South African Human Rights Commission; Department of Education: briefing

Meeting report

JOINT MONITORING COMMITTEE ON THE STATUS OF CHILDREN, YOUTH AND DISABLED PERSONS
18 February 2000
SOUTH AFRICAN HUMAN RIGHTS COMMISSION; DEPARTMENT OF EDUCATION: BRIEFING

Documents handed out:
Presentation on the Rights of Children
Presentation on the Rights of the Disabled
Department of Education Briefing (included in the minutes)
Quality Education for All: Statement of Public Service Commitment dated January 2000 (see Education Department website)

Chairperson: Ms H Bogopane

SUMMARY
The constitutional mandate of the South African Human Rights Commission was explained. An important focus was the protection of children's rights and workshops were held at schools to create awareness in this regard. It also monitored the implementation of the International Convention on the Rights of the Child to which South Africa is a signatory. Problems relating to the disabled such as victimisation and discrimination were highlighted. Some individual cases of human rights violations relating to schools (such as racism and corporal punishment), children and disabled persons that had reached the Commission were discussed. The need for swift implementation of the new equality and administrative justice legislation was an essential part in dealing with some of the problems raised.

The Department aims to increase access, redress and effect equality. Focus is on the five year implementation plan, Tirisano, which aims at effecting programs on HIV/AIDS, school effectiveness and educator proficiency, breaking adult and youth illiteracy (both mathematics and language), a vibrant further and higher education, organizational effectiveness at both national and provincial levels. Policy envisages a move away from the segregation of children with disabilities in separate institutions towards an all-inclusive system.

MINUTES
South African Human Rights Commission (SAHRC)
Ms Charlotte McClain, the Commissioner responsible for social and economic rights gave a presentation on children's rights (see Appendix A) on behalf of Commissioner Mabusela - the commissioner responsible for children's rights - who was unable to attend the meeting. This was followed by a presenation on the rights of the disabled by Commissioner Jerry Nkeli (see Appendix B).

Discussion of the presentation
Mr V Gore (DP) asked what the SAHRC's strategy would be with regard to the implementation of the Employment Equity Act and the new Promotion of Equality Act. Would their approach simply be one focused on public awareness or would it consist of attending to complaints and assisting people to take their complaint to the courts.

Mr Nkeli said that there was not a specific law or strategy. Instead there had to be a comprehensive strategy. As a starting point the Promotion of Equality Act had to be popularised especially to highlight the sections relevant to disability. Secondly it was important for activists, disabled people themselves and others to understand the legislation to be able to identify cases of discrimination and then refer them to an appropriate body. Often what happens is that people with complaints are tossed from one institution to the next and by the time the case comes to the right place, the time has prescribed. It is imperative that complainants actually approach the courts. Unfortunately this is not simple since defendants also have rights. Thus it would be necessary for complainants to identify and approach institutions which have the capacity, ability and expertise to act on behalf of them. The SAHRC, being such an institution, would be able to undertake cases on behalf of complainants to the Equality Courts.

Mr K M Zondi (IFP) asked, with regard to existing legislation, whether there were adequate provisions to take care of street children. If these were inadequate then he wanted to know what the SAHRC thought could be done.

Ms McClain said that there was sufficient legislation. Section 28 of the Constitution protected children as well as the Child Care Act. She said that the example dealing with street children mentioned in her presentation, had been a question of not following the legislation. There is an adequate legal framework but in this instance it was a case of the Department and the Mayor's office not complying with the legislation. In terms of what Parliament could do, it is important to encourage provinces to implement policies on issues related to street children. In the Western Cape there had been a policy on street children but she did not know to what extent it had been implemented or absorbed into another policy.

Ms E Ghandi (ANC) referred to an example of intimidation mentioned by Mr Nkeli where he said that the complainants had refrained from pursuing a matter through the SAHRC because of intimidation. She was concerned that this matter was dropped. She said that a strategy to combat this was needed and wanted some input on this.

Mr Nkeli said that the type of intimidation referred to was typical of what happens when people are marginalised and isolated. He said that the respondent was the principal of a school who was violating the rights of learners in a school for deaf children. There were allegations of subtle abuse in the form of threats of witchcraft and superstition. There was a rumour spread that if the complainants went ahead with the case they would be struck by lightning. It was however difficult to in fact prove the truth of this kind of intimidation. This was not an isolated case. In most schools catering for learners with special needs people were implicated in serious abuse and violations but very few concrete cases emerge with real evidence.

The Chairperson wanted to know whether the SAHRC's Section 5 committee would consider developing a strategy for supporting intimidated complainants.

Mr Nkeli said that the SAHRC did not take kindly to complainants being intimidated. When other institutions such as certain departments were not performing their functions, matters were made more difficult.

Ms Ghandi referred to the issue of "food security" and asked whether this was also focusing on the school feeding scheme. She wanted to know whether needs were being met or whether other strategies were needed.

Ms McClain said that in terms of "food security", the conference had touched on the issue of feeding schemes. There was however no critical analysis as to whether the scheme was working or not.

Mr M Masutha (ANC) said that whilst he shared the frustration of Commissioner Nkeli with not being able to carry many cases through to conviction, issues tended to be taken more seriously once a court gave a verdict which sent out a clear message. He wanted to know whether the Commission could say with confidence that it is currently in a position in terms of resources and capacity to engage in a litigation campaign for the advancement and protection of human rights.

Mr Nkeli said that according to the Constitution the SAHRC was obliged to investigate any allegation of human rights violation. Implicit in this was that cases had to be taken to court. The SAHRC was keen to develop precedent and jurisprudence since lawyers had varying opinions regarding what was discrimination or reasonable accommodation. The resources were available in the SAHRC but even if they were not, funding would have to be sought.

Mr Masutha said that the South African Law Commission was developing a new integrated law on children which was still in the pipeline. He wanted to know whether and to what extent the SAHRC was proactively interfacing with this process to ensure that the kinds of shortcomings in our legal system regarding the protection of children's rights are taken on board in this process.

Ms McClain said that in terms of interfacing with the SALC, the SAHRC had a healthy relationship with them. She personally served as a member of the project committee on sexual offences and the head of the research department at the SAHRC serves on the Juvenile Justice committee. Although there was no direct member on the Child Care Act committee, the way the process at the SALC worked was that a discussion document would be made available and the Section 5 committee at the SAHRC would be involved in the process of disseminating this and making comment on it. The SAHRC would thus definitely partake in the process and make sure that the future Child Care Act has a strong human rights angle.

With regard to socio-economic rights Mr Masutha asked whether there was any work focusing on consumer protection since he felt that it was in this area especially where the problem of poverty is further aggravated because of poor people being taken for a ride. Furthermore he wanted to know whether the SAHRC was involved in any way with the debates around the review of the social security system in the country, given the fact that Section 27 of the Constitution endorses the right to social security.

Mr Nkeli agreed with Mr Masutha's point on consumer protection. However he pointed out that consumer protection issues are not necessarily within the SAHRC' mandate. Nevertheless related to this was the "victims project" which the SAHRC was closely related to.

With regard to the review of the social security system, Mr Nkeli said that the SAHRC had been approached by a public interest organisation, which had been focusing on matters of social security. This organisation had wanted to litigate on certain issues regarding the social security system and had asked the SAHRC for support so that they could be joined as applicants. He said that whilst the SAHRC supported this, people had to be realistic as well since the Department of Welfare was in the process of dealing with these issues and had done so for five years.

Ms W Newhoudt-Druchen returned to the issue of intimidation. She stated that it was very easy for children with disabilities to be intimidated. She wanted to know whether the SAHRC would be following up on these problems. Secondly in relation to the workshops referred to by Ms McClain, she asked whether the SAHRC gave workshops in deaf schools and Mr MJG Mzondeki (ANC) asked where these workshops had been held.

Mr Nkeli said that when a case of alleged human rights violation is reported, the SAHRC should know its role. If the role in a particular case was to tell the police that they should make sure that they investigate, this is as far as the SAHRC would take the matter. He said that the SAHRC was certainly not leaving the issue of intimidation where it was. It was engaged with the relevant NGOs to resuscitate the project of combating intimidation.


Ms McClain could not tell the committee exactly how many workshops the SAHRC had held already since it continually had workshops. Many of them were on the basis of requests. So where they received requests and where they were able, they had workshops. In terms of workshops in deaf schools there had been none so far. If there were to be a request from a deaf school, the SAHRC would certainly take up the challenge. In terms of forthcoming workshops there would be 3 child participation workshops in each province amounting to 27. Other school workshops were the human rights education seminars. Since they were done so often, there was no exact figure once again.

Mr Mzondeki wanted to know how well the SAHRC interacted with the constituency offices in order to make them aware of the workshops and wanted to know how well the Commission was spread in the provinces and where they could be found.

Mr Nkeli said that the SAHRC had offices in the Northern Province (which also served Mpumalanga), Cape Town, Eastern Cape and Kwazulu Natal. They intended to open up another office in the next financial year should the resources be available. Ms McClain added that although every province did not have an office, a commissioner had now been assigned to every province.

Mr Mzondeki noted that disabled children and women were very vulnerable and were therefore easy targets for rape and sexual abuse. As a result they are easily exposed to HIV and AIDS. Was the SAHRC doing anything to ensure that these people were protected?

Mr Nkeli said that as far as HIV was concerned, the SAHRC was doing nothing. However there was interaction with people living with AIDS. There was a strong relationship with the AIDS Law Project at the Centre for Applied Legal Studies, which had done lots of good work and litigated many matters.

Lastly with regard to the SAHRC' monitoring role, Mr Mzondeki asked whether government was effectively addressing issues of basic human rights and disability.

Mr Nkeli did not answer this question directly. He simply stated that where complaints were lodged against government the full procedure was followed by the SAHRC, which included drawing the complaint to the attention of the relevant official, first politely. The SAHRC would take all steps which were necessary after this. Furthermore regarding policies on disability, he said that the Section 5 committee interacts with the Office of the President. This office was fundamental in playing a role in shaping up policies on disability.

Mr CM Morkel (NNP) referred to the phenomena of "taxi queens" and asked whether the SAHRC had a case involving this phenomena yet. Schoolgirls ere transported to school by taxis were being sexually abused by the taxi drivers. He said that it was in fact not only the taxi drivers who were at fault, since lots of young ladies were in fact seeking out this means of transport proactively. He said that this was occurring in his constituency in the South Peninsula, and he had raised the matter to ascertain whether it was rearing its "ugly head" anywhere else in the country.

Ms McClain said that she was very aware of the phenomena of "taxi queens"
even though the SAHRC had not received a case yet. In line with this and looking at issues of child participation, the SAHRC is currently looking at child prostitution in Kwazulu Natal, as a result of a request made to the SAHRC following an incident in Chatsworth which had been aired on television.

Mr M Moss (ANC) said that since the awareness of children's rights was more prevalent in the urban areas than in the rural areas, he wanted to know where the most abuse of children took place. He asked whether the SAHRC had a database or network as to where they could refer these children for assistance in terms of rehabilitation.

Ms McClain said that the SAHRC had just completed a research study on where child abuse took place. Firstly it was important to say that it took place all over the country, but the report showed that the areas with higher rates of reporting were Kwazulu Natal, the Western Cape and Gauteng. The SAHRC had various networks. They worked very closely with the National Children's Rights Committee who have offices in all the provinces. In terms of the network and working with organisations on the ground the SAHRC was quite connected. Through the Section 5 committee the SAHRC was also able to reach out to quite a spread of NGOs. There was representation from DECAG sitting on the section 5 committee.

Mr Moss also wanted clarity on what would happen in a case where a complainant approached the SAHRC and subsequently obtained independent legal representation. Would the SAHRC's involvement simply end there?

Mr Ngethi said that in terms of the principle known as "dominus litis" one chooses the forum where you would like to litigate. If one goes to the SAHRC but then decides that the matter is taking too long and goes to his lawyer, there is nothing the SAHRC can do since there is no mandate to act on your behalf.

The last question related to how far the SAHRC had gone in terms of awareness programs for the disabled in the rural areas.

Ms Nkeli said that he had been to rural areas such as the Free State which he said did not seem to be part of the new South Africa. In small towns there were many problems in terms of the violation of human rights. For example there was not access to proper justice since the magistrate or chief of police would be the cousin of the farmer. It was not possible to reach everybody and this was unfortunately a reality.

The Chairperson, Ms Bogopane, said that it was important to note that not much had been done on issues relating to disabled people. There was clearly some work being done on children issues, however the issues around children with disabilities had to be jacked up.

She said that the committee's key function was to perform oversight duties in respect of all commissions, departments and others working in the area of children, youth and disabled people. She said that these presentations would input into a policy framework, which the committee would be developing. This framework would provide the committee with the way forward on how it would do its work. Also out of the presentations the committee would be developing their monitoring mechanisms in order to be able to hold the commissioners an others to their words - Commissioner Nkeli would be asked about the strategies needed to combat intimidation for example.

Department of Education
Mr Ihron Rensburg, Deputy Director General: General and Further Education and Training, presented the briefing. Also part of the delegation was the Director of Higher Education and Constituency Affairs, Mr Mhambi; Director of Early Childhood Development, Ms Samuels; Director of Youth Programmes, Ms Pele and Director of Special Education, Mr Gumede.

The Department of Education's mission is to provide leadership in the construction of a South African education and training system for the 21^st century and providing an education service to the nation. The vision is of a South Africa in which all people have access to lifelong education and training opportunities, which in turn would contribute towards improving the quality of life and building a peaceful, prosperous and democratic society.

The core business is the development and maintenance of the education and training system. The Department's work is framed by four main activities: research and policy review, planning and policy development, support, monitoring. All the above are interrelated and together they constitute the implementation of the Department's constitutional mandate.

FOCUS OF THE FIRST FIVE YEARS: 1995 - 1999
· Development of an organizational, structural, policy and legislative base for transformation of the education and training system
· Chief goals are access, equity, redress, quality
· Thrust of policies is on channeling most resources and services to the poorest communities
· Compulsory education from Grade one to nine (age seven to nineteen)
· Access to further education and training must be made progressively available
· Establishment of New National and Provincial Departments
· Developing an enabling policy framework: carried in four White Papers
· Developing an enabling legislative framework: National Education Policy Act (NEPA), South African School Act (SASA), Further Education and Training Act (FET Act), Higher Education Act (HE Act)
· Rationalization and redeployment of educators
· Changed organization, governance and funding of schools
· Introduction of School Funding Norms
· Introduction of an Admissions Policy
· Introduction of an outcomes based education system wide across all bands
· Implementation of the new curriculum for schools (C2005)
· Developing an new curriculum framework for FET

FOCUS OF SECOND FIVE YEARS: 2000 - 2004
· Emphasis on accelerated delivery
· Tirisano
· program 1: HIV/AIDS
· program 2: School effectiveness and educator professionalism
· program 3: Literacy
· program 4: Further and Higher Education
· program 5: Organizational effectiveness of the National and Provincial Departments

The Department has commitment to international conventions that address the rights of the child, education for all, disabilities, women, etc. The system consists of several interrelated sub-systems that interface through the National Qualification Framework (NQF) and the seven Critical Outcomes and five Development Outcomes. Sub-systems are Early Childhood Development (ECD), General Education and training (GET), Further Education and Training (FET), Higher Education (HE), Adult Basic Education and Training (ABET).

The 1999 data shows that there are 26 833 schools with approximately 12 071 365 learners and approximately 360 725 educators. There are 36 Higher Education institutions with about 564 000 learners. There are 378 Special Schools and approximately 64 211 learners with disabilities.

LEANERS WITH DISABILITIES
Policies enable the Minister to:
· Systematically move away from using segregation as an organising principle for institutions,
· Place emphasis on supporting learners thorough full service schools,
· Direct how the initial facilities will be set up and how the additional resources required would be accessed,
· Indicate how learners with disability would be incorporated into both special and ordinary schools,
· Describe how small rural schools will adapt,
· Introduce strategies and interventions that will assist teachers to cope with a diversity of learning and teaching needs to ensure that transitory learning difficulties are ameliorated,
· Give direction for the Education Support System need,

Only about 20% of learners with disabilities are accommodated in special schools. Statistics show that an upper limit of about 314 000 learners are disabled or impaired. Potentially there are 249 644 learners with disabilities or impairments who are unaccounted for.

A Consultative Paper which has been drawn up lists the following key elements of recommendation:
To mobilise the approximately 250 000 learners not accounted for and bring them into the sytem;
To complete an audit of the 378 Special Schools (the Department is keen to convert Special Schools to district-based resource centres;
To have an equal spread of resources among the 28 600 institutions;
Designation of a minimum of 500 primary schools to full service schools to serve as resource centres to the surrounding schools.

EARLY CHILDHOOD DEVELOPMENT
At the moment there is a fragmented legislative and policy framework for ECD. Access to ECD services is limited. There are inequalities in the existing ECD provisioning and there is variable quality of ECD services. Early Childhood Education focuses on the 0 - 9 years age group. In the system five-year-olds turning six are not accommodated. The 0 - 5 age group in the formal sense does not fall into the government policy.

ECD: OVERACHING POLICIES:
The Constitution of the Republic of South Africa: Section 28 provides for children's right to a name, nationality, care, basic nutrition, shelter, basic health care services and social services, protection and their best interests. Section 29 provides for right to education.

The White Paper on Education states that the care and development of young children must be the foundation of social relations and the starting point of human resource development strategies from community to national levels. It also envisages up to 10 years of compulsory education, beginning with the Reception Year.

In the last 3 years a National Pilot Project has been undertaken whose purpose is to:
· develop systems and models for new policy implementation;
· ensure that children eligible for the reception year have improved access to quality education;
· make and test innovations;
· promote outcomes-based education;
· build provincial capacity;
· assure quality community-based efforts;
· ensure a quality reception year programme;
· research effective means of delivery.

The Department gives support in
· the development of policy for the implementation of Grade R
· interdepartmental collaboration to ensure quality delivery
· Thakalani Sesame
· technical support for setting up systems in provinces
The Department plans to have policy formulation to phase in the Reception year - to target especially the poor. Also there are plans to meet health needs, nutrition, cognitive development, interdepartmental collaboration and providing service for 0 - 5 year olds.

The following are mechanisms to ensure implementation and service improvement: the establishment of a Supervision and Monitoring Unit and Tirisano ("Working Together") [Ed note: see Education Portfolio Committee minutes of 22/2/2000]

Situational analysis of the youth is guided by the following Acts:
The Constitution of the Republic of SA 1996, Section 29 (1)(a) and (b);
South African Qualifications Authority Act 1995;
South African Schools Act 1996;
Higher Education Act 1998;
Further Education and Training Act 1998;
Skills Development Act 1998;
Skills Levy Act 1999;
National Youth Policy 1997.
The situational analysis has to tackle issues of poverty, inequality (racial, geographical etc.), limited resources and educational transformation.

EDUCATIONAL TRANSFORMATION
Governance:
· New contract between the government and the people
· Strategy to establish Further Education and Training (FET) institutions
· Strategy to commence with the college sector
· MEC to declare FET institutions in 2001
Curriculum:
· New curriculum management structures
· New curriculum framework for FET
· New learning programmes
· Development of RPL models to address issues of articulation between GET, HE and FET in process
· Development of national assessment policy for FET in process
Ensuring Provision of Equality Education:
· Training of educators and managers
· Provision of learning materials
· Culture of learning and teaching

INTERVENTIONS
· Creation of a conducive environment for learning and teaching
· Provision of learner support services
· Mainstreaming of Life Skills Education
· Review and modernisation (Mathematics, Life Science and Information Technology
· Provision of Skills Development Programmes through learnerships
· Provision of more opportunities for higher learning within the disadvantaged communities through the National Students Financial Aid Scheme
· Provision of more opportunities for out-of-school youth for further learning and self employment through RDP funds and National Skills Fund

MECHANISMS TO ENSURE IMPLEMENTATION & SERVICE IMPROVEMENT
· Develop performance indicators
· Drafting regular reports
· Ongoing review of plans and strategies
· Annual publication of performance indicators
· Identify policy gaps
· Information management system
· Research

The Chairperson summed up by stating that of immediate concern is:
· how the Committee will be functioning regarding, amongst others, abuse in special schools, of which she has first hand experience;
· how the Committee will be interacting with the Human Rights Commission;
· the policy on language - sign language in schools;
· youth in and out of school;
· children unable to get to school and children sent home because of disability;
· teachers that become disabled;
· lack of support for disabled persons.

Discussion
Mr Masutha (ANC) wanted to find out whether with regard to inclusive education, the Department has considered the human resource element with regard to budgetary provisions earmarked for the particular system.

The Department stated that specific resources are available stemming from aid from the Danish, Swedish and Swiss governments and also from the provincial budgets.

A committee member asked if a student can approach the department on an individual basis to help with their educational difficulties.

The Department responded, citing instances where this had happened, that students may approach them as they are willing and able to deal with students on a one-on-one basis.

Mr Gore (DP) asked from where the statistics had come because South Africa has a gap when it comes to disability research.

Response: Research estimates of 4% learning sites catering for learners with special needs are based on the household survey and census. The Department acknowledged that attention is required with regard to these statistics.

A committee member asked whether the audit can go further to look at problems experienced by disabled learners with regard to transport, accommodation, special equipment in schools?

Response: It is envisaged that the audit should tackle issues of abuse in special schools. The purpose of the audit is to get a picture of the state of affairs in these schools. The Department is determined to turn them from dumping grounds to fully functional resource centres.

Ms Ghandi (ANC) asked whether the Department has a plan to incorporate children in the preprimary stage.

The Department responded that specific support programmes have been set up incorporating children with disability which included training teachers on how to deal with children with special needs.

There was a query as to whether there is any strategy for adult education, especially for the disabled.

Response: These will fall under the out of school, over-35 age group category. The Department is looking at a collaborative interdepartmental approach spearheaded by the Youth Commission. Also envisaged is a policy of flexible entry to higher education. The University of Western Cape is piloting an investigation on how best to bring this group into higher education; the Department intends to learn from UWC's approach.

Mr Mzondeki (ANC) wanted to know exactly where the Department intends to place the 250 000 disabled not accounted for in schools: in special schools or public schools?

Response: These children will go to special schools as a point of entry and ultimately the Department is advocating an inclusive system.

A committee member noted that new schools are being built which are not accessible to the disabled, does the Department have any interaction with Public Works in this regard?

The Department conceded that it has not performed adequately on this issue, and that it has not provided enough oversight.

Ms Rajbali (MF) wanted to find out what steps the Department has taken to bring back teachers that have left.

The Department pointed out that it plans to recall good teachers whenever they are needed. Also that the redeployment programme was intended to deal with inequities; as migration trends change among schools in South Africa, the department would need to move teachers accordingly.

Mr Moss (ANC) wanted to know what is being done about those above 35 years who are the most illiterate.

The Department responded that the Umsobomvu fund has been earmarked for skills development and literacy programmes targeted at the over 35. Also, part of the skills levy will go to fund skills development and literacy programmes for this age group.

The Department pointed out that regarding the special education policy of Government, a draft policy paper is waiting for Cabinet approval. Regarding special education policy mainstreaming, a pragmatic approach is targeted. The aim is not to spread resources so thin, but to develop a district level support system to provide call support for example, training workshops and resource based materials.