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[Last checked: 1 November 2024.*]
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SOUTH AFRICAN SCHOOLS ACT 84 OF 1996
[Updated to 16 September 2024.**]
**Date of last changes incorporated into this Act.
__________________________
English text signed by
the President
Assented to 6 November 1996
__________________________
Published: G 17579 of 15 November 1996
Commencement: 1
January 1997 – Proc R77 in G. 17690 of 27
December 1996
Amended
Education Laws Amendment Act 100 of 1997 (G.
18480 with effect from 28 November 1997),
Education Laws Amendment Act 48 of 1999 (G. 20650
with effect from 19 November 1999),
Education Laws Amendment Act 53 of 2000 (G. 21783
with effect from 22 November 2000),
Education Laws Amendment Act 57 of 2001 (G. 22895
with effect from 5 December 2001),
Education Laws Amendment Act 50 of 2002 (G.
24113 with effect from 28 November 2002, sections 2 and 8 with effect from 1
January 2004),
Education Laws Amendment Act 1 of 2004 (G.
26292 with effect from 26 April 2004),
Education Laws Amendment Act 24 of 2005 (G.
28426 with effect from 26 January 2006),
Education Laws Amendment Act 31 of 2007 (G.
30637 with effect from 31 December 2007),
Basic Education Laws Amendment Act 15 of 2011 (G.
34620 with effect from 19 September 2011).
Uncommenced Amendment
Basic Education Laws Amendment Act 32 of 2024 (G. 51258 with effect from
date to be proclaimed)
ACT
To provide
for a uniform system for the organisation, governance and funding of schools;
to amend and repeal certain laws relating
to schools; and to provide for
matters connected therewith.
PREAMBLE
WHEREAS the
achievement of democracy in South Africa has consigned to history the past
system of education which was based on racial inequality
and segregation; and
WHEREAS this country requires a new national system for schools
which will redress past injustices in educational provision, provide an
education of progressively high quality for all learners and in so doing lay a
strong foundation for the development of all our
people’s talents and
capabilities, advance the democratic transformation of society, combat racism
and sexism and all other forms
of unfair discrimination and intolerance,
contribute to the eradication of poverty and the economic well-being of society,
protect
and advance our diverse cultures and languages, uphold the rights of
all learners, parents and educators, and promote their acceptance
of
responsibility for the organisation, governance and funding of schools in
partnership with the State; and
Uncommenced amendment WHEREAS this country requires a new
national system for schools which will redress past injustices in educational
provision, provide
an education of progressively high quality for all
learners and in so doing lay a strong foundation for the development of all
our
people's talents and capabilities, advance the democratic transformation of
society, combat racism and sexism and all other
forms of unfair
discrimination and intolerance, contribute to the eradication of poverty and
the economic well-being of society,
facilitate the education of children
through the promotion and protection of the right to basic education, protect
and advance
our diverse cultures and languages, uphold the rights of all
learners, parents and educators, and promote their acceptance of
responsibility
for the organisation, governance and funding of schools in partnership with
the State; and [Preamble, second paragraph,
substituted by s 40 of Act 32 of 2024 with effect from date to be
proclaimed.] |
WHEREAS it is necessary to set uniform norms and standards for
the education of learners at schools and the organisation, governance and
funding of schools throughout the Republic of South Africa;
BE IT
THEREFORE ENACTED by the Parliament of the Republic of South Africa, as
follows:—
ARRANGEMENT OF SECTIONS
CHAPTER 1
DEFINITIONS AND
APPLICATION OF ACT
1. Definitions
2. Application
of Act
CHAPTER 2
LEARNERS
3. Compulsory
attendance
4. Exemption
from compulsory attendance
5. Admission
to public schools
5A. Norms
and standards for basic infrastructure and capacity in public schools
6. Language
policy of public schools
6A. Curriculum
and assessment
6B. Non-discrimination
in respect of official languages
7. Freedom
of conscience and religion at public schools
8. Code
of conduct
8A. Random
search and seizure and drug testing at schools
9. Suspension
and expulsion from public school
10. Prohibition
of corporal punishment
10A. Prohibition
of initiation practices
11. Representative
council of learners
CHAPTER 3
PUBLIC SCHOOLS
12. Provision
of public schools
12A. Merger
of public schools
13. Public
schools on State property
14. Public
schools on private property
15. Status
of public schools
16. Governance
and professional management of public schools
16A. Functions
and responsibilities of principal of public school
17. Governing
body serving two or more schools
18. Constitution
of governing body
18A. Code
of conduct of governing body
19. Enhancement
of capacity of governing bodies
20. Functions
of all governing bodies
21. Allocated
functions of governing bodies
22. Withdrawal
of functions from governing bodies
23. Membership
of governing body of ordinary public school
24. Membership
of governing body of public school for learners with special education needs
25. Failure
by governing body to perform functions
26. Recusal
by members of governing body
27. Reimbursement
of members of governing body
28. Election
of members of governing body
29. Office-bearers
of governing bodies
30. Committees
of governing body
31. Term
of office of members and office-bearers of governing bodies
32. Status
of minors on governing bodies of public schools
33. Closure
of public schools
33A. Prohibition
of political activities during school time
CHAPTER 4
FUNDING OF PUBLIC
SCHOOLS
34. Responsibility
of State
35. Norms
and standards for school funding
36. Responsibility
of governing body
37. School
funds and assets of public schools
38. Annual
budget of public school
38A. Prohibition
of payment of unauthorised remuneration, or giving of financial benefit or
benefit in kind to certain employees
39. School
fees at public schools
40. Parent’s
liability for payment of school fees
41. Enforcement
of payment of school fees
42. Financial
records and statements of public schools
43. Audit
or examination of financial records and statements
44. Financial
year of public school
CHAPTER 5
INDEPENDENT SCHOOLS
45. Establishment
of independent school
45A. Admission
age to independent school
46. Registration
of independent school
47. Withdrawal
of registration of independent school
48. Subsidies
to registered independent schools
49. Declaration
of independent school as public school
50. Duties
of Member of Executive Council relating to independent schools
51. Registration
of learner for education at home
CHAPTER 6
TRANSITIONAL PROVISIONS
52. Transitional
provisions relating to schools other than private schools
53. Transitional
provisions relating to private schools
54. Transitional
provisions relating to governing bodies
55. Transitional
provisions relating to immovable property of certain schools
56. Transitional
provisions relating to public schools on private property
57. Transitional
provisions relating to private property owned by religious organisation
CHAPTER 7
GENERAL PROVISIONS
58. Expropriation
58A. Alienation
of assets of public school
58B. Identification
of underperforming public schools
58C. Compliance
with norms and standards
59. Duty
of schools to provide information
60. Liability
of State
61. Regulations
62. Delegation
of powers
63. Repeal
and amendment of laws
64. Short
title and commencement
Schedule 1
Schedule 2— Amendment of Educators’
Employment Act, 1994, by section 63
CHAPTER 1
DEFINITIONS AND APPLICATION OF ACT
(1) In
this Act, unless the context indicates otherwise—
Uncommenced amendments “basic education” includes
grade R to grade 12, as evidenced in the National Curriculum Statement; [“basic education” inserted by s 1(a) of Act
32 of 2024 with effect from date to be proclaimed.] “benefit in kind” means any
benefit offered or afforded to an employee employed in terms of the
Employment of Educators Act, 1998 (Act No. 76
of 1998), or the Public Service
Act, 1994 (Proclamation No. 103 of 1994), which is not a monetary benefit,
including, but not
limited to— (a) exclusive private usage or ownership of a vehicle; (b) free accommodation; (c) free
phone, including a cell phone; (d) free
holiday; (e) groceries
to the benefit of the employee; or (f) garden
services; [“benefit in kind” inserted by s 1(a) of Act
32 of 2024 with effect from date to be proclaimed.] “competent assessor” means an
educator registered with the South African Council for Educators as defined
in the South African Council for Educators
Act, 2000 (Act No. 31 of 2000), a
recognised professional body in the field of education, or a person or body
registered with
the South African Qualifications Authority as defined in the
National Qualifications Framework Act, 2008 (Act No. 67 of 2008); [“competent assessor” inserted by s 1(a) of
Act 32 of 2024 with effect from date to be proclaimed.] |
“Constitution” means
the Constitution of the Republic of South Africa, 1996 (Act No. 108 of 1996);
[“Constitution” substituted by s 1 of Act 100 of 1997
with effect from 28 November 1997.]
Uncommenced amendments “Constitution” means the
Constitution of the Republic of South Africa, 1996; [“Constitution” substituted by s 1(b) of Act
32 of 2024 with effect from date to be proclaimed.] “corporal punishment” means any
deliberate act against a child that inflicts pain or physical discomfort,
however light, to punish or contain the
child, which includes, but is not
limited to— (a) hitting, smacking, slapping, pinching or scratching with the hand or
any object; (b) kicking, shaking, throwing, throwing objects at, burning, scalding,
biting, pulling hair, boxing ears, pulling or pushing children; (c) forcing
children to stay in uncomfortable positions, forced ingestion, washing
children's mouths out with soap, denying meals,
heat and shelter, forcing a
child to do exercises which are not in accordance with the curriculum
applicable to the learner
or denying or restricting a child's use of the
toilet; and (d) any
acts which seek to belittle, humiliate, threaten, induce fear or ridicule the
dignity and person of a learner; [“corporal punishment” inserted by s 1(c) of
Act 32 of 2024 with effect from date to be proclaimed.] |
“Council of Education Ministers” means
the Council of Education Ministers established by the National Education Policy
Act, 1996 (Act No. 27 of 1996);
Uncommenced amendment “Criminal Procedure Act” means the
Criminal Procedure Act, 1977 (Act No. 51 of 1977); [“Criminal Procedure Act” inserted by s 1(d)
of Act 32 of 2024 with effect from date to be proclaimed.] |
“dangerous object” means—
(a) any
explosive material or device;
(b) any firearm
or gas weapon;
(c) any
article, object or instrument that may be employed to cause bodily harm to a
person or damage to property, or to render a person
temporarily paralysed or
unconscious; or
(d) any object
that the Minister may, by notice in the Gazette, declare to be a dangerous object for the purpose of this
Act;
[“dangerous object” inserted by s 4 of Act 31 of 2007 with effect from 31
December 2007.]
Uncommenced amendments “Department of Basic Education” means the
national department established in terms of section 7(2), read with Schedule
1, of the Public Service Act, 1994 (Proclamation
No. 103 of 1994),
responsible for basic education; [“Department of Basic Education” inserted by s 1(e) of Act 32 of 2024 with effect from date to be
proclaimed.] “drug” means any— (a) intoxicating or stupefying substance that has a psychological or
physiological effect; (b) substance that has the effect contemplated in paragraph (a) and that is
possessed contrary to the code of conduct of a school or
contrary to the laws
of the Republic; (c) substance, the possession or use of which, or the dealing in which, is
prohibited without a medical prescription or legal authorisation;
or (d) performance-enhancing drug, prohibited performance-enhancing substance,
dependence-producing substance, dangerous dependence-producing
substance,
undesirable dependence-producing substance, unlawful substance, prohibited
substance, illicit substance, illicit
drug, or scheduled substance, contemplated
in any South African legislation that deals with the control of medicines and
related substances, with drug trafficking,
substance abuse in general, and
with substance abuse in sport and in any programmes or policies aimed at
curtailing social
and sport-related substance abuse, and in any international
instruments that deal with such matters and to which South Africa
subscribes
or is a party; [“drug” inserted by s 1(e) of Act 32 of 2024 with effect from date to be
proclaimed.] |
“education department” means the department established by section 7(2)
of the Public Service Act, 1994 (Proclamation No. 103 of 1994), which
is
responsible for education in a province;
Uncommenced amendment “education district” means a
district in an area of a province which is demarcated by the Member of the
Executive Council for administrative purposes; [“education district” inserted by s 1(f) of
Act 32 of 2024 with effect from date to be proclaimed.] |
“educator” means
any person, excluding a person who is appointed to exclusively perform
extracurricular duties, who teaches, educates
or trains other persons or who
provides professional educational services, including professional therapy and
education psychological
services, at a school;
[“educator” substituted by s 6 of Act 48 of 1999
with effect from 19 November 1999.]
“governing body” means a governing body contemplated in section 16(1);
“grade” means
that part of an educational programme which a learner may complete in one
school year, or any other education programme
which the Member of the Executive
Council may deem to be equivalent thereto;
Uncommenced amendment “grade R” means the
Reception grade; [“grade R” inserted by s 1(g) of Act 32 of 2024
with effect from date to be proclaimed.] |
“Head of Department” means the head of an education department;
Uncommenced amendment “home education” means a
purposeful programme of education for a learner, alternative to school
attendance, which— (a) is provided under the direction of the learner’s parent, primarily in the
environment of the learner’s home; (b) may include tutorial or other educational support, if necessary, secured
by the parent on specific areas of the curriculum followed
by the learner;
and (c) meets the requirements for home education contemplated in section 51 of
this Act; [“home education” inserted by s 1(h) of Act 32
of 2024 with effect from date to be proclaimed.] |
“illegal drug” means—
(a) any unlawful
substance that has a psychological or physiological effect; or
(b) any substance
having such effect that is possessed unlawfully;
[“illegal drug” inserted by s 4 of Act 31 of 2007 with effect from 31
December 2007.]
Uncommenced amendment “illegal drug” … [“illegal drug” deleted by s 1(i) of Act 32 of
2024 with effect from date to be proclaimed.] |
“independent school” means a
school registered or deemed to be registered in terms of section 46;
“learner” means
any person receiving education or obliged to receive education in terms of this
Act;
Uncommenced amendment “liquor” means
liquor as defined in section 1 of the Liquor Act, 2003 (Act No. 59 of 2003); [“liquor” inserted by s 1(j) of Act 32 of 2024
with effect from date to be proclaimed.] |
“loan” means any financial obligation based
on agreement, which obligation renders a school liable for making payment, in
one or more instalments,
in favour of any person, but does not include the
payment of staff appointed by the governing body in terms of section 20(4)
or (5);
[“loan” inserted by s 4 of Act 15 of 2011 with
effect from 19 September 2011.]
Uncommenced amendment “loan” means any financial obligation based
on agreement, which obligation renders a school liable for making payment, in
one or more
instalments, in favour of any person, but does not include the
payment of staff appointed by the governing body in terms of section
20(4)
or (5), or operational costs as determined in the annual budget contemplated in
section 38; [“loan” substituted by s 1(k) of Act 32 of 2024
with effect from date to be proclaimed.] |
“member of staff” means a person employed at a school;
“Member of the Executive Council” means the Member of the Executive Council of a
province who is responsible for education in that province;
“Minister” means
the Minister of Basic Education;
[“Minister” substituted by s 4 of Act 15 of 2011
with effect from 19 September 2011.]
“no fee threshold” means the level of funding per learner contemplated in the norms
and standards for school funding applicable to a public school
which enables
the Minister to declare a school a no fee school in terms of this Act;
[“no fee threshold” inserted by s 1 of Act 24 of 2005
with effect from 26 January 2006.]
“norms and standards for school funding” means the national norms and
standards for the funding of schools determined by the Minister in terms
of section 35;
“officer” means
an employee of an education department appointed in terms of the Educators
Employment Act, 1994 (Proclamation No. 138
of 1994), or the Public Service Act,
1994 (Proclamation No. 103 of 1994);
Uncommenced amendment “other financial benefit” means any
benefit of a monetary nature, including, but not limited to— (a) exemption from the payment of school fees to the
school in respect of the child of an employee, but excluding exemption in
terms of the
provisions of sections 39 to 41; (b) a credit card linked to
an employee for his or her personal use; or (c) a petrol card linked to an employee for his or her personal use not related
to any school activity; [“other financial benefit” inserted by s 1(l)
of Act 32 of 2024 with effect from date to be proclaimed.] |
“parent” means—
(a) the biological
or adoptive parent or legal guardian of a learner;
[S 1(1)(a) of “parent” substituted by s 4 of Act 15
of 2011 with effect from 19 September 2011.]
(b) the person
legally entitled to custody of a learner; or
(c) the
person who undertakes to fulfil the obligations of a person referred to in
paragraphs (a) and (b) towards the learner’s education
at school;
Uncommenced amendment (c) the person who undertakes
to fulfil the obligations of a person referred to in paragraphs (a) and (b)
towards the learner’s
education; [“parent” (c) substituted by s 1(m) of Act 32
of 2024 with effect from date to be proclaimed.] |
“principal” means an educator appointed or acting as the head of a school;
“province” means
a province established by section 124 of the Constitution;
“provincial legislature” means a provincial legislature contemplated
in section 125 of the Constitution;
“public school” means a school contemplated in Chapter 3;
“Registrar of deeds” means the registrar of deeds referred to in section 2 of
the Deeds Registries Act, 1937 (Act No. 47 of 1937);
[“Registrar of deeds” inserted by s 1 of Act 100 of
1997 with effect from 28 November 1997.]
Uncommenced amendment “required documents” for
learners shall have the following meaning in relation to the following
categories of learners: (a) Where at least one or both biological or adoptive parents of a learner
are South African citizens, the following documents: (i) An unabridged birth certificate of the learner; (ii) the South African identity documents or cards of the learner’s parents;
and (iii) where either or both parents are deceased, the relevant death certificates; (b) where both parents of the learner are foreign nationals and hold either
permanent residence permits or temporary residence visas,
the following
documents: (i) the learner’s foreign issued birth certificate; (ii) the learner’s passport; (iii) a study visa or permanent residence permit issued to the learner; (iv) the parents’ passports; and (v) the parents’ temporary residence visas or permanent residence permits; (c) where the parents of the learner are refugees or asylum seekers, the following
documents: (i) the parent’s asylum seeker or refugee visa; (ii) the learner’s asylum seeker or refugee visa; (iii) the learner’s birth certificate if the learner was born in the Republic;
and (iv) where asylum seeker visas are provided, a refugee or long term study
visa must be provided within three years of admission of the
learner; and (d) where the learner is in alternative care, the following documents: (i) the relevant court order granting guardianship or custody; and (ii) the
learner’s unabridged birth certificate. [“required documents” inserted by s 1(n) of
Act 32 of 2024 with effect from date to be proclaimed.] |
“school” means
a public school or an independent school which enrols learners in one or more
grades from Grade R (Reception) to Grade
twelve;
[“school” substituted by s 1 of Act 100 of 1997
with effect from 28 November 1997, s 6 of Act 48 of 1999 with effect from 19
November 1999.]
“school activity” means any official educational, cultural, recreational or social
activity of the school within or outside the school premises;
[“school activity” inserted by s 4 of Act 31 of 2007
with effect from 31 December 2007.]
“school fees” means
school fees contemplated in section 39 and includes any form of
contribution of a monetary nature made or
paid by a person or body in relation
to the attendance or participation by a learner in any programme of a
public school;
[“school fees” inserted by s 1 of Act 24 of 2005
with effect from 26 January 2006.]
Uncommenced amendment “special education needs” means
education designed to facilitate the learning of individuals who, for a wide
variety of reasons, require additional support
and adaptive pedagogical
methods in order to participate and meet learning objectives in an
educational programme; [“special education needs” inserted by s 1(o)
of Act 32 of 2024 with effect from date to be proclaimed.] |
“this Act” means
this Act and all regulations promulgated under this Act.
[S 1(1), formerly s 1, amended by s 1 of Act 50 of 2002
with effect from 28 November 2002.]
(2) Footnotes
appearing in this Act must not be used in the interpretation of any provision
of this Act.
[S 1(2) inserted by s 1 of Act 50 of 2002 with
effect from 28 November 2002.]
(1) This
Act applies to school education in the Republic of South Africa.
(2) A
Member of the Executive Council and a Head of Department must exercise any
power conferred upon them by or under this Act, after
taking full account of
the applicable policy determined in terms of the National Education Policy Act,
1996 (Act No. 27 of 1996).
(3) Nothing
in this Act prevents a provincial legislature from enacting legislation for
school education in a province in accordance
with the Constitution and this
Act.
[S 2(3) amended by s 2 of Act 100 of 1997 with
effect from 28 November 1997.]
CHAPTER 2
LEARNERS
(1) Subject
to this Act and any applicable provincial law, every parent must cause every
learner for whom he or she is responsible to
attend a school from the first
school day of the year in which such learner reaches the age of seven years
until the last school
day of the year in which such learner reaches the age of
fifteen years or the ninth grade, whichever occurs first.
Uncommenced amendment (1) Subject to this Act and any applicable provincial law, every parent
must cause every learner for whom he or she is responsible
to attend school, starting
from grade R on the first school day of the year in which such learner
reaches the age of six years
and not leaving school until the last school day
of the year in which such learner reaches the age of 15 years or will
complete
grade nine, whichever occurs first. [S 3(1) substituted by s 2(a) of Act 32 of 2024
with effect from date to be proclaimed.] |
(2) The
Minister must, by notice in the Government Gazette, determine the
ages of compulsory attendance at school for learners with special education
needs.
(3) Every
Member of the Executive Council must ensure that there are enough school places
so that every child who lives in his or her
province can attend school as
required by subsections (1) and (2).
(4) If
a Member of the Executive Council cannot comply with subsection (3) because of
a lack of capacity existing at the date of commencement
of this Act, he or she
must take steps to remedy any such lack of capacity as soon as possible and
must make an annual report to
the Minister on the progress achieved in doing
so.
(5) If
a learner who is subject to compulsory attendance in terms of subsection (1) is
not enrolled at or fails to attend a school,
the Head of Department may—
(a) investigate the
circumstances of the learner’s absence from school;
(b) take appropriate
measures to remedy the situation; and
(c) failing such
a remedy, issue a written notice to the parent of the learner requiring
compliance with subsection (1).
(6) Subject
to this Act and any other applicable law—
(a) any
parent who, without just cause and after a written notice from the Head of
Department, fails to comply with subsection (1),
is guilty of an offence and
liable on conviction to a fine or to imprisonment for a period not exceeding
six months; or
(b) any other
person who, without just cause, prevents a learner who is subject to compulsory
attendance from attending a school,
is guilty of an offence and liable on
conviction to a fine or to imprisonment for a period not exceeding six months.
Uncommenced amendments (6) Subject to this Act and any other applicable law— (a) any parent who, without just cause and after a written notice from the
Head of Department, fails to comply with subsection (1)
is guilty of an
offence and liable, on conviction, to a fine or to imprisonment for a period
not exceeding 12 months, or to
both a fine and such imprisonment,
alternatively a court may impose a sentence within the court’s discretion as
contemplated
in terms of the Criminal Procedure Act; or (b) any other person who, without just cause, prevents a learner who is subject
to compulsory attendance from attending school is guilty
of an offence and
liable, on conviction, to a fine or to imprisonment for a period not
exceeding 12 months, or to both a fine
and such imprisonment, alternatively a
court may impose a sentence within the court’s discretion as contemplated in
terms
of the Criminal Procedure Act. [S 3(6) substituted by s 2(b) of Act 32 of 2024
with effect from date to be proclaimed.] (7) Any person who, unlawfully and intentionally interrupts, disturbs or
hinders any official educational activity of a school, or
hinders or
obstructs any school in the performance of the school’s official educational
activities, is guilty of an offence
and liable, on conviction, to a fine or
to imprisonment for a period not exceeding 12 months, or to both a fine and
such imprisonment. [S 3(7) added by s 2(c) of Act 32 of 2024 with
effect from date to be proclaimed.] |
4. Exemption from compulsory attendance
(1) A
Head of Department may exempt a learner entirely, partially or conditionally
from compulsory school attendance if it is in the
best interests of the
learner.
(2) Every
Head of Department must maintain a register of all learners exempted from
compulsory school attendance.
Uncommenced amendment 4A. Monitoring learner
attendance (1) The educator, principal and governing body are responsible for
promoting and monitoring the attendance of learners at school. (2) The governing body must ensure that the code of conduct for learners
contains rules dealing with punctuality and regular school
attendance. (3) If a learner is absent for three consecutive school days without valid
reason, the class teacher concerned must report the absence
to the principal. (4) The principal must, within 24 hours after being informed of the absence,
investigate the matter by making a reasonable effort to
contact the parent of
the learner by whatever means are suitable for the circumstances of the
school and the family concerned
and report the matter to the governing body
of the school for further intervention. [S 4A inserted by s 3 of Act 32 of 2024 with
effect from date to be proclaimed.] |
5. Admission to public schools
(1) A
public school must admit learners and serve their educational requirements
without unfairly discriminating in any way.
Uncommenced amendments (1) A public school must admit, and provide education to, learners and must
serve their educational requirements for the duration of
their school
attendance without unfairly discriminating in any way. [S 5(1) substituted by s 4(a) of Act 32 of 2024
with effect from date to be proclaimed.] (1A) Any
learner whose parent or guardian has not provided any required documents,
whether of the learner or such adult person acting
on behalf of the learner,
during the application for admission, shall nonetheless be allowed to attend
school. [S 5(1A) inserted by s 4(b) of Act 32 of 2024
with effect from date to be proclaimed.] (1B) The
principal of the school must advise the parent or guardian to secure the
required documents. [S 5(1B) inserted by s 4(b) of Act 32 of 2024
with effect from date to be proclaimed.] |
(2) The
governing body of a public school may not administer any test related to the
admission of a learner to a public school, or
direct or authorise the
principal of the school or any other person to administer such test.
(3) No
learner may be refused admission to a public school on the grounds that his or
her parent—
(a) is
unable to pay or has not paid the school fees determined by the governing body
under section 39;
(b) does not
subscribe to the mission statement of the school; or
(c) has refused
to enter into a contract in terms of which the parent waives any claim for
damages arising out of the education
of the learner.
(4)
(a) The
admission age of a learner to a public school to—
(i) grade R
is age four turning five by 30 June in the year of admission;
(ii) grade 1
is age five turning six by 30 June in the year of admission.
Uncommenced amendment (a) The admission age of a learner to a public school to grade R is age four
turning five by 30 June in the year of admission: Provided
that, if a school
has limited capacity for admission in grade R, preference must be given to
learners who are subject to compulsory
attendance. [S 5(4)(a) substituted by s 4(c) of Act 32 of 2024
with effect from date to be proclaimed.] |
(b) Subject
to the availability of suitable school places and other educational resources,
the Head of Department may admit a learner
who—
(i) is under
the age contemplated in paragraph (a) if good cause is shown; and
(ii) complies with
the criteria contemplated in paragraph (c).
(c) The
Minister may, by regulation, prescribe—
(i) criteria for
the admission to a public school, at an age lower than the admission age, of an
underage learner who complies
with the criteria1;
1. It is acknowledged that criteria for
admission of an underage learner are complex and take some considerable time to
develop. The
criteria must be reliable and effective and their proper
implementation will require the training of evaluators. The criteria must
be
based on an educationally sound basis in order to ensure that—
(a) learners are admitted on an
equitable basis;
(b) there is no unfair discrimination
to learners;
(c) the admission is fair to the
individual learner as well as other learners in the classroom;
(d) recognition is given to the
diversity of language, culture and economic background;
(e) notice is taken of the
differences between urban and rural environments; and
(f) the physical, psychological and
mental development of the child is taken into account.
(ii) age requirements
for different grades at a public school.
(d) For
the purpose of paragraph (b)(i), good cause shown means that—
(i) it can
be shown that exceptional circumstances exist which necessitate the admission
of an underage learner because admission
would be in his or her best interest;
and
(ii) the refusal
to admit that learner would be severely detrimental to his or her development.
[S 5(4) substituted by s 2 of Act 50 of 2002 with
effect from 1 January 2004.]
(5) Subject
to this Act and any applicable provincial law, the admission policy of a public
school is determined by the governing body
of such school.
Uncommenced amendment (5) Subject to this Act and any applicable provincial law, the admission policy of
a public school is determined by the governing body of
such school in line
with the Constitution and relevant legislation: Provided that— (a) the governing body, when considering the admission policy or any amendment thereof
for approval, must be satisfied that the policy or the amendment
thereof
takes into account the needs, in general, of the broader community in the
education district in which the public school
is situated, and must take into
account factors including, but not limited to— (i) the
best interests of the child, with emphasis on equality as
provided for in section 9 of the Constitution, and equity; (ii) whether
there are other schools in the community that are accessible to learners; (iii) the
available resources of the school and the efficient and effective use of
state resources; and (iv) the
space available at the school for learners; and (b) the Head of Department, after consultation with the governing body of the
school, has the final authority, subject to subsection (9), to
admit a
learner to a public school; and (c) the
governing body must review the admission policy determined in terms of this
section every three years or whenever the factors
referred to in paragraph
(a) have changed when circumstances so require, or at the request of the Head
of Department. [S 5(5) substituted by s 4(d) of Act 32 of 2024
with effect from date to be proclaimed.] |
(6) In
determining the placement of a learner with special education needs, the Head
of Department and principal must take into account
the rights and wishes of the
parents of such learner.
(7) An
application for the admission of a learner to a public school must be made to
the education department in a manner determined
by the Head of Department.
(8) If
an application in terms of subsection (7) is refused, the Head of Department
must inform the parent in writing of such refusal
and the reason therefor.
(9) Any
learner or parent of a learner who has been refused admission to a public
school may appeal against the decision to the Member
of the Executive Council.
Uncommenced amendments (9) Any learner or parent of a learner who has been refused admission to a
public school may appeal against the decision to the Member
of the Executive
Council within 14 days of receiving the notification of the refusal of
admission to the public school. [S 5(9) substituted by s 4(e) of Act 32 of 2024
with effect from date to be proclaimed.] (10) If an appeal contemplated in subsection (9) has been received, the
Member of the Executive Council must, within 14 days after receiving
such an
appeal, consider and decide on the matter and inform the learner or the
parent of the learner of the outcome of the
appeal. [S 5(10) added by s 4(f) of Act 32 of 2024
with effect from date to be proclaimed.] (11) If the governing body is not satisfied with the decision of the Head of
Department as contemplated in subsection (5)(b), the governing
body may
appeal against the decision to the Member of the Executive Council within 14
days after receiving the decision of
the Head of Department. [S 5(11) added by s 4(f) of Act 32 of 2024
with effect from date to be proclaimed.] (12) If an appeal contemplated in subsection (11) has been received, the
Member of the Executive Council must, within 14 days after
receiving such
appeal, consider and decide on the matter and inform the governing body of
the outcome of the appeal. [S 5(12) added by s 4(f) of Act 32 of 2024
with effect from date to be proclaimed.] (13) While the Member of the Executive Council considers the appeal, the
admission policy shall remain valid and applicable, and only
the provisions
that are the subject of the appeal shall be suspended pending the
finalisation of the appeal process. [S 5(13) added by s 4(f) of Act 32 of 2024
with effect from date to be proclaimed.] |
5A. Norms and standards for basic infrastructure
and capacity in public schools
(1) The
Minister may, after consultation with the Minister of Finance and the Council
of Education Ministers, by regulation prescribe
minimum uniform norms and
standards for—
(a) school infrastructure;
(b) capacity of
a school in respect of the number of learners a school can admit; and
(c) the provision
of learning and teaching support material.
[S 5A(1) amended by s 5 of Act 15 of 2011 with
effect from 19 September 2011.]
(2) The
norms and standards contemplated in subsection (1) must provide for, but not be
limited to, the following:
(a) In
respect of school infrastructure, the availability of—
(i) classrooms;
(ii) electricity;
(iii) water;
(iv) sanitation;
(v) a library;
(vi) laboratories for
science, technology, mathematics and life sciences;
(vii) sport and
recreational facilities;
(viii) electronic connectivity
at a school; and
(ix) perimeter security;
(b) in respect
of the capacity of a school—
(i) the number
of teachers and the class size;
(ii) quality of
performance of a school;
(iii) curriculum and
extra-curricular choices;
(iv) classroom size;
and
(v) utilisation of
available classrooms of a school;
(c) in respect of provision of learning and teaching
support material, the availability of—
(i) stationery and
supplies;
(ii) learning material;
(iii) teaching material
and equipment;
(iv) science,
technology, mathematics and life sciences apparatus;
(v) electronic equipment;
and
(vi) school furniture
and other school equipment.
(3) When
determining policy in terms of sections 5(5) and 6(2) a governing body
must comply with the norms and standards contemplated
in subsection (1).
(4) A
governing body must, within a period of 12 months after the Minister has
prescribed the norms and standards contemplated in subsection
(1), review any
policy that it has determined in terms of sections 5(5) and 6(2) to ensure
that such policy complies with
the norms and standards.
[S 5A inserted by s 5 of Act 31 of 2007 with effect
from 31 December 2007.]
6. Language policy of public schools
(1) Subject
to the Constitution and this Act, the Minister may, by notice in the Government
Gazette, after consultation with the Council of Education Ministers,
determine norms and standards for language policy in public schools.
(2) The
governing body of a public school may determine the language policy of the
school subject to the Constitution, this Act and
any applicable provincial law.
Uncommenced amendment (2) The governing body of a
public school may, subject to subsection (7), determine the language policy
of the school subject to
the Constitution, this Act and any applicable
provincial law: Provided that the language policy of a public school must be
limited to one or more of the official languages of the Republic as provided
in section 6(1) of the Constitution. [S 6(2) substituted by s 5(a) of Act 32 of 2024
with effect from date to be proclaimed.] |
(3) No
form of racial discrimination may be practised in implementing policy
determined under this section.
(4) A
recognised Sign Language has the status of an official language for purposes of
learning at a public school.
Uncommenced amendments (4) South African Sign Language
has the status of an official language for purposes of learning at a public
school. [S 6(4) substituted by s 5(b) of Act 32 of 2024
with effect from date to be proclaimed.] (5) The governing body of a public school,
when determining the language policy of the school or any amendment thereof,
must be
satisfied that the policy or the amendment thereof takes into account
the language needs, in general, of the broader community
in the education district
in which the public school is situated, and must take into account factors
including, but not limited
to— (a) the best interests of the child, with
emphasis on equality as provided for in section 9 of the Constitution and
equity; (b) section 6(2) of the Constitution; (c) section 29(2) of the Constitution; (d) the changing number of learners who speak
the language of learning and teaching at the public school; (e) the need for effective use of classroom
space and resources of the public school; and (f) the enrolment trends of the public
school. [S 6(5) added by s 5(c) of Act 32 of 2024 with
effect from date to be proclaimed.] (6) The governing body must review the
language policy determined in terms of this section every three years or
whenever the factors
referred to in subsection (5) have changed, when
circumstances so require, or at the request of the Head of Department. [S 6(6) added by s 5(c) of Act 32 of 2024 with
effect from date to be proclaimed.] (7) Notwithstanding the provisions of
subsection (2), the Head of Department may, where it is practicable to do so
and subject to
subsection (5), direct a public school to adopt more than one
language of instruction. [S 6(7) added by s 5(c) of Act 32 of 2024 with
effect from date to be proclaimed.] (8) The Head of Department, in determining
whether it is practicable for a public school to have more than one language
of instruction,
must take into account factors including, but not limited to— (a) the best interests of the child, with
emphasis on equality as provided for in section 9 of the Constitution and
equity; (b) the changing number of learners who speak
the language of learning and teaching at the public school; (c) the need for effective use of classroom
space and resources of the public school; and (d) the language needs, in general, of the
broader community in the education district in which the public school is
situated. [S 6(8) added by s 5(c) of Act 32 of 2024 with
effect from date to be proclaimed.] (9) The Head of Department may not act in
terms of subsection (7) unless he or she has— (a in writing, informed the school and
the governing body of his or her intention to act as contemplated in
subsection (7) and
his or her reasons therefor; (b) notified the parents associated with the
school, and the community in which the school is situated, of his or her
intention
so to act and the reasons therefor— (i) by means of a notice in at least one
newspaper circulating in the area where the school is situated, if any
newspapers circulate
in that area; (ii) by causing the principal of the school
to— (aa) hand to every learner a notice containing
the relevant information; and (bb) instruct the learners to hand the notice to
their parents; and (iii) by means of any other acceptable form of
communication that will ensure that the information is spread as widely as
possible; (c) granted the school, the governing body,
the parents associated with the school, and the community in which the school
is situated,
a reasonable opportunity to make representations to him or her
in relation to such action; (d) conducted a public hearing, on reasonable
notice, to enable the community to make representations to him or her in
relation
to such action; and (e) given due consideration to any such
representations received. [S 6(9) added by s 5(c) of Act 32 of 2024 with
effect from date to be proclaimed.] (10) The Head of Department must— (a) inform the school and the governing body
of his or her decision contemplated in subsection (7) and his or her reasons
therefor;
and (b) by means of the methods listed in
subsection (9)(b), notify the parents associated with the schools, and the
communities in
which the schools are situated, of the decision. [S 6(10) added by s 5(c) of Act 32 of 2024
with effect from date to be proclaimed.] (11) If the Head of Department acts in terms of
subsection (7), he or she must, before his or her directive is implemented,
take
all necessary steps to ensure that the public school concerned receives
the necessary resources, including, but not limited to— (a) educators; and (b) learning and teaching support material, to
enable that public school to provide adequate tuition in the additional language
or languages of instruction. [S 6(11) added by s 5(c) of Act 32 of 2024
with effect from date to be proclaimed.] (12) If the governing body is not satisfied with
the directive of the Head of Department as contemplated in subsection (7),
the governing
body may appeal against the directive to the Member of the
Executive Council within 14 days after receiving the directive. [S 6(12) added by s 5(c) of Act 32 of 2024
with effect from date to be proclaimed.] (13) If an appeal contemplated in subsection
(12) has been received, the Member of the Executive Council must, within 14
days after
receiving such appeal, consider and decide the matter and inform
the governing body of the outcome of the appeal. [S 6(13) added by s 5(c) of Act 32 of 2024
with effect from date to be proclaimed.] (14) While the Member of the Executive Council
considers the appeal, the language policy of the public school shall remain
valid
and applicable, and only the provisions that are the subject of the
appeal shall be suspended pending the finalisation of the
appeal process. [S 6(14) added by s 5(c) of Act 32 of 2024
with effect from date to be proclaimed.] |
(1) The
Minister must, by notice in the Government Gazette, determine—
(a) a national
curriculum statement indicating the minimum outcomes or standards; and
(b) a national
process and procedures for the assessment of learner achievement.
(2) The
curriculum and the process for the assessment of learner achievement
contemplated in subsection (1) must be applicable to public
and independent schools.
Uncommenced amendment (3) The Minister may, in
writing, appoint a person, an organisation or a group of persons to advise
him or her in regard to the
determination contemplated in subsection (1). [S 6A(3) added by s 6 of Act 32 of 2024 with
effect from date to be proclaimed.] |
[S 6A inserted by s 3 of Act 50 of 2002 with effect
from 28 November 2002.]
6B. Non-discrimination
in respect of official languages
The governing body of a public school
must ensure that—
(a) there
is no unfair discrimination in respect of any official languages that are
offered as subject options contemplated section
21(1)(b); and
(b) the first
additional language and any other official language offered, as provided for in
the curriculum, are offered on the
same level.
[S 6B inserted by s 6 of Act 15 of 2011 with effect
from 19 September 2011.]
7. Freedom of conscience and religion at
public schools
Subject to the Constitution and any applicable provincial law, religious
observances may be conducted at a public school under rules
issued by the
governing body if such observances are conducted on an equitable basis and
attendance at them by learners and members
of staff is free and voluntary.
(1) Subject
to any applicable provincial law, a governing body of a public school must
adopt a code of conduct for the learners after
consultation with the learners,
parents and educators of the school.
Uncommenced amendment (1) Subject to the Constitution,
this Act and any applicable provincial law, a governing body of a public
school must adopt a code
of conduct for the learners after consultation with
the learners, parents and educators of the school. [S 8(1) substitution by s 7(a) of Act 32 of 2024
with effect from date to be proclaimed.] |
(2) A
code of conduct referred to in subsection (1) must be aimed at establishing a
disciplined and purposeful school environment, dedicated
to the improvement and
maintenance of the quality of the learning process.
Uncommenced amendment (2) A code of conduct referred
to in subsection (1) must be aimed at establishing a disciplined and
purposeful school environment,
dedicated to the improvement and maintenance
of the quality of the learning process, taking into account the diverse
cultural
beliefs, religious observances and medical circumstances of the
learners at the school. [S 8(2) substitution by s 7(b) of Act 32 of 2024
with effect from date to be proclaimed.] |
(3) The
Minister may, after consultation with the Council of Education Ministers,
determine guidelines for the consideration of governing
bodies in adopting a
code of conduct for learners.
(4) Nothing
contained in this Act exempts a learner from the obligation to comply with the
code of conduct of the school attended by
such learner.
Uncommenced amendment (4) (a) Nothing contained in this Act exempts a
learner from the obligation to comply with the code of conduct of the school
attended
by such learner. (b) Despite paragraph (a), the code of
conduct must contain an exemption provision in terms of which a learner, or
the parent of
a learner, may apply to the governing body for exemption of
that learner from complying with certain provisions of the code of
conduct on
account of, but not limited to, the following circumstances that a learner may
bring to the attention of the principal
or governing body of the school: (i) Cultural beliefs; (ii) religious observances; and (iii) medical grounds. (c) On receiving an application contemplated
in paragraph (b), the school governing body must communicate its decision to
the learner,
or the parent of the learner, as the case may be, within 14 days
after receiving the application, and must in the case of a refusal
provide written
reasons for the refusal. (d) A learner, or the parent of a learner,
who has been refused exemption as contemplated in paragraph (c) may, within
14 days of
receiving the notice of the decision, appeal to the Head of
Department against the decision of the governing body, and the Head
of
Department must, after considering the reasons for the appeal and the reasons
for the refusal by the governing body, communicate
his or her decision to the
learner or the parent of the learner, as the case may be, and to the governing
body, within 14 days
after receiving the appeal, and must provide written
reasons for his or her decision. [S 8(4) substitution by s 7(c) of Act 32 of 2024
with effect from date to be proclaimed.] |
(5)
(a) A
code of conduct must contain provisions of due process safe-guarding the
interests of the learner and any other party involved
in disciplinary
proceedings.
(b) The
code of conduct must also provide for support measures or structures for
counselling a learner involved in disciplinary proceedings.
Uncommenced amendment (c) The disciplinary
proceedings referred to in this subsection must be age-appropriate, must be
conducted in the best interests
of the learner, and must adhere to the
principles of natural justice, fairness and reasonableness prescribed by the
Constitution. [S 8(5)(c) added by s 7(d) of Act 32 of 2024
with effect from date to be proclaimed.] |
[S 8(5) substituted by s 6 of Act 31 of 2007 with
effect from 31 December 2007.]
(6) A
learner must be accompanied by his or her parent or a person designated by the
parent at disciplinary proceedings, unless good
cause is shown by the governing
body for the continuation of the proceedings in the absence of the parent or
the person designated
by the parent.
[S 8(6) inserted by s 4 of Act 50 of 2002 with
effect from 28 November 2002.]
(7) Whenever
disciplinary proceedings are pending before any governing body, and it appears
to such governing body that it would expose
a witness under the age of 18 years
to undue mental stress or suffering if he or she testifies at such proceedings,
the governing
body may, if practicable, appoint a competent person as an
intermediary in order to enable such witness to give his or her evidence
through that intermediary.
[S 8(7) inserted by s 4 of Act 50 of 2002 with
effect from 28 November 2002.]
(8)
(a) An
examination, cross-examination or re-examination of a witness in respect of
whom a governing body has appointed an intermediary
under subsection (7),
except examination by the governing body, must not take place in any manner
other than through that intermediary.
(b) Such
intermediary may, unless the governing body directs otherwise, convey the
general purport of any question to the relevant witness.
[S 8(8) inserted by s 4 of Act 50 of 2002 with
effect from 28 November 2002.]
(9) If
a governing body appoints an intermediary under subsection (7), the governing
body may direct that the relevant witness must
give his or her evidence at any
place which—
(a) is informally
arranged to put that witness at ease;
(b) is arranged
in a manner in which any person whose presence may upset that witness, is
outside the sight and hearing of that
witness; and
(c) enables
the governing body and any person whose presence is necessary at the relevant
proceedings to hear, through the medium of
any electronic or other devices,
that intermediary as well as that witness during his or her testimony.
[S 8(9) inserted by s 4 of Act 50 of 2002 with
effect from 28 November 2002.]
8A. Random search and seizure and drug testing
at schools
(1) Unless
authorised by the principal for legitimate educational purposes, no person may
bring a dangerous object or illegal drug onto
school premises or have such
object or drug in his or her possession on school premises or during any school
activity.
Uncommenced amendment (1) Unless authorised by the
principal for legitimate educational purposes, no person may bring a
dangerous object or a drug onto
school premises or have such dangerous object
or drug in his or her possession on school premises or during any school
activity. [S 8A(1) substituted by s 8(a) of Act 32 of 2024
with effect from date to be proclaimed.] |
(2) Subject
to subsection (3), the principal or his or her delegate may, at random, search
any group of learners, or the property of
a group of learners, for any
dangerous object or illegal drug, if a fair and reasonable suspicion has been
established—
(a) that a
dangerous object or an illegal drug may be found on school premises or during a
school activity; or
(b) that one
or more learners on school premises or during a school activity are in
possession of dangerous objects or illegal
drugs.
Uncommenced amendment (2) Subject to subsection (3),
the principal or his or her delegate may, at random, search a learner or any
group of learners, or
the property of a learner or group of learners, for any
liquor, dangerous object or drug, if a fair and reasonable suspicion has
been
established— (a) that liquor, a dangerous object or a drug
may be found on school premises or during a school activity; or (b) that one or more learners on school
premises or at a school activity are in possession of liquor, dangerous
objects or drugs. [S 8A(2) substituted by s 8(b) of Act 32 of 2024
with effect from date to be proclaimed.] |
(3)
(a) A
search contemplated in subsection (2) may only be conducted after taking into
account all relevant factors, including—
(i) the best
interest of the learners in question or of any other learner at the school;
(ii) the safety
and health of the learners in question or of any other learner at the school;
(iii) reasonable evidence
of illegal activity; and
(iv) all relevant
evidence received.
(b) When
conducting a search contemplated in subsection (2), the principal or his or her
delegate must do so in a manner that is reasonable
and proportional to the
suspected illegal activity.
(4) Where
a search contemplated in subsection (2) entails a body search of the learners
in question, such search may only—
(a) be conducted
by—
(i) the principal,
if he or she is of the same gender as the learner; or
(ii) by the
principal’s delegate, who must be of the same gender as the learner;
(b) be done
in a private area, and not in view of another learner;
(c) be done
if one adult witness, of the same gender as the learner, is present; and
(d) be done
if it does not extend to a search of a body cavity of the learner.
(5) Any
dangerous object or illegal drug that has been seized must be—
Uncommenced amendment (5) Any liquor, dangerous object
or drug that has been seized must be— [S 8A(5), words preceding (a), substituted by
s 8(c) of Act 32 of 2024 with effect from date to be proclaimed.] |
(a) clearly and
correctly labelled with full particulars, including—
(i) the name
of learner in whose possession it was found;
(ii) the time
and date of search and seizure;
(iii) an incident
reference number;
(iv) the name
of person who searched the learner;
(v) the name
of the witness; and
(vi) any other
details that may be necessary to identify the item and incident;
(b) recorded in
the school record book; and
(c) handed over
to the police immediately to dispose of it in terms of section 31 of
the Criminal Procedure Act, 1977
(Act No. 51 of 1977).
Uncommenced amendment (c) handed over to the police
immediately to dispose of it in terms of section 31 of the Criminal Procedure
Act. [S 8A(5)(c) substituted by s 8(d) of Act 32 of
2024 with effect from date to be proclaimed.] |
(6) If
the police cannot collect the dangerous object or illegal drug from the school
immediately, the principal or his or her delegate
must—
(a) take the
dangerous object or illegal drug to the nearest police station; and
(b) hand the
dangerous object or illegal drug over to the police to dispose of it in terms
of section 31 of the Criminal
Procedure Act, 1977 (Act No. 51 of
1977).
Uncommenced amendment (6) If the police cannot collect
the liquor, dangerous object or drug from the school immediately, the
principal or his or her delegate
must— (a) take the liquor, dangerous object or drug
to the nearest police station; and (b) hand the liquor, dangerous object or drug
over to the police to dispose of it in terms of section 31 of the Criminal
Procedure
Act. [S 8A(6) substituted by s 8(e) of Act 32 of 2024
with effect from date to be proclaimed.] |
(7) The
police officer who receives the dangerous object or illegal drug must issue an
official receipt for it to the principal or to
his or her delegate.
Uncommenced amendment (7) The police officer who
receives the liquor, dangerous object or drug must issue an official receipt
for it to the principal
or to his or her delegate. [S 8A(7) substituted by s 8(f) of Act 32 of 2024
with effect from date to be proclaimed.] |
(8) The
principal or his or her delegate may at random administer a urine or
other non-invasive test to any group of learners
that is on fair and reasonable
grounds suspected of using illegal drugs, after taking into account all
relevant factors contemplated
in subsection (3).
Uncommenced amendment (8) The principal or his or her
delegate may at random administer a urine or other non-invasive test to any
learner or group of
learners that is on fair and reasonable grounds suspected
of using liquor or drugs, after taking into account all relevant factors
contemplated in subsection (3). [S 8A(8) substituted by s 8(g) of Act 32 of 2024
with effect from date to be proclaimed.] |
(9) A
learner contemplated in subsection (8) may be subjected to a urine or other
non-invasive test for illegal drugs only if—
Uncommenced amendment (9) A learner contemplated in
subsection (8) may be subjected to a urine or other non-invasive test for
liquor or drugs only if
— [S 8A(9), words preceding (a), substituted by
s 8(h) of Act 32 of 2024 with effect from date to be proclaimed.] |
(a) the test
is conducted by a person of the same gender;
(b) it is
done in a private area and not in view of another learner;
(c) one adult
witness, of the same gender as the learner, is present;
(d) the sample
is clearly and correctly labelled with full particulars as contemplated in
subsection (5), with the necessary changes;
and
(e) a device
contemplated in subsection (11) is used.
(10) The
principal or his or her delegate must—
(a) within one
working day, if practicable, inform the parent that a random test or search and
seizure was done in respect of his
or her child; and
(b) inform the
learner and his or her parent of the result of the test immediately after it
becomes available.
(11) The
Minister must—
(a) identify the
device with which the test contemplated in subsection (8) is to be done and the
procedure to be followed; and
(b) publish the
name of this device, and any other relevant information about it, in the Gazette.
(12) A
learner may be subjected to disciplinary proceedings if—
(a) a dangerous
object or illegal drug is found in his or her possession; or
(b) his or
her sample tested positive for an illegal drug.
Uncommenced amendment (12) A learner may be subjected to
disciplinary proceedings if— (a) liquor, a dangerous object or any drug is
found in his or her possession; or (b) his or her sample tested positive for
liquor or any drug. [S 8A(12) substituted by s 8(i) of Act 32 of 2024
with effect from date to be proclaimed.] |
(13) Any
disciplinary proceedings in respect of a learner must be conducted in terms of
the code of conduct contemplated in section
8;
(14) No
criminal proceedings may be instituted by the school against a learner in
respect of whom—
(a) a search
contemplated in subsection (2) was conducted and a dangerous object or illegal
drug was found; or
Uncommenced amendment (a) a search contemplated in subsection (2)
was conducted and liquor, a dangerous object or any drug was found; or [S 8A(14)(a) substituted by s 8(j) of Act 32
of 2024 with effect from date to be proclaimed.] |
(b) a test
contemplated in subsection (8) was conducted, which proved to be positive.
[S 8A inserted by s 7 of Act 31 of 2007 with effect
from 31 December 2007.]
9. Suspension and expulsion from public
school
(1) The
governing body may, on reasonable grounds and as a precautionary measure,
suspend a learner who is suspected of serious misconduct
from attending school,
but may only enforce such suspension after the learner has been granted a
reasonable opportunity to make
representations to it in relation to such
suspension.
[S
9(1) amended by s 7 of Act 48 of 1999 with effect from 19 November 1999; substituted by s 2 of Act 24 of 2005 with
effect from 26 January 2006.]
Uncommenced amendment (1) The governing body may, on reasonable
grounds and as a precautionary measure, suspend a learner who is accused of
serious misconduct
from attending school, but may only enforce such
suspension in the following manner: (a) Where a learner is accused of committing
the following acts of serious misconduct— (i) physical assault of a learner, employee,
or other person related to the school, with the intention to cause grievous
bodily
harm, or the imminent threat to commit such an act, while on school
premises or during any school activity, or in any circumstance
that could
reasonably be connected to the school; (ii) any form of harassment, including sexual
harassment of a learner, employee or other person related to the school,
including
via electronic and social media; (iii) repeated offences related to bullying, or
the imminent threat to commit such an act; (iv) the illegal possession of a drug or
liquor; (v) the repeated disruption of the school
programme, or the imminent threat to commit such an act; (vi) serious transgressions relating to any
test, examination or examination paper; (vii) fraud; (viii) theft or any other dishonest act to the
prejudice of another person; (ix) the possession of a dangerous object
while on school premises, or during any school activity, or in any
circumstance that could
reasonably be connected to the school; (x) the possession or distribution of
pornographic material; (xi) engaging in sexual activity on school
premises or committing an act of sexual assault, or the imminent threat to
commit such
an act; and (xii) any other serious act contemplated in
Schedule 1 to the Criminal Procedure Act that prejudices the constitutional
rights of
learners, employees, or other persons related to the school, such learner may be
suspended only after the learner has been granted a reasonable opportunity to
make representations in relation
to the accusation of such serious misconduct;
or (b) where a learner is accused of committing
the following acts of serious misconduct— (i) murder and attempted murder; (ii) culpable homicide; (iii) any sexual offence including rape; (iv) robbery; (v) theft; (vi) assault with intent to do grievous bodily
harm; (vii) breaking or entering any premises with an
intent to harm a person; (viii) any offence under any law relating to the
illicit possession of any dependence-producing drugs; or (ix) the conveyance or supply of
dependence-producing drugs at school and to learners, which occurs on a school
premises or at a school activity, and the learner has been formally charged
by the South African Police
Service, the governing body must suspend such
learner immediately without granting the learner an opportunity to make
representations
in relation to the accusation of such serious misconduct. [S 9(1) substituted by s 9 of Act 32 of 2024
with effect from date to be proclaimed.] |
(1A) A
governing body must conduct disciplinary proceedings in the manner contemplated
in section 8 against a learner within seven
school days after the
suspension of such learner.
[S 9(1)(1A) inserted
by s 2 of Act 24 of 2005 24 of 2005 with effect from 26 January 2006.]
(1B) If
disciplinary proceedings are not conducted within seven school days after the
suspension of a learner, the governing body must
obtain the approval of the
Head of Department for the continuation of the suspension of such learner.
[S 9(1)(1B) inserted
by s 2 of Act 24 of 2005 with effect from 26 January 2006.]
(1C) A
governing body may, if a learner is found guilty of serious misconduct during
the disciplinary proceedings contemplated in section
8—
(a) impose
the suspension of such learner for a period not longer than seven school days
or any other sanction contemplated in the code
of conduct of the public school;
or
(b) make a
recommendation to the Head of Department to expel such learner from the public
school.
[S 9(1)(1C) inserted
by s 2 of Act 24 of 2005 with effect from 26 January 2006.]
(1D) A
Head of Department must consider the recommendation by the governing body
referred to in subsection (1C)(b) and must decide whether
or not to expel a
learner within 14 days of receiving such recommendation.
[S 9(1)(1D) inserted
by s 2 of Act 24 of 2005 with effect from 26 January 2006.]
(1E) A
governing body may suspend or extend the suspension of a learner for a period
not longer than 14 days pending the decision by
the Head of Department whether
or not to expel such learner from the public school.
[S 9(1)(1E) inserted
by s 2 of Act 24 of 2005 with effect from 26 January 2006.]
(2) A
learner at a public school may be expelled only—
(a) by the Head of Department; and
(b) if found guilty of serious misconduct after disciplinary
proceedings contemplated in section 8 were conducted.
[S 9(2) substituted
by s 2 of Act 24 of 2005 with effect from 26 January 2006.]
(3) The
Member of the Executive Council must determine by notice in the Provincial Gazette—
(a) the behaviour by a
learner at a public school which may constitute serious misconduct;
(b) disciplinary proceedings
to be followed in such cases;
(c) provisions of due
process safeguarding the interests of the learner and any other party involved
in disciplinary proceedings.
(4) A learner or the parent of a learner who has been expelled from
a public school may appeal against the decision of the Head of Department
to
the Member of the Executive Council within 14 days of receiving the notice of
expulsion.
[S 9(4) substituted
by s 2 of Act 24 of 2005 with effect from 26 January 2006.]
(5) If a learner who is subject
to compulsory attendance in terms of section 3(1) is expelled from a
public school, the Head of
Department must make an alternative arrangement for
his or her placement at a public school.
(6) A learner who has appealed in the manner contemplated in
subsection (4), must, pending the outcome of the appeal, be given access
to
education in the manner determined by the Head of Department.
[S 9(6) inserted
by s 2 of Act 24 of 2005 with effect from 26 January 2006.]
(7) The Head of Department, in determining the manner of attendance
contemplated in subsection (6)—
(a) must take reasonable measures to protect the rights of
other learners at the public school: and
(b) may consider an alternative method of providing education
to the learner contemplated in subsection (6).
[S 9(7) inserted
by s 2 of Act 24 of 2005 with effect from 26 January 2006.]
(8) If the Head of Department decides not to expel a learner as
contemplated in subsection (2), the Head of Department may, after consultation
with the governing body, impose a suitable sanction on the learner.
[S 9(8) inserted
by s 2 of Act 24 of 2005 with effect from 26 January 2006.]
(9) If the Head of Department decides not to impose a sanction on
the learner, the Head of Department must refer the matter back to the
governing
body for an alternative sanction in terms of the code of conduct contemplated
in section 8, other than expulsion.
[S 9(9) inserted
by s 2 of Act 24 of 2005 with effect from 26 January 2006.]
(10) The governing body must implement the sanction contemplated in
subsection (8).
[S 9(10) inserted
by s 2 of 24 of 2005 with effect from 26 January 2006.]
(11)
(a) If an appeal in terms of subsection (4) by
a learner who has been expelled from a public school is upheld by the Member of
the Executive
Council, the Member of the Executive Council must ensure that a
suitable sanction is then imposed on the learner within 14 days
of the date on
which the appeal was upheld.
(b) For the purposes of the imposition of a
suitable sanction contemplated in paragraph (a), the provisions of subsections
(8) and (9)
apply with the changes required by the context.
[S 9(11) inserted
by s 2 of Act 24 of 2005 with effect from 26 January 2006.]
10. Prohibition of corporal punishment
(1) No
person may administer corporal punishment at a school to a learner.
Uncommenced amendment (1) Corporal punishment is abolished and no
person may inflict or impose corporal punishment to a learner at a school,
during a
school activity, or in a hostel accommodating learners of a school. [S 10(1) substituted by s 10 of Act 32 of 2024
with effect from date to be proclaimed.] |
(2) Any
person who contravenes subsection (1) is guilty of an offence and liable on
conviction to a sentence which could be imposed
for assault.
Uncommenced amendment (2) Any person who contravenes subsection (1)
is guilty of an offence and liable on conviction to a fine or to imprisonment,
or
to both such fine and imprisonment, which a court may, in its discretion,
determine after considering the circumstances of each
case. [S 10(2) substituted by s 10 of Act 32 of 2024
with effect from date to be proclaimed.] |
10A. Prohibition of initiation practices
(1) A
person may not conduct or participate in an initiation practices against a
learner at a school or in a hostel accommodating learners
of a school.
Uncommenced amendment (1) A person may not conduct or participate
in any initiation practices against a learner at a school, during a school
activity,
or in a hostel accommodating learners of a school. [S 10A(1) substituted by s 11 of Act 32 of 2024
with effect from date to be proclaimed.] |
(2)
(a) Any person who contravenes subsection (1)
is guilty of misconduct and disciplinary action must be instituted against such
a person
in accordance with the applicable code of conduct, prescribed in sections
8 and 18A of this Act and Schedule 2 to
the Employment of Educators
Act, 1998 (Act No. 76 of 1998).
(b) In addition to paragraph (a), a learner may
institute civil action against a person or a group who manipulated and forced
that learner
to conduct or participate in any initiation practices.
(3) For
the purposes of this Act, “initiation practices” means any act which in the
process of initiation, admission into, or affiliation
with, or as condition for
continued membership of, a school, a group, intramural or extramural
activities, interschools sports
team, or organisation—
(a) endangers the mental or physical health or
safety of a person;
(b) undermines the intrinsic worth of
human beings by treating some as inferior to others;
(c) subjects individuals to humiliating or
violent acts which undermine the constitutional guarantee to dignity in the
Bill of
Rights;
(d) undermines the fundamental rights and
values that underpin the Constitution;
(e) impedes the development of a true
democratic culture that entitles an individual to be treated as worthy of
respect and concern;
or
(f) destroys public or private property.
(4) In
considering whether the conduct or participation of a person in any initiation
practices falls within the definition of subsection
(3), the relevant
disciplinary authority referred to in subsection (2)(a) must take into account
the right of the learner not to
be subjected to such practices.
[S 10A inserted by s 5 of Act 50 of 2002 with
effect from 28 November 2002.]
11. Representative
council of learners
(1) A representative council of
learners at the school must be established at every public school enrolling
learners in the eighth grade
or higher, and such council is the only
recognised and legitimate representative learner body at the school.
[S 11(1) substituted by s 3 of Act 100 of 1997 with
effect from 28 November 1997, s 1 of Act 57 of 2001 with effect from 5 December
2001.]
(2) Subject to policy made in
terms of section 3(4)(g) of the National Education Policy Act, 1996 (Act
No. 27 of 1996), the Member
of the Executive Council must, by notice in
the Provincial Gazette, determine the functions and the procedures
for the establishment, and election of representative councils of
learners.
[S 11(2) substituted by s 1 of Act 57 of 2001 with
effect from 5 December 2001.]
(3) The Member of the Executive
Council may, by notice in the Provincial Gazette, exempt a public
school for learners with special education needs from complying with subsection
(1) if it is not practically possible
for a representative council of learners
to be established at the school.
CHAPTER 3
PUBLIC SCHOOLS
12. Provision
of public schools
(1) The Member of the Executive
Council must provide public schools for the education of learners out of funds
appropriated for this
purpose by the provincial legislature.
(2) The provision of public
schools referred to in subsection (1) may include the provision of hostels for
the residential accommodation
of learners.
(3)
(a) A public school may be—
(i) an ordinary public
school;
(ii) a public school for
learners with special education needs; or
(iii) a public school that
provides education with a specialised focus on talent, including sport,
performing arts or creative arts.
(b) Subject to the relevant
provisions of this Act, the Minister must determine norms and standards for
school funding and norms and
standards for governance and educator provisioning
for public schools contemplated in paragraph (a)(iii).
[S 12(3) substituted by s 8 of Act 15 of 2011 with
effect from 19 September 2011.]
Uncommenced amendments (3A) The governing body of a public school may,
in writing, apply to the Member of the Executive Council for the public
school to
be designated as a public school with a specialised focus on talent
as contemplated in subsection (3)(a)(iii). [S
12(3A) inserted by s 12 of Act 32 of 2024 with effect from date to be
proclaimed.] (3B) The Head of Department may, after
consultation with the governing body of a public school, identify the school
and recommend
to the Member of the Executive Council that the school should
be designated as a public school with a specialised focus on talent
as
contemplated in subsection (3)(a)(iii). [S
12(3B) inserted by s 12 of Act 32 of 2024 with effect from date to be
proclaimed.] (3C) The Member of the Executive Council may, in
writing, designate a public school from which an application contemplated in
subsection
(3A) has been received, and a school identified and recommended as
contemplated in subsection (3B), as a school with a specialised
focus on
talent as contemplated in subsection (3)(a)(iii), if it is in the interest of
education in the province and if the
school complies with the norms and
standards determined by the Minister in terms of subsection (3)(b). [S
12(3C) inserted by s 12 of Act 32 of 2024 with effect from date to be
proclaimed.] (3D) Before designating a public school as a
school with a specialised focus on talent as contemplated in subsection
(3)(a)(iii),
the Member of the Executive Council must— (a) give written notice to the school in
question, and to its governing body, of the intention to designate the public
school as
a school with a specialised focus on talent and of the reasons
therefor; (b) notify the parents associated with the
school, and the community in which the school is situated, of the intention
to designate
the public school as a school with a specialised focus on talent
and of the reasons therefor— (i) by means of a notice in at least one
newspaper circulating in the area where the school in question is situated,
if any newspapers
circulate in that area; (ii) by causing the principal of the school
in question to— (aa) hand to every learner at the school a
notice containing the relevant information; and (bb) instruct the learners to hand the notice to
their parents; and (iii) by means of any other acceptable form of
communication that will ensure that the information is spread as widely as
possible; (c) give the school in question, and its
governing body, and any other interested persons, an opportunity to make
representations
within a period of not less than 90 days from the date of the
notices and communication referred to in paragraph (b); (d) give due consideration to any such
representations received; and (e) be satisfied that the employers of staff
at the public school have complied with their obligations in terms of the
applicable
labour law. [S 12(3D) inserted by s 12 of Act 32 of 2024
with effect from date to be proclaimed.] |
(4) The Member of the Executive
Council must, where reasonably practicable, provide education for learners with
special education needs
at ordinary public schools and provide relevant
educational support services for such learners.
(5) The Member of the Executive
Council must take all reasonable measures to ensure that the physical
facilities at public schools are
accessible to disabled persons.
(6) Nothing in this Act
prohibits the provision of gender-specific public schools.
(1) Subject to subsection (2),
the Member of the Executive Council may, by notice in the Provincial
Gazette, merge two or more public schools into a single school.
(2) Before merging two or more
public schools the Member of the Executive Council must—
(a) give written notice to
the schools in question of the intention to merge them;
(b) publish a notice
giving the reasons for the proposed merger in one or more newspapers
circulating in the area where the schools
in question are situated;
(c) give the governing
bodies of the schools in question and any other interested persons an
opportunity to make representations
within a period of not less than 90 days
from the date of the notice referred to in paragraph (b);
(d) consider such
representations; and
(e) be satisfied that the
employers of staff at the public schools have complied with their obligations
in terms of the applicable
labour law.
Uncommenced amendments (2) Before
merging two or more public schools, the Member of the Executive Council must— (a) give
written notice to the schools in question, and to their governing bodies, of
the intention to merge them and of the reasons
therefor; (b) notify
the parents associated with the schools, and the communities in which the
schools are situated, of the intention to merge
the schools and of the
reasons therefor— (i) by
means of a notice in at least one newspaper circulating in the area where the
schools in question are situated, if any newspapers
circulate in that area;
and (ii) by
causing the principals of the schools in question to— (aa) hand
to every learner at each school a notice containing the relevant information;
and (bb) instruct
the learners to hand the notice to their parents; and (iii) by means of any other acceptable form of communication that will
ensure that the information is spread as widely as possible; (c) give
the schools in question, and their governing bodies, and any other interested
persons an opportunity to make representations
within a period of not less
than 90 days from the date of the notices and communication referred to in
paragraph (b); (d) give
due consideration to any such representations received; and (e) be
satisfied that the employers of staff at the public schools have complied
with their obligations in terms of the applicable
labour law. [S 12A(2) substituted by s 13(a) of Act 32 of 2024
with effect from date to be proclaimed.] (2A) (a) The
Member of the Executive Council must, within 30 days after receiving the
representations referred to in subsection (2)(c),
take a decision on whether
or not to go ahead with the merger, and— (i) in
writing, inform the schools in question, and their governing bodies, of the
decision; and (ii) by
means of the methods listed in subsection (2)(b), notify the parents
associated with the schools, and the communities in
which the schools are
situated, of the decision. (b) If
the Member of the Executive Council fails to act in terms of paragraph (a),
the contemplated merger will be deemed to have
lapsed. (c) If
the decision of the Member of the Executive Council is to go ahead with the
merger, he or she must ensure that the merger
is proceeded with within 30
days after giving notice as contemplated in paragraph (a). [S 12A(2A) inserted by s 13(b) of Act 32 of 2024
with effect from date to be proclaimed.] |
(3) If one or more of the
schools that are to be merged in terms of subsection (1) are public schools on
private property, the Member
of the Executive Council must also—
(a) notify the owner of
the private property of his or her intention to merge the schools in question;
(b) consider his or her
contractual obligations in terms of the agreement contemplated in section
14;
(c) renegotiate his or her
obligations in terms of the existing agreement if necessary; and
(d) negotiate a new
agreement in terms of section 14 if the single school contemplated in
subsection (1) is to be situated
on private property.
(4) The single school
contemplated in subsection (1) must be regarded as a public school.
Uncommenced amendment (4) (a) If the Member of the Executive Council
decides to merge the public schools in question, he or she must, after
consultation with
the governing bodies of the public schools that are to be
merged, determine, by notice contemplated in subsection (1)— (i) the
date of establishment of the public school; (ii) the
name of the public school; and (iii) the physical location and official address of the public
school. (b) The single school contemplated in
subsection (1) must be regarded as a new public school. [S 12A(4) substituted by s 13(c) of Act 32 of 2024
with effect from date to be proclaimed.] |
(5) All assets, liabilities,
rights and obligations of the schools that are merged, must, subject to the
conditions of any donation,
bequest or trust contemplated in section 37(4),
vest in the single school.
(6)
(a) The governing bodies of the
schools that are merged must have a meeting before the merger to constitute a
single interim governing
body comprising of all the members of the governing
bodies concerned.
(b) The interim governing body
must decide on the budget and differences in codes of conduct and school fees,
as well as any issue that
is relevant to the merger or which is prescribed,
until a new governing body is constituted in terms of sections 23 and 28.
Uncommenced amendment (6) (a) After the notice as contemplated in
subsection (4)(a) has been published, the governing bodies of the schools
that are to be
merged must have a meeting to constitute a single interim
governing body comprising all the members of the governing bodies concerned,
which single interim governing body will govern the new school for a period
not exceeding three months. (b) The interim governing body must— (i) elect
office bearers; (ii) decide
on the budget; (iii) reach consensus about differences in codes of conduct and
school fees and, if applicable, about contractual obligations and the
utilisation
and disposal of movable assets; and (iv) make
recommendations to the Head of Department on personnel matters, as well as on
any issue that is relevant to the merger
or which is prescribed in terms of
this Act, until
a new governing body is constituted in terms of sections 23 and 28. (c) The Member of the Executive Council may
extend the period referred to in paragraph (a) once for a further period not
exceeding
three months. [S 12A(6) substituted by s 13(d) of Act 32 of 2024
with effect from date to be proclaimed.] |
(7) The governing body of a
public school to be merged, may appeal to the Minister against the
decision as contemplated in
subsection (1).
Uncommenced amendments (8) A merger contemplated in subsection (1)
does not affect the liability of any person to be disciplined or prosecuted
for any
misconduct, crime or offence. [S
12A(8) added by s 13(e) of Act 32 of 2024 with effect from date to be
proclaimed.] (9) A learner is subject to the code of
conduct applicable to the new single public school as from the date of the
merger contemplated
in subsection (1), but if any proceedings in respect of a
charge of misconduct had been instituted or commenced before the date
of the merger,
such proceedings must continue in terms of the code of conduct relevant to
the public school immediately before
the merger. [S
12A(9) added by s 13(e) of Act 32 of 2024 with effect from date to be
proclaimed.] (10) The new single public school or the Head of
Department, as the case may be, may undertake rationalisation or redeployment
of
its workforce according to operational requirements in accordance with sections
189 and 189A of the Labour Relations Act, 1995
(Act No. 66 of 1995), the
Employment of Educators Act, 1998 (Act No. 76 of 1998), and any ratified
collective agreement that
deals with the rationalisation or redeployment of a
workforce. [S
12A(10) added by s 13(e) of Act 32 of 2024 with effect from date to be
proclaimed.] (11) If two or more public schools are merged
into a single public school in terms of subsection (1), the new single public
school
continues with all academic programmes offered by the former public
schools under the programmes applicable to the respective
public schools immediately
before the date of the merger, until such programmes are amended or
restructured by the governing
body or education department, where applicable. [S 12A(11) added by s 13(e) of Act 32 of 2024 with effect from date to
be proclaimed.] |
[S 12A inserted by s 8 of Act 48 of 1999 with
effect from 19 November 1999.]
13. Public
schools on State property
(1) In this section, immovable property owned
by the State includes immovable property held in trust on behalf of a tribe by
a trust
created by statute.
(2) Subject to 20(1) (k), a public school
which occupies immovable property owned by the State has the right, for the
duration
of the school’s existence, to occupy and use the immovable property
for the benefit of the school for educational purposes at
or in connection with
the school.
(3) The right referred to in subsection (2) may
only be restricted—
(a) by the Member of the
Executive Council; and
(b) if the immovable property is not
utilised by the school in the interests of education.
(4) The Member of the Executive Council may not
act under subsection (3) unless he or she has—
(a) informed the governing body of the school
of his or her intention so to act and the reasons therefor;
(b) granted the governing body of the
school a reasonable opportunity to make representations to him or her in
relation to such
action;
(c) duly considered any such
representations received.
(5) The right contemplated in subsection (2) is
enforceable against any successor in title to the owner of the immovable
property in
question.
(6) No immovable property owned by the State
and occupied by a public school may be alienated unless an agreement
contemplated in section
14 has been concluded between the Member of
the Executive Council and the prospective owner of the immovable property.
(7) The Registrar of deeds may not execute,
attest to or register a transfer deed in respect of the immovable property in
question unless
the owner has provided the Registrar of deeds with proof of the
agreement contemplated in subsection (6).
[S 13(7) substituted by s 4 of Act 100 of 1997 with
effect from 28 November 1997.]
(8) The provisions of the Deeds Registries Act,
1937 (Act No. 47 of 1937), do not apply to the right contemplated in subsection
(2).
(9) On application by the owner and on
production of the owner’s copy of the title deed, the Registrar of deeds must
endorse on the
title deed and in his or her records the fact that a public
school has been established on the land in terms of this Act.
[S 13(9) inserted by s 4 of Act 100 of 1997 with
effect from 28 November 1997.]
14. Public
schools on private property
(1) Subject to the Constitution and an
expropriation in terms of section 58 of land or a real right to use
the property on
which the public school is situated, a public school may be
provided on private property only in terms of an agreement between the
Member
of the Executive Council and the owner of the private property.
[S 14(1) substituted by s 2 of Act 53 of 2000 with
effect from 22 November 2000.]
(2) An agreement contemplated in subsection (1)
must be consistent with this Act and in particular must provide for—
(a) the provision of education and the
performance of the normal functions of a public school;
(b) governance of the school, including
the relationship between the governing body of the school and the owner;
(c) access by all interested parties to
the property on which the school stands;
(d) security of occupation and use of the
property by the school;
(e) maintenance and improvement of the
school buildings and the property on which the school stands and the supply of
necessary
services;
(f) protection of the owner’s rights in
respect of the property occupied, affected or used by the school.
(3) The provisions of the Deeds Registries Act,
1937 (Act No. 47 of 1937), do not apply to a real right, excluding ownership,
acquired
by the State, a public school or another party in terms of an
agreement contemplated in this section.
(4) The right contemplated in subsection (3) is
enforceable against any successor in title to the owner of the immovable
property in
question.
(5) Despite subsection (3), a Registrar of
deeds must endorse on the title deed of the affected property that the property
is subject
to an agreement contemplated in this section, if the Registrar of
deeds receives—
(a) an application for such endorsement by the
owner of the property, or the Member of the Executive Council or any other
holder of
a right contemplated in subsection (3), together with the title deed
of the property; and
(b) affidavits by the owner of the
property and the Member of the Executive Council stating that an agreement
contemplated in this
section has been concluded.
[Subs. (5) amended by s. 5 of Act 100 of 1997 with
effect from 28 November 1997.]
(6) The Minister must, after consultation with
the Council of Education Ministers, make regulations regarding the minimum
requirements
of an agreement contemplated in this section.
(7) The Registrar of deeds may cancel any
endorsement made in accordance with subsection (5) if the owner of the property
submits an
affidavit from the Member of the Executive Council of the province
in which the public school is situated to the effect that such
public school
has been closed in terms of section 33.
[S 14(7) inserted by s 5 of Act 100 of 1997 with
effect from 28 November 1997.]
(8) Any transfer duty, stamp duty, fees or
costs payable in respect of the registration of a right in terms of subsection
(3) may be
paid in full or in part from funds appropriated by the provincial
legislature for that purpose, but the public school contemplated
in subsection
(1) is not responsible for such duties, fees or costs.
[S 14(8) amended by s 5 of Act 100 of 1997 with
effect from 28 November 1997.]
Every
public school is a juristic person, with legal capacity to perform its
functions in terms of this Act.
16. Governance
and professional management of public schools
(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.
[S 16(1) substituted by s 2 of Act 57 of 2001 with
effect from 5 December 2001.]
(2) A governing body stands in a position of
trust towards the school.
(3) Subject to this Act and any applicable
provincial law, the professional management of a public school must be
undertaken by the
principal under the authority of the Head of Department.
(4) The Head of Department may close a public
school temporarily in the case of an emergency if he or she believes on
reasonable grounds
that the lives of learners and staff are endangered or that
there is a real danger of bodily injury to them or of damage to property.
[S 16(4) inserted by s 9 of Act 48 of 1999 with
effect from 19 November 1999.]
(5) When the Head of Department decides that
the school should be reopened, he or she must inform the governing body and the
principal
of the date on which the school must reopen.
[S 16(5) inserted by s 9 of Act 48 of 1999 with
effect from 19 November 1999.]
(6) The principal or a person designated by the
Head of Department must inform the educators and parents of the date
contemplated in
subsection (5).
[S 16(6) inserted by s 9 of Act 48 of 1999 with
effect from 19 November 1999.]
(7) If a new public school is provided in terms
of section 12, the governance of that school vests in the Head of
Department until
a governing body has been constituted in terms of this Act.
[S 16(7) inserted by s 3 of Act 53 of 2000 with
effect from 22 November 2000.]
16A. Functions
and responsibilities of principal of public school
(1)
(a) The principal of a public school represents
the Head of Department in the governing body when acting in an official
capacity as
contemplated in sections 21(1)(b) and 24(1)(j).
(b) The principal must prepare and submit to
the Head of Department an annual report in respect of—
(i) the academic performance of that
school in relation to minimum outcomes and standards and procedures for
assessment determined
by the Minister in terms of section 6A; and
(ii) the effective use of available
resources.
(c)
(i) The principal of a public school
identified by the Head of Department in terms of section 58B must
annually, at the beginning
of the year, prepare a plan setting out how academic
performance at the school will be improved.
(ii) The academic performance improvement plan
must be—
(aa) presented to the Head of Department on a date
determined by him or her; and
(bb) tabled at a governing body meeting.
(iii) The Head of Department may approve the
academic performance improvement plan or return it to the principal with such
recommendations
as may be necessary in the circumstances.
(iv) If the Head of Department approves the
academic performance improvement plan the principal must, by 30 June, report to
the
Head of Department and the governing body on progress made in implementing
that plan.
(v) The Head of Department may extend the date
contemplated subparagraph (iv) on good cause shown.
(2) The principal must—
(a) in undertaking the professional management
of a public school as contemplated in section 16(3), carry out duties
which include,
but are not limited to—
(i) the implementation of all the
educational programmes and curriculum activities;
(ii) the management of all educators and
support staff;
(iii) the management of the use of learning
support material and other equipment;
(iv) the performance of functions delegated
to him or her by the Head of Department in terms of this Act;
(v) the safekeeping of all school
records; and
(vi) the implementation of policy and
legislation;
(b) attend and participate in all meetings
of the governing body;
(c) provide the governing body with a
report about the professional management relating to the public school;
(d) assist the governing body in handling
disciplinary matters pertaining to learners;
(e) assist the Head of Department in
handling disciplinary matters pertaining to educators and support staff
employed by the Head
of Department;
(f) inform the governing body about
policy and legislation;
(g) provide accurate data to the Head of
Department when requested to do so; and
(h) assist the governing body with the
management of the school’s funds, which assistance must include—
(i) the provision of information relating to
any conditions imposed or directions issued by the Minister, the Member of the
Executive
Council or the Head of Department in respect of all financial matters
of the school contemplated in Chapter 4; and
(ii) the giving of advice to the governing
body on the financial implications of decisions relating to the financial
matters of
the school;
[S 16A(2)(h)(ii) inserted by s 9 of Act 15 of 2011
with effect from 19 September 2011.]
(i) take all reasonable steps to prevent any
financial maladministration or mismanagement by any staff member or by the
governing body
of the school;
[S 16A(2)(i) inserted by s 9 of Act 15 of 2011 with
effect from 19 September 2011.]
(j) be a member of a finance committee
or delegation of the governing body in order to manage any matter that has
financial implications
for the school; and
[S 16A(2)(j) inserted by s 9 of Act 15 of 2011 with
effect from 19 September 2011.]
(k) report any maladministration or
mismanagement of financial matters to the governing body of the school and to
the Head of Department.
[S 16A(2)(k) inserted by s 9 of Act 15 of 2011 with
effect from 19 September 2011.]
(3) The principal must assist the governing
body in the performance of its functions and responsibilities, but such
assistance or participation
may not be in conflict with—
(a) instructions of the Head of
Department;
(b) legislation or policy;
(c) an obligation that he or she has
towards the Head of Department, the Member of the Executive Council or the
Minister; or
(d) a provision of the Employment of
Educators Act, 1998 (Act No. 76 of 1998), and the Personnel Administration
Measures determined
in terms thereof.
[S 16A inserted by s 8 of Act 31 of 2007 with
effect from 31 December 2007.]
17. Governing
body serving two or more schools
(1) The Member of the Executive Council may
determine that the governance of two or more public schools must vest in a
single governing
body if it is in the best interests of education at the
schools in question.
(2) The Member of the Executive Council may not
act under subsection (1) unless he or she has—
(a) given notice in the Provincial
Gazette of his or her intention so to act;
(b) given interested parties an
opportunity to make written submissions within a period of not less than 30
days; and
(c) considered all such submissions.
18. Constitution
of governing body
(1) Subject to this Act and any applicable
provincial law, the governing body of a public school must function in terms of
a constitution
which complies with minimum requirements determined by the
Member of the Executive Council by notice in the Provincial Gazette.
(2) A constitution contemplated in subsection
(1) must provide for—
(a) a meeting of the governing body at
least once every school term;
(b) meetings of the governing body with
parents, learners, educators and other staff at the school, respectively, at
least once
a year;
(c) recording and keeping of minutes of
governing body meetings;
(d) making available such minutes for
inspection by the Head of Department; and
(e) rendering a report on its activities
to parents, learners, educators and other staff of the school at least once a
year.
(3) The governing body must submit a copy of
its constitution to the Head of Department within 90 days of its election.
18A. Code of
conduct of governing body
(1) The Member of the Executive Council must,
by notice in the Provincial Gazette, determine a code of conduct
for the members of the governing body of a public school after consultation
with associations of governing
bodies in that province, if applicable.
(2) The code of conduct referred to in
subsection (1) must be aimed at establishing a disciplined and purposeful
school environment
dedicated to the improvement and maintenance of a quality
governance structure at a public school.
(3) All members of a governing body must adhere
to the code of conduct.
(4) The code of conduct must contain provisions
of due process, safeguarding the interests of the members of the governing body
in disciplinary
proceedings.
(5) The Head of Department may suspend or
terminate the membership of a governing body member for a breach of the code of
conduct after
due process.
(6) A member of the governing body may appeal
to the Member of the Executive Council against a decision of a Head of
Department regarding
the suspension or termination of his or her membership as
a governing body member.
[S 18A inserted by s 6 of Act 50 of 2002 with
effect from 28 November 2002.]
19. Enhancement
of capacity of governing bodies
(1) Out of funds appropriated for this purpose
by the provincial legislature, the Head of Department must establish a
programme to—
(a) provide introductory training for
newly elected governing bodies to enable them to perform their functions; and
(b) provide continuing training to
governing bodies to promote the effective performance of their functions or to
enable them to
assume additional functions.
(2) The Head of Department must ensure that
principals and other officers of the education department render all necessary
assistance
to governing bodies in the performance of their functions in terms
of this Act.
(3) The norms and standards for school funding
must include—
(a) criteria for authorising a governing
body association to perform the functions contemplated in subsection (4);
(b) criteria relating to any financial
implications that would be incurred or costs that would have to be paid by the
Head of Department
in relation to the performance of the functions contemplated
in subsection (4);
(c) guidelines relating to the nature,
content, extent and duration of the functions contemplated in subsection (4);
and
(d) criteria for granting a governing body
an allocation for contribution towards membership of a recognised governing
body association.
[S 19(3) inserted by s 10 of Act 15 of 2011 with
effect from 19 September 2011.]
(4)
(a) The Head of Department may request a
recognised governing body association or other appropriate training authority
to train members
of a governing body of a particular school or group of schools
and to build the capacity contemplated in section 25(4).
(b) For the purposes of paragraph (a), the Head
of Department—
(i) must enter into an agreement with the
governing body association;
(ii) must specify the nature, content,
extent, duration and financial implications of the training in the agreement
contemplated
in subparagraph (i); and
(iii) may include a request for the training
of members of a governing body of a school that is not a member of the
governing body
association requested to conduct the training in the agreement
contemplated in subparagraph (ii).
[S 19(4) inserted by s 10 of Act 15 of 2011 with
effect from 19 September 2011.]
20. Functions of
all governing bodies
(1) Subject to this Act, the governing body of
a public school must—
(a) promote the best interests of the
school and strive to ensure its development through the provision of quality
education for
all learners at the school;
(b) adopt a constitution;
(c) develop the mission statement of the
school;
(d) adopt a code of conduct for learners
at the school;
(e) support the principal, educators and
other staff of the school in the performance of their professional functions;
(eA) adhere to any
actions taken by the Head of Department in terms of section 16 of the
Employment of Educators Act, 1998
(Act No. 76 of 1998), to address the
incapacity of a principal or educator to carry out his or her duties
effectively;
[S 20(1)(eA) inserted by
s 9 of Act 31 of 2007 with effect from 31 December 2007.]
(f) determine times of the school day
consistent with any applicable conditions of employment of staff at the school;
(g) administer and control the school’s
property, and buildings and grounds occupied by the school, including school
hostels, but
the exercise of this power must not in any manner interfere with
or otherwise hamper the implementation of a decision made by the
Member of the
Executive Council or Head of Department in terms of any law or policy;
[S 20(1)(g) substituted by s 9 of Act 31 of 2007
with effect from 31 December 2007.]
(h) encourage parents, learners, educators
and other staff at the school to render voluntary services to the school;
(i) recommend to the Head of Department
the appointment of educators at the school, subject to the Employment of
Educators Act,
1998 (Act No. 76 of 1998), and the Labour Relations Act, 1995
(Act No. 66 of 1995);
[S 20(1)(i) substituted by s 3 of Act 57 of 2001
with effect from 5 December 2001.]
(j) recommend to the Head of Department the
appointment of non-educator staff at the school, subject to the Public Service
Act, 1994
(Proclamation No. 103 of 1994), and the Labour Relations Act, 1995
(Act No. 66 of 1995);
(jA) make the
recommendation contemplated in paragraph (j) within the time frames
contemplated in section 6(3)(l) of the Employment
of Educators Act, 1998
(Act No. 76 of 1998).
[S 20(1)(jA) substituted
by s 9 of Act 31 of 2007 with effect from 31 December 2007.]
(k) at the request of the Head of
Department, allow the reasonable use under fair conditions determined by the
Head of Department
of the facilities of the school for educational programmes
not conducted by the school;
[S 20(1)(k) substituted by s 4 of Act 53 of 2000
with effect from 22 November 2000.]
(l) discharge all other functions
imposed upon the governing body by or under this Act; and
(m) discharge other functions consistent
with this Act as determined by the Minister by notice in the Government
Gazette, or by the Member of the Executive Council by notice in the Provincial
Gazette.
(2) The governing body may allow the reasonable
use of the facilities of the school for community, social and school
fund-raising purposes,
subject to such reasonable and equitable conditions as
the governing body may determine, which may include the charging
of a
fee or tariff which accrues to the school.
(3) The governing body may join a voluntary
association representing governing bodies of public schools.
Uncommenced amendment (3A) Notwithstanding the provisions of
subsections (1)(c) and (3) and section 22, the Head of Department may, in
consultation with
the governing body, centrally procure identified learning
and teaching support material for public schools on the basis of efficient,
effective and economic utilisation of public funds or uniform norms and
standards: Provided that the governing body— (a) may, subject to paragraph (b), procure
identified learning and teaching support material from a supplier where such
procurement
will be more cost effective than the central procurement of such
material by the Head of Department; and (b) must provide the Head of Department with
documentary proof that the procurement of the identified learning and
teaching support
material from the supplier referred to in paragraph (a) will
be more cost effective than the central procurement thereof by the
Head of
Department. [S 21(3A) inserted by s 14 of Act 32 of 2024 with effect from date to
be proclaimed.] |
(4) Subject to this Act, the Labour Relations
Act, 1995 (Act No. 66 of 1995), and any other applicable law, a public school
may establish
posts for educators and employ educators additional to the
establishment determined by the Member of the Executive Council in terms
of
section 3 (1) of the Educators’ Employment Act, 1994.
[S 20(4) inserted by s 6 of Act 100 of 1997 with
effect from 28 November 1997.]
(5) Subject to this Act, the Labour Relations
Act, 1995 (Act No.66 of 1995), and any other applicable law, a public school
may establish
posts for non-educators and employ non-educator staff additional
to the establishment determined in terms of the Public Service
Act, 1994
(Proclamation No. 103 of 1994).
[S 20(5) inserted by s 6 of Act 100 of 1997 with
effect from 28 November 1997.]
(6) An educator and a non-educator employed in
a post established in terms of subsection (4) or (5) must comply with the
requirements
set for employment in public schools in terms of this Act, the
Labour Relations Act, 1995 (Act No. 66 of 1995), and any other applicable
law.
[S 20(6) inserted by s 6 of Act 100 of 1997 with
effect from 28 November 1997.]
(7) A public school may only employ an educator
in a post established in terms of subsection (4) if such educator is registered
as an
educator with the South African Council of Educators.
[S 20(7) inserted by s 6 of Act 100 of 1997 with
effect from 28 November 1997.]
(8) The staff contemplated in subsections (4)
and (5) must be employed in compliance with the basic values and principles
referred to
in section 195 of the Constitution, and the factors to be
taken into account when making appointments include, but are
not limited to—
(a) the ability of the candidate;
(b) the principle of equity;
(c) the need to redress past injustices;
and
(d) the need for representivity.
[S 20(8) inserted by s 6 of Act 100 of 1997 with
effect from 28 November 1997.]
(9) When presenting the annual budget
contemplated in section 38, the governing body of a public school must
provide sufficient
details of any posts envisaged in terms of subsections (4)
and (5), including the estimated costs relating to the employment of
staff in
such posts and the manner in which it is proposed that such costs will be met.
[S 20(9) inserted by s 6 of Act 100 of 1997 with
effect from 28 November 1997.]
(10) Despite section 60, the State is not
liable for any act or omission by the public school relating to its contractual
responsibility
as the employer in respect of staff employed in terms of
subsections (4) and (5).
[S 20(10) inserted by s 6 of Act 100 of 1997 with
effect from 28 November 1997.]
(11) After consultation as contemplated in section
5 of the National Education Policy Act, 1996 (Act No. 27 of 1996), the
Minister
may determine norms and standards by notice in the Gazette
regarding the funds used for the employment of staff referred to in subsections
(4) and (5), but such norms and standards may not
be interpreted so as to make
the State a joint employer of such staff.
[S 20(11) inserted by s 6 of Act 100 of 1997 with
effect from 28 November 1997.]
21. Allocated
functions of governing bodies
(1) Subject to this Act, a governing body may
apply to the Head of Department in writing to be allocated any of the following
functions:
(a) To maintain and improve the school’s
property, and buildings and grounds occupied by the school, including school
hostels, if
applicable;
(b) to determine the extra-mural
curriculum of the school and the choice of subject options in terms of
provincial curriculum policy;
(c) to purchase textbooks, educational
materials or equipment for the school;
(d) to pay for services to the school;
(dA) to provide an
adult basic education and training class or centre subject to any applicable
law; or
[S 21(1)(dA) inserted by
s 10 of Act 48 of 1999 with effect from 19 November 1999.]
(e) other functions consistent with this
Act and any applicable provincial law.
(2) The Head of Department may refuse an
application contemplated in subsection (1) only if the governing body concerned
does not have
the capacity to perform such function effectively.
(3) The Head of Department may approve such
application unconditionally or subject to conditions.
(4) The decision of the Head of Department on
such application must be conveyed in writing to the governing body concerned,
giving reasons.
(5) Any person aggrieved by a decision of the
Head of Department in terms of this section may appeal to the Member of the
Executive
Council.
(6) The Member of the Executive Council may, by
notice in the Provincial Gazette, determine that some governing
bodies may exercise one or more functions without making an application
contemplated in subsection
(1), if—
(a) he or she is satisfied that the
governing bodies concerned have the capacity to perform such function
effectively; and
(b) there is a reasonable and equitable
basis for doing so.
22. Withdrawal
of functions from governing bodies
(1) The Head of Department May, on reasonable
grounds, withdraw a function of a governing body.
(2) The Head of Department may not take action
under subsection (1) unless he or she has—
(a) informed the governing body of his or her
intention so to act and the reasons therefor;
(b) granted the governing body a
reasonable opportunity to make representations to him or her relating to such
intention; and
(c) given due consideration to any such
representations received.
(3) In cases of urgency, the Head of Department
may act in terms of subsection (1) without prior communication to such
governing body,
if the Head of Department thereafter—
(a) furnishes the governing body with
reasons for his or her actions;
(b) gives the governing body a reasonable
opportunity to make representations relating to such actions; and
(c) duly considers any such
representations received.
(4) The Head of Department may for sufficient
reasons reverse or suspend his or her action in terms of subsection (3).
(5) Any person aggrieved by a decision of the
Head of Department in terms of this section may appeal against the decision to
the Member
of the Executive Council.
Uncommenced amendment 22. Withdrawal
of functions of governing body (1) The Head of Department may, on reasonable
grounds, withdraw one or more functions of a governing body. (2) The Head of Department may not take
action in terms of subsection (1) unless he or she has— (a) in writing, informed the governing body
of his or her intention so to act and the reasons therefor; (b) granted the governing body a reasonable
opportunity to make representations to him or her relating to such intention; (c) given due consideration to any such
representations received; and (d) informed the governing body of his or her
final decision, in writing. (3) In cases of urgency, the Head of
Department may act in terms of subsection (1) without prior communication to
such governing
body, if the Head of Department immediately thereafter— (a) furnishes the governing body with written
reasons for his or her actions; (b) grants the governing body a reasonable
opportunity to make representations to him or her relating to such actions; (c) duly considers any such representations
received; and (d) informs the governing body of his or her
final decision, in writing. (4) The Head of Department may for sufficient
reasons reverse or suspend his or her action in terms of subsection (1) or
(3). (5) If the Head of Department acts in terms
of subsection (1) or (3), he or she must appoint sufficiently qualified
persons to perform
the withdrawn function or functions, as the case may be,
for a period not exceeding three months. (6) The Head of Department may extend the
period referred to in subsection (5) by further periods not exceeding three
months each,
but the total period may not exceed one year. (7) The persons contemplated in subsection
(5) must, within the period of their appointment, build the necessary
capacity to ensure
that the governing body will thereafter be able to perform
the functions that it previously failed to perform. (8) The persons contemplated in subsection
(5) shall have exclusive voting rights and decision making powers on any
function that
they have been appointed to perform. (9) Any person aggrieved by a decision of the
Head of Department in terms of this section may appeal against the decision
to the
Member of the Executive Council, and the Member of the Executive
Council must communicate his or her decision to the aggrieved
person within
30 days after receiving the appeal and must provide written reasons for his
or her decision [S 22 substituted by s 15 of Act 32 of 2024 with effect from date to be
proclaimed.] |
23. Membership
of governing body of ordinary public school
(1) Subject to this Act, the membership of the
governing body of an ordinary public school comprises—
(a) elected members;
(b) the principal, in his or her official
capacity;
(c) co-opted members.
(2) Elected members of the governing body shall
comprise a member or members of each of the following categories:
(a) Parents of learners at the school;
(b) educators at the school;
(c) members of staff at the school who
are not educators; and
(d) learners in the eighth grade or higher
at the school.
(3) A parent who is employed at the school may
not represent parents on the governing body in terms of subsection (2) (a).
(4) The representative council of learners
referred to in section 11(1) must elect the learner or learners referred
to in subsection
(2)(d).
(5) The governing body of an ordinary public
school which provides education to learners with special needs must, where
practically
possible, co-opt a person or persons with expertise regarding the
special education needs of such learners.
(6) A governing body may co-opt a member or
members of the community to assist it in discharging its functions.
Uncommenced amendment (6) A governing body may co-opt a member or
members of the community, or persons from outside the community, with the
relevant expertise,
to assist it in discharging its functions. [S 23(6) substituted by s 16 of Act 32 of 2024 with effect from date to
be proclaimed.] |
(7) The governing body of a public school
contemplated in section 14 may co-opt the owner of the property
occupied by the
school or the nominated representative of such owner.
(8) Subject to subsection (10), co-opted
members do not have voting rights on the governing body.
[S 23(8) substituted by s 11 of Act 48 of 1999,with
effect from 19 November 1999.]
(9) The number of parent members must comprise
one more than the combined total of other members of a governing body who have
voting
rights.
(10) If the number of parents at any stage is not
more than the combined total of other members with voting rights, the governing
body
must temporarily co-opt parents with voting rights.
[S 23(10) inserted by s 11 of Act 48 of 1999,with
effect from 19 November 1999.]
(11) If a parent is co-opted with voting rights as
contemplated in subsection (10), the co-option ceases when the vacancy has been
filled
through a by-election which must be held according to a procedure
determined in terms of section 28(d) within 90 days after
the vacancy has
occurred.
[S 23(11) inserted by s 11 of Act 48 of 1999,with
effect from 19 November 1999.]
(12) If a person elected as a member of a
governing body as contemplated in subsection (2) ceases to fall within the
category referred
to in that subsection in respect of which he or she was
elected as a member, he or she ceases to be a member of the governing body.
[S 23(12) inserted by s 11 of Act 48 of 1999,with
effect from 19 November 1999.]
24. Membership
of governing body of public school for learners with special education needs
(1) The following categories of persons must be
represented on a governing body of a public school for learners with special
education
needs, in each case by a member or members of the respective
category:
(a) Parents of learners at the school, if
reasonably practicable;
(b) educators at the school;
(c) members of staff at the school who
are not educators;
(d) learners attending the eighth grade or
higher, if reasonably practicable;
(e) representatives of sponsoring bodies,
if applicable;
(f) representatives of organisations of
parents of learners with special education needs, if applicable;
(g) representatives of organisations of
disabled persons, if applicable;
(h) disabled persons, if applicable; and
(i) experts in appropriate fields of
special needs education.
(j) the principal in his or her official
capacity.
[S 24(1)(j) inserted by s 7 of Act 100 of 1997
with effect from 28 November 1997.]
(2) Subject to this Act, the Member of the
Executive Council must, by notice in the Provincial Gazette,
determine the number of members in each category referred to in subsection (1)
and the manner of election or appointment of such
members at every public
school for learners with special education needs within his or her province.
Uncommenced amendment (2) Subject to this Act, the Minister must,
by notice in the Gazette, determine the number of members in each
category referred to in subsection (1) and the manner of election or
appointment of
such members at every public school for learners with special
education needs. [S 24(2) substituted by s 17(a) of Act 32 of 2024 with effect from date
to be proclaimed.] |
(3) A notice contemplated in subsection (2)
must give interested parties an opportunity to make written submissions within
a period
of not less than 30 days.
(4) The Member of the Executive Council must
consider all such submissions, and thereafter may alter the notice contemplated
in subsection
(2).
Uncommenced amendment (4) The Minister must consider all such
submissions, and thereafter may alter the notice contemplated in subsection
(2). [S 24(4) substituted by s 17(b) of Act 32 of 2024 with effect from date
to be proclaimed.] |
Uncommenced amendment 24A.
Membership of governing body of public
school with specialised focus on talent, including sport, performing arts or
creative
arts (1) The provisions of section 23, excluding
subsection (5), will apply to a governing body of a public school that
provides education
with a specialised focus on talent, including sport,
performing arts or creative arts, as contemplated in section 12(3)(a)(iii). (2) The authority to co-opt a member or
members of the community as contemplated in section 23(6) includes the
authority to co-opt
relevant experts in the specialised focus of the public
school, whether from inside or outside the community. [S 24A inserted by s 18 of Act 32 of 2024 with effect from date to be
proclaimed.] |
25. Failure by
governing body to perform functions
(1) If the Head of Department determines on
reasonable grounds that a governing body has ceased to perform functions
allocated to it
in terms of this Act or has failed to perform one or more of
such functions, he or she must appoint sufficient persons to perform
all such
functions or one or more of such functions, as the case may be, for a period
not exceeding three months.
[S 25(1) substituted by s 4 of Act 57 of 2001 with
effect from 5 December 2001.]
(2) The Head of Department may extend the
period referred to in subsection (1), by further periods not exceeding three
months each,
but the total period may not exceed one year.
(3) If a governing body has ceased to perform
its functions, the Head of Department must ensure that a governing body is
elected in
terms of this Act within a year after the appointment of persons
contemplated in subsection (1).
[S 25(3) substituted by s 4 of Act 57 of 2001 with
effect from 5 December 2001.]
(4) If a governing body fails to perform any of
its functions, the persons contemplated in subsection (1) must build the
necessary capacity
within the period of their appointment to ensure that the
governing body performs its functions.
[S 25(4) inserted by s 4 of Act 57 of 2001 with
effect from 5 December 2001.]
Uncommenced amendment 25. Dissolution of governing body (1) The Head of Department may, on reasonable
grounds, dissolve a governing body that has ceased to perform its functions
in terms
of this Act or any provincial law. (2) If the Head of Department acts in terms
of subsection (1), he or she must appoint sufficiently qualified persons to
perform
all the functions of the governing body for a period not exceeding
three months. (3) The Head of Department may extend the
period referred to in subsection (2) by further periods not exceeding three
months each,
but the total period may not exceed one year. (4) The persons contemplated in subsection
(2) shall have exclusive voting rights and decision making powers on all the
functions
of the governing body. (5) The Head of Department may not take
action in terms of subsection (1) unless he or she has— (a) in writing, informed the governing body
of his or her intention so to act and the reasons therefor; (b) granted the governing body a reasonable
opportunity to make representations to him or her relating to such intention; (c) given due consideration to any such
representations received; and (d) informed the governing body of his or her
final decision, in writing. (6) If the Head of Department has dissolved a
governing body as contemplated in subsection (1), he or she must ensure that
a new
governing body is elected in terms of this Act, within a year after the
appointment of the persons contemplated in subsection
(2). (7) Any person aggrieved by a decision of the
Head of Department in terms of this section may appeal against the decision
to the
Member of the Executive Council, and the Member of the Executive
Council must communicate his or her decision to the aggrieved
person within
14 days after receiving the appeal and must provide written reasons for his
or her decision. [S 25 substituted by s 19 of Act 32 of 2024 with effect from date to be
proclaimed.] |
26. Recusal by
members of governing body
A member of a governing body must
withdraw from a meeting of the governing body for the duration of the
discussion and decision-making
on any issue in which the member has a personal
interest.
Uncommenced amendment 26. Recusal by member of governing body (1) Before a governing body discusses, or
decides on, the recruitment or employment of staff, or the procurement of
goods and services
for a public school, a member must declare to the
governing body any direct or indirect personal and financial interest that
the member or any of his or her family members or close friends or business partners
has, including— (a) a personal interest— (i) in an entity conducting business with
the school; or (ii) in a business or a commercial or
financial activity undertaken by the governing body of the school; (b) a financial or other obligation to an
entity conducting business with the school; and (c) a gift, hospitality, sponsorship or
other benefit received from an entity conducting business with the school. (2) Any person may in writing inform the
chairperson of a governing body or the principal of a school of a possible
conflict of
interest concerning a governing body member. (3) A governing body member must recuse
himself or herself and withdraw from a meeting of the governing body for the
duration of
the discussion and decision-making on an issue in which the
member has a personal or financial interest as contemplated in subsection
(1). (4) If a governing body has knowledge that a
member who is present has a personal interest in a matter, the governing body
may not
take a decision on that matter until the member has withdrawn as
contemplated in subsection (3). (5) Where a governing body member contravenes
the provisions of this section, the Head of Department may, after due process
as contemplated
in the code of conduct for the members of the governing body— (a) suspend the governing body member; or (b) terminate the membership of the governing
body member. (6) This section applies, with the necessary
changes, to committees of a governing body and committee members. (7) For the purposes of this section, family
member means a parent, sister, brother, child or a spouse of a member of the
governing
body, and includes— (a) a person living with that member as if
they were married to each other, namely a life partner; (b) a relative who resides permanently with
that member; and (c) any other relative who is dependent on
such member. [S 26 substituted by s 20 of Act 32 of 2024 with effect from date to be
proclaimed.] |
27. Reimbursement
of members of governing body
(1) Necessary expenses incurred by a member of
a governing body in the performance of his or her duties may be reimbursed by
the governing
body.
(2) No member of a governing body may be
remunerated in any way for the performance of his or her duties.
Uncommenced amendment (2) No member of a governing body may be
remunerated in any way for the performance of his or her duties or for the
attendance of
meetings and school activities. [S 27(2) substituted by s 21 of Act 32 of 2024 with effect from date to
be proclaimed.] |
28. Election of
members of governing body
Subject to this Act and any applicable
provincial law, the Member of the Executive Council must, by notice in
the Provincial Gazette, determine—
Uncommenced amendment Subject to this Act, the Minister
must, by notice in the Gazette, determine— [S 28, words preceding (a), substituted by s 22 of Act 32 of 2024 with
effect from date to be proclaimed.] |
(a) the term of office of members and
office-bearers of a governing body;
(b) the designation of an officer to
conduct the process for the nomination and election of members of the governing
body;
(c) the procedure for the
disqualification or removal of a member of the governing body or the
dissolution of a governing body,
for sufficient reason in each case;
(d) the procedure for the filling of a
vacancy on the governing body;
(e) guidelines for the achievement of the
highest practicable level of representativity of
members of the governing body;
(f) a formula or formulae for the calculation
of the number of members of the governing body to be elected in each of the
categories
referred to in section 23(2), but such formula or formulae must
provide reasonable representation for each category and must
be capable of
application to the different sizes and circumstances of public schools; and
(g) any other matters necessary for the
election, appointment or assumption of office of members of the governing body.
29. Office-bearers of
governing bodies
(1) A governing body must, from amongst its
members, elect office-bearers, who must include at least a chairperson, a
treasurer and
a secretary.
(2) Only a parent member of a governing body
who is not employed at the public school may serve as the chairperson of the
governing
body.
Uncommenced amendment (2) (a) Only a parent member of a governing body
who is not employed at the public school may serve as the chairperson of the
governing
body. (b) Where reasonably practicable, only a
parent member of a governing body who is not employed at the public school
may serve as
the chairperson of the finance committee of that public school. [S 29(2) substituted by s 23 of Act 32 of 2024 with effect from date to
be proclaimed.] |
(3) In the case of a public school for learners
with special education needs any member of the governing body elected from the
categories
of persons referred to in section 24(1)(a), (e), (f), (g), (h)
and (i) may serve as the chairperson of that governing body.
[S 29(3) inserted by s 12 of Act 48 of 1999 with
effect from 19 November 1999.]
30. Committees
of governing body
(1) A governing body may—
(a) establish committees, including an
executive committee; and
(b) appoint persons who are not members of
the governing body to such committees on grounds of expertise, but a member of
the governing
body must chair each committee.
(2) A governing body of an ordinary public
school which provides education to learners with special education needs must
establish a
committee on special education needs.
31. Term of
office of members and office-bearers of governing bodies
(1) The term of office of a member of a
governing body other than a learner may not exceed three years.
(2) The term of office of a member of a
governing body who is a learner may not exceed one year.
(3) The term of office of an office-bearer of a
governing body may not exceed one year.
(4) A member or office-bearer of a governing
body may be re-elected or co-opted, as the case may be, after the expiry of his
or her
term of office.
32. Status of
minors on governing bodies of public schools
Uncommenced amendment 32. Status of learners on governing bodies of
public schools [S 32 heading substituted by s 24(a) of Act 32 of 2024 with effect from
date to be proclaimed.] |
(1) A member of a governing body who is a minor
may not contract on behalf of a public school.
Uncommenced amendment (1) A member of a governing body who is a learner
may not contract on behalf of a public school. [S 32(1) substituted by s 24(b) of Act 32 of 2024 with effect from date
to be proclaimed.] |
(2) A member of a governing body who is a minor
may not vote on resolutions of a governing body which impose liabilities on
third parties
or on the school.
Uncommenced amendment (2) A member of a governing body who is a learner
may not vote on resolutions of a governing body which impose liabilities on
third
parties or on the school. [S 32(2) substituted by s 24(b) of Act 32 of 2024 with effect from date
to be proclaimed.] |
(3) A member of a governing body who is a minor
incurs no personal liability for any consequence of his or her membership of
the governing
body.
Uncommenced amendments (3) A member of a governing body who is a
learner incurs no personal liability for any consequence of his or her
membership of the
governing body. [S 32(3)
substituted by s 24(b) of Act 32 of 2024 with effect from date to be
proclaimed.] (4) A member
of a governing body who is a learner may not take part in meetings at which
recommendations for the appointment of
staff to the school are decided on, or
form part of interview panels relating to the appointment of staff, whether
educators
or non-educators, or in any other way be involved in the
appointment of staff to the school. [S 32(4) added by s 24(c) of Act 32 of 2024 with effect from date to be
proclaimed.] |
(1) The Member of the Executive Council may, by
notice in the Provincial Gazette, close a public school.
(2) The Member of the Executive Council may not
act under subsection (1) unless he or she has—
(a) informed the governing body of the
school of his or her intention so to act and his or her reasons therefor;
(b) granted the governing body of the
school a reasonable opportunity to make representations to him or her in
relation to such
action;
(c) conducted a public hearing on
reasonable notice, to enable the community to make representations to him or
her in relation
to such actions; and
(d) given due consideration to any such
representations received.
(3) If a public school is closed in terms of
subsection (1) all assets and liabilities of such school must, subject to the
conditions
of any donation, bequest or trust contemplated in section 37(4),
devolve on the State unless otherwise agreed between the Member
of the
Executive Council and the governing body of the school.
Uncommenced amendment 33. Closure of
public schools (1) The Member of the Executive Council may,
by notice in the Provincial Gazette, close a public school. (2) The Member of the Executive Council may
not act in terms of subsection (1) unless he or she has— (a) in writing informed the school and the
governing body of his or her intention so to act and his or her reasons therefor; (b) notified the parents associated with the
school, and the community in which the school is situated, of his or her
intention
so to act and the reasons therefor— (i) by means of a notice in at least one
newspaper circulating in the area where the school is situated, if any
newspapers circulate
in that area; (ii) by causing the principal of the school
to— (aa) hand to every learner a notice containing
the relevant information; and (bb) instruct the learners to hand the notice to
their parents; and (iii) by means of any other acceptable form of
communication that will ensure that the information is spread as widely as possible; (c) granted the school, the governing body,
the parents associated with the school, and the community in which the school
is situated
a reasonable opportunity to make representations in relation to
such action; (d) conducted a public hearing, on reasonable
notice, to enable the community to make representations in relation to such
action;
and (e) given due consideration to any such
representations received. (3) (a) Notwithstanding the provisions of
subsection (2), the Member of the Executive Council may, by notice in the Provincial
Gazette, close a public school in his or her sole discretion if no
learners are registered at that school. (b) The Member of the Executive Council may
not act in terms of paragraph (a) unless he or she has verified, by means of
a site
inspection by an official nominated by him or her, that no learners
are registered at that school. (4) (a) The Member of the Executive Council may,
by notice in the Provincial Gazette, close a public school if, in the
case of a primary school, 135 or fewer than 135 learners are registered at
that school, and,
in the case of a secondary school, 200 or fewer than 200
learners are registered at that school: Provided that the provisions
of this
subsection do not apply where the Member of the Executive Council has, before
the commencement of the Basic Education
Laws Amendment Act, 2024, acted in
terms of subsection (2). (b) The Member of the Executive Council may
not act in terms of paragraph (a) unless he or she has— (i) given written notice to the school and
the parents of the learners of that school; (ii) by means of a notice in at least one
newspaper circulating in the area where the school is situated, if any
newspapers circulate
in that area, and by means of any other acceptable form
of communication that will ensure that the information is spread as widely
as
possible, given notice of his or her intention to close the school and
invited comment; (iii) consulted with the parents of the
learners of the school and afforded them an opportunity to make
representations within a period
of not less than 30 days from the date of the
notice or communication referred to in subparagraphs (i) and (ii); and (iv) considered any representations and any
comments received after publication of the notice or communication referred
to in subparagraphs
(i) and (ii). (5) After the consultation contemplated in
subsections (2) and (4)(b), the Member of the Executive Council must decide
whether or
not to go ahead with the closure of the school and must— (a) inform the school and the governing body
of his or her decision; and (b) by means of the methods listed in
subsection (2)(b), notify the parents associated with the school, and the
community in which
the school is situated, of the decision. (6) If the decision is to go ahead with the
closure, the Member of the Executive Council must, where applicable and
before the closure
takes place, make alternative arrangements for the
learners of the school to attend another school that is able to accommodate
those learners and, where appropriate, make arrangements for the transport of
qualifying learners to that school. (7) If a public school is closed in terms of this
section, all assets and liabilities of such school must, subject to the
conditions
of any donation, bequest or trust contemplated in section 37(4),
devolve on the State unless otherwise agreed between the Member
of the
Executive Council and the governing body of the school. (8) The Member of the Executive Council, in
determining whether to act under subsection (1) or (4), must take into
account— (a) the needs, in general, of the broader
community in the education district in which the public school is situated;
and (b) factors including, but not limited to— (i) the best interests of the child, with
emphasis on equality as provided for in section 9 of the Constitution, and
equity; (ii) whether there are other schools in the
community that are accessible to learners; and (iii) the efficient and effective use of state
resources. [S 33 substituted by s 25 of Act 32 of 2024 with effect from date to be
proclaimed.] |
33A. Prohibition of political
activities during school time
(1) No party-political activities may be
conducted at a school during school time determined by the governing body of
the school in
terms of section 20(1)(f).
(2) The party-political activities contemplated
in subsection (1) include, but are not limited to—
(a) campaigning;
(b) the conducting of rallies;
(c) the distribution of pamphlets and
fliers; and
(d) the hanging or putting up of posters
and banners.
(3) A member of a political party may not, for
the purposes of conducting party-political activities, encroach on the school
time.
(4) A school may not allow the display of
material of a party-political nature on its premises unless such
party-political material
is related to the curriculum at the school.
[S 33A inserted by s 11 of Act 15 of 2011 with
effect from 19 September 2011.]
CHAPTER 4
FUNDING OF PUBLIC SCHOOLS
(1) The State must fund public schools from
public revenue on an equitable basis in order to ensure the proper exercise of
the rights
of learners to education and the redress of past inequalities in
education provision.
(2) The State must, on an annual basis, provide
sufficient information to public schools regarding the funding referred to in
subsection
(1) to enable public schools to prepare their budgets for the next
financial year.
35. Norms and
standards for school funding
(1) Subject to the Constitution and this Act, the Minister must
determine national quintiles for public schools and national norms and
standards for school funding after consultation with the Council of Education
Ministers and the Minister of Finance.
(2) The norms and standards for school funding contemplated in
subsection (1) must—
(a) set out criteria for the distribution of state funding to all public
schools in a fair and equitable manner;
(b) provide for a system in terms of which learners at all public
schools can be placed into quintiles, referred to as national quintiles
for
learners, according to financial means;
(c) provide for a system in terms of which all public schools in
the Republic can be placed into quintiles referred to as national quintiles
for
public schools, according to the distribution of learners in the national
quintiles for learners: and
(d) determine the procedure in terms of which the Member of the
Executive Council must apply the criteria contemplated in paragraph
(a).
[S 35 substituted by s 3 of Act 24 of 2005 with
effect from 26 January 2006]
36. Responsibility
of governing body
(1) A governing body of a public school must
take all reasonable measures within its means to supplement the resources
supplied by the
State in order to improve the quality of education provided by
the school to all learners at the school.
(2) Despite subsection (1), a governing body
may not enter into any loan or overdraft agreement so as to supplement the
school fund,
without the written approval of the Member of the Executive
Council.
[S 36(2) inserted by s 5 of Act 57 of 2001 with
effect from 5 December 2001.]
Uncommenced amendment (2) Despite subsection (1), a governing body
may not, without the written approval of the Head of Department, enter into
any loan,
lease or overdraft agreement for any purpose. [S 36(2) substituted by s 26(a) of Act 32 of 2024 with effect from date
to be proclaimed.] |
(3) If a person lends money or grants an
overdraft to a public school without the written approval of the Member of the
Executive Council,
the State and the public school will not be bound by the
contract of lending money or an overdraft agreement.
[S 36(3) inserted by s 5 of Act 57 of 2001 with
effect from 5 December 2001.]
(4)
(a) A governing body may, with the approval of
the Member of the Executive Council—
(i) lease, burden, convert or alter immovable
property of the school to provide for school activities or to supplement the
school fund
of that school; and
Uncommenced amendment (i) burden,
convert or alter immovable property of the school to provide for school
activities or to supplement the school fund,
or lease such property for such
purpose: Provided that such approval is not required for a lease of a period
not exceeding
12 months; and [S 36(4)(a)(i) substituted by s 26(b) of Act 32 of 2024 with effect
from date to be proclaimed.] |
(ii) allow any person to conduct any
business on school property to supplement the school fund.
(b) A governing body may not allow any activity
on school property that is hazardous or disruptive to learners or prohibited by
this
Act.
[S 36(4) inserted by s 12 of Act 15 of 2011 with
effect from 19 September 2011.]
(5) For the purposes of subsection (4), “school
property” means immovable property owned by the State, including property
contemplated
in sections 13 and 55 and any immovable
property bought by a school from the school funds or donations to the
school.
[S 36(5) inserted by s 12 of Act 15 of 2011 with
effect from 19 September 2011.]
37. School funds
and assets of public schools
(1) The governing body of a public school must
establish a school fund and administer it in accordance with directions issued
by the
Head of Department.
Uncommenced amendment (1) The governing body of a public school
must establish a school fund and administer it in accordance with directives
issued by
the Head of Department. [S 37(1) substituted by s 27 of Act 32 of 2024 with effect from date to
be proclaimed.] |
(2) Subject to subsection (3), all money
received by a public school including school fees and voluntary contributions
must be paid
into the school fund.
(3) The governing body of a public school must
open and maintain one banking account, but a governing body of a public school
may, with
the approval of the Member of the Executive Council, invest surplus
money in another account.
[S 37(3) substituted by s 6 of Act 57 of 2001 with
effect from 5 December 2001.]
(4) Money or other goods donated or bequeathed
to or received in trust by a public school must be applied in accordance with
the conditions
of such donation, bequest or trust.
(5) All assets acquired by a public school on
or after the commencement of this Act are the property of the school.
(6) The school fund, all proceeds thereof and
any other assets of the public school must be used only for—
(a) educational purposes, at or in
connection with such school;
(b) educational purposes, at or in connection
with another public school, by agreement with such other public school and with
the consent
of the Head of Department;
(c) the performance of the functions of
the governing body; or
(d) another educational purpose agreed
between the governing body and the Head of Department.
(7)
(a) Money from the school fund of a public
school may not be paid into a trust or be used to establish a trust.
(b) If a trust was established from a school
fund of a public school or if such money was paid into a trust prior to 1
January 2002,
such trust or payment is invalid and the money must be paid back
into the school fund.
(c) A governing body of a public school may
not collect any money or contributions from parents to circumvent or manipulate
the payment
of compulsory school fees and to use such money or contributions to
establish or fund a trust, and if such money or contributions
of parents were
paid into a trust prior to 1 January 2002, the trust must pay such money or
contributions into the school fund.
[S 37(7) inserted by s 6 of Act 57 of 2001 with
effect from 5 December 2001.]
38. Annual
budget of public school
(1) A governing body of a public school must
prepare a budget each year according to prescriptions determined by the Member
of the Executive
Council in a Provincial Gazette, which shows the
estimated income and expenditure of the school for the following financial
year.
[S 38(1) substituted by s 7 of Act 57 of 2001 with
effect from 5 December 2001.]
(2) Before a budget referred to in subsection
(1) is approved by the governing body, it must be presented to a general
meeting of parents
convened on at least 30 days’ notice, for consideration and
approval by a majority of parents present and voting.
(3) The notice contemplated in subsection (2)
must also inform the parents that the budget will be available for inspection
at the school
at least 14 days prior to the meeting.
[S 38(3) inserted by s 7 of Act 57 of 2001 with
effect from 5 December 2001.]
Uncommenced amendments (3) When notice is given to the parents as
contemplated in subsection (2)— (a) the budget, together with a document
explaining the budget, must be made available to the parents by means of the
existing communication
channels of the school; and (b) the parents must be informed that the
document and the budget will be available for inspection at the school at
least 14 days
prior to the meeting. [S 38(3)
substituted by s 28(a) of Act 32 of 2024 with effect from date to be
proclaimed.] (4) If a governing body finds it necessary
to— (a) deviate from the initial budget that has
been approved as contemplated in subsection (2), and the deviation will be 10
per cent
or more of the initial budget; or (b) reallocate funds for use for a purpose
different to that which was approved by the parents as contemplated in
subsection (2),
the governing body must present such deviation or
reallocation to a general meeting of parents convened specifically for that
purpose, on at least 14 days’ notice, for consideration and approval by a
majority of parents present and voting. [S 38(4)
added by s 28(b) of Act 32 of 2024 with effect from date to be proclaimed.] (5) When notice is given to the parents as
contemplated in subsection (4)— (a) a document explaining and providing
reasons for the deviation or reallocation must be made available to parents
by means of
the existing communication channels of the school; and (b) the parents must be informed that the
document will be available for inspection at the school at least 14 days
prior to the
meeting. [S 38(5)
added by s 28(b) of Act 32 of 2024 with effect from date to be proclaimed.] (6) A quorum of 10 per cent of parents is
required for the general meetings of parents contemplated in subsections (2)
and (4). [S 38(6)
added by s 28(b) of Act 32 of 2024 with effect from date to be proclaimed.] (7) If the quorum contemplated in subsection
(6) is not reached at the general meeting of parents— (a) the chairperson shall determine the date,
time and place for the second meeting of the general meeting and notify
parents 14
days prior to such meeting; (b) the principal shall, at least seven days
prior to the date of the second general meeting, distribute a copy of the
notice to
every learner at the school with an instruction to hand the notice
to the parents; and (c) there shall be no quorum required at the
second general meeting. [S 38(7) added by s 28(b) of Act 32 of 2024 with effect from date to be
proclaimed.] |
38A. Prohibition
of payment of unauthorised remuneration, or giving of financial benefit or
benefit in kind to certain employees
(1) Subject to subsection (2), a governing body
may not pay or give to a state employee employed in terms of the Employment of
Educators
Act, 1998 (Act No. 76 of 1998), or the Public Service Act, 1994
(Proclamation No. 103 of 1994), any unauthorised—
(a) remuneration;
(b) other financial benefit; or
(c) benefit in kind.
(2) A governing body may apply to the employer
for approval to pay a state employee any payment contemplated in subsection
(1).
Uncommenced amendment (2) A governing body may apply to the
employer for approval to pay a state employee any remuneration, or to give to
a state employee
any other financial benefit, or benefit in kind. [S 38A(2) substituted by s 29(a) of Act 32 of 2024 with effect from
date to be proclaimed.] |
(3) Such application must be lodged in writing
in the office of the employer and must state—
(a) full details of the nature and extent of
the payment;
(b) the process and resources that will be used
to compensate or remunerate the state employee; and
(c) the extent of compliance with section
20(5) to (9).
Uncommenced amendment (3) Such application must be lodged in
writing in the office of the employer and must state— (a) full details of the nature and extent of
the remuneration, other financial benefit, or benefit in kind; (b) the reasons for the remuneration, other
financial benefit, or benefit in kind; (c) if practicable, the monetary value of
the remuneration, other financial benefit, or benefit in kind; (d) the process that will be followed and the
resources that will be used to compensate or remunerate the state employee;
and (e) the extent of compliance with section
20(5) to (9). [S 38A(3) substituted by s 29(b) of Act 32 of 2024 with effect from
date to be proclaimed.] |
(4) The governing body must make the
application contemplated in subsection (2) at least four months prior to the
finalisation of the
school’s budget.
(5) Despite subsection (1), a governing body
may pay travel and subsistence expenses relating to official school activities
but such
expenses may not be greater than those that would be payable to a
public servant in similar circumstances.
(6) An employer must not unreasonably refuse an
application contemplated in subsection (2).
Uncommenced amendment (6) An employer may not unreasonably refuse
an application referred to in subsection (2). [S 38A(6) substituted by s 29(c) of Act 32 of 2024 with effect from
date to be proclaimed.] |
(7) In considering the application, the
employer must take into account—
(a) the implications for the employer in
terms of the employment contract and labour law;
(b) whether the service concerned in the
application will interfere with the normal service delivery of the employee;
(c) whether the service concerned in the
application has already been paid for by the employer; and
(d) whether the additional remuneration,
other benefits or benefits in kind support the core activities and functions of
the school.
(8) The payment contemplated in subsection (1)
must be reflected in the school’s budget, as presented to the general meeting
of parents
as contemplated in section 38(2).
Uncommenced amendment (8) The remuneration, other financial
benefit, or benefit in kind contemplated in subsection (1) must be reflected
in the school’s
budget, as presented to the general meeting of parents as
contemplated in section 38(2), and in such reflection in the budget,
any
remuneration, other financial benefit, or benefit in kind must, if
practicable, be accorded a monetary value. [S 38A(8) substituted by s 29(d) of Act 32 of 2024 with effect from
date to be proclaimed.] |
(9) If a governing body pays remuneration or
gives any financial benefit or benefit in kind contemplated in subsection (1)
to an employee
without prior approval of the employer, the amount of money paid
or benefit given must be recovered by the employer on behalf of
the school from
members of the governing body who took that decision, excluding a member of the
governing body who is a minor.
(10) A governing body may appeal to the Member of
the Executive Council against—
(a) the refusal by the employer of an
application contemplated in subsection (2); or
(b) the failure of the employer to provide
a decision on an application contemplated in subsection (2) within three months
after
the lodging of the application in the office of the employer.
[S 38A inserted by s 2 of Act 1 of 2004 with effect
from 26 April 2004.]
39. School fees
at public schools
(1) Subject to this Act, school fees may be
determined and charged at a public school only if a resolution to do so has
been adopted
by a majority of parents attending the meeting referred to
in section 38(2).
(2) A resolution contemplated in subsection (1) must provide for—
(a) the amount of
school fees to be charged;
(b) equitable criteria and procedures for the total, partial or
conditional exemption of parents who are unable to pay school fees;
and
(c) a school budget that reflects the estimated cumulative effect of—
(i) the established trends of non-payment
of school fees; and
(ii) the total, partial or conditional exemptions granted to
parents in terms of the regulations contemplated in subsection (4).
[S 39(2) substituted by s 4 of Act 24 of 2005 with
effect from 26 January 2006.]
(3) The governing body must implement a
resolution adopted at the meeting contemplated in subsection (1).
(4) The Minister must, after consultation with
the Council of Education Ministers and the Minister of Finance, make
regulations regarding
the equitable criteria and procedures referred to in
subsection (2) (b).
(5) No public school may charge any registration, administration or
other fee, except school fees as defined in section 1.
[S 39(5) inserted by s 4 of Act 24 of 2005 with
effect from 26 January 2006.]
(6) A public school may not charge a parent of a learner at that
school different school fees based on curriculum or extramural curriculum
within the same grade,
[S 39(6) inserted by s 4 of Act 24 of 2005 with
effect from 26 January 2006.]
(7) Despite subsection (1), the Minister must by notice in
the Government Gazette annually determine the national
quintiles for public schools or part of such quintiles which must be used by
the Member of
the Executive Council to identify schools that may not charge
school fees.
[S 39(7) inserted by s 4 of Act 24 of 2005 with
effect from 26 January 2006.]
(8) The Minister may make a determination in terms of subsection (7)
only if sufficient funding, not less than the no fee threshold,
has been
secured to fund learners at the schools affected by the determination.
[S 39(8) inserted by s 4 of Act 24 of 2005 with
effect from 26 January 2006.]
(9) The Member of the Executive Council must identify and draw a
list of all the schools contemplated in subsection (7) within his or
her
province.
[S 39(9) inserted by s 4 of Act 24 of 2005 with
effect from 26 January 2006.]
(10) The Minister must—
(a) consider the list of schools identified in terms of
subsection (9);
(b) compare the list with the determination contemplated
in section 35(1); and
(c) publish the list per province, in the Government
Gazette if it complies with the determination.
[S 39(10) inserted by s 4 of Act 24 of 2005 with
effect from 26 January 2006.]
(11) The schools contemplated in subsection (7) may, despite that
subsection, charge school fees if they receive less than the no fee
threshold
from the provincial education department.
[S 39(11) inserted by s 4 of Act 24 of 2005 with
effect from 26 January 2006.]
(12) The right of the school to charge school fees in terms of
subsection (11) is limited to an amount equal to the sum obtained if the
actual
amount received from the State is deducted from the no fee threshold.
[S 39(12) inserted by s 4 of Act 24 of 2005 with
effect from 26 January 2006.]
(13) Subject to subsection (7), the Member of the
Executive Council may, after consultation with the relevant governing bodies,
annually
by notice in the Provincial Gazette identify
additional public schools within his or her province that, although they have
not been included in the list of schools
contemplated in subsection (10)(c),
may not charge school fees.
[S 39(13) inserted
by s 13 of Act 15 of 2011 with effect from 19 September 2011.]
(14) The schools contemplated in subsection (13)
must be the schools that have been ranked as the poorest schools in that
province falling
outside the list of schools contemplated in subsection
(10)(c).
[S 39(14) inserted
by s 13 of Act 15 of 2011 with effect from 19 September 2011.]
(15) The Member of the Executive Council may act
in terms of subsection (13) only if sufficient funding has been secured in the
province
to fund learners in the schools affected by such action.
[S 39(15) inserted
by s 13 of Act 15 of 2011 with effect from 19 September 2011.]
(16) For the purposes of subsection (15),
‘sufficient funding’ means funding that is not less than the no fee
threshold.
[S 39(16) inserted
by s 13 of Act 15 of 2011 with effect from 19 September 2011.]
40. Parent’s
liability for payment of school fees
(1) A parent is liable to pay the school fees
determined in terms of section 39 unless or to the extent that he or
she has
been exempted from payment in terms of this Act.
(2) A parent may appeal to the Head of
Department against a decision of a governing body regarding the exemption of
such parent from
payment of school fees.
(3) In deciding an appeal referred to in
subsection (2), the Head of Department must follow due process which safeguards
the interests
of the parent and the governing body.
41. Enforcement
of payment of school fees
(1) A public school may by process of law enforce the payment of
school fees by parents who are liable to pay in terms of section
40.
(2) The exemption from payment of school fees must be calculated
according to the regulations contemplated in section 39(4).
Uncommenced amendments (2A) Notwithstanding subsection (2), a parent
may submit to the governing body an affidavit, as proof that the other parent
of the
learner— (a) is untraceable; (b) is unwilling to provide the
first-mentioned parent with particulars of his or her total annual gross
income; (c) has failed to provide the
first-mentioned parent with particulars of his or her total annual gross
income despite the lapse
of a reasonable time after a request by or on behalf
of the first-mentioned parent that he or she do so; or (d) has provided the first-mentioned parent
with incomplete or inaccurate particulars about his or her total annual gross
income
and has refused to rectify the deficiency or has failed to do so
despite the lapse of a reasonable time after a request by or
on behalf of the
first-mentioned parent that he or she do so. [S
41(2A) inserted by s 30 of Act 32 of 2024 with effect from date to be
proclaimed.] (2B) Although the affidavit contemplated in
subsection (2A) constitutes sufficient proof, a parent may also submit to the
governing
body a court order or any other documentary evidence that would
support the proof contemplated in subsection (2A). [S 41(2B) inserted by s 30 of Act 32 of 2024 with effect from date to
be proclaimed.] |
(3) The exemption from payment of school fees in terms of this Act
is calculated retrospectively from the date on which the parent qualifies
for
the exemption.
(4) A public school may act in terms of subsection (1) only after it
has ascertained that—
(a) the parent does not qualify for exemption from payment of
school fees in terms of this Act;
(b) deductions have been made in terms of regulations
contemplated in section 39(4), for a parent who qualifies for partial
exemption; and
(c) the parent has completed and signed the form prescribed in
the regulations contemplated in section 39(4).
(5) Despite subsection (4), a public school may act in terms of
subsection (1) if –
(a) that school can provide proof of a written notification to the
parent delivered by hand or registered post that the parent has failed
to apply
for exemption contemplated in section 39; and
(b) despite the notice contemplated in paragraph (a), the
parent fails to pay the school fees after a period of three months from
the
date of notification.
(6) A public school may not attach the dwelling in which a parent
resides.
(7) A learner may not be deprived of his or her right to participate
in all aspects of the programme of a public
school despite the non-payment of school fees by his or her parent and may not
be victimised in any manner, including but
not limited to the following conduct:
(a) Suspension from classes;
(b) verbal or non-verbal abuse;
(c) denial of access to—
(i) cultural, sporting or social activities of
the school; or
(ii) the nutrition programme of
the school for those learners who qualify in terms of the applicable policy; or
(d) denial of a school report or transfer certificate.
[S 41 substituted by s 5 of Act 24 of 2005 with
effect from 26 January 2006.]
42. Financial
records and statements of public schools
The
governing body of a public school must—
(a) keep records of funds received and
spent by the public school and of its assets, liabilities and financial
transactions; and
(b) as soon as practicable, but not later than
three months after the end of each financial year, draw up annual financial
statements
in accordance with the guidelines determined by the Member of the
Executive Council.
Uncommenced amendment 42. Financial records and
statements of public schools The governing body of a public
school must— (a) keep records of all investments, donations and funds
received and spent by the public school and of its assets, liabilities and
financial transactions; (b) as soon as practicable, but not later than three months
after the end of each financial year, draw up annual financial statements
reflecting
all the investments, donations and funds received and spent by the public
school in accordance with the guidelines
determined by the Member of the
Executive Council; (c) present the financial records and statements to a general
meeting of parents; and (d) inform the parents that the financial records and
statements will be available for inspection at the school at least 14 days
prior to the meeting referred to in paragraph (c). [S 42 substituted by s 31
of Act 32 of 2024 with effect from date to be proclaimed.] |
43. Audit
or examination of financial records and statements
(1) The governing body of a public school must
appoint a person registered as an auditor in terms of the Auditing Profession
Act, 2005
(Act No. 26 of 2005), to audit the records and financial statements
referred to in section 42.
[S 43(1) substituted by s 10 of Act 31 of 2007 with
effect from 31 December 2007.]
(2) If the audit referred to in subsection (1)
is not reasonably practicable, the governing body of a public school must
appoint a person
to examine and report on the records and financial statements
referred to in section 42, who—
(a) is qualified to perform the duties of
an accounting officer in terms of section 60 of the Close
Corporations Act,
1984 (Act No. 69 of 1984); or
(b) is approved by the Member of the
Executive Council for this purpose.
(3) No person who has a financial interest in
the affairs of the public school may be appointed under this section.
(4) If the Member of the Executive Council
deems it necessary, he or she may request the Auditor-General to undertake an
audit of the
records and financial statements of a public school.
Uncommenced amendment (4) If the Head of Department deems it necessary,
on just cause shown, he or she may— (a) authorise suitably qualified officers to
conduct an investigation into the financial affairs of a public school and,
where necessary,
after consultation with the governing body, access documents
relevant for the purposes of the investigation; (b) request the Auditor-General to undertake
an audit of the records and financial statements of a public school; or (c) appoint forensic auditors or forensic
investigators to conduct a forensic investigation into the financial affairs
of a public
school. [S 43(4) substituted by s 32 of Act 32 of 2024 with effect from date to
be proclaimed.] |
(5) A governing body must submit to the Head of
Department, within six months after the end of each financial year, a copy of
the annual
financial statements, audited or examined in terms of this section.
Uncommenced amendment (5) A governing body must submit to the Head
of Department— (a) within 30 days after the end of each
quarter, a copy of the quarterly report on all income and expenditure in
accordance with
directives issued by the Head of Department; and (b) within six months after the end of each
financial year, a copy of the annual financial statements, audited or
examined in terms
of this section. [S 43(5) substituted by s 32 of Act 32 of 2024 with effect from date to
be proclaimed.] |
(6) At the request of an interested person, the
governing body must make the records referred to in section 42, and the
audited
or examined financial statements referred to in this section, available
for inspection.
44. Financial
year of public school
The financial year of a public school
commences on the first day of January and ends on the last day of December of
each year.
CHAPTER 5
INDEPENDENT SCHOOLS
45. Establishment
of independent school
Subject to this Act and any applicable
provincial law, any person may, at his or her own cost, establish and maintain
an independent
school.
45A. Admission age to independent school
(a) The admission age of a learner to an
independent school to—
(i) grade R is age four turning five by
30 June in the year of admission;
(ii) grade 1 is age five turning six by 30
June in the year of admission.
(b) An independent school may admit a learner
who—
(i) is under the age contemplated in
paragraph (a) if good cause is shown; and
(ii) complies with the criteria
contemplated in paragraph (c).
(c) The Minister may, by regulation, prescribe—
(i) criteria2 for the
admission to an independent school at an age lower than the admission age of an
underage learner who complies with
the criteria;
__________
2. It is
acknowledged that criteria for admission of an underage learner are complex and
take some considerable time to develop. The
criteria must be reliable,
effective and their proper implementation will require the training of
evaluators. The criteria must
be based on an educationally sound basis in order
to ensure that—
(a) learners are
admitted on an equitable basis;
(b) there is
no unfair discrimination to learners;
(c) the admission
is fair to the individual learner as well as other learners in the classroom;
(d) recognition is
given to the diversity of language, culture and economic background;
(e) notice is
taken of the differences between urban and rural environments; and
(f) the physical,
psychological and mental development of the child are taken into account.
__________
(ii) age requirements for different grades
at an independent school.
(d) For the purpose of paragraph (b)(i), good
cause shown means that—
(i) it can be shown that exceptional
circumstances exist which necessitate the admission of an underage learner
because admission
would be in his or her best interest; and
(ii) the refusal to admit that learner
would be severely detrimental to his or her development.
[S 45A inserted by s 8 of Act 50 of 2002 with
effect from 1 January 2004.]
46. Registration
of independent school
(1) No person may establish or maintain an
independent school unless it is registered by the Head of Department.
(2) The Member of the Executive Council must,
by notice in the Provincial Gazette, determine the grounds on which
the registration of an independent school may be granted or withdrawn by the
Head of Department.
(3) A Head of Department must register an
independent school if he or she is satisfied that—
(a) the standards to be maintained by such
school will not be inferior to the standards in comparable public schools;
(b) the admission policy of the school
does not discriminate on the grounds of race; and
(c) the school complies with the grounds
for registration contemplated in subsection (2).
(4) Any person who contravenes subsection (1)
is guilty of an offence and upon conviction liable to a fine or imprisonment
for a period
of three months.
Uncommenced amendment (4) Any person who contravenes subsection (1)
is guilty of an offence and liable, upon conviction, to a fine or to
imprisonment
for a period not exceeding 12 months, or to both a fine and such
imprisonment. [S 46(4) substituted by s 33 of Act 32 of 2024 with effect from date to
be proclaimed.] |
47. Withdrawal
of registration of independent school
(1) No withdrawal of the registration of an
independent school is valid unless—
(a) the owner of such independent school
has been furnished by the Head of Department with a notice of intention to
withdraw the
registration, stating the reasons why such withdrawal is
contemplated;
(b) the owner of such independent school
has been granted an opportunity to make written representations to the Head of
Department
as to why the registration of the independent school should not be
withdrawn; and
(c) any such representations received
have been duly considered.
(2) The owner of an independent school may
appeal to the Member of the Executive Council against the withdrawal of the
registration
of such independent school.
48. Subsidies to
registered independent schools
(1) The Minister may, by notice in the Government
Gazette, determine norms and minimum standards for the granting of
subsidies to independent schools after consultation with the Council
of
Education Ministers and the Financial and Fiscal Commission and with the
concurrence of the Minister of Finance.
(2) The Member of the Executive Council may,
out of funds appropriated by the provincial legislature for that purpose, grant
a subsidy
to an independent school.
Uncommenced amendment (2) The Member of the Executive Council may,
out of funds appropriated by the provincial legislature for that purpose,
grant a subsidy
to an independent school, subject to conditions determined by
the Member of the Executive Council. [S 48(2) substituted by s 34(a) of Act 32 of 2024 with effect from date
to be proclaimed.] |
(3) If a condition subject to which a subsidy
was granted has not been complied with, the Head of Department may terminate or
reduce
the subsidy from a date determined by him or her.
(4) The Head of Department may not terminate or
reduce a subsidy under subsection (3) unless—
(a) the owner of such independent school
has been furnished with a notice of intention to terminate or reduce the
subsidy and the
reasons therefor;
(b) such owner has been granted an
opportunity to make written representations as to why the subsidy should not be
terminated or
reduced; and
(c) any such representations received
have been duly considered.
(5) The owner of an independent school may
appeal to the Member of the Executive Council against the termination or
reduction of a subsidy
to such independent school.
Uncommenced amendment (6) An independent school must submit to the
Head of Department— (a) within 30 days after the end of each
quarter, a copy of the quarterly report on all income and expenditure
relating to the subsidy
contemplated in subsection (2), in accordance with
directives issued by the Head of Department; and (b) within six months after the end of each
financial year, a copy of the audited or examined annual financial statements
relating
to the subsidy contemplated in subsection (2). [S 48(6) added by s 34(b) of Act 32 of 2024 with effect from date to be
proclaimed.] |
49. Declaration
of independent school as public school
(1) The Member of the Executive Council may,
with the concurrence of the Member of the Executive Council responsible for
finance, enter
into an agreement with the owner of an independent school in
terms whereof such independent school is declared to be a public school.
(2) Notice of the change of status contemplated
in subsection (1) must be published in the Provincial Gazette.
50. Duties of
Member of Executive Council relating to independent schools
(1) The Member of the Executive Council must,
by notice in the Provincial Gazette, determine requirements for—
(a) the admission of learners of an
independent school to examinations conducted by or under the supervision of the
education department;
(b) the keeping of registers and other
documents by an independent school;
(c) criteria of eligibility, conditions
and manner of payment of any subsidy to an independent school; and
(d) any other matter relating to an
independent school which must or may be prescribed in terms of this Act.
(2) Different requirements may be made under
subsection (1) in respect of different independent schools.
(3) The Member of the Executive Council must
allow the affected parties a reasonable period to comment on any requirement he
or she
intends to determine under subsection (1).
51. Registration
of learner for education at home
(1) A parent may apply to the Head of
Department for the registration of a learner to receive education at the
learner’s home.
(2) The Head of Department must register a
learner as contemplated in subsection (1) if he or she is satisfied that—
(a) the registration is in the interests
of the learner;
(b) the education likely to be received by
the learner at home—
(i) will meet the minimum requirements of
the curriculum at public schools; and
(ii) will be of a standard not inferior to
the standard of education provided at public schools; and
(c) the parent will comply with any other
reasonable conditions set by the Head of Department.
(3) The Head of Department may, subject to
subsection (4), withdraw the registration referred to in subsection (1).
(4) The Head of Department may not withdraw the
registration until he or she—
(a) has informed the parent of his or her
intention so to act and the reasons therefor;
(b) has granted the parent an opportunity
to make representations to him or her in relation to such action; and
(c) has duly considered any such
representations received.
(5) A parent may appeal to the Member of the
Executive Council against the withdrawal of a registration or a refusal to
register a learner
in terms of this Act.
Uncommenced amendment 51. Home
education (1) If the parent of a learner who is subject
to compulsory attendance as contemplated in section 3(1) chooses to educate
the learner
at home, such parent must apply to the Head of Department for the
registration of the learner to receive home education. (2) The Head of Department must approve the
application and register the learner as contemplated in subsection (1)— (a) if he or she is satisfied that— (i) education at home, as provided for in
this Act, is in the best interests of the learner; (ii) the parent understands what home
education entails and accepts full responsibility for the implementation of
home education
for the learner; and (iii) the proposed home education programme is
suitable for the learner’s age, grade level and ability and predominantly covers
the acquisition of content and skills at least comparable to the relevant
national curriculum determined by the Minister; and (b) if the parent undertakes to— (i) make suitable educational resources
available to support the learner’s learning; (ii) monitor the learner’s academic progress; (iii) arrange for the learner’s educational
attainment to be assessed by a competent assessor— (aa) at the end of each phase, up to the end of
the year in which the learner reaches the age of 15 years or completes grade
9, whichever
occurs first; and (bb) against a standard that is not inferior to
the standard determined in the National Curriculum Statement; and (iv) submit to the Head of Department, at the
end of each phase and as evidence of the learner’s educational attainment,
the learner’s
assessment report, signed by the competent assessor. (3) In considering the application, the Head
of Department may, on just cause shown and after notification to the parent,
require
a delegate official to conduct a pre-registration consultation with
the parents and learner to verify the information supplied
in the application
documentation and to provide support, where necessary, with the application process. (4) If the Head of Department is satisfied
that the parent does not meet the requirements set out in subsection (2), or
if the outcome
of the process set out in subsection (3) fails to satisfy the
Head of Department that home education is in the best interests
of the
learner, the Head of Department must decline to register a learner to receive
home education. (5) If a parent educates a learner at home,
and that learner has, at the time of the commencement of this section, not
been registered
as contemplated in this section, the parent must, within 30
days after the commencement of this section, apply to the Head of
Department
for the registration of the learner to receive home education. (6) If the Head of Department does not
respond within 60 days of receipt of an application for home education as
contemplated in
subsections (1) and (5), the application shall be deemed to
have been approved, on condition that the applicant must be able,
on request,
to produce proof that an application for registration to receive home education
was submitted. (7) A learner who is registered to receive
home education is exempted from school attendance as contemplated in section
3. (8) The parent of a learner who has been
registered as contemplated in subsection (1) or (5) must notify the Head of
Department
at the end of the— (a) Foundation Phase (grades R to 3); (b) Intermediate Phase (grades 4 to 6); and (c) Senior Phase (grades 7 to 9), of his or
her intention to continue educating the learner at home. (9) A parent who wishes to continue educating
a learner at home after the learner has reached the age of 15 years or has
completed
grade 9, whichever occurs first, or who wishes to start educating
such learner at home at such time, is not required to apply
for registration,
as contemplated in subsections (1) and (5), or to notify the Head of Department,
as contemplated in subsection
(8). (10) After a home-educated learner has completed
grade 9 or has reached the age of 15 years, whichever occurs first, the
parent may
enrol the learner at a public school or an independent school for
the completion of grades 10 to 12. (11) If the parent of a learner contemplated in
subsection (9) desires the learner to eventually write the National Senior
Certificate
examination, such parent must, before the learner embarks on any
studies following grade 9, ensure that the learner complies with
the
requirements stipulated in regulation 7(4A) of the Regulations pertaining to
the conduct, administration and management
of the National Senior Certificate
examination (published under R872 in Gazette No. 31337 of 29 August
2008), for a learner receiving home education. (12) The Head of Department must cancel a
learner’s registration to receive home education if, after investigation, the
Head of
Department is satisfied that home education is no longer in the best
interests of the learner. (13) The Head of Department may not decline to
register a learner, as contemplated in subsection (4), or cancel the
registration
of a learner, as contemplated in subsection (12), before— (a) informing the parent, in writing, of his
or her intention so to act and the reasons therefor; (b) granting the parent a reasonable
opportunity to make representations to him or her, which opportunity must
include discussions
relating to such intention; (c) giving due consideration to any such
representations received; and (d) providing the parent with written reasons
for his or her decision. (14) (a) The parent of a learner may appeal to the
Member of the Executive Council, within 30 days of receiving notice— (i) that the Head of Department has declined
the application to register the learner to receive home education; or (ii) that the Head of Department has
cancelled the learner’s registration to receive home education. (b) If the parent of a learner is of the
opinion that any decision of the Head of Department in relation to the home
education of
the learner in question is unreasonable, such parent may appeal
to the Member of the Executive Council within 30 days of receiving
notice of
such decision. (15) If an appeal contemplated in subsection
(14) is received, the Member of the Executive Council must, within 30 days of
receiving
such appeal, consider and decide on the matter and, in writing,
inform the parent of the outcome of the appeal. (16) The Minister may make regulations relating
to registration for, and the administration of, home education. [S 51 substituted by s 35 of Act 32 of 2024 with effect from date to be
proclaimed.] |
CHAPTER 6
TRANSITIONAL PROVISIONS
52. Transitional
provisions relating to schools other than private schools
(1) Any school which was established or was
deemed to have been established in terms of any law governing school education
in the Republic
of South Africa and which existed immediately prior to the
commencement of this Act, other than a private school referred to in section
53 is deemed to be a public school.
(2) The assets and liabilities which vested in
a school contemplated in subsection (1) immediately prior to the commencement
of this
Act, vest in the public school in question.
(3) Funds and other moveable assets used by, or
held for or on behalf of, a public school contemplated in subsection (1) and
which in
law are the property of the State, remain at the disposal of the
school, and devolve on the school on a date and subject to conditions
determined by the Minister by notice in the Government Gazette,
after consultation with the Council of Education Ministers.
(4) Any transaction entered into prior to the
commencement of this Act by a school contemplated in subsection (1), which had
the effect
of transferring funds or other assets of such school to another
person or body without value, is invalid.
53. Transitional
provisions relating to private schools
A private school which was registered
or deemed to have been registered under the provisions of a law regulating
school education
in the Republic of South Africa and which existed immediately
prior to the commencement of this Act, is deemed to be an independent
school.
54. Transitional
provisions relating to governing bodies
(1) The Minister must, after consultation with
the Member of the Executive Council and by notice in the Government
Gazette, determine dates—
(a) by which the election of members of
governing bodies at all public schools in a province must be finalised in terms
of this Act;
and
(b) from which the governing bodies
referred to in subsection (1) (a) must function in terms of this Act.
(2) Different dates may be determined in terms
of subsection (1) (b) in respect of governing bodies in the different
provinces.
(3) Any governing body, management council or
similar authority of a public school, which existed immediately prior to the
commencement
of this Act, continues to function until the day before the date
on which the relevant governing body is elected and must perform
all the
functions it performed prior to the commencement of this Act which a governing
body can lawfully perform in terms of this
Act.
(4) Until a governing body begins to function
in terms of subsection 1 (b), such governing body of a school deemed to be a
public school
in terms of section 52(1) must perform the functions
lawfully performed by its predecessor which are capable of being performed
by a
governing body in terms of this Act.
55. Transitional
provisions relating to immovable property of certain schools
(1) The immovable property of a school which
was declared to be a state-aided school under section 29(2A) of the
Education Affairs
Act, 1988 (House of Assembly) (Act No. 70 of 1988), devolves
upon the State on a date determined by the Minister by notice in the Government
Gazette.
(2) The Minister may determine different dates
in respect of different schools under subsection (1).
(3) Any notice determining a date or dates
referred to in subsection (1) or (2) must grant all interested parties a period
of not less
than 30 days in which to make written submissions.
(4) The Minister must consider all such
submissions received, and thereafter may alter any notice referred to in
subsection (1).
(5) Any transfer duty, stamp duty, other fees
or costs payable as a result of the transfer of the immovable property
contemplated in
subsection (1) must be paid in full or in part from funds
appropriated by Parliament for that purpose.
(6) The Minister may, with the concurrence of
the Minister of Finance, direct that no transfer duty, stamp duty, other fees
or costs
contemplated in subsection (5) be paid in respect of a particular
transfer under this section.
(7) The rights of third parties with claims
against the school in respect of the immovable property affected by the
transfer contemplated
in this section are not extinguished by the transfer and—
(a) a third party acquires no right of
execution against the immovable property as a result of such transfer alone;
(b) a third party is obliged to excuse the
school in question if the school fails to meet its commitments to the third
party; and
(c) the State indemnifies such a third party
in its claims against the school which were secured by the immovable property,
but the
third party does not acquire a greater right against the State than
that which it had against the school prior to the transfer.
(8) The fact that compensation for any land and
real rights in or over land expropriated in terms of subsection (1) has not
been finalised
or paid, does not impede the transfer of such land and real
rights in or over land to the State.
(9) Until the date contemplated in subsection
(1), a public school referred to in that subsection may not let, sell or
otherwise alienate
its immovable property, or grant to any person any real
right thereon or servitude thereon without the written consent of the Member
of
the Executive Council.
(10) Any claim for compensation arising from
subsection (1) must be determined as contemplated in the Constitution.
(11) The officer in charge of the deeds office or
other office where the immovable property of a school is registered, must, on
submission
of the title deed in question, make such endorsement on the title
deed and such entry in the register as may be required to register
the transfer
of the immovable property.
[S 55(11) inserted by s 9 of Act 100 of 1997 with
effect from 28 November 1997; substituted by s 13 of Act 48 of 1999 with effect
from 19 November 1999.]
(12) Any immovable property belonging to the State
which was used by a school and not transferred or endorsed into the name of the
school
contemplated in subsection (1) remains the property of the State.
[S 55(12) inserted by s 9 of Act 100 of 1997 with
effect from 28 November 1997.]
(13) Any immovable property which was transferred
into the name of a school contemplated in subsection (1) must, if such school
is subsequently
closed in terms of this Act or any other applicable law,
devolve upon the State.
[S 55(13) inserted by s 9 of Act 100 of 1997 with
effect from 28 November 1997.]
56. Transitional
provisions relating to public schools on private property
If an agreement contemplated in section
14 does not exist at the commencement of this Act in respect of a school,
standing
on private property and which is deemed to be a public school in terms
of section 52(1), the Member of the Executive Council
must take reasonable
measures to conclude such an agreement within six months of the commencement of
this Act.
57. Transitional
provisions relating to private property owned by religious organisation
If the owner of the private property
referred to in section 56 is a religious organisation, such owner may
require that
the agreement contemplated in section 14 must recognise, in
an appropriate manner consistent with this Act, the distinctive
religious
character of the school.
CHAPTER 7
GENERAL PROVISIONS
(1) The Member of the Executive Council may, if
it is in the public interest to do so, expropriate land or a real right in or
over land
for any purpose relating to school education in a province.
(2) The Member of the Executive Council must
give notice in the Provincial Gazette of his or her intention
to expropriate in terms of subsection (1).
(3) A notice contemplated in subsection (2)
must—
(a) identify the land or any real right in
or over the land;
(b) give interested parties an opportunity
to make written submissions regarding the expropriation within a period of not
less
than 30 days; and
(c) invite any person claiming
compensation as a result of the expropriation to enter into negotiations with
the Member of the
Executive Council in that regard, and draw attention to the
provisions of subsection (5).
(4) The Member of the Executive Council may,
after considering all such written submissions, expropriate the land or any
real right
in or over the land referred to in subsection (3) by notice in
the Provincial Gazette.
(5) Any expropriation contemplated in
subsection (4) takes effect immediately even though compensation payable in
respect of such land
or real right in or over such land has not been finally
determined or paid.
(6) If the Member of the Executive Council and
an owner of the land or real right fail to reach agreement regarding the
payment of compensation,
either party may refer the matter to a court for
determination, or they may agree to refer the dispute to an arbitrator for
arbitration.
(7) The arbitrator determines the time, venue
and procedures which apply in the arbitration.
(8) The arbitrator determines the dispute and
makes a written award giving reasons for such award as soon as possible after
the arbitration,
and his or her determination is binding.
(9) The arbitrator may not make an award of
costs.
(10) The arbitrator is paid, out of moneys
appropriated for this purpose by the provincial legislature, such fees and
allowances as the
Member of the Executive Council may determine, with the
concurrence of the Member of the Executive Council responsible for finance.
(11) Any transfer duty, stamp duty, other fees or
costs payable as a result of any transfer of land or a real right contemplated
in subsection
(1) may be paid in full or in part from funds appropriated by the
provincial legislature for that purpose.
(12) Any claim to compensation arising from the
expropriation contemplated in subsection (4) must be determined as contemplated
in the
Constitution and this section.
58A. Alienation of assets of public school
(1) The Head of Department has the right to compile or inspect an
inventory of all the assets of a public school.
(2) No person may alienate any assets owned by a public school to
another person or body without the written approval of the Member of
the
Executive Council.
(3) Despite subsection (2), the Member of the Executive Council may—
(a) determine that
certain categories of assets below a certain value may be alienated without his
or her written approval; and
(b) determine and
publish the value contemplated in paragraph (a) by notice in the Provincial
Gazette.
(4) The assets of a public school may not be attached as a result of
any legal action taken against the school.
[S 58A inserted by s 6 of Act 24 of 2005 with
effect from 26 January 2006.]
58B. Identification
of underperforming public schools
(1) The Head of Department must, annually, from
the report contemplated in section 16A(1)(b) and from other relevant
reports, identify
any public school that is underperforming in relation to any
matter referred to in subsection (2)(a), (b) or (c).
(2) The Head of Department must issue a written
notice to the school contemplated in subsection (1), if he or she is satisfied
that—
(a) the standard of performance of
learners is below the standards prescribed by the National Curriculum Statement
and is likely
to remain so unless the Head of Department exercises his or her
power in terms of this Act;
(b) there has been a serious breakdown in the
way the school is managed or governed which is prejudicing, or likely to
prejudice, the
standards of performance; or
(c) the safety of learners or staff is
threatened.
(3) The written notice contemplated in
subsection (2) must inform the school that it must—
(a) within 14 days after delivery of the
notice, respond to the notice; and
(b) as soon as possible after that
response, provide the Head of Department with a plan for correcting the
situation.
(4) The Head of Department must take all reasonable
steps to assist a school identified in terms of subsection (1) in addressing
the
underperformance.
(5) Without limiting the nature and extent of
the steps contemplated in subsection (4), the Head of Department must consider—
(a) implementing the incapacity code and
procedures for poor work performance referred to in section 16 of the
Employment
of Educators Act, 1998 (Act No. 76 of 1998);
(b) withdrawing the functions of the
governing body in terms of section 22; or
(c) appointing persons in terms of section
25 to perform the functions or specified functions of the governing body.
(6) The counselling of the principal as
contemplated in Item 2(5)(b)(ii) of Schedule 1 to the Employment of
Educators Act,
1998 (Act No. 76 of 1998), may include the appointment of an
academic mentor to take over the functions and responsibilities of
the
principal for the period determined by the Head of Department.
(7) In order to assist the Minister in carrying
out his or her duties referred to in section 8 of the National
Education Policy
Act, 1996 (Act No. 27 of 1996), the Member of the Executive
Council must report to the Minister within three months after the end
of a
school year on the action taken by the Head of Department in regard to an
underperforming public school.
[S 58B inserted by s 11 of Act 31 of 2007 with
effect from 31 December 2007.]
58C. Compliance
with norms and standards
(1) The Member of the Executive Council must,
in accordance with an implementation protocol contemplated in section 35 of
the Intergovernmental Relations Framework Act, 2005 (Act No. 13 of 2005),
ensure compliance with—
(a) norms and standards determined in
terms of sections 5A, 6(1), 20(11), 35 and 48(1);
(b) minimum outcomes and standards set in
terms of section 6A; and
(c) performance standards contemplated in
Item 2(2) of Schedule 1 to the Employment of Educators Act, 1998 (Act
No. 76
of 1998), (in this section jointly referred to as ‘norms and
standards’).
(2) The Member of the Executive Council must
ensure that the policy determined by a governing body in terms of sections
5(5) and 6(2)
complies with the norms and standards.
(3) The Member of the Executive Council must,
annually, report to the Minister the extent to which the norms and standards
have been
complied with or, if they have not been complied with, indicate the
measures that will be taken to comply.
(4) Any dispute between the Minister and a
Member of the Executive Council in respect of non-compliance with the norms and
standards
contemplated in subsection (1) must—
(a) be dealt with in accordance with the
principles of co-operative governance referred to in section 41(1) of the
Constitution
and the provisions of the Intergovernmental Relations Framework
Act, 2005 (Act No. 13 of 2005); and
(b) whenever necessary, be settled in
accordance with Chapter 4 of the Intergovernmental Relations
Framework Act, 2005.
(5) The Head of Department must comply with all
norms and standards contemplated in subsection (1) within a specific public
school year
by—
(a) identifying resources with which to
comply with such norms and standards;
(b) identifying the risk areas for
compliance;
(c) developing a compliance plan for the
province, in which all norms and standards and the extent of compliance must be
reflected;
(d) developing protocols with the schools
on how to comply with norms and standards and manage the risk areas; and
(e) reporting to the Member of the
Executive Council on the state of compliance and on the measures contemplated
in paragraphs
(a) to (d), before 30 September of each year.
(6) The Head of Department must—
(a) in accordance with the norms and standards
contemplated in section 5A determine the minimum and maximum capacity
of a
public school in relation to the availability of classrooms and educators,
as well as the curriculum programme of such school; and
(b) in respect of each public school in
the province, communicate such determination to the chairperson of the
governing body and
the principal, in writing, by not later than 30 September of
each year.
[S 58C inserted by s 11 of Act 31 of 2007 with
effect from 31 December 2007.]
59. Duty of
schools to provide information
Uncommenced amendment 59. Duty to provide information [S 59 heading substituted by s 36(a) of Act 32 of 2024 with effect from
date to be proclaimed.] |
(1) A school must make information available
for inspection by any person, insofar as such information is required for the
exercise
and protection of such person’s rights.
(2) Every school must provide such information
about the school as is reasonably required by the Head of Department or the
Director-General
of the national Department of Education in consultation with
the Head of Department.
[S 59(2) substituted by s 10 of Act 100 of 1997
with effect from 28 November 1997.]
Uncommenced amendments (2) Every school must provide such
information about the school as is reasonably required by the Head of
Department, or by the Director-
General of the Department of Basic Education
in consultation with the Head of Department. [S 59(2)
substituted by s 36(b) of Act 32 of 2024 with effect from date to be
proclaimed.] (3) If, when applying for
admission to a public school or for exemption from the payment of school
fees, the parent of a learner,
or any other person— (a) submits or provides information which he
or she knows to be false or misleading; (b) submits a document which he or she knows
to be forged; or (c) submits a document and claims that it is
a true copy of the original when in fact it is not a true copy, such person
is guilty
of an offence and liable, upon conviction, to a fine or to
imprisonment for a period not exceeding 12 months, or to both a fine
and such
imprisonment. [S 59(3) added by s 36(c) of Act 32 of 2024 with effect from date to be
proclaimed.] |
Uncommenced amendment 59A. Dispute
resolution (1) If a dispute arises between the Head of
Department and a governing body, the following procedure must be followed: (a) All attempts must be made by the parties
to resolve the dispute informally. (b) If the parties are unable to resolve the
dispute informally as referred to in paragraph (a), the following steps must
be taken: (i) The aggrieved party must give the other
party written notice of the dispute; and (ii) such notice must include a description
of the issues involved in the dispute and a proposed resolution thereof. (c) If the dispute has not been resolved
within 14 days after the issuing of the written notice contemplated in
paragraph (b), each
party must nominate a representative within seven days,
and those representatives must meet within 14 days after their nomination
in
order to resolve the dispute. (d) If the parties cannot resolve the dispute
as contemplated in paragraphs (a), (b) and (c), the governing body may appeal
to the
Member of the Executive Council against the decision that gave rise to
the dispute. (e) If an appeal contemplated in paragraph
(d) has been received, the Member of the Executive Council must, within 30
days after
receiving such appeal, consider and decide on the matter and, in writing,
inform the governing body of the outcome of the appeal. (2) If a dispute arises between the Member of
the Executive Council and a governing body, the following procedure must be
followed: (a) All attempts must be made by the parties
to resolve the dispute informally. (b) If the parties are unable to resolve the
dispute informally as referred to in paragraph (a), the following steps must
be taken: (i) The aggrieved party must give the other
party written notice of the dispute; and (ii) such notice must include a description
of the issues involved in the dispute and a proposed resolution thereof. (c) If the dispute has not been resolved
within 14 days after the issuing of the written notice contemplated in
paragraph (b), each
party must nominate a representative within seven days,
and those representatives must meet within 14 days after their nomination
in
order to resolve the dispute. (3) This section does not apply to matters in
respect of which this Act makes provision for an appeal process. [S 59A inserted by s 37 of Act 32 of 2024 with effect from date to be
proclaimed.] |
(1)
(a) Subject to paragraph (b), the State is
liable for any delictual or contractual damage or loss caused as a result of
any act or omission
in connection with any school activity conducted by a
public school and for which such public school would have been liable but
for
the provisions of this section.
[S 60(1)(a) substituted by s 14 of Act 15 of 2011
with effect from 19 September 2011.]
(b) Where a public school has taken out
insurance and the school activity is an eventuality covered by the insurance
policy, the liability
of the State is limited to the extent that the damage or
loss has not been compensated in terms of the policy.
[S 60(1) substituted by s 12 of Act 31 of 2007 with
effect from 31 December 2007.]
(2) The provisions of the State Liability Act,
1957 (Act No. 20 of 1957), apply to any claim under subsection (1).
(3) Any claim for damage or loss contemplated
in subsection (1) must be instituted against the Member of the Executive
Council concerned.
[S 60(3) inserted by s 14 of Act 48 of 1999 with
effect from 19 November 1999.]
(4) Despite the provisions of subsection (1),
the State is not liable for any damage or loss caused as a result of any act or
omission
in connection with any enterprise or business operated under the
authority of a public school for purposes of supplementing the
resources of the
school as contemplated in section 36, including the offering of practical
educational activities relating
to that enterprise or business.
[S 60(4) inserted by s 14 of Act 48 of 1999 with
effect from 19 November 1999.]
Uncommenced amendment (4) Despite the provisions of
subsection (1), the State is not liable for any damage or loss caused— (a) as a result of any act or omission in
connection with any enterprise or business operated under the authority of a
public school
for purposes of supplementing the resources of the school as
contemplated in section 36, including the offering of practical educational
activities relating to that enterprise or business; or (b) if the provisions of section 36(2) have
not been complied with. [S 60(4) added by s 38 of Act 32 of 2024 with effect from date to be
proclaimed.] |
(5) Any legal proceedings against a public
school for any damage or loss contemplated in subsection (4), or in respect of
any act or
omission relating to its contractual responsibility as employer as
contemplated in section 20(10), may only be instituted after
written
notice of the intention to institute proceedings against the school has been
given to the Head of Department for his or
her information.
[S 60(5) inserted by s 14 of Act 48 of 1999 with
effect from 19 November 1999.]
61. Regulations
The
Minister may make regulations—
Uncommenced amendment (1) The Minister may make
regulations— [S 61(1), formerly s 61, renumbered by s 39(b) of Act 32 of 2024 with
effect from date to be proclaimed.] |
(a) to provide for safety measures at
public and independent schools;
Uncommenced amendments (aA) on the management of learner pregnancy; [S
61(aA) inserted by s 39(a) of Act 32 of 2024 with effect from date to be
proclaimed.] (aB) on the admission of learners to public
schools; [S
61(aB) inserted by s 39(a) of Act 32 of 2024 with effect from date to be
proclaimed.] (aC) on the prohibition of the payment of
unauthorised remuneration or the giving of other financial benefits, or
benefits in kind
to certain employees; [S
61(aC) inserted by s 39(a) of Act 32 of 2024 with effect from date to be
proclaimed.] (aD) on the minimum norms and standards for
provincial educator development institutes and district educator development
centres; [S
61(aD) inserted by s 39(a) of Act 32 of 2024 with effect from date to be
proclaimed.] (aE) on the organisation, roles and
responsibilities of education districts; [S
61(aE) inserted by s 39(a) of Act 32 of 2024 with effect from date to be
proclaimed.] (aF) on a national education information system; [S 61(aF) inserted by s 39(a) of Act 32 of 2024 with effect from date
to be proclaimed. |
(b) on any matter which must or may be
prescribed by regulation under this Act;
(c) to prescribe a national curriculum
statement applicable to public and independent schools;
(d) to prescribe a national process and
procedures for the assessment of learner achievement in public and independent
schools;
(e) to prescribe a national process for
the assessment, monitoring and evaluation of education in public and
independent schools;
(f) on initiation practices at public and
independent schools;
(g) to prescribe the age norm per grade in
public and independent schools;
(h) to provide for norms and minimum
standards for school funding; and
(i) on any matter which may be necessary
or expedient to prescribe in order to achieve the objects of this Act.
Uncommenced amendments (2) The regulations
contemplated in subsection (1) may provide that any person who contravenes a
provision thereof or fails to comply
therewith is guilty of an offence and
liable, on conviction, to a fine or to imprisonment for a period not
exceeding six months,
or to both a fine and such imprisonment. [S 61(2)
added by s 39(b) of Act 32 of 2024 with effect from date to be proclaimed.] (3)
Any regulation made under subsection (1)(aA) and (aB) must, before
publication in the Gazette, be tabled in Parliament. [S 61(3) added by s 39(b) of Act 32 of 2024 with effect from date to be
proclaimed.] |
[S 61 substituted by s 5 of Act 53 of 2000 with
effect from 22 November 2000, s 9 of Act 50 of 2002 with effect from 28
November
2002.]
(1) The Member of the Executive Council may,
subject to such conditions as he or she may determine, delegate any power
conferred upon
him or her by or under this Act to the Head of Department or an
officer, except the power to publish a notice and the power to decide
an appeal
lodged with him or her in terms of this Act.
(2) The Head of Department may, subject to such
conditions as he or she may determine, delegate to an officer any of
his or
her powers in terms of this Act or delegated to him or her in terms of
subsection (1).
(3) A delegation under subsection (1) or (2)
does not prevent the Member of the Executive Council or Head of Department, as
the case
may be, from exercising such power or performing such duty.
63. Repeal and
amendment of laws
(1) The laws listed in the first column of
Schedule 1 are hereby repealed to the extent set out in the third column of
that Schedule.
(2) The Educators’ Employment Act, 1994
(Proclamation No. 138 of 1994), is hereby amended to the extent set out in
Schedule 2.
64. Short title
and commencement
This Act is the South African Schools
Act, 1996, and comes into operation on a date fixed by the President by
proclamation in the Government Gazette.
No. and year of Act |
Short title |
Extent of repeal |
Act No. 47 van 1963 |
Coloured Persons Education Act, 1963 |
Sections 1A, 8 to 20, 26 and 28 to 31 |
Act No. 61 van 1965 |
Indians Education Act, 1965 |
Sections 1B, 8 to 20, 26, 28, 29, 31 and 33 (1) (g) |
Act No. 90 van 1979 |
Education and Training Act, 1979 |
Sections 1A, 3, 4, 11 to 29, 31, 32, 43 and 44 (1) (h) |
Act No. 104 van 1986 |
Private Schools Act (House of Assembly), 1986 |
Section 1A |
Act No. 70 van 1988 |
Education Affairs Act (House of Assembly), 1988 |
Sections 3 and 65 and Chapter 7 |
(Amendment of Educators’
Employment Act, 1994, by section 63)
1. Amendment of section 1 by—
(a) the insertion of the following
definitions:
“ ‘Department’ means a
department contemplated in section 7(2) of the Public Service Act,
1994 (Proclamation No. 103 of 1994), responsible for education in the national
government;
‘educational institution’ means a
public school, college of education, technical college, other college or an
office controlling
such a school or college or rendering a support service to
such a school or college where educators are employed, in regard to which
the
terms and conditions of employment of such educators are determined by this Act
but excludes a university, technikon,
independent school or independent college;
‘Labour Relations
Act’ means the Labour Relations Act, 1995
(Act No. 66 of 1995);
‘public educational
institution’ means an educational institution which is not a state-aided
college;
‘public school’ means a
public school as defined in section I of the South African Schools Act, 1996;
‘state-aided college’ means a
college of education, technical college or other college which is wholly or
partly funded by the
State in respect of the remuneration and conditions of
service of educators in posts on the establishment created in terms of section
3(1) and in regard to which the college is the employer of such educators;
‘unsubsidised post’
means a post at a state-aided college in respect of which no subsidy in
terms of a law is paid by the State;”;
(b) substitution for the definitions of
“educator”, “employee member” and “employer” of the following definitions,
respectively—
“ ‘ educator’ means any person
who teaches, educates or trains other persons or provides professional [therapy] educational
services including professional therapy at any [school,
technical college or college of education] educational institution [or
assists in rendering professional services or performs educational management
services or educational auxiliary services provided
by or in a department of
education] and whose [employment] appointment and
terms and conditions of employment [is] are regulated
by this Act;
‘employee member’ means an
employee organisation that is a member of the Education Labour Relations Council established in terms of
section [6 of the Education Labour Relations
Act] 37(3)(b) read with item 20 of Schedule 7 to the Labour Relations Act;
‘employer’ means—
(a) in the case of a [departmental] public educational
institution [or office], the head of a department; [and]
(b) in the case of a state-aided [educational
institution] college, the body which employs an educator;
(c) for the purposes of section 5(1)(a) and
(b) the Minister in respect of educators appointed to posts created in terms of
sections
3(1) and (3); and
(d) in the case of an unsubsidised post
at a public school referred to in section 3A, the body which employs the
educator.”; and
(c) the deletion of the following
definitions, namely—
“departmental educational
institution”
“subsidised post”
“state-aided educational
institution”
“Executive
Council”
“Education
Labour Relations Act”
2. The substitution for section 3 of the following section:
“Educator Establishment of
educational institutions and Department
3. (1) Notwithstanding anything
to the contrary contained in any other law, but subject
to this
Act and the National Policy [for General Education Affairs] on
the Salaries and Conditions of Employment of Educators Act, 1984 (Act No.
76 of 1984), the educator establishment at an [a
state] educational institution in a province shall consist
of the posts which the Member of the Executive Council creates and the
educator establishment of the Department of Education shall consist of the
posts which the Minister creates.
(2) [The employer] A state-aided
college may create unsubsidised posts additional to the educator establishment
referred to in subsection (1).
(3) Educators may be appointed [on a
temporary basis] additional to the establishment referred to in
subsection (1) with the approval of the Member of the Executive Council or
the Minister, as the case may be.
(4) A post referred to in subsection (1) may
be regraded, redesignated, converted or abolished by the
Member of the Executive Council or the Minister, as the case may be.”.
3. By the insertion after section 3 of the following
section:
“Transitional arrangement
3A. (1) The authority
to create unsubsidised posts, to employ educators in such posts and
all other matters
incidental thereto which, in terms of section 3(2), vested in a state-aided
school prior to the commencement of
this Act, shall remain intact for such
school until 31 December 1997, and thereafter such authority shall cease.
(2) Contracts of employment of
educators appointed to posts referred to in subsection (1) entered into after
the commencement of this
Act, shall not be valid after 31 December 1997.”.
4. The substitution for section 4 of the following section:
“Appointment and promotion of
educators
4. (1) The qualifications
for appointment and promotion as an educator shall be
[prescribed] determined by the Minister.
(2) Subject to the provisions of the
Constitution, the Labour Relations Act, 1995 (Act No. 66 of 1995), and
agreements reached in terms
thereof [Posts] posts shall
be filled by appointment, transfer or promotion and the power to fill a post
created under section 3 shall, subject
to the provisions of this Act, vest in
the employer, who shall exercise such power with regard to posts referred to in
section
3(1) and (3) subject to the prior approval of the
Member of the Executive Council or the Minister, as the case may be.
(3) The authority to fill a post referred to
in section 3(1) and (3) at a public school in terms of subsection
(2) is exercised on the recommendation of a public school, as represented by
its governing body, and the employer
may only deviate from such recommendation
if:
(a) the candidate does not
have the required qualifications;
(b) the candidate has been
found guilty of misconduct; or
(c) sufficient proof
exists that the recommendation made by the school was based on improper influence.
[(3)] (4) An educator
may be appointed under [subsection (2)] this section—
(a) in a permanent capacity, which shall
include an appointment to the permanent relief staff, whether on probation or
not; or
(b) temporarily or on special contract,
whether in a full-time or part-time capacity.
[(4)] (5) An appointment, transfer or promotion referred
to in subsection (2) shall be effected in such manner
and subject to such conditions as may be determined by the Minister.
[(5)] (6) An educator appointed in terms of any law
repeated by this Act shall be deemed to have been appointed in terms of this Act to the appropriate post on the
establishment of the [state] educational institution in question.
(7) An educator appointed in terms of the
Public Service Act, 1994, shall be deemed to have been appointed in terms of
this Act.
(8) An educator appointed at a public school
shall not, by virtue of an amendment of this Act by the South African Schools
Act, 1996,
be regarded as having changed employers.”.
5. The amendment of section 5—
(a) by the substitution for subsection (1)
of the following subsection:
“(1) Notwithstanding anything to the contrary
contained in any other law, but subject to the provisions of the National
Policy on the Salaries and Conditions of Employment of Educators Act [for
General Education Affairs], 1984 (Act No. 76 of 1984), and the [Education] Labour
Relations Act [and subsection (2)]—
(a) the salaries, salary scales, [and]
allowances and other terms and conditions of employment of
educators appointed, transferred or promoted to posts referred to in section
3(1) and (3) shall be determined by the Minister;
[(b) the other terms and conditions of employment
and service benefits of educators referred to in paragraph (a) shall be
prescribed
by the Minister; and]
(b) [c] the salaries, salary scales, allowances and
other terms and conditions of employment referred to in [paragraphs] paragraph (a) [and
(b)] with a financial implication shall be determined by the Minister
with the concurrence of the Minister responsible for finance
at national level;
and
(c)[d] the
salaries, salary scales, allowances and other terms and conditions of
employment of educators at a state-aided college appointed,
transferred or promoted to posts referred to in section 3[(2)](3) shall
be determined by the employer.”; and
(b) by the deletion of subsection (2).
6. The substitution for section 6 of the following section:
“Transfer [and secondment] of
educators
6. (1) Subject
to the provisions of this section, section 4(3) and applicable terms and
conditions of employment, an
educator employed in [an office or departmental] a public educational
institution may be transferred from the post in which he or she serves to any
other post—
(a) at [the same departmental
educational institution or office or at another departmental educational
institution or office] a public educational institution under
the control of the same provincial education department by the Member
of the Executive Council; or
(b) at a [departmental] public educational
institution [or office] in a different province or the
Department at national level by the Member of the Executive
Council, or the Minister, as the case may be, with the concurrence
of the Member of the Executive Council of such other province or the
Minister, as the case may be.
(2) Subject to the provisions of this section,
an educator employed at a state-aided [educational institution] college may [with
his or her consent], be transferred from the post in which he or she serves
to any other post at the same or to any other state-aided [educational
institution] college or public [departmental] educational
institution—
(a) in the same province by the Member of
the Executive Council, with the concurrence of the employer or employers
concerned; or
(b) in a different province by the Member
of the Executive Council, with the concurrence of the Member of the Executive
Council
of such other province and the employers concerned; or
(c) at the Department at national level
with the concurrence of the Minister.
(3) Subject to the provisions of this section,
an educator at a [departmental] public
educational institution [or office] may, [with
his or her consent], be transferred from the post in which he or she serves
to any other post at a state-aided [educational institution] college,
and in such a case the provisions of subsection (2) must apply mutatis
mutandis.
(4) A transfer provided for in subsections (1),
(2) and (3) may be effected irrespective of whether the post to which an
educator is
transferred is of the same, a lower or higher grade: Provided that—
(a) the salary and salary scale of an
educator shall not be lowered without his or her consent; and
(b) paragraph (a) shall not apply in
respect of an educator transferred in terms of section 19(1).
(5) An educator who is employed in a permanent
capacity at [a state] public educational
institution in a post of a lower or higher grading than that appropriate to his
or her rank shall, subject to
section 4[(4)] (5) and (6) be
transferred to a post with a grading appropriate to his or her rank as soon as
a suitable vacancy arises.”.
7. The amendment of section 7 by the substitution for the
expression “state educational institution”, wherever it occurs, of the
expression “public educational institution”.
8. The amendment of section 8 by the substitution for the
expression “state educational institution”, wherever it occurs, of the
expression “public educational institution”.
9. The amendment of section 10 by the substitution for the
expression “state educational institution”, wherever it occurs, of the
expression “public educational institution”.
10. The amendment of section 11 by the substitution for subsection
(3) of the following subsection:
“(3) If the name of an educator is struck off a
register of educators kept by [a body recognised by the Minister in
terms of the National Policy for General Education Affairs Act, 1984 (Act No.
76 of 1984),] the South African Council for Educators he
or she shall notwithstanding anything to the contrary contained in this Act, be
deemed to have resigned with effect from
the date following immediately upon
the day on which his or her name was so struck off.”
11. The substitution for section 22 of the following section:
“Transfer
of educators on declaration of public educational institution to be state-aided
college
22. (1) An educator
who was employed at a [departmental] public educational
institution
immediately prior to the date of declaration of such institution to be a
state-aided [educational institution] college shall
with effect from that date with his or her consent be transferred to and
appointed in the service of the state-aided [educational institution] college in
question.
(2) An educator transferred and appointed under
subsection (1) shall be appointed on the terms and conditions of employment
applicable
to persons in the service of a state-aided college [educational
institutions]: Provided that—
(a) his or her salary shall not be reduced
without his or her consent as a result of such transfer and appointment;
(b) for the purposes of the said terms and
conditions of employment, including pension benefits, his or her period in the
service of
the [state-aided] public educational
institution shall be deemed to be a period in the service [of the
provincial government] at the state-aided college concerned;
(c) sick leave or vacation leave credit
obtained by him or her as a result of his or her continuous service in a [departmental] public educational
institution shall be deemed, subject to the conditions determined by the
Minister, to have been obtained by him
or her as a result of his or her service
at the state-aided [educational institution] college in
question; and
(d) any disciplinary proceedings instituted or
to be instituted against him or her in respect of misconduct which he or she
allegedly
committed prior to the date contemplated in subsection (1) shall be
disposed of or instituted, as the case may be, in terms of this
Act.”.
12. The substitution for section 23 of the following section:
“Transfer
of educators on declaration of state-aided college to be public educational
institution
23. (1) An educator
who was employed in a subsidised post at a
state-aided [educational
institution] college immediately
prior to the date of declaration of such institution to be [departmental] a
public educational institution shall with effect from that date with
his or her consent be transferred to and appointed in the service
of the
provincial government concerned.
(2) An educator transferred and appointed under
subsection (1) shall be appointed on the terms and conditions of employment
applicable
to educators in the service of the provincial government concerned:
Provided that—
(a) his or her salary shall not be reduced
without his or her consent as a result of such transfer and appointment;
(b) for the purposes of the said terms and
conditions of employment, including pension benefits, his or her period in the
service of
the state-aided [educational institution] college shall
be deemed to be a period in the service of the provincial government concerned;
(c) sick or vacation leave credit obtained by
him or her as a result of his or her continuous service at the
state-aided [educational institution] college shall
be deemed, subject to the conditions determined by the Minister, to have been
obtained by him or her as a result of
his or her period in the service of the
provincial government concerned; and
(d) any disciplinary proceedings
instituted or to be instituted against him or her in respect of misconduct
allegedly committed
prior to the said date shall be disposed of or instituted,
as the case may be, in terms of this Act.”.