President Cyril Ramaphosa has been asked to reconsider the Basic Education Laws Amendments (Bela) Bill before signing it into law after the National Assembly passed it on 15 May.

The bill was passed by 223 votes to 78 after the National Council of Provinces (Ncop) select committee on education and technology, sports, arts and culture adopted it on 27 March.

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The majority of votes from provincial legislatures were in favour of the bill after public hearings were held by provincial portfolio committees on education. Only the Western Cape did not accept it.

The committee then examined clauses to confirm amendments, forwarded the bill to the National Assembly to pass and then to the President to sign into law.

Daily Maverick has learnt that the South African Teachers’ Union, also known as the Suid Afrikaanse Onderwysers Unie (SAOU), submitted a petition to Ramaphosa on Tuesday 21 May, asking him to delete and replace some of the words in the amendments.

SAOU spokesperson Ted Townsend said their petition was acknowledged with a generic response.

He said the issues raised in the petition formed part of their submissions throughout the public participation process of the National Assembly and the Ncop.

Asked what steps the SAOU would take if Ramaphosa failed to make the changes, Townsend said the President first needed to sign the legislation before the union could consider further action.

“We will then revert to our legal team and plan the way forward,” Townsend said.

DA Shadow Minister of Education Baxolile Nodada said his party have written to Ramaphosa asking him to send the bill back to Parliament and “take it through for constitutional muster before considering it to be law”.

Failure to do so, Nodada warned, would lead to a court challenge.

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On Wednesday, Ramaphosa’s spokesperson Vincent Magwenya said: “Please remember that in order for the President to sufficiently fulfil his constitutional obligations in terms of sections 84 (2)(a)(b)(c) of the Constitution, he needs to properly process the bill.

“It will not be appropriate at this stage to preempt what action the President will take once he has fully processed the bill. Let’s give the President the time to go through the bill, apply his mind and make his decision.”

SAOU submission

According to the SAOU petition signed by the union’s chief executive, Paul Sauer, the correspondence was sent on behalf of their more than 38,000 members rendering professional teaching services at over 4,000 schools in South Africa.

Sauer said they have a proud record of cooperating with the Department of Basic Education (DBE), Minister Angie Motshekga and the various departments of education to ensure that all learners and schools uphold the constitutional principles as enshrined in the Constitution.

“It is common cause that you have an inalienable duty to divorce yourself from party political alignment and as Head of the State to ensure that new legislation complies with the Constitution of the Republic of South Africa.

“After obtaining the legal counsel of two respected senior advocates who have appeared on numerous occasions in the Constitutional Court, we are convinced that certain passages of Version D of the Bela Bill do not comply with the constitutional principles as recorded in earlier judgments of the Constitutional Court,” Sauer wrote.

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Sauer said they also consulted a retired judge who drafted the SA Schools Act (Sasa) of 1996, after the completion of an extensive consultation process undertaken by a commission chaired by seasoned academic Prof Peter Hunter in 1995.

This led to the Education White Paper, which saw the government introducing Sasa.

“Sasa, therefore, represented the collective will of the nation’s educational authorities, school management and governance structures, learner and parental communities and all other relevant interest groups,” he wrote.

The underlying principles on which the Sasa was unanimously established were an equal partnership between school governing bodies and the education authorities, cooperative governance, collaboration, public schools as independent juristic persons, and public schools as democratic extensions of the various communities that represent their diverse and varied needs and approaches.

Sauer said they are not opposed to all the amendments proposed by the Bela Bill.

But in light of Sasa principles, they implored Ramaphosa to reconsider the proposed amendments concerning the following:

• The admission policy (section 5(5)(b)). The proposed Bela Bill amendment states that the head of department (HOD), after consultation with the governing body of the school, has the final authority. He said they are convinced that the correct approach should be to replace “after consultation” with “in consultation”. In part, he said, the proposed “after consultation” undermines Sasa principles and “is a serious overreach of authority”; and
• The language policy (section 6(7)). The proposed amendment states that the HOD may “direct” a public school to adopt more than one language of instruction. The SAOU’s formal proposal is that “direct” should be deleted and replaced with “in consultation with the governing body request” a public school to adopt more than one language of instruction. He said the term “direct” is a serious overreach of authority and undermines the principles of partnership and cooperative governance. “It smacks of authoritarianism,” he wrote.

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These proposals, he said, were not new.

“The office of the Minister of Basic Education can attest that it has been our approach and submission throughout all the preceding processes at national as well as provincial levels.”

He said the SAOU, as a recognised trade union and role player, trusts that Ramaphosa will seriously consider and effect their proposed amendments “to ensure an amicable resolution to the complex and sensitive process that the Bela Bill has followed thus far”.

Department’s position

DBE spokesperson Elijah Mhlanga said once Ramaphosa had signed the bill into law, the amendments would take effect.

Asked whether any opposition to the bill had been received by the DBE and whether the department had sent any correspondence to schools, Mhlanga said the bill had been passed with a large majority in Parliament.

“The bill has not been signed into law yet so any communication to schools would be premature,” Mhlanga said. DM