The Portfolio Committee on Basic Education has received a legal opinion from parliament’s advisors that proposed laws to give the government more control over admission policies are in line with the Consitution.

The legal office delivered the opinion on Tuesday (29 August) during a portfolio committee briefing.

In it, chief parliamentary legal advisor Zuraya Adhikarie said the office was approached for advice on two matters relating to the controversial Basic Education Laws Amendment (BELA) Bill.

The first was the constitutionality of clauses 4 and 5 of the Bill, and the second was on the ‘motion of desirability’ of the Bill – which relates to the public commentary, consultations and feedback on the proposed laws.

Language policies

While many clauses of the BELA Bill have drawn controversy, clauses 4 and 5 have received some of the most considerable pushback.

These clauses give authority to the Head of Department (HOD) in respect of the powers of the School Governing Bodies (SGBs) to determine the school’s policies on admission and languages used at schools.

Proponents of the Bill want the government, through HODs, to have greater power over admission and language policies at schools so that education can be more easily accessible to more children and so that SGBs cannot discriminate on the basis of language to deny entry into schools.

Critics of the Bill have characterised this as the government stepping too far and trying to usurp and centralise power from SGBs and force changes that run counter to the interests of the communities that schools serve.

According to parliament’s legal advisors, however, they are of the opinion that “the proposed changes in the A list in respect of clauses 4 and 5 of the BELA Bill, are constitutional and other legal concerns raised have been taken care of” in law.

In reasoning the opinion, the advisors noted that South Africa’s schooling systems operate on a three-tier system – a national level (through the department), a provincial level (through HODs) and a community level (through SGBs).

For the system to work – particularly in an unequal society like South Africa, where access to education is uneven – a balance has to be struck between the three levels; however, the Constitutional promise of education for all is paramount.

The clauses in the BELA seek to amend the country’s laws to clarify this balance and ensure that all three work collaboratively to deliver that promise.

“Clauses 4 and 5 of the BELA Bill do not traverse or deal with the principle of separation of powers but brings clarity on the responsibilities and autonomy of the three-tier partnership originally envisaged by the Schools Act and verified as correct in the judgments that have pronounced on the issue of admissions and language policy at schools,” the advisors said.

Consultations

While the legal opinion is a clear victory for the ‘ayes’ looking to change the approach to language and admission policies at schools, the advisors were cautious over the second question relating to the ‘motion of desirability’ of the Bill.

In processing laws in South Africa, the motion of desirability follows the inputs, consultations and comment periods on any proposed laws. If adopted, the deliberations on the details continue. If denied, the Bill is rejected.

Minority parties on the committee have rejected the motion of desirability on the grounds that not all consultations and inputs have been processed. However, the motion has been pushed through by the majority party.

The advisors stressed that when processing commentary and consultation on the Bill, the portfolio committee should look beyond simply counting numbers and pushing ahead with the laws based on limited or truncated feedback.

“The motion must be proposed after due deliberation. In other words, based on the contents of the Bill and the deliberations in the Committee, the Committee must decide whether it wants to proceed with the Bill,” they said.

To ensure that the process is in line with sections 29 and 76 of the Constitution, the advisors stressed that all public submissions must be considered and seen to influence the deliberations of the committee, regardless of whether they are all or not affected as presented.

The Democratic Alliance, which has been a headline critic of the Bill, said that parliament’s agreement on this note would ensure that “thousands of email submissions yet to be analysed” as part of the BELA Bill will now be processed.

The full legal opinion can be read below:

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