Negotiating Mandates on Education Laws Amendment Bill, General & Further Education & Training Quality Assurance Bill, Cultural

Meeting report

EDUCATION SELECT COMMITTEE
19 September 2001
NEGOTIATING MANDATES ON EDUCATION LAWS AMENDMENT BILL, THE GENERAL AND FURTHER EDUCATION AND TRAINING QUALITY ASSURANCE BILL, THE CULTURAL LAWS AMENDMENT BILL; FINALISATION OF CULTURAL LAWS SECOND AMENDMENT BILL AND HIGHER EDUCATION LAWS AMENDMENT BILL: BRIEFING

Chairperson: Mr D Kgware

Documents handed out:
Education Laws Amendment Bill [B 55- 2001]
General and Further Education and Training Quality Assurance Bill [B 57- 2001]
Cultural Laws Amendment Bill [B 45A- 2000]
Cultural Laws Second Amendment Bill [46B-2000]

SUMMARY
In the discussion on the Cultural Laws Amendment Bill, Members expressed gratitude that the Department had included the Select Committee in the Bill, which had previously just made reference to the Portfolio Committee. The role of the local authorities in relation to the cultural institutions was debated, in the discussion of the Cultural Laws Second Amendment Bill.
Gauteng, Eastern Cape and the Free State supported the Education Laws Amendment Bill subject to amendments. With regard to the General and Further Education Laws Amendment Bill, the Western Cape supported the Bill. The Eastern Cape, Gauteng, Northern Province, Northern Cape and Free State supported the Bill subject to certain amendments. KZN supported the Bill subject to amendments and clarifications.

MINUTES
Department's Presentation on Proposed Amendments to the Cultural Laws Amendment Bill
Adv V Beukes: legal advisor, Department of Arts, Culture, Science and Technology, referred to a previous meeting in which members wanted the definition of 'differencing'. He explained that it referred to the Heraldry Act and how a coadt of arms is constituted. In terms of the Act a natural person may also have a coat of arms. The Bill therefore includes the definition of a 'family coat of arms ', which refers to a coat of arms belonging to a natural person. He read through the proposed amendments to Clauses 3(b), 4, 5, 14, 26, 31and 35.
Clauses 3(b), 5, 14, 26, 31 and 35 replaced the term 'Portfolio Committee' with the term 'Parliamentary Committees responsible for…'
Clause 4(1) (b) replaces the term 'Portfolio Committee' with the phrase ' A Joint Committee, consisting of members from the Portfolio and Select Committees responsible for Language'.

Discussion
Mr A Van Niekerk (Northern Cape) thanked the Department for incorporating most of the amendments suggested by his province previously while Mr N Raju (DP-KZN) thanked the Department for recognising the role of the NCOP Committees.

Ms J Kgoale (Gauteng) asked why the Bill had not incorporated its African names.
Adv Beukes replied that two of the upcoming Bills were being translated into African languages.

The Committee adopted the amendments and the Chair signed a statement to this effect.

Negotiating Mandates on the Cultural Laws Second Amendment Bill
Kwazulu-Natal, the Western Cape and the Eastern Cape supported the Bill subject to a few amendments. Northern Province indicated their support for the Bill. The North West indicated their support despite the fact that they had no formal mandate. Gauteng was still discussing the Bill in their Committees and therefore wanted reassurance that this was not a final mandate, before they gave their support for the Bill.

Clause by Clause Analysis
Clause 1
Kwazulu Natal: Clause 1(b) should be amended by substituting the reference to S6 (4)(a) with a reference to S6 (4). The provisions of S6 (4) (a)-(c) must be applicable to a flagship institution declared under S3 (4). Effectively the Chief Executive Officer (CEO) of a flagship institution declared under S3 (4) should be the accounting officer of the flagship institution, should serve a renewable term of five years and must enter into a performance agreement with the relevant council before taking up his/her post as CEO.

Discussion
Adv Beukes agreed with this viewpoint.

Western Cape: On page 2, after line 14, add the following paragraph: (6) Prior to making a declaration in terms of sub-sections 3 and 4, and recognising the principles of co-operative governance, the Minister must consult and reach agreement with the provincial MEC responsible for culture in the relevant province or the local authority if:
i)a public library, museum, zoological garden or other cultural institution had been established or is administered by the relevant provincial government or local authority in terms of other legislation at the time of considering such a declaration, or
ii)the immovable property, in which the proposed flagship or cultural institution is housed or will be housed or partly housed, is owned and maintained by either the provincial government or the local authority, or
iii) any movable property owned by either the provincial government, a public library, the board of trustees of a museum ,a cultural institution or a zoological garden established in terms of provincial legislation or the local authority is to be included in the collection of an existing or proposed flagship institution or a declared cultural institution.

Discussion
Ms Kgoali suggested that this was too long.

Mr Van Niekerk stated that MINMECs do not usually have specific interaction with local authorities on these issues.

Ms Kgoali stated that co-operative governance takes precedence. The Minister has to consult with the MINMECs and local authorities.

Mr Raju differed with Ms Kgoali. The landscape of the local authorities has changed. He suggested that the clause proposed by the Western Cape was a good clause as it ensures the input of the local authorities, as they are ultimately the managers of these institutions.

Ms N Jajula (ANC-Eastern Cape) suggested that legislating for the local authorities at this level could lead to problems later. She proposed that the clause be left as is. If local government wished to craft its role it should be able to do so.

Mr Van Niekerk argued that they were merely legislating a consultative process.

Ms Kgoali agreed with Ms Jajula that the clause should be left.

Dr G Dominy (Chief Director: National Archives) stated that Schedule 5 of the Constitution prevented them from changing the Bill as suggested by the Western Cape. Part A refers to the exclusive legislative competencies of Provincial legislatures. Part B refers to the competencies it shares with local government. The areas of libraries, museums and archives are not included in Part B. There is much confusion as to the competencies of local government in this regard.

Mr Van Niekerk suggested that the Department should obtain clarity as to the issue of competencies of the local authorities. He also wanted details on the consultative process that the Department had gone through with museums. A Department official stated that they had sent a circular to museums and then held workshops with CEO's. They had then received comments from the institutions.

Mr Van Niekerk asked what the responses had been. He had heard that many of their contributions had been ignored. A Department official answered that most of the responses had been tabled with and dealt with by the Portfolio Committee.

Mr Van Niekerk argued that this information had never reached the Select Committee.

Ms Kgoali suggested that the Committee be given the information to deliberate on at a later date.

Clause 2
KZN- They proposed the substitution of the word 'requirement' with 'prohibition'.
Western Cape: On page 3, after line 8,to add (c ) The Minister may only consider an application received from a declared cultural institution for the exemption provided for in terms of sub-section (b), in consultation with the SA Heritage Resources Agency to ensure that the provisions of the National Heritage Resources Act, 1999 Act 25 of 1999, are adhered to.

Clause 3
Western Cape: Omit paragraph (g) and substitute: (g) ' a member must vacate office if that member fails to fulfil his/her duties in terms of the functions of the council.'
KZN: a) Insert in line 30: 'and the recommendation is accepted by the Minister'. There is potential for conflict between the Minister and the Council if a member appointed by the Minister has to vacate his/her office if the council recommends this.
b) They also sought clarity on the reason for the change in the status quo. They wanted to know the reason that the Minister now has to determine broad criteria for payment with the concurrence of the Minister of Finance, whilst the actual determination is left to the Council. Additionally, they asked what would happen if the Minister fails to determine the criteria timeously.

Discussion
Ms Kgoali stated that any step that has financial implications affects the National Treasury and therefore requires consultation.

Clause 4
Western Cape: To delete paragraph (c) and substitute: (c) 'The Chief Executive Officer
i)serves for a renewable term of five years; and
ii)must enter into a performance agreement with the relevant council within three months of the date that s/he commences duty as CEO.'

Discussion
Ms Kgoali objected, saying that the Western Cape was attempting to re-write the Bill.

Adv Beukes agreed to effect this change to the clause.

Clause 5
Discussion
Ms J Witbooi (NNP-Western Cape) asked if the Chairperson could not be appointed in consultation with the Minister instead.

Ms Kgoali argued that the Chair has to be appointed by the Council, as the Council itself was appointed by the Minister.

Ms Jajula suggested that the Council nominate the Chair for appointment by the Minister.

Clause 6
KZN: sought clarity on the reason for the different time limits being set in respect of tabling depending on when Parliament is sitting.
Eastern Cape: After 'technology' in line 22, add 'and the relevant Select Committee of the NCOP'.
Western Cape: sought clarity on subsection 6(b) and (c). A legal opinion is needed on the implications of these subsections, with specific reference to the position of the trust fund, which the school must declare in its financial statements.

Clause 7
Adv Beukes said that in order to ensure consistency with other legislation, the Minister appoints the Chair while the Council appoints the vice-chairperson.

Discussion
A Department official assured the Committee that the Department would consider the issues raised before finalisation takes place.

Ms Kgoali asked if members could get the amendments before Friday, 21 September 2001.

Adv Beukes said that the Department would indicate which amendments it accepts and which of the amendments would require further discussion.

Mr Van Niekerk argued that obtaining final mandates while the Department still had outstanding issues would present a problem.

Negotiating Mandates on the Education Laws Amendment Bill
Gauteng, Eastern Cape and the Free State supported the Bill, subject to amendments.

Long title
Western Cape: After 'overdrafts' the words 'without the written approval of the MEC' should be inserted.

Discussion
Adv Boshoff stated that this suggestion was in line with those raised in public hearings. They agreed that the prohibition on loans and overdrafts should be qualified with the insertion of
' without the approval of the MEC' after the word 'overdrafts'.

Clause 1
KZN: The word 'representative' must be inserted after 'learner'. This would exclude other parallel structures.
Western Cape: In line 10, they suggested the omission of 'and such council is the only recognised and legitimate learner body at school'. They suggested that the words ' 'and such council is the only recognised and legitimate learner body at school for the purposes of S24 (4)' replace that phrase.

The Department accepted KZN's amendment, but stated that the clause suggested by the Western Cape was too limiting. Learners should have the right to represent themselves on all functions and responsibilities relating to them. If one restricts this right to instances mentioned in S24, it defeats the purpose of the clause.

Clause 2
Western Cape: They required clarity on the clause. They wanted a legal opinion regarding the implications of deleting 'only' in line 3.
KZN: They questioned whether one could limit the functions of a juristic person.
Mr T Mseleku: Director General, Department of Education, said that these are related inputs, which the Department has already considered. As the objective was not to limit schools but to focus the functions of the governing bodies, the Department proposed that Clause 2 should be rejected. Section 15 of the Act should remain and Section 16 should be amended. The new clause, which would follow clause 1, should read:
Section 16 of the principal Act is amended by the substitution for subsection (1) of the following subsection:
(1) Subject to this Act, the governance of every public school is vested in its governing body and may perform only such functions and obligations and exercise only such rights as prescribed by the Act.'

Clause 4
KZN: They suggested the insertion of the words ' in the opinion of the Head of Department' after the word 'if' in lines 15, 22, and 27.

Discussion
Mr Mseleku said that this was not advisable, as matters of law had to be based on fact and not opinion.

Mr K Panday (KZN) asked who determines whether the governing body is functioning. He suggested that the Head of Department has to determine this.

The DG argued that it was unwise to use the word 'opinion'.

Mr Van Niekerk agreed with the DG, but stated that the clause needed to be worded more clearly.

Adv Boshoff suggested the inclusion of the words ' on reasonable grounds'.

Free State: They sought clarity as to the use of 'altogether' in lines 15 and 23.
The DG stated that the word 'altogether' was introduced by the State Law Advisors and the clause had the same meaning if the word was omitted.

Western Cape: In line 17 the words 'may' should replace 'must'.
The use of 'may' is not advisable, as it is necessary to ensure that the Head of Department takes responsibility. There should be no discretion.

Clause 5
KZN: The clause should state that existing agreements would not be nullified.

Discussion
Adv Boshoff argued that it is evident from the language that the clause would not operate retrospectively.

Mr Van Niekerk stated that despite earlier input regarding this clause the Department has failed to change its opinion.

The DG said that they had been unable to incorporate those suggestions as they were subject to the Public Finance Management Act. The State, and hence the MEC would be liable for losses incurred. This could be dealt with the MEC introducing a blanket threshold; e.g. s/he would approve all loans below a certain amount. The amount could be stated in regulations.

Clause 6
KZN: The words 'except with the approval of the MEC' should be inserted at the end of the provision. The insertion of S37 (7) must be reconsidered in the light of current law on trusts and S37 (4) of the SA Schools Act.
Western Cape: They sought clarity and a legal opinion on the implications of subsections 6(b) and (c) with specific reference to the position of the trust fund which the school must declare in its financial statements.

Discussion
Mr Panday asked if donor funds could be placed in trust.

The DG responded that schools, which are juristic persons do not need to create other juristic persons to raise funds. In addition the trustees can at any stage change the beneficiaries of the trust. The argument that trusts would encourage donations due to tax incentives does not apply here, as there are no tax exemptions in this case.

Ms Jajula asked what happens if the governing body acts as trustee.

Adv Boshoff answered that the governing body already stands in a position of trust in relation to the school. If a parent acts in his private/personal capacity it can be done, however, if the parent were an official member of the governing body it would lead to a conflict of interests.
He suggested that the clause be tightened with the inclusion of the following in (c): ' in order to circumvent or manipulate the payment of compulsory school fees'.

Clause 7
KZN: If all budgets have to be published, approximately 5900 budgets would have to be published in the Gazette in KZN alone.
Western Cape: In line 9, the words 'such budget' should be replaced by 'such prescription'.
With regard to the requirement that budgets should be published, Adv Boshoff said that this required a technical amendment and should refer to budget formats. He proposed that the original provision in the Act should be retained with the word 'guidelines' replacing 'prescriptions'. The Committee accepted the proposal.

Free State: In line 9 the words 'as well as audited financial statements' should be inserted after 'budget'.
Adv Boshoff stated that the South African Schools Act does not require an audited statement. Many schools cannot afford to pay for auditors.

Clause 11
Northern Province: The word 'misconduct' should be preceded by 'alleged'.

Negotiating Mandates on the General and Further Education And Training Quality Assurance Bill
The Western Cape supported the Bill. The Eastern Cape, Gauteng, Northern Province, Northern Cape and Free State supported the Bill subject to certain amendments. KZN supported the Bill subject to amendments and clarifications.

Clause 6
Northern Province: proposed that the term 'demography' should replace 'race'.
The DG stated that 'demography' is too broad, i.e. it includes issues like gender.
Gauteng: They were concerned that the stakeholders should be represented, e.g. organised labour.
The DG stated that the Department did not want the body to become a stakeholders' Council. If they allowed in one group to be represented others would expect the same, e.g. students.

Clause 7
Eastern Cape: The power to dissolve Council should be built into legislation.
Adv Boshoff said that this had not been included, as it is not common practice in education. In accordance with common practice, they have dealt with individual members rather than with the Council as a whole. The Department could however get back to the Committee on this issue.

Clause 11
KZN: A deadlock breaking mechanism should be introduced as it is unclear what the position would be if the Minister does not agree with the recommendation of Council.

Clause 13
KZN: In line 51, clarity is sought as to what fees are being referred to.
The DG stated that it referred to user fees for quality assurance.

Clause 15
Eastern Cape: Clause 15(1) is not in line with the PFMA.
The DG stated that the clause was indeed in keeping with the Act.

Clause 23
KZN: The clause dealing with the accreditation of private providers should provide for renewal and withdrawal of accreditation and for an appeal mechanism if accreditation is not allowed. Furthermore, the institution must not be prejudiced by administrative delays.

The provisions of the Bill should be extended to home education (under the section dealing with private providers).

Discussion
Ms Jajula asked if there had been public hearings on the Bill. She asked what had been said in these hearings.

The Chair said that it had been referred to the provinces. The provinces had been given enough time to respond and some of them had responded.

Ms B Creecy (Gauteng) said that there was no reference in the Bill to Continuous Assessment. She asked if this would be dealt with in regulations.

The DG stated that this is dealt with in Clause 17. Internal Assessment can take any form.

The meeting was concluded.