BELA Bill: national hearings report; financial implications; deliberations

Meeting report

The Chairperson thanked Members for availing themselves to conclude this vital process during the constituency period before the National Assembly reopened.The agenda was submitted to Members for adoption.

Mr B Nodada (DA) commented on the agenda and said that if Members recalled the previous meeting, he made four requests which were about meeting venue suitability to ensure stakeholders were accounted for; the Department response to the public submissions on the BELA Bill, as per the agenda; a National Treasury regulatory report on the financing of the Bill; and Parliamentary Legal Services report on whether the Bill had any constitutional implications in order to guide the Committee. He did not understand why these matters were not included in the agenda. To proceed with the process, he would have preferred to have Parliamentary Legal Services guide Members on constitutional implications that have since come up.

He was not pleased that the Treasury and Parliamentary Legal Services briefings were not part of the agenda along with the briefing by the Department. He was under the impression that these documents would be available and form part of today’s discussions and agenda. He proposed to amend the agenda to include the Treasury and Parliamentary Legal Services presentations before commencing with the clause-by-clause deliberations.

Mr P Moroatshela (ANC) said that these documents referred to by Mr Nodada must not delay the process. The Committee went through an outreach process without any objections to the process. It was decided that Parliamentary Legal Services would assist the Committee when it commences its clause-by-clause exercise. He believed that the remarks made by Mr Nodada were attempting to stall the process.

Ms M Sukers (ACDP) said that Members had an expectation that the National Treasury and Parliamentary Legal Services would appear before the Committee. She supported the inclusion of these briefings and the amendment of the agenda as proposed.

The Chairperson said when she started chairing the Committee in 2019, the Department never had a funding issue. The DBE programmes one to five will be funded; the money is coming from National Treasury. She suggested that the Committee waited for Treasury’s presentation so that Members can verify the Department’s review against what Treasury would present to the Committee.

The Chairperson asked what Parliamentary Legal Services is going to do now for the Committee. The unit has been part of the process. This is the Department’s Bill; it is not the Committee’s Bill. The Department’s legal team does not need assistance from Parliament's legal services. South Africans supported the Bill and if Members now wanted to re-count all the submissions made, then so be it. She did not understand how now all of a sudden, the parliamentary team cannot be trusted.

She suggested that the Committee commence with the agenda as it needs to finish this process.

Mr Nodada said that he feared he was being misunderstood; the reason he was raising these items consistently with the Chairperson was to safeguard the process. Parliament is a legislature and when dealing with a Bill, regardless of how it came before the Committee, there is a process it must follow. Part of the process is for the Department to inform the Committee about the Socio Economic Impact Assessment System (SEIAS) assessment and financial implications, amongst other things. National Treasury has a role to play and should be invited so that Members can be guided as legislators with the information so the process is safeguarded and this process is not challenged at a later stage.

Secondly, Parliamentary Legal Services as per the process needs to present its view on the Bill and the process and if there were any constitutional concerns about the Bill. He was merely requesting to include as part of the agenda that Parliamentary Legal Services must give a report on the Constitutional implications of the Bill.He pleaded with his colleagues not to misconstrue his words and appealed to Members to take his concerns in the spirit of trying to ensure that the process is safeguarded.

Mr Moroatshela commented that if these concerns were raised in the previous meeting where the adoption of the National Hearings Report was deferred, they would have been welcomed and his comments would have assisted greatly. He was not pleased that Mr Nodada did not raise his concerns in the previous meeting and is doing so today. He objected to the amendment of the agenda because that would hijack the Legal Services. The National Hearings Report was not adopted because of insufficient time; hence Members deferred its adoption to today’s meeting.

By going through the Bill clause by clause, Parliament Legal Services (CLSO) may assist once this exercise commences. He proposed the adoption of the agenda without amendment.

Ms Sukers indicated that commitment to the process is shown by all Members being present in today’s meeting. She had raised procedural concerns several times in the Committee about the public hearings and the process. It was not the first time issues were being raised about the constitutionality of the Bill and the process. She had requested CLSO review the public participation process, but the meeting was moved to today. There were public comments that came at the last minute from Mpumalanga and Members need CLSO to review if those comments would materially impact the fairness of the process; and if so, to what degree a comprehensive process can be done.

CLSO has not participated when the Provincial Hearings Report was adopted. It also needs to address the Committee on the Bill. She could not understand how this was viewed as an obstruction to the process when it in fact safeguards the process. The Committee needs an opinion or guidance from CLSO to address the constitutionality of the Bill; the legality of the function shift and the implications of lowering the compulsory school age in the Bill. Therefore, it makes it imperative for CLSO to address the Committee before commencing with the clause-by-clause deliberations. This will furnish the Committee with sufficient knowledge and insight to engage the clauses.

Ms N Adoons (ANC) commented that when the process commenced, the Committee engaged with CLSO and it assured Members that the Bill was still within legal imperatives and constitutional. Secondly, the Committee engaged with CLSO during oral submissions in this Committee room. Today, Members are here to do the clause-by-clause exercise – but why are there delaying tactics at play now?

Mr B Yabo (ANC) suggested that the Committee should proceed as intended because the processes the other Members wanted to see unfold can be done in isolation. We must acknowledge that this Bill is highly contested, and it will not be easy to find a middle ground, especially by political parties who have their ideologies. To find each other, it is not going to be the product of a meeting of this nature. Processes must not be isolated and one must not try to create other processes as prerequisites for progress when there are not. During the clause-by-clause exercise, there is nothing stopping the Committee to ask for a legal opinion from CLSO by Friday 18 August. Checks and balances are always undertaken and when a Bill is ready to be signed by the President, it is first reviewed, which is a further check and balance. These processes can be done in isolation and there is no prerequisite that CLSO must comment on the legality or constitutionality before a Committee can commence with its work. For now, the Committee can proceed and CLSO will provide its legal opinion and the Committee will engage it.

The Chairperson said that when the Committee was briefed on how to proceed, CLSO was present. The Committee proceeded but now there were procedural concerns about Mpumalanga mentioned. Mpumalanga was stopped and the public hearing reconvened. She could not understand – who did not make mistakes? And that was agreed on by Members.

The Chairperson said that a certain Committee member would make videos of something that she says is procedurally wrong. However, when it suits her, she isolates herself as not part of the collective. She gives the Bill a certain name and undermines everybody in the Committee and becomes the 'spokesperson'. We must accept it because we are on the receiving end. When you want to bull***t everybody, you do it. Adv Misser has been undermined here and we kept quiet.

Mr Nodada called a point of order and asked the Chairperson to refrain from using foul language.

The Chairperson noted the point of order and apologised. Adv Misser has been subjected to wrong things to the extent that she had to excuse herself. Another person was undermined and the staff has been sent from pillar to post but all Members had kept quiet. A Committee member had gone viral across the country speaking on behalf of this Committee when she is not the spokesperson of this Committee. Members kept quiet about this as well.

Members of the public have been given wrong information and the staff was now made to feel like they do not count, but we must keep quiet because we want the process to unite us. No one has a monopoly on wisdom. We come from different schools of thought and we cannot allow others to shove their “wisdom” down our throats. Members cannot play an “on-and-off” role in this Committee. She ruled that the Committee will adopt the agenda in its current form.

Ms Sukers objected to the agenda.

Mr Nodada objected to the agenda and proceeding with a process that has no Treasury and CLSO reports.

Mr Moroatshela said that having gone through all the provinces and listening to what the people were saying, it is worth mentioning that South Africans generally misconstrued Clause 8 and the intention of the Department. Clause 8 was wholly misconstrued and misinterpreted.

Secondly, other clauses that were misconstrued and misunderstood were Clause 37 (Home Scholars) and Clause 41. He requested that this be noted in the National Hearings Report.

Ms A van Zyl (DA) also objected.

Mr Nodada said he had written to the Chairperson when Members first received the presentation indicating the written submissions on the Bill. The first submissions were in written format, and the deadline was extended until 15 August, as per the report. The written submissions numbered 17 452; but how are there only 6 715 of those 17 452 submitted? We analysed less than a third of the entire submissions. What is the rationale behind this? If there are 17 452 submissions in written form, there were also oral submissions in the provincial public hearings. When one tallies the total number of submissions analysed, there is a discrepancy. Why were 6 715 analysed but the remainder of the 17 452 never analysed? There are close to 9 500 written submissions that were not analysed. The qualitative arguments from the public hearings were covered in the report; however, there is a discrepancy as almost a third of the total submissions were not analysed from the reading of the report. When analysing what the report was about, we are sitting with 32 941 explained as submissions but the actual total number was 34 509, and of that, 9 500 were never analysed at all. This is what the report is saying. Thus, we need to ensure that as we continue with the clause-by-clause exercise, we have an accurate report and understand the rationale. When he wanted to ask questions last week about the glaring discrepancies, this did not happen which meant the staff could not prepare answers for today about these questions.

Thirdly, the submissions made via a courier box that arrived containing 11 400 submissions. There are Dear South Africa-BELA Bill and other organisations that made submissions, but these were treated as one submission,even though 29 000 people objected to this with qualitative arguments. Then when we got the courier box containing 11 400 submissions, we rushed to analyse it and treated them as individual submissions. What is the rationale for having two different approaches to the submissions made by the public? We analysed the box individually overlooking the 17 452 submissions made before that box arrived as the Committee took a different approach for the Dear South Africa-BELA Bill and other organisations' physical submissions.

He had requested a breakdown of support/non-support per clause for the matrix of submissions document as part of the National Report. There seems to be no explanation in the Excel spreadsheet submitted on MS Teams and via emails – it seems the breakdown is bundled into one. Under point number 9, there are two categories – which is Excel Spreadsheet rechecked on 5 August as per the Report – and comparing the numbers on 6.1 of that. Was it emails or MS Word submissions?

Based on the analysis of all the submissions, if we tallied the numbers, we would find that 14 900 submissions would have supported the Bill; 18 422 submissions would have not supported the Bill; 1 446 would have partially supported the Bill and 1 326 would have been undeclared. He asked for clarity on these discrepancies.

Mr Yabo said he wanted to raise a point of order but allowed Mr Nodada to finish his comments. The point of order is based on the presentation made by Mr Nodada which seems to suggest that he was running a separate back office process – to analyse the submissions individually. That also raises an issue of testing that process. If we would agree to his suggestion, it means we must test the process used that led Mr Nodada to come to these numbers.

Mr Yabo suggested that responses that suggest a separate back office process must be paused because it meant that the Committee would have to audit that process. He is too specific with the numbers; thus, should the Committee be subjected to parallel processes – one done by Parliament and the other by Mr Nodada? He cautioned against moving in this direction and rather to focus on what Parliament has done.

The Chairperson interrupted Ms Sukers who wanted to respond to the comments that the Chairperson made earlier. She proceeded to ask for the adoption of the National Report.

Ms Sukers was not pleased that she was not given an opportunity to make her remarks.

The Chairperson interjected and said Ms Sukers was not permitted to speak.

Mr Yabo stressed the importance of following meeting procedure and avoiding dialogue while encouraging calmness. Members can submit objections.

Ms van Zyl said that if Members read page 37 of the National Report,they can see the discrepancy in the calculations; hence, the questions. We cannot adopt a Report with a discrepancy that Members of the Committee can pick up and raise.

Mr Moroatshehla rose on a procedural matter saying Members want to correct the report and discuss it at the same time, which is not procedurally correct. Mr Nodada may have a point, but it was disputed by Mr Yabo when he said that his process must be subjected to an audit. Mr Nodada could have indicated that he disagreed with the numbers as reflected in the report and requested for recalculation or an audit. However, this cannot stop the report from being adopted. The way the objections are submitted was unprocedural. Hence, if there are no further questions or amendments as presented last week, he rises for the adoption of the report with all the highlights made by Members.

Ms Sukers said the adoption and discussion of the Report were moved to this week in the previous Committee meeting. She referred to a Constitutional Court judgment that dealt with meaningful public participation and why it is important to consider every submission.

Mr Moroatshehla stood on a point of order that he had moved for the adoption of the report. The Chairperson must consider whether there were secondments or objections. Nothing further can be discussed without noting his motion to adopt the Report and if it was seconded or not.

The Chairperson asked Ms Sukers to continue.

Ms Sukers highlighted that there is a significant number of submissions that seem not to have been accounted for. This needs to be urgently clarified. Parliament is required to consider all the public comments that are submitted according to its Rules..

The Chairperson interrupted and asked for her specific correction to the Report.

Ms Sukers said she is trying to do her job and she keeps on getting accused when she is doing her job.

Mr Nodada rose on a point or order and called the Chairperson to order for not allowing Members of the Committee to raise issues pertaining to or that have implications on the content of the Report. Members of Parliament are allowed to make their comments whether the Chairperson agrees or not. Her responsibility is to chair and guide the meeting.

Ms Suckers was then granted an opportunity to finish her remarks. The ConCourt judgment in the Mogale matter on the Khoisan and Traditional Leaders Bill. In this judgement, Parliament was found to have failed in its constitutional obligation to facilitate public involvement and the Act was therefore found to be unconstitutional due to the manner in which the Bill was adopted. Parliament has an obligation to ensure that not only the content but also the process of the Bill is constitutional. The Court noted in the judgment that the public participation process acts as a safeguard to prevent the interests of the marginalised from being ignored or misrepresented. She stressed constitutional muster in terms of process and clause by clause exercise. She stressed she has no desire to delay the process.

Ms Adoons indicated that the Chairperson had asked for corrections and adoption of the report. Now, Members were making speeches that they have prepared to delay this process. She seconded the adoption of the Report.

Ms Sukers stated that she was not just correcting the Report but is engaging with the Report in accordance with parliamentary rules. It is her responsibility to do so. The current situation cannot persist.She was frustrated that she was accused of trying to chair the meeting when she is doing her job.

Mr Yabo also supported the adoption of the Report with corrections on the calculations outlined on page 37. There is a discrepancy between the total number and the numbers on the matrix or asterisk and asked that this be corrected.

The Chairperson submitted that the Report was now adopted.

The Report was adopted.

Mr Nodada said that the process was now botched, and the Rules of Parliament have been broken in terms of engaging the report and receiving responses. He had not gotten the responses from the parliamentary team to the questions he asked. The clarity-seeking questions and comments of the Members must be responded to. Now the process is botched for adopting a report with discrepancies and questions were not being responded to. He stressed that this is part of the process.

The Chairperson said that the report was supposed to be adopted last week but Members felt they did not have adequate time. Now Members were raising questions that need to be responded to. She suggested that the team will review all the comments that were raised by Members in the meeting. They should move on to the next agenda item because the Report is adopted.

Mr Nodada expressed the DA’s objection to the report; the process that has unfolded this morning without financial implications and Parliamentary Legal Services reports. Members were not even allowed to get responses to their questions and to the discrepancies noted in the report. The DA will not participate in a process that is going to implicate millions of children and parents by taking their rights away through the process. Members of Parliament are representatives of the people, and they need to ensure that the process embarked on was correct.

The Chairperson interjected and noted the DA’s objection.

Ms Sukers said that her rights as a Member of Parliament have been restricted. According to the Powers and Privileges Act, this was not allowed. She was not allowed comment and further engage the Report and other Members were recognised to speak in her stead.

She objected to the Report on the basis that it does not do justice to the constitutional obligation that Members must consider every submission made to the Committee.

The DA and ACDP left the meeting.

BELA Bill financial implications: DBE briefing
Mr James Ndlebe, DBE Chief Director: Education Management and Governance, noted the financial implications centred on implementation of extending compulsory schooling to Grade R; thus, it had been imperative for the Department to conduct a SEIAS as driven by the Presidency (Monitoring and Evaluation function of the Presidency). When the Bill was conceptualised, it had to be subjected to the SEIAS for its financial implications. The impact study has been approved and the SEIAS approval is an indication of government commitment to the implementation of the Bill.

Extending compulsory schooling to Grade R would require extra funding for teachers and infrastructure of up to R17.2 billion annually. Of this amount, R4.77 billion would cover extra staff and the remaining R12.43 billion for infrastructure.

The presentation covered the SEIAS report; reasons for additional funding; staffing; costing elements; estimates and conclusion.

The Chairperson noted that the Committee needed to correct any issues with the Report and note the financial implications of the BELA Bill.

Clause-by-clause deliberations: lack of quorum
The Chairperson stated that when the meeting started, there were about seven Members present, including the Chairperson. The meeting reached its quorum but when it came to the adoption of the report, the DA and ACDP left the meeting with objections to the Report and the process. There are now five Members present but the Rules of Parliament do not allow the Committee to take decisions as there need to be six. This means that Rule 162(3), which reads as follows, “When the Committee has to decide a question and the quorum in terms of Sub Rule 2 is not present, the Chairperson may either suspend the business until a quorum is present or adjourn the meeting.”

Now the Committee was going to get into clause-by-clause deliberations of the BELA Bill and each clause needs the Committee to take a decision on it. However, the Committee cannot proceed because the Committee was no longer quorate.

She suggested that the Committee adjourned its business and resume the clause-by-clause exercise on 16 August at 9 am.

Mr Moroatshehla supported the Chairperson’s suggestion.

The meeting was adjourned.