Basic Education Laws Amendment (BELA) Bill: DBE response to public submissions; with Ministry

Meeting report

The Chairperson opened the meeting and welcomed the Minister, Deputy Minister, and everyone present. This was an essential meeting in which the Department of Basic Education (DBE) would respond to written and verbal matters raised during public hearings. The Committee had been waiting for these responses for quite some time and looked forward to engaging with the DBE on the Basic Education Laws Amendment (BELA) Bill. He said these matters had been raised by community members and organisations that operated within the education sphere.

Minister's opening remarks

Ms Angie Motshekga, Minister of Basic Education, said the more the Department communicated on this Bill, the better. The Department had been working and trying to push the BELA Bill through for some time now, and it had taken forever to finalise it. The DBE had dealt with this Bill for the past three administrations, and it had been around for almost seven years. The issues that had been raised had to be addressed by the courts. The DBE was not being defensive. There would have been cases where the courts had instructed the DBE to amend laws, which was why the amendments had been made. DBE had not just decided to wake up and have the BELA Bill.

She said there were also areas in the BILL that had to be dropped after consultations. This had been done not because valid reasons were presented, but because of the uproar. She had informed the DBE that it should drop some aspects instead of delaying the whole Bill. She gave an example with the liquor part of the Bill. There were so many distortions and misinformation about the sections that dealt with liquor on school premises. The education law currently stipulates that one needs permission from the Head of the Department to bring liquor on school premises. This created a gap between provincial departments and schools; people would bring alcohol onto school premises and say they had permission from the Head of the Department, but this was different. The Bill addressed this issue by giving this authority to schools, letting schools decide, and giving this permission through the school governing body (SGB), and the Bill had clear guidelines on this. This had caused an uproar, and a lot of misinformation was spread. The DBE had had to drop this part, and the old way still stands. She said this was unworkable, but it would prevail.

The Minister said there were more significant issues the Bill had to deal with, and minor issues should be dropped and dealt with in the next round of amendments. She was grateful for this opportunity, because the Department would have a chance to clarify many issues. The DBE had been trying to speak to as many people as possible and spread the word as far as possible. She hoped this Bill would get passed before the end of the current administration. If the Bill was not passed, it would have been processed through four administrations. There were critical areas that this Bill addresses that would help the education sector significantly.

She said the DG and his team should focus on what this Bill was all about, because there had been a lot of distortions. It was about the administration and management of the education sector, but people had been saying it talked about the curriculum, which was not valid.

DBE response to public submissions on BELA Bill [B2-2022]

Mr Hubert Mweli, Director-General (DG), DBE, said that as South Africa celebrated 30 years of democracy, the amendments were informed by 28 to 30 years of education management experience. As the Minister had said, these amendments were informed by the courts and by the DBE's research and work within the basic education sector. The Bill would aid in the implementation of the South African Schools Act.

The presentation was organised in such a way that it responded to the questions that the public had asked. It also responds to the list of questions sent through by the Select Committee. The presentation would also address issues raised by various bodies and entities that had been presented to the Select Committee.

The core of the presentation would discuss what the Bill seeks to achieve, which would be the starting point.

The DG said Mr James Ndlebe, Director: Education Management and Governance Development, DBE, would take the Committee through the Bill. The presentation may be prolonged because of the detailed explanation and important points DBE sought to highlight and explain to the Committee, but officials would be cognisant of time.

Mr Ndlebe provided the DBE's response to the Select Committee's hearings report.

Legislative reforms

He said the legislative reforms would:

• Allow for implementation of court judgments that protect and give effect to the Bill of Rights;
• Provide financial and public accountability frameworks for governing bodies and provincial departments;
• Provide system improvements in terms of learner admissions;
• Provide for additional regulatory powers of the Minister and enhance decision-making and oversight powers of heads of departments (HODs) and Members of Executive Councils (MECs);
• For technical and substantive adjustments, clarify specific provisions, insert provisions not provided for in existing legislation, and strengthen enforcement mechanisms for offences and penalties.

Limitations

Mr Ndlebe said the Bill had certain limitations:

• It sought to amend certain sections of the South African Schools Act of 1986 to respond to schools' administrative challenges and a continuation of the education system's transformation agenda;
• It was not a wholesale Bill that covered all aspects of the sector;
• It focused mainly on the administrative processes of the Department and schools.

It would therefore not include:

• Early Childhood Development (ECD);
• Human resources – no appointment of teachers and general workers;
• Infrastructure – no sanitation, pit latrines, mobile classrooms, building of schools, water and electricity supply, or such. These were covered in the norms and standards for school infrastructure;
• Inclusive education and schools for learners with special needs, which were covered in White Paper 6;
• Curriculum aspects, so there would be no mention of subjects, three-stream model, online schools, assessment, or life orientation, which included sexuality education.
• Extra-curriculum activities and sports;
• Other governance challenges.

Observations

Mr Ndlebe said most comments received were not based on clauses in the Bill, and indicated divisions along racial, religious, political and socio-status lines. There had been negative mobilisation during hearings and the submission of scripted comments, with misinformation on what the Bill was about and the changes it would bring. There were also attempts to change the primary Act.

DBE had noted the Select Committee's report that members of the public's objections to the Bill were not based on the clauses in the Bill. There was a narrative that if one attended the public participation in numbers and flooded the Committee with written objections, the Bill would be stopped -- as if it were a referendum.

The Committee was responsible for selecting from the submissions what was substantive and relevant to the Bill. Statements such as "the Bill was rejected by many," and "the clauses were dismissed by many," were the points in case. What was it that was rejected? Was it a Constitutional mandate? Was it in the primary Act?

It could not be appropriate to reject the entire Bill based on one clause that one did not support, unless it was a malicious objection. If one counted the number of people who rejected clause 99, did one also count how many people supported the Bill? The DBE would have added their numbers to support clause 99 if it did.

(Please see presentation for further details)

Discussion

The Chairperson said the presentation was very detailed and provided a response to all the issues raised by the public and organisations. It had been beneficial in clarifying problems of contentment, and he was glad the DBE had said their door was open for further suggestions and other amendments to the BELA Bill. He said South Africans and community-based organisations were open to going to the DBE and giving input during the next round of amendments in the Seventh Administration.

Ms D Christians (DA, Northern Cape) said some of these issues had been debated to the point of exhaustion. She asked where the funding would come from, and the financial implications of this Bill. The Department had said National Treasury would make funding available to implement this Bill, but last year, it expressed concern about the financial sustainability of implementing it. This indicated a need for thorough investigation and planning, which had yet to be seen by the DBE on this Bill. National Treasury had confirmed last year that the Bill was unfunded legislation.

She said Parliament's Portfolio Committee on Basic Education had heard the DBE would need around R16 billion to implement the Bill. In light of all this, and the lack of clarity on planning around implementation, and regarding where this R16 billion would come from, how would this Bill be implemented? Parents and the Select Committee deserved clarity on these matters.

She said the integrity and participation during public proceedings for this Bill were of enormous concern. The Chairperson had received a letter from the Northern Cape and the Free State, and these provinces had stated that the integrity of what had happened was a huge concern. She asked how the DBE would justify the passage of the BELA Bill, despite opposition from the public. None of the inputs received had agreed to this Bill. Two thousand submissions from the Northern Cape had practically opposed the Bill. This raised concern about the integrity of the legislative process.

The Portfolio Committee had agreed that they would go on a negotiated mandate, despite the report from the legal advisors stating opposition to the Bill. There were reports that attendees had been denied access to participate in the Bill. Serious concerns were raised, and the Select Committee must review them fairly and reasonably. The DBE needed to look at whether there were procedural flaws and whether the Select Committee should pass this Bill just for the sake of passing it.

She asked how the DBE planned to address these issues and what steps would be taken if people were denied the opportunity to speak. How would the Select Committee mitigate the legal response to this Bill? There was also an unequal distribution of speaking time, which disadvantaged the public. The public voting at the end of the meetings needed to be more transparent, and some meetings started late due to the Chairperson needing to arrive on time. She asked if the DBE was willing to engage with the public further. There was a need for meaningful engagement with stakeholders, and DBE needed to return to the communities.

She said the requirement for schools to produce quarterly financial reports would cause a substantial economic burden on schools. There would be no additional funding or staff support. What specific assistance would the DBE provide to schools that could not comply? How did the DBE ensure all clauses regarding audited statements were implemented equally across all schools? The potential impact on school resources was a significant concern, and she asked if the Department would consider tailoring some provisions to apply to schools with specific financial challenges. The DBE should also take steps only when there is repeated non-compliance.

Lastly, considering that some of the public hearings were not successful, the Western Cape had asked for an extension, which had been given. It was also requesting an extension for the negotiating mandate. She proposed extending the negotiating mandate to allow for comprehensive submissions from the Western Cape.

The Chairperson asked how funding was allocated for Grade R learners. Did it form part of the DBE's budget, or was it a separate budget? The DBE needed to clarify what the funding model was. Had they told the National Treasury their needs, and did the Treasury provide a budget, or was a set budget received? He asked if there was a law that guided infrastructure and the payment for GR R's.

He said there were numerous extensions, and these had been given to everyone, including the Western Cape. Two extra weeks had been allocated to all the provinces, so there was no need for the Western Cape alone to receive another extension. All the provinces had been happy with the two-week extension; no province was special, and all the provinces would be treated equally. Why must the Western Cape be given an extension on top of an extension, while all the other provinces had agreed that the two weeks was sufficient? 

Ms E Nkosi (ANC, Mpumalanga) thanked the DBE for their informative presentation and said it addressed all the submissions and questions asked by various stakeholders and members of the public. She said it had been expected that the Western Cape would request extensions, but all the provinces were given an extension and were happy with the two-week extension. This could not be allowed, and the Select Committee needed to proceed with its approved schedule for this Bill.

DBE's response

Minister Motshekga responded by saying some of the technical issues raised would be addressed by officials, who would be able to explain them in detail. She disagreed with the issues which Ms Christians had raised.

Mr Mweli said the presentation and the Bill reflected the DBE's experience in implementing the South African Schools Act. These changes were affected by the challenges that were currently in the system.

The presentation explained how funding would happen. The funding was mainly for making the Grade R provision possible, not the entire Bill. However, the provision was funded through equitable sharing, and posts were provided for through the post-provisioning norm policy. The current norm policy provided for Grade R teachers to be hired. The DBE had decided that as practitioners in Grade R became qualified and met the minimum requirements, they must be absorbed in terms of the basket of posts. This basket was determined every year, as the budget allowed. Some Grade R practitioners were already paid as educators. Each province decided how to hire, based on their post basket. Those not being paid were getting an allowance of between R5 000 and R7 000 a month for unqualified practitioners. The amount indicated was ideal, meaning every learner in South Africa would attend Grade R and have a fully qualified practitioner to teach them.

The Grade R curriculum was in place and regulated by the national curriculum framework. Workbooks had been provided for years by the DBE, and the budget issue was neither here nor there, and should not be a problem.

The best people to answer the issue of procedural integrity and public participation would be the Portfolio Committee on Basic Education, but the DBE had been at the hearings and could vouch for the process. The process was thorough, and each objection and question, with a particular issue on the Bill, was thoroughly discussed. There had been extensive engagement. The process was very scientific and rigorous. He said it depended on who one talked to. Those who supported the Bill would say all provinces had provided positive feedback on the Bill, and some had objected to the Bill regardless of the facts, saying all provinces opposed the Bill.

If attendees were not allowed to attend, the Committee should investigate the validity of these claims, because this was not true. People had been saying and doing anything possible to make sure the Bill did not proceed. The National Council of Provinces (NCOP) process had gone the same way as the National Assembly process. No procedural flaws would lead to the Bill being legally challenged. The process followed would stand the test of the courts if challenged. The Bill was not vulnerable, and the legal advisors had given the green light.

Referring to the administrative burden placed on schools for quarterly financial statements, Mr Mweli said schools did this monthly, and there would not be extra human resources. This was to align these processes with DBE regulations. Nothing extra was being asked of the schools -- they had been doing this for years, with no additional burdens. It was just legitimising this process.

The issue of the Western Cape had been ventilated, and an extension was the business of the Select Committee.

Mr Ndlebe said it was untrue that the public had opposed the BELA bill. The Select Committee should examine these claims, and what was being opposed.

Further discussion

Ms Christians asked when the Select Committee would deal with the letters received from the Northern Cape and Free State. She asked about the proposed extension date. This extension would not influence the final mandate date -- this proposal was fair.

Ms N Ndongeni (ANC, Eastern Cape) said Committee Members needed to learn about the letters received, and why there had to be another extension. There could not be another extension, because each province had received a two-week extension.

Mr M Bara (DA, Gauteng)  said these issues should be ventilated when the DBE was still present in the meeting. If the Committee was done with DBE, they should leave, and the Committee could deal with these matters.

Ms Nkosi said if issues were raised, they needed to be responded to. These processes had been fair, and each Member would get a chance to give input to the report. The Select Committee had given extensions and could not give the Western Cape another one. The Committee was not playing games.

The Chairperson asked Parliament's legal division to address some issues.

Ms Phumelele Ngema, Parliamentary Legal Advisor, said she would comment when the Committee met to discuss the negotiating mandate clause by clause, and reserved her comment for that meeting. Commenting now would derail the discussion and be a repeat of what she would contribute in that meeting.

The Chairperson said the Western Cape had asked for an extension and had been given a week. After that, it again asked for an extension of another two weeks for public participation. They were now requesting another extension. This was very “suspect”, and could be seen as a delaying tactic. This Bill was essential and laid a foundation for young South Africans' future. There was an approved programme, and Members knew what procedures to follow if they wanted to amend that programme.

The Chairperson thanked the Minister and her team for their contributions, and said they could leave the meeting.

The Minister thanked the Select Committee, and said she appreciated the chance to brief the Members. She was glad the Committee had determined to move this Bill forward.

Committee minutes

The Committee considered and adopted the minutes of its 13 March meeting.

The meeting was adjourned.