the factors listed in clauses 4 and 5. To then come up with language policies and then there was a right to appeal from the side of negatively affected persons in that regard. The SAHRC did not think that the proposals as currently contained in the Bill were rational in itself and would lead to irrationalities in terms of their execution. It was simply not possible to execute it within 60 days. He discussed the other provisions in the Bill and how the SAHRC saw those provisions. The provisions that the SAHRC did not specifically comment on was supported as it was currently formulated in the Bill.

The Chairperson thanked the SAHRC for its submission and stated that the Committee noted the issues raised.

Western Cape Commissioner for Children (WCCC) Submission

Ms Christina Nomdo, Commissioner, WCCC) made the presentation.

This submission contains the views of children shared with the Western Cape Commissioner for Children.

The Commissioner and Child Government Monitors made recommendations towards the BELA Bill to promote the concept of child rights respecting schools:

The recommendation from the Commissioner and monitors is not to criminalise parents for learner non-attendance.

They recommended not creating a more accepting and permissive climate for alcohol use at schools.

The Commissioner and monitors recommend a more inclusive orientation when language policies are developed and that a higher authority decide on these policies, to guard against discriminatory practices.

Their recommendations for improving the BELA Bill are to:  stop prevailing practice of corporal punishment in schools; have a broad definition of corporal punishment; and penalise perpetrators of corporal punishment at schools.

They recommend a restorative justice and support approach to guiding behaviour.

They recommend that codes of conduct are more inclusive of LGBTQIA+ identities and allow freedom of expression.

They recommend learners voices be heard and their right to protest be protected without the fear of being fined or imprisoned.

 (See Presentation)

Discussion

Mr Moroatshehla said that the Committee had to appreciate the initiative shown today. He asked Ms Nomdo why the organisation called itself the Western Cape Commissioner and Child Government Monitors and not have South Africa in its name as this would have more impetus. The approach brought by the organisation should be considered by the BELA Bill. The organisation was making the main stakeholders participate fully on matters that affected them. He was not trying to say that the approach of those who presented before was wrong. He was saying that he was highly impressed with this approach because the participants themselves were coming to the fore and raising the issues that were concerning them with regard to their education system. He noted that it was direct communication. The children were not saying that there should not be discipline. The presentation said that discipline should serve as guidance and support rather than as punishment. This was their view and it was a constructive view to assist in the education system. He noted the presentation discussing discrimination. The presentation was very vocal and indicated that they were not in support of the discrimination. The presentation addressed quite a number of challenges that the education system had. He noted that at some schools learners continued to be discriminated because of their language or other factors when they were supposed to access education. The presentation spoke directly to that matter. They said that they were not going to be used as objects of discrimination of whatever form. He noted that the Members had heard the children. After hearing the children, the Members of the Committee needed to make the necessary reflection so that going forward when this Bill was going to be adopted by Parliament that some of the factors the children had raised would be taken into consideration. None of the children who spoke were above 20 years old. They were very young. He asked for the Committee to be considerate of the presentation. He applauded the approach of the presentation.

Mr Nodada said that the presentation was lively and he appreciated it. He shared a lot of the sentiments that were shared in the presentation. He noted that there were two things missing from the presentation. One of them was the support for the HOD to determine language policies in schools. Had the Commissioner, in any way with collaboration with the current Department of Education or other stakeholders, made a determination as to what was the widespread extent in which school language policies may be used to exclude particular learners? Would it suffice if those school language policies were still determined by SGBs, considering the point made by one of the monitors that the Department needed to look at the demographics of the learners, the language of needs? The SGB, having considered that, if those policies may still be used to discriminate and exclude certain learners then the mechanism still remained that the HOD then needed to intervene. Would that still suffice considering that when he listened to the presentation by the different children the bone of contention was that these policies must not be used to discriminate against that were seeking access to education? The Constitution protected those rights by making sure children were not discriminated against when seeking access to education. The Constitution also protected children to study in the language of their own choice. He noted that in different schools in different provinces the language policies were different and allowed children to learn in their mother tongue language. In the same environment, there may be schools that were dual language. Those policies being determined by the SGB take into consideration what the children had rightfully raised. However, where there were issues then the HOD or the MEC may then intervene in those instances. Would that still suffice in terms of what was proposed rather than having the HOD approve all the policies that were there? He thought the rest of the presentation was quite clear and shared many of the sentiments.

Dr Boshoff said that the presentation had been lively as promised. He asked if the children did in fact script the presentation. This was important. One did not want a position where adults scripted something for children to recite. He noted that Paulo Freire said that teachers actually also learned from children. Was it conceivable to say that community was not just a local geographic community but that a language community could also be spread over a wider geographical area? Would it be acceptable for a school of a specific language to accept students of the same language that lived further away? He wanted to hear Ms Nomdo’s opinion on that.

Ms Adoons said that the presentation was colourful and energetic from the start to finish. One could see that it was presented by young people. She asked Ms Nomdo if the organisation was only based in the Western Cape. She made a recommendation that maybe the organisation should expand to other provinces. How did the organisation operate if there was a case in a school of discrimination or corporal punishment? How did the organisation address such issues? Did the organisation get any assistance when it approached the Department or the district or the schools themselves? She wanted the organisation’s view on undocumented learners. It was one of the burning issues in the session today. It occurred often in the Western Cape, Gauteng, and Limpopo. There you would find most learners who were struggling with documentation to get an education in the country. What was the organisation’s role in assisting children that were struggling with such challenges?

The Chairperson said that the presentation was colourful and playful. She was asking this question in good faith. Students were currently writing examinations. She noted that legislation stated that there should be compulsory attendance. However, there were children present in the meeting. Were they not supposed to be in school? She noted that in Parliament, around June and July, there was the Children’s Parliament. Did these children participate in the Children’s Parliament? It was meant for them. The Members could see that they were brilliant children. The Committee would want the children to be active participants in such programmes. She noted that the Western Cape had a high prevalence of social ills in schools. Did the organisation have programmes that spoke to that? Were there programmes were young people spoke to other young people about the issues of social ills? It would make much more sense if a person of their age spoke to them. The Committee saw their presentation. The Committee was asking them to resubmit and to be specific on each clause about what needed to be amended, what was agreed with and what was rejected. The organisation needed to be specific on each clause.

Adv Misser congratulated the learners on the presentation. These were the youth to lead the future in South Africa.

Ms Nomdo responded to the question of why the children were not in school. She believed that education could be achieved in many settings. School was a very important setting and yes, children should be there most of the time. Sometimes children could learn a little bit more about life and how to be active citizens when they just came to one session of Parliament. Mr Plaatjies had his turn now and would have to wait for a long time before he got another turn to come to Parliament. Mr Plaatjies’ mother was present. His mother had given permission, negotiated with the school and ensured that he would not miss exams. The exams had not started yet. His mother said that she wanted to see how her child made her proud in the setting of Parliament. Children did not even think that they could come to Parliament. This created a message that this was also a place for children. She discussed the Children’s Parliament. People were not changing laws there. The children were having an orientation of how Parliament worked and engaging. She noted that even at the Nelson Mandela Children’s Parliament there was not a critical engagement with decision-makers. No laws were being made there. No critical debates were taking place between generations. It was a show and tell. The government needed to do better by the children. They could not just be part of a show and tell. In the delegation, there were members of the Nelson Mandela’s Children’s Parliament. This built on that fervour that they wanted to be active citizens in this country. They wanted to build this country. They wanted to be leaders. The organisation was trying to instill inspiration in the Child Government Monitors that they were worthy, that they had valuable contributions to make, and that people were willing to listen to them. She discussed the principle of non-discrimination. It was always talked about in the children’s group. Mr Plaatjies would explain how the organisation got to the words of the children in the submission, whether it was scripted or not. She noted that the children were at the coalface of the discrimination sometimes meted out by the adults whom they were supposed to trust the most. Sometimes this discrimination came from their teacher. They were not supported in their school environments to bring out this pain. They felt that the school governance system was not on their side and so they appealed to a higher power. The school would not be allowed to discriminate against them. Children wanted to be at school but they did not want to face pain and discrimination. The call by the children for the HOD to intervene was a plea for someone to uphold their rights for non-discrimination. If that could be guaranteed to happen at the SGB level, then sure. The children were calling to a higher power because their lived realities in schools were one of pain and sometimes discrimination. She did not want to speak about her concept of community. Whether it was narrowly defined or geographically defined. For her, community meant that one came from the township. That was what community meant. If one did not come from the township, then one came from the area with trees. That was what community meant for her. Someone else may define community in a different way. People created a jargon of a word but everyone had a different understanding of that word. Parliament needed to be careful that when it created definitions in law, and the way law was written, it was very clear what the definition of that word was. She noted that the children in the organisation communicated with other children. They were the leaders. Sometimes they were chosen by the community workshops to represent the Child Government Monitors Forum. They were that self-advocate for children. The organisation took programmes to schools. It went to schools. She acknowledged the entire staff of the Western Cape Commissioner for Children. She asked for the Committee to give them a chance to grow and build. It would do more. There was a clause-by-clause breakdown of their concerns in the written submission.

Ms Nomdo handed over to Mr Plaatjies to respond to how the submission and presentation was put together.

Mr John-Lee Plaatjies, Child Government Monitor, said that he met the Commissioner through an RCL workshop at his school. The Commissioner had come in and they had a general conversation. She asked if the children would like to join the organisation. He did not join at that moment. He went home and contacted the Commissioner and thanked her for coming to the school. That was the first time an adult took an interest in the likes of children, how the children thought, how they felt, and the problems they faced in schools. She asked him if he wanted to join and he said yes. The way they communicated was through WhatsApp weekly sessions on a Wednesday at five o’clock. Each WhatsApp session had its own purpose and meaning. There would be a topic of discussion. The Commissioner would put questions in the group and the children would answer them. That was how they communicated. They shared their views and experiences. What the children called the Commissioner on a daily basis was Christina or Tina, because she made the children feel comfortable speaking to an adult and not feel intimidated. She wanted to be on the same level as children in order to understand them and be able to communicate with them. He discussed how the children worked with the BELA Bill. They had a Wednesday session where the Commissioner had selected a number of questions to ask the children about the topics that were in the BELA Bill. The children gave their direct words. It was the direct words that the children put onto the WhatsApp group. It was not edited. It was the children’s direct words that were put in the presentation. That was how the Commissioner got the opinions of children. That was the first time the children were aware of the BELA Bill because it was not made aware to children what the contents of the Bill were. Just to have a say in this Bill was powerful, because as children they did not get the opportunity to speak. Their views were not taken seriously so to have their direct words taken to Parliament and to be taken into consideration was amazing.

Ms Nomdo said that Parliament had the power to create a South African Children’s Commissioner. She did not have that power. Before this, she was the Commissioner specialising on children’s rights on the National Planning Commission for the President. There she had travelled from province to province getting children’s views on the NDP. She even had products that she could show the Committee. It was called the Children’s NDP. She wanted to hear the opinions of children because they were the ones that would pull South Africa to the future. She wanted to influence children and tell them that they needed to work from democratic values. That they needed to respect one another. That human rights was a wonderful thing. She told the Committee that it needed to change the South African Constitution to appoint a Children’s Ombud in the country. It was squarely in the hands of the Members. It was not in her hands. Her institution was created from the Constitution of the Western Cape. It would require an amendment to the South African Constitution to create a National Children’s Commissioner. She encouraged Parliament to do so.

The Chairperson thanked the Western Cape Commissioner for Children and the Child Government Monitors for the submission. The Committee had noted the issues that were raised.

Skole Ondersteuningsentrum (SOS) Submission

Ms Melanie Buys, Head of Development, SOS, introduced the presentation.

Mr Leon Fourie, Executive Director, SOS, made the presentation to the Committee.

The presentation highlighted the decrease in the number of Afrikaans schools compared to the increase in the number of Afrikaans learners. Afrikaans learners had increased by 8% from 2012. During that same period, the number of Afrikaans public schools decreased by 16%. Single-medium Afrikaans schools made up 5% of the total number of public schools in South Africa. The concerns raised in the presentation related to the centralisation of State power, the language policies of the Bill and the attack on Afrikaans schools and language.

Proposals

  • Withdraw the current version of the BELA Bill.
  • Allow SGBs to determine school policies and make decisions which are in the best interest of their learners and the community which they serve.
  • Provide protection and support to all language and cultural communities.
  • Delegate power to schools with proven management ability.

(See Presentation)

Discussion

Mr Nodada said that the presentation was pretty straightforward and clear. There was a proposal that more powers needed to be delegated to SGBs and management that had a track record of performing. Where did SOS think that the BELA Bill needed to locate that type of proposal? Part of the concern was for the Department to not strip power away from SGBs to determine admission and language policies. Rather, the Department should delegate more powers to SGBs and management that actually had a track record of performance. Was there a written submission where it would want that to be located somewhere in the BELA Bill? Was the SOS asking for the BELA Bill in its current form be withdrawn in its entirety? Or just the specific areas of concern per clauses that it had challenges with? 

Mr Siwela asked SOS if the BELA Bill should be withdrawn in its entirety. They did not speak about the other clauses. They spent a lot of time talking about the language issue and the attack on Afrikaans schools. In what way was the Bill attacking Afrikaans as a language and Afrikaans schools? Why was there that perception?

Dr Boshoff said that the presentation had a graphic on the growth of Afrikaans speakers and the decline in schools. Did SOS have any information on the demand for Afrikaans schooling? Because it did not follow by itself that the growing number of Afrikaans-speaking children and their parents had a demand for Afrikaans education.

The Chairperson asked which clauses was seen as an attack on Afrikaans schools. The Committee would have to be convinced by this submission of the attack on Afrikaans school. Where was it coming from?

Ms Buys responded to the question on the powers of the SGB. She noted that looking at the SA Schools Act there was already a lot of checks and balances built in so that SGBs knew how far they could go. The Department needed to step back and leave successful schools that had a proven track record for doing work right. That energy, money, and time needed to be spent on the nearly 80% of dysfunctional or underperforming schools in the country. She had listened to the EE presentation. The problem was not access to the Afrikaans schools. The problem was access to quality education. That was what people were looking for. That was what a parent was looking for. To be assured that their child had a reasonable chance for success. The 5% existing Afrikaans schools were in most cases grossly over-enrolled already. That 5% of schools were not going to make a difference, but changing the 80% underperforming schools would make a huge difference in access to quality education for all. That was where the Department’s focus should be. The Department should step back and leave the good schools to go on as long as they did well, and have the SGBs take that responsibility. She responded to the question about how the Bill attacked Afrikaans schools. She noted the provisions for determining language and admission policy in the Bill. It was experienced quite strongly in Gauteng with the admissions. There was also a question about how many single-medium schools there were. SOS only looked at the Afrikaans schools. It did not look at the English single-medium schools, because that was not where the problem was. It was the quality Afrikaans schools that they said language was causing a barrier to entrance. If there were quality schools in all languages, then there would be access to quality education for everybody. That was where the focus should be and not only on the language issue in the school.  

Mr Fourie discussed the attack on the Afrikaans schools. That was from the SOS’s experience. It sat with headmasters and they were constantly under pressure. They were constantly in the position where they were given certain rights and certain privileges if they took English classes. It took about five years for an Afrikaans school to become an English school, and then it became an English medium school in the end. There were 200 cases where this had happened in the last ten years. Every two months there was a previously Afrikaans school that was anglicised completely. Once that school was anglicised there was no motivation to bring in another indigenous language into that school. It would just be an English single-medium school. It only went one way. He noted that there was a section in the law where a private school could become a public school, but there was no reversal of that. That was an opportunity that could maybe be explored. There were other places in legislation where schools could get more rights and privileges if they had a proven track record. As the presentation had shown, language was not about race. There was a race distribution of all South Africans.

Ms Buys said that SOS had done a lot of research on the number of schools. It had found that in the last ten years there were nearly 120 less public schools in South Africa. That was of all languages. That was despite everything that was built. SOS used the numbers of the Department’s formal publications to do its research. Of the 25 000 schools in the country, there were only 1092 Afrikaans schools. So, that was not going to make a big difference in the problem of access to quality education by changing those schools to be bilingual.

Dr Boshoff asked if SOS knew about the demand for Afrikaans schooling.

Mr Moroatshehla said that he understood the responses. His understanding was that the Bill should try and bring South Africa together. South Africa was a unitary State. Everyone needed to feel free living in South Africa regardless of where they lived. The presentation discussed 1995 and 1996. The comment from the presenters was why should there be changes all of a sudden. He noted that education was dynamic by nature. It could not be static. The country was also dynamic. As the country moved forward it needed to move towards convergence rather than continue to diverge. That should be the purpose close to everyone’s heart. Everyone needed to understand what actually happened during the Sunset Clause. People could not live in the past if they aimed to build the country into a unitary State. The Sunset Clause had a number of compromises including on education. All parties had been brought together. Going forward, discrimination could not continue based on issues like language. The purpose of the amendment, as stated in the Bill, was for the centre to hold. The situation where SGBs kept on taking HODs, MECs and the Minister to court was not building the country. It was actually destroying the country and everything that the Members were trying to fight for. Given what had been presented that the powers should remain with the SGBs, was this in any way bringing South Africans together? Or was it continuing to polarise South Africans? He said this because the centre was failing to hold, because of the powers given to SGBs. Every SGB would have its own policy, though regulated at a national or provincial level, but at the end of the day the SGB would have more power than the HOD and the MECs, even that of the Minister. Was this assisting in bringing South Africans together? Or was it polarising South Africans? The Bill was saying that the powers needed to remain with the HOD and the MEC who would be able to regulate the rest in different schools for the purposes of a unitary South Africa.

Ms Buys said that there was a growing number of Afrikaans learners or even other language learners that liked to study at Afrikaans schools, because of the high quality of education that was provided in the Afrikaans schools. It was not only in Afrikaans schools. There were a growing number of schools growing bigger. There were fewer schools but the schools were a lot bigger. That was happening. In Gauteng, there were a lot of mega schools. It was not a positive pedagogic principle that South Africa should strive to. SOS would like to have community schools everywhere, but that was what happened. One of the most oversubscribed schools in South Africa was Langenhoven High School in Pretoria. It was a high-quality school and all the learners from around the city liked to go there, but they were taught in English. Was SOS asking to say where South Africa was in the past? Or what was it asking? It was important to note that SOS did not identify in terms of race. It was important in South Africa to identify in terms of culture because that is what made South Africans special in this multicultural country. If there was just one language, English, in all the schools then South Africa was losing what was special. South Africa should strive towards more mother tongue education. That was what was discussed in 1996 also. That was what all the different communities thought they would have. That was not served by the Government. If one looked at international principles, mother tongue education was something that was not even debated about anymore. It was known that it was very positive. Mother tongue education was the best kind of education that could be used.

Mr Fourie agreed that cultures needed to be celebrated. Cultural diversity needed to be promoted. There was freedom and that should not be restricted. That was a basic principle that SOS supported. The research that SOS did indicated that Afrikaans schools were 20-30% larger than the other schools. No Afrikaans schools were being built. Only three had been built in the last ten years.

The Chairperson thanked SOS for its submission. The Committee had noted the concerns raised. It would be part of the Committee’s consolidated report.

World Changers Submission

Mr Lucas Mahlakgane, Chairperson, World Changers, made the presentation.

The presentation primarily focused on the allowances of alcohol on school premises, as proposed by the Bill. The presentation stated that no drugs, in any form, under any circumstances should be allowed at schools. World Changers called for the removal of clause 8 of the BELA Bill, which allowed schools to sell alcohol for the purposes of fund raising and at school functions. The presentation noted that if this Bill was passed then the future of South African children would be thrown down the drain.

(See Presentation)

Discussion

Mr Moroatshehla said that the Committee appreciated the World Changers coming to present their vision. The presentation spoke about the petition that was getting support. The presentation focused on clause 8 of the Bill, which spoke about the selling of alcohol within school premises. Other than that, did World Changers not have a problem with the Bill as amended? In principle, its worry was on clause 8. If so, he was satisfied.

The Chairperson made an example. Some of the schools in rural areas were used for different types of events as a venue. For any event in a rural area, the only place that had a big accommodation would be the school. People would arrange to have a wedding on a Saturday and would eat and drink there. How did World Changers think a situation like that should be dealt with?

Mr Mahlakgane said that World Changer’s concern was with clause 8 of the Bill. It was not concerned entirely with the other issues in the Bill. Its petition was to say no drugs, in any form, under any circumstances should be allowed on the premises of schools as the proposal in the Bill. He responded to the Chairperson’s question. It was more concerned about the misunderstanding. Unintended consequences always outnumbered intended consequences. The intention could be that there was a function and that this could be used as fundraising for the school by hiring out the school as a venue. It was speaking from experience. Even at a school camp, there would be people who would hide alcohol. Even those people who would do the cleaning of the venue may steal the alcohol and hide it somewhere. When the children were back at school they may find the hidden alcohol. Then that would become a party. World Changers worked a lot with individuals, communities, and with schools. He discussed what had happened after dagga was legalised. Drug dealers were now putting in potent stuff and were now selling it rolled. Drug dealers actually targeted areas around the school. What drug dealers put in there was so potent that one would become addicted to it after one hit. When that space was opened up then the alcohol industry would also come up with other mechanisms of having some kind of promotion at the school. Alcohol brands could hire out schools and have promotions. They would pay the school a certain amount because it was part of the fund raising. The unintended consequence would be that those alcoholic brands would target principles and SGBs that were vulnerable. This was where this thing could get out of hand. The intentions were always very good, because everyone wanted to think of a manageable situation. World Changers thought that this provision would case more damage than good.

The Chairperson thanked World Changers for their submission. The Committee had noted its concerns. All of the submissions would form part of the Committee’s consolidated report.

FW De Klerk Foundation

Ms Tyla Dallas, Manager: Constitutional Programmes, FW De Klerk Foundation, made the presentation.

The FW De Klerk Foundation wanted to draw the Committee’s attention to several areas of concern it identified in the current version of the Bill. This included the extension of power to the Head of Department, the impact on mother-tongue education and the impact on undocumented learners. The presentation detailed that SGBs were best positioned to ensure democratic school governance and deal with the admission and language policy of a school. With regard to the Bill’s impact on mother-tongue education, the presentation noted that section 29(2) of the Constitution stated, ‘everyone has the right to receive education in the official language(s) of their choice’. Mother-tongue education improved learning outcomes and academic performance. The presentation also noted that undocumented learners must not be denied access to basic education because of their status.

Suggestions

  • Remove S4 + S5 of the Bill, which amend S5 + S6 of SA Schools Act.
  • Provision of Provincial oversight and consultation & reasonable dispute resolution process.
  • Review S1 ‘required documents’.
  • Allocate resources to promote mother-tongue education.

(See Presentation)

Discussion

The Chairperson said that the presentation alluded to undocumented learners and that students should not be denied access to basic education because of their status. Which other countries, in terms of best practice, admitted learners with no documentation to schools?

Ms Dallas said that to respond to the question she would need some time to furnish those details to the Committee. The concern the Foundation raised was based on the changes that would happen to the Schools Act. The fact that these required documents were not alluded to in the Schools Act as such, but now that they would be amended through the BELA Bill.

The Chairperson thanked the FW De Klerk Foundation for its presentation. The Committee would place the issues raised into its report.

The Chairperson noted that the Committee had a programme and that next week it would have another nine presenters making submissions.

The meeting was adjourned.

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