How Sadtu the SACE have damaged accountability in SA education

Introduction

The South African Council for Educators (SACE) is a public body established in terms of the South African Council for Educators Act (Act No. 31, 2000). It is mandated to do three things:

• Maintain a register of all educators in South Africa (every educator must, by law, be registered with the SACE);
• Develop and train educators; and
• Develop, promote and uphold ethical practice by educators.

The purpose of this article is to focus exclusively on the third requirement - the SACE's duty to ensure good ethical behaviour by educators and the degree to which it has delivered on this obligation.

The SACE and accountability

In order effectively to uphold educator ethics, the SACE Act grants the council a range of powers; and, in order to have a standard against which those powers are exercised, the act requires the SACE to "compile, maintain and from time to time review a code of professional ethics for educators who are registered or provisionally registered with the council".

Thus, there exists for all educators a ‘Code of Professional Ethics', maintained and enforced by the SACE.

It is fairly extensive and covers a wide range of ethical standards. As these things go in South Africa, it is solid - thorough and reasonable, although perhaps with a few important omissions. But what is there isn't bad.

The code is structured to regulate various educator relationships. For example, the relationship between the educator and the learner (it requires that an educator "refrains from any form of sexual harassment of learners"), between the educator and parents, the educator and their community and educators and their colleagues.

Importantly, it also deals with the relationship between educators and their profession (the code states that an educator must "keep abreast of educational trends and developments" and "behave in a way that enhances the dignity and status of the teaching profession and that does not bring the profession into disrepute"). Just as importantly, it regulates the relationship between an educator and their employer (the code requires that educators accept that "certain responsibilities and authorities are vested in the employer through legislation" and that they "serve his or her employer to the best of his or her ability").

There are a great many other noteworthy and important requirements in the code; it is worth reading in full.

So, how does the SACE uphold and enforce the code? Here too, the SACE Act grants the council a range of powers. Specifically, if an educator is found to have breached the code, after a "fair hearing", the council may:

• Caution or reprimand the educator;
• Impose a fine not exceeding one month's salary;
• Remove the name of the educator from the register, either for a specified period or indefinitely (or subject to other specific conditions).

It can also suspend a sanction imposed in terms of the above for a period, with conditions determined by the council.

Thus, the SACE is a cornerstone of accountability in the teaching profession: an overarching legislated body set up with the express purpose of upholding standards and ethics among educators.

Accountability requires two things in order to be effective: explanation and consequence. The SACE Act provides for both. In providing for a fair hearing and with the power to investigate possible breaches of the code, the SACE has the ability to seek out any explanation. In providing a set of sanctions, likewise, the act provides for consequences, should an educator be found to have violated the code.

So, the tools at the SACE's disposal are powerful and appropriate. The question that needs to be answered, then, is how well the SACE is doing this? Has the council created an environment defined by an appreciation of, and respect for, accountability in the teaching profession, as the act requires it to do?

The SAPS: A comparative case

The best way of determining this is to examine the degree to which the SACE addresses breaches of the code and enforces the relevant consequences. This can be done by analysing the SACE's annual reports, tabled each year since its inception in 2000. Like any public body, it is required to report on its outcomes to parliament and the public and an annual report is how it does that.

(It is worth noting, however, that obtaining these reports was no easy task - the SACE hasn't uploaded a single one to its website, which perhaps tells you something about its commitment to public accountability from the get-go).

First, however, some background and context, necessary to fully understand the scale of the problem:

In its 2010/2011 annual report (the latest available) the SACE notes that, at the time, some 591 000 educators were registered with the council. Of these, it estimated that around 365 000 were actively serving.

In order to put that into perspective, let us use the South African Police Service as a counterpoint. It is not the perfect analogy (education is by its nature sui generis) nevertheless, it is illustrative. The entire national police force comprises some 194 000 people (see the SAPS 2010/2011 annual report). Outside of the criminal justice sector, health and the defence force, education has one of the largest human resource components in the country - an immense number of people. Unlike the SAPS, however, educators are employed provincially. That is, each provincial government is responsible for those educators in their respective province, as opposed to the national department. Nevertheless, the size of the SAPS workforce puts the approximately 365 000 active educators in context.

Educators are not police officers (that much is obvious) and the environment in which they operate is fundamentally different. But the SAPS also boasts an oversight body designed to ensure accountability in the police service: the newly renamed Independent Police Investigative Directorate (IPID). And, like the SACE, that too can serve as a general point of comparison for our purposes.

I have written about the IPID before and the escalating number of criminal cases it receives every year against members of the SAPS (see here for a graphic illustration). In 2010/2011, some 2 500 criminal cases alone were brought to the IPID's attention, each one concerning a member or members of the SAPS. There were other kinds of cases too - 5 689 all-inclusive - reported against members of the SAPS in 2010/2011.

And that is just the IPID. The SAPS itself is able to take action against its own members for more general (as opposed to criminal) ill-discipline. For example, also in 2010/2011, the SAPS dismissed 520 police officers, gave 1 034 officers a suspended dismissal and fined 1 160 officers. In fact, in one form or another, it dealt with 5 471 disciplinary outcomes (685 of those resulting in a not guilty verdict).

The kinds of disciplinary violations included: absenteeism (682 officers found guilty); being on duty while under the influence of drugs (160); contravening the Public Service Code of Conduct (258); prejudicing the administration (349); failing to comply with legislation (698); and so on and so forth - a wide-ranging series of transgressions and transgressors. (Here is the SAPS 2010/2011 Human Resources Report with all the details.)

In summary, between the IPID and the SAPS itself, some 11 000 disciplinary cases against SAPS members were dealt with last year, ranging from the criminal to the negligent.

The IPID suffers a number of ‘accountability' problems I am not going to go into here but, if 194 000 SAPS officers generate 11 000 disciplinary cases a year - and the SAPS is by no means the quintessential example of accountability - you would expect the number of ethical violations brought against educators (of which there are 160 000 more) to be, at least, equally as high; if not higher.

Certainly, with such a comprehensive code and so many powerful sanctions at the disposal of the SACE, the law of averages (and much anecdotal evidence) suggests that a substantial number of violations by educators would be pursued each year. But what are the facts?

The SACE: Accountability goes ‘missing in action'

Here follows a table listing the number of complaints against educators raised with the SACE and subsequent action taken, since its creation in 2000, some 12 years ago:

A total of just 97 educators have been permanently struck-off the register by the SACE in 12 years - an average of less than 10 a year.

Remember, 520 police officers were dismissed in 2010/2011 alone.

That number, then, would seem unbelievable. Admittedly there have been a small number of suspended removals and fines imposed too, but the primary sanction - for an educator to be permanently struck-off the roll (and thus prevented from teaching - effectively, fired) - is so small as to almost be negligible.

How is that possible? How can it possibly be that, in 12 years, with 365 000 educators in active duty and just under 600 000 registered, just 97 have been permanently struck off the SACE register?

Indeed, for that entire period, the SACE has held just 472 hearings into potential ethical violations (again, remember, the SAPS and IPID dealt with some 11 000 cases in 2010/2011 alone).

It would appear from the hard numbers that the SACE is failing fundamentally to fulfil its legal obligation and, in that failing, it is helping to augment a culture of "unaccountability" in the teaching profession.

(Before moving on, a brief explanation for the table: so dire is the SACE reporting on those ethical violations brought before it, despite having every annual report since 2000, I could make neither head nor tail of the varied numbers. It is quite clear that the SACE has no formal and consistent way of measuring these outcomes over time. Luckily, for the last three financial years, things improved and it was possible to provide a breakdown here. Luckier still, in the SACE 2008/2009 report, the CEO provided an overview for every case brought before the council up to that date; hence the composite figure for the 2000 through 2008 line item. In short, approximately 400 complaints are received by the council a year, of which roughly half involve some or other violation of the ethics code, and thus a hearing. Of these, a tiny percentage resulted in educators being permanently removed from the register, a number in suspended removals, and some in fines. The other half, which usually involve salary disputes, are deferred to the provinces - the employers - to deal with or, where appropriate, the SAPS or other relevant bodies.)

Sadtu: An unaccountable menace

Were South African education an outstanding model of excellence and accountability, perhaps one might be a little less quick to be so awe-struck by that figure. Excellence and accountability enjoy a special relationship - each one reinforcing the other - and so excellent institutions are often accountable ones. However, even if that was the case, there are just too many educators for even an excellent workforce to result in just 97 permanent dismissals in 12 years.

Of course, South African education is not a model of excellence - far from it - and much has been made of the role the South African Democratic Teachers Union (Sadtu) has played in helping to entrench that low standard. I do not think it is necessary for me to set out in detail the state of South African education - that is well known - instead let me quote The Mail & Guardian on Sadtu, from an editorial in July last year:

"Sadtu's membership comprises about two-thirds of the country's 390 000 teachers, so when it sneezes 12-million schoolchildren are at risk of infection. But by what right does the union hold their health to ransom? When Sadtu bullishly keeps on holding union meetings during teaching time, referring with its bloody-minded dogmatism to "rights", it is time to ask (again) whether those rights supersede the interests of South Africa's youth. When it implicitly condones its members' misconduct-whether loafing in the staff room instead of teaching, or preying on the young people they should be nurturing-the question of whose rights should prevail becomes acute. Manuel's report went in search of reasons for its blunt finding that "the education system has failed to ensure that equalised public spending on schooling translates into improved education for poor black children". Those last five words should ring a bell for Sadtu-it was the union's own passion at its formation. But, bulking large among the reasons Manuel's commission found were teacher absenteeism, union action (including holding meetings during school time) and the difficulty of dismissing teachers charged even with "extreme misconduct"-all of which this week's study finds as well."

There are few organisations more dedicated to subverting accountability than Sadtu, an attitude perhaps definitively confirmed by its decision, also in March this year, to reject performance contracts for teachers and principals. It is an unaccountable menace, and there is a strong case to be made that its influence has rendered the SACE impotent.

Here is how.

The SACE's controlling body comprises a council of 30 members. According to the SACE Act, they are broken down as follows: 18 members from the organised teaching profession; 5 representatives from the Department of Basic Education; 2 from the Association of School Governing Bodies; 1 from the Council of Higher Education; 1 from the SETAS; 1 from the Independent Schools Association; and the SACE Chairperson and Chief Executive Officer.

However, if you break that down by union membership, this is what the current council looks like (from the SACE website):

The website lists 31 members. I am not sure why. It includes the SACE Deputy Chairperson. Teacher unions dominate the council with 15 members in total, and Sadtu has the most members on the council out of any representative body (11). Significantly, they include the SACE Chairperson, Mr Lucas Maphila, who, when he isn't the SACE Chairperson, serves as no less than the Deputy President of Sadtu itself. That alone represents a fundamental conflict of interest. Little wonder the institution is so averse to accountability - it is dominated by one of the most powerful anti-accountability forces in the country. Indeed, it has a strangle-hold on South African education's primary accountability mechanism.

(There are currently four vacancies on the council, so Sadtu actually has 10 out of 27 members, and the unions together have 14 out of 27 members - an outright majority.)

That influence extends to the SACE Ethics Committee itself, which breaks down as follows:

Here too unions hold a 50% majority. The Chairpersonship is vacant but, were it to go to a member of a union, they would likewise hold an outright majority. It is the Ethics Committee that determines how every complaint is dealt with.

One could take the problem further still. Should it be decided that a complaint be investigated or warrant a hearing, the panel that comprises the SACE disciplinary committee is made up of educators themselves. To quote from the 2010/2011 SACE annual report: "Most of our disciplinary hearings take the form of peer adjudication; this means that educators serve as presiding officers and panelists and pass judgment on their fellow educators accused of breaching the Code of Professional Ethics." Here too, Sadtu would be well placed to be a defining influence.

Indeed, later in the report, it further notes: "Until July 2008, each disciplinary panel deciding on a disciplinary matter was assisted by a legal practitioner so as to give them direction on contentious legal issues. We have reduced the use of legal practitioners as a cost-cutting measure."

While the SACE does argue that those members on the panel are "trained on issues of law", they are not lawyers. Nor are they independent. Now, it makes sense to have representatives from the teaching profession on the panel but, when it is comprised solely of educators (many of whom are anti-accountability unionists) and without readily available legal advice, that is a recipe for unaccountability. Even more so when Sadtu's overwhelming influence is to resist and outlaw accountability.

The SACE simply cannot be described as independent of Sadtu's influence and, with that, the union's deep resistance to accountability and oversight. Sadtu's influence is not subtle and the size of its numbers makes it the dominant force in the council. So much so, that it controls the Chairpersonship. It makes sense, then, on the numbers, that the SACE serves Sadtu's interests, not those of accountability and the public in turn.

Side-stepping responsibility

But there is an equally strong case to be made that the SACE itself has fundamentally failed in its duty. The council recently presented its 2012 strategic plan to the Basic Education portfolio committee and it was almost without any reference to accountability, the outcomes it demands, or the steps necessary to create a culture of accountability in South African education.

The Code of Professional Ethics states that "any person who believes that an educator has breached the code may lodge a complaint with the Council" but, critically, also contains the following provision:

"The disciplinary committee may investigate any alleged breach of the code, whether or not a complaint has been lodged."

That provision gives the game away. It is absolutely clear from the SACE's various annual reports that it relies entirely on complaints being brought to its attention. In every single report the complaints are described as "complaints received". Based on the facts, it appears that not once in 12 years has the SACE, of its own volition, sought out a breach of the code and acted in response. If it has, it would be an extreme exception to the general rule. It is almost entirely a passive organisation. As such, it simply cannot properly carry out oversight in an effective manner.

Were a parliamentary question to be put to the Minister of Basic Education, asking how many breaches of the code the SACE had voluntarily sought to investigate in each of the last 12 years, the answer would surely be next to nothing.

How many principals and educators are absent from classrooms on a regular basis and without good reason? (The code states that an educator must "commit themselves... to do all within their power, in the exercising of their professional duties".) How many times has a Sadtu strike or go-slow unfairly compromised the education of learners? (The code says an educator must "not abuse the position he or she holds for financial, political or personal gain".) How many teachers are not properly qualified? (The code says an educator must not be "negligent or indolent in the performance of his or her professional duties".)

There is much evidence, both scientific and anecdotal, to suggest in all of these areas and many more, there exist fundamental problems. (The Department of Basic Education itself has, for example, found that the department has found that the average teachers' absenteeism rate is 8% with the Eastern Cape and KwaZulu-Natal even higher at 10.5% and 10.3%.)

Based on nothing more than current affairs, the problems would seem to be significant. And yet, from its own reports, it apparent the council is doing nothing actively to pursue those many educators who violate the code. There exists no proactive plan to seek out violations of the code and deal with them; no doubt a result of Sadtu's influence. It is telling that, in 12 years, the SACE has not produced a consolidated report on its outcomes in this regards, at so far as I can asertain. Perhaps because it has nothing to report.

If the SACE were committed to creating a culture of accountability, it would ruthlessly seek out those educators who violate the code and act against them. Instead, it waits, hoping someone will raise any concern with them.

Consider the following as another lateral take on the problem: have you ever seen or heard of a public campaign by the SACE calling on parents to lodge any complaint they might have against an educator they feel has breached the code? More to the point, have you ever heard of the SACE?

The SACE is the forgotten institution of South African education. And you can be sure that is just the way Sadtu would like it to remain.

The SACE annual reports provide a breakdown of expenditure (the amount the SACE spends on its various costs). The amounts dedicated to promoting the Code of Professional Conduct is miniscule, as this table demonstrates:

In 2006/2007 the SACE had reduced expenditure on the Code of Conduct down to just 1.8% of its total costs - a laughable amount. Every South African citizen has a right to use the code to ensure South African learners receive from educators an education of a high standard, yet the SACE seems so preoccupied with distributing copies of the code to educators themselves that it has forgotten (a) who its real clients are - the South African public; and (b) the final outcome that it is responsible for - employing excellent educators who deliver an excellent education. These are the very reasons for its existence.

As far as the SACE itself goes, however, clearly it believes it is doing a fine job. One need look no further than the remuneration and performance bonuses awarded to longstanding SACE CEO Rej Brijraj, over the past seven years:

Any performance bonus is linked to the targets of the council. As I have said, one need look no further than the SACE presentation of its 2012 strategic plan to the Basic Education Portfolio Committee earlier this year to see that it is entirely devoid of a single hard target when it comes to ethics. The only reference being an undertaking is to "maintain" ethical standards and introduce "proactive" measures to deal with breaches of the code. Indeed, if the CEO's remuneration is anything to go by, the SACE members think it is getting better and better (remember the CEO sits on the Ethics Committee). Is it completely out of touch with reality?

To put the R930 544 Brijraj has earned in bonuses over the last seven years into perspective, it is some R50 000 more than the SACE spent in the three years between 2004 and 2007 on the code itself. What, exactly, is he being rewarded for? There is a complete disjuncture between process and outcome.

Some mitigating factors

There are some mitigating factors one should take into account. The first is the clearly burdensome disciplinary process the SACE utilises - a response, in all likelihood, to South Africa's restrictive labour laws. So burdensome is it, in fact, that even with its relatively miniscule case load (compared to, say, the SAPS) it is hard pressed every year to avoid a case backlog.

In turn, the 97 educators struck from the register in 12 years represent one of the harshest sanctions the SACE is able to impose, which is why I focused it. It is also able to fine educators and give a suspended sentence. Like an outright removal from the register, however, the numbers here are so small they are almost not worth mentioning: 43 educators were fined in the last three years, and 85 given a suspended sanction. The annual reports are so bad it is not possible to determine the full picture for these categories going back, but where they do exists they suggest no noticeable difference (in 2004/2005, one educator was given a fine, likewise in 2005/2006).

Second, as alluded to above, the SACE is grossly underfunded (I referred to their cutting back on legal services, to cut costs). This it cannot be blamed for, but it speaks volumes about the national department's attitude to accountability. Education enjoys the lion's share of the national budget every year; that the national department is not willing to put more money behind its central accountability mechanism says much about the ANC government's commitment to accountability and oversight.

Indeed, the problem is acute. Regularly in its annual reports the SACE complains about a lack of adequate funding. In its 2009/2010 report, Brijraj notes: "SACE's financial woes were compounded, inadvertently, by the Department of Basic Education (DBE). The council expected approximately R7m from the Department for Continuing Professional Teacher Development (CPTD) infrastructure, as planned by the DBE-SACE task team. For a range of factors beyond the control of the Department, SACE was able to secure only R1.5 (approx). This resulted in SACE encountering serious cash flow problems and infringing financial prescripts, in order to survive." So this is an institution which lives on a financial knife edge. That said, it did manage to find R12m for a new building, and R40m for renovations and refurbishments. I guess one has to look the part.

Third, there is nothing stopping provincial departments acting of their own volition to discipline an educator, and you can be sure this happens too. So the figures contained above do not constitute the complete number of educators disciplined every year, but merely those disciplined by the SACE. Nevertheless, that should not be an excuse. Accountability is one of its core functions and the SACE's failure to seek out errant educators is what really speaks to its attitude.

The perfect storm

In many ways, the SACE represents the perfect storm, where various different forces have come together to generate a work ethic and series of outcomes that do anything but enforce a culture of accountability.

Working from the top down: there is a general and pervasive negative attitude to accountability in education, one formally augmented by the national department's unwillingness to properly fund the SACE, and complimented by the powerful influence Sadtu has on those decisions and mechanisms designed to ensure accountability.

That attitude seems to have infected the SACE itself ever since and, between its bureaucracy and wrongheaded attitude towards its priorities, it has failed properly to uphold the appropriate ethical standard among educators - because it thinks it serves educators not the public. No doubt it is somewhat crippled by the labour laws, but even that does not prevent it from bringing cases against those educators who are not doing a proper job and thereby damaging the good work being done by those educators who are.

It is easy, however, to lose one's self in excuses and processes. The long and the short of it is: There must be a reason why the SAPS and the IPID can process 11 000 disciplinary cases a year, sanctioning such a high number of their relatively small staff components, while the SACE cannot. You can be sure, central to that answer, is Sadtu and its attitude to accountability.

Some questions

The following questions are therefore worth considering and, indeed, might well be worth putting to either the Minister of Basic Education, Sadtu or the SACE itself:

• Is the structure of the council conducive to accountability? Is it being held hostage by Sadtu? Could it be changed to be more independent? If so, how? (Perhaps an opportunity for a Private Members Bill?) The same questions apply to the Ethics Committee.
• How many breaches of the Code of Professional Ethics has the SACE itself successfully identified, investigated, brought to hearing and prosecuted? And why is the number so small?
• Is it helpful to have the Deputy President of Sadtu serve as the Chairperson of SACE?
• Why is the SACE disciplinary panel comprised solely of educators? How does that affect its ability to be impartial? How many of those people on the panel belong to a union?
• Why have only 97 educators been struck off the SACE register in 12 years?
• How many educators have been fined by the SACE in each of the last 12 years?
• Which parts of the code have been used to hold educators to account? In other words, is every part of the code being enforced or do the majority of complaints fall under just one or two sections of the code? If so, why is that?
• How many public education campaigns has the SACE run in the last 12 years to tell parents and citizens about their rights and the function and purpose of the SACE? How many copies of the code have been put in the hands of parents in the last 12 years?
• Why is the SACE so poorly funded? What does this say about the Department of Basic Education's attitude to accountability?
• Does the CEO's remuneration reflect the degree to which the SACE has entrenched accountability in South African education?
• Why, historically, has the SACE not had a uniform and measured way of reporting on those sanctions imposed by its disciplinary panel?
• What are the obstacles to making the SACE a better, more efficient mechanism for ensuring accountability among educators? How can they be overcome?

Conclusion

One underestimates the importance of institutions like the SACE at one's peril. It is absolutely essential that South Africa has an overarching regulatory body designed, among other things, to promote, protect and uphold high ethical standards among educators.

In the very first SACE annual report from 2000, Willy Madisha, co-chairperson at the time, wrote in its introduction: "What needs to be clarified in the shortest possible period, however, is that SACE should not be regarded as another ‘stick' to flog educators with, but as a body to advance the educational ideals of our country, and one which works closely with the educator departments and educator organisations."

That attitude has come to define the SACE's approach to the code itself. The introduction to the disciplinary procedures in the code contains the following provision:

"These procedures are intended to be corrective and not punitive, where this is possible and desirable taking into account the interests of the teaching profession as a whole." (Emphases as they appear in the code.)

And that tells you everything.

It is both to misrepresent punitive consequences for poor behaviour and misunderstand of the nature of corrective action. Holding someone to account for a transgression is punitive by its nature. If done correctly, it upholds a principle or value and, by protecting it in this way and sanctioning those who violate what is agreed to be best practice, one corrects behaviour. That is the effect of proper accountability.

Without doubt, one must also act to develop and train people so that they are both aware of what is required, and the consequences should they fail to meet the obligation on them. The SACE does that too and with some good effect but to denude those consequences of their value is to denude accountability of its very worth; i.e. as a correcting force for the good.

This, however, seems to have escaped the SACE. Instead, it appears intent on appeasement - the enemy of accountability. It is obvious, then, that South African education remains defined by a lack of accountability. The SACE, the very body tasked with ensuring accountability, is anathema to it.

What you can do

One way of forcing the SACE to be more proactive is to send them your complaints. Do you know of an educator that has violated the Code of Professional Ethics? Have you read a newspaper story about a violation? Send it to the SACE. A public campaign to put pressure on the SACE to deal with violations can only help strengthen accountability. You can contact the SACE at:

South African Council for Educators (SACE)
Private Bag X 127
Centurion
0046

261 West Avenue
Centurion
0046

Website: www.sace.org.za
Email: [email protected]
Email: [email protected]
Tel: 086 1007 223
Fax: 012 663 9238
Fax: 012 679 9726

A public campaign for accountability in education should start with the SACE and everyone who cares about education has a role to play. The natural motivating force for better accountability is greater transparency. Time for the SACE and Sadtu to be put under a bit of pressure to deliver on the outcome the SACE Act promises the South African public. South African education can only be all the better for it.

Gareth van Onselen can be followed on Twitter here. This article first appeared on the Inside Politics website.

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