Education Laws Amendment Act, 2005

26 January 2006 No. 28426 THE PRESIDENCY No. 69 26 January 2006 It is hereby notified that the President has assented to the following Act, which is hereby published for general information:– No. 24 of 2005: Education Laws Amendment Act, 2005. AIDS HELPLINE: 0800-123-22 Prevention is the cure GENERAL EXPLANATORY NOTE: ] Words in bold type in square brackets indicate omissions from existing enactments. Words underlined with a solid line indicate insertions in existing enactments. (English text signed by the President.) (Assented to 23 January 2006.) ACT To amend the South African Schools Act, 1996, so as to add new definitions; to clarify the manner in which disciplinary proceedings must be conducted; to provide for a process to establish norms and standards for school funding by means of quintiles; to clarify the charging and payment of school fees; to provide for the right of a learner to participate in all aspects of the programme of apublic school; to provide for the alienation of the assets of a public school; to amend the Employment of Educators Act, 1998, so as to provide for the refinement of the process of the appointment of educators; to provide for the repeal of laws; and to provide for matters connected therewith. E IT ENACTED by the Parliament of the Republic of South Africa, as B foii0Ws:- Amendment of section 1 of Act 84 of 1996, as amended by section 1 of Act 100 of 1997, section 6 of Act 48 of 1999 and section 1 of Act 50 of 2002

1. Section 1 of the South African Schools Act, 1996, is hereby amended by- ( a ) the insertion after the definition of “Minister” of the following definitions: “ ‘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; ‘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;”; and 5 10 ( b ) the insertion after the definition of “school” of the following definition: “ ‘school fees’ means school fees contemplated in section 39 and 15 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;”. Amendment of section 9 of Act 84 of 1996 as amended by section 7 of Act 48 of 1999

2. Section 9 of the South African Schools Act, 1996, is hereby amended by- 20 (a) the substitution for subsection (1) of the following subsections: “(I) [Subject to this Act and any applicable provincial law, the] The - governing body [of a public school] may, [after a fair hearing] - on I 4 No. 28426 GOVERNMENT GAZETTE, 26 JANUARY 2006 Act No. 24,2005 EDUCATION LAWS AMENDMENT ACT, 2005 reasonable grounds and as a precautionary measure, suspend a learner who is suspected of serious misconduct from attending school[- (a) as a correctional measure for a period not longer than one week; or (b) in consultation with the Headof Department, pending a decision as to whether the learner is to be expelled from the school by the Head of Department] , 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. 5 10 (1A) A governing body must conduct disciplinary proceedings in the manner contemplated in section 8 against a learner within seven school I days after the suspension of such learner. ( t B) 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 ofDepartment for the continuation of the suspension of such learner. (IC) 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. (ID) A Head of Department must consider the recommendation by the governing body referred to in subsection (IC)@) and must decide whether or not to expel a learner within 14 days of receiving such recommendation. (1 E) 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.”; (b) the substitution for subsection (2) of the following subsection: “(2) [Subject to any applicable provincial law, a] 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 [a fair hearing] disciplinary proceedings contemplated in section 8 were con- ducted.”. ( c ) the substitution for subsection (4) of the following subsection: “(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.”; and (d) the addition of the following subsections: “(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. (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). (8) If the Head of Depat-tment 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. (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. 15 20 25 30 35 40 45 50 55 60 6 No.28426 GOVERNMENT GAZETTE, 26 JANUARY 2006 Act No. 24,2005 EDUCATION LAWS AMENDMENT ACT, 2005 (IO) The governing body must implement the sanction contemplated I in subsection (8).”. Substitution of section 35 of Act 84 of 1996

3. The following section is hereby substituted for section 35 of the South African Schools Act, 1996: “Norms and standards for school funding [of public schools] 35. Subject to the Constitution and this Act, the Minister must determine national quintiles for public schools and national norms and [minimum] standards for [the] school funding [of public schools] after consultation with the Council of Education Ministers[, the Financial and Fiscal Commission] and the Minister of Finance. (2) The n o m s 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 5 10 15 20 (d) determine the procedure in terms of which the Member of the Executive Council must apply the criteria contemplated in paragraph M”. 25 Amendment of section 39 of Act 84 of 19%

4. Section 39 of the South African Schools Act, 1996, is hereby amended by- (a) the substitution for subsection (2) of the following subsection: “(2) A resolution contemplated in subsection (1) must provide for- (a) the amount of school fees to be charged; [and] (b) equitable criteria and procedures for the total, partial or conditional exemption of parents who are unable to pay school fees[.]& fc) a school budget that reflects the estimated cumulative effect of- the established trends of non-payment of schoolfees; and the total, partial or conditional exemptions granted to parents 35 in terms of the regulations contemplated in subsection (4).”; and (i) (ii) 30 ( b ) the addition after subsection (4) of the following subsections: “(5) No public schooi may charge any registration, administration or other fee, except school fees as defined in section 1. (6) Apublic school may not charge aparent of a learner at that schoor different school fees based on curriculum or extramural curriculum within the same grade. (7) Despite subsection (I), 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 oj the Executive Council to identify schools that may not charge school fees. (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. (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. (IO) The Minister must- ( a ) consider the list of schools identified in terms of subsection (9); 40 45 50 55 8 No.28426 GOVERNMENT GAZETTE, 26 JANUARY 2006 Act No. 24,2005 EDUCATION LAWS AMENDMENT ACT, 2005 (b) compare the list with the determination contemplated in section 35( I); and ( c ) publish the list per province, in the Government Gazette if it complies with the determination. (1 1) 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. (12) The right of the school to charge school fees in terms of subsection (1 I ) 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.”. 5 10 Amendment of section 41 of Act 84 of 1996

5. The South African Schools Act, 1996, is hereby amended by the substitution for section 41 of the following section: “Enforcement of payment of school fees 41.111 [Thegoverning body of a] &public school may by process of law enforce the payment of schoolfees 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). (3) The exemption from payment of schoolfees in terms of this Act is calculated retrospectively from the date on which the parenf 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), apublic 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 (6) 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) Apublic school may not attach the dwelling in which aparent 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 schoolfees 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- 15 20 25 30 35 40 15 (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 io (d) denial of a school report or transfer certificate.”. 10 No. 28426 GOVERNMENT GAZETTE, 26 JANUARY 2006 Act No. 24,2005 EDUCATION LAWS AMENDMENT ACT. 2005 Insertion of section 58A in Act 84 of 1996

6. The South African Schools Act, 1996, is hereby amended by the insertion after section 58 of the following section: “Alienation of assets ofpublic school 58A. (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 helow 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 resu!t of any 15 legal action taken against the school.”. 5 1 1 lo I Amendment of section 6 of Act 76 of 1998, as amended by section 15 of the Act 48 of 1999 and section 7 of Act 53 of 2000 7. (1) Section 6 of the Employment of Educators Act, 1998, is hereby amended by the substitution for subsection (3) of the following subsection: “(3) (a) Subject to paragraph (m), any appointment, promotion or transfer to any post on the educator establishment of a public schoo! or a further education and training institution, may only be made on the reconmendation of the governicg body of the public school or the coiincil of the further education ar?d training institution, as the case may be, and, if there are educators in the provincial department of education concerned who are in excess cf the educator establishment of a public school or further education and training institution due to operational requirements, that recommendation may only be macle from candidates identified by the Head of Department, who are in excess and suitable for the post concerned. (b) In considering the applications, the governing body or the council, as the case may be, must ensure that the principles of equity, redress and representivity are complied with and the governing body or council, as the ca5e may be, must adhere to-- (i) the democratic values and principles referred to in section 7(1); (ii) any procedure collectively agreed upon or determined by the Minister for the appointment, promotion or transfer of educators; 20 25 30 35 (iii) any requirement collectively agreed upon or determined by the Minister for the appointment, promotion or transfer of educators which the candidate must meet; (iv) a procedure whereby it is established that the candidate is registered or qualifies for registration as an educator with the South African Council for Educators; and 40 (v) procedures that would ensure that the recommendation is not obtained through undue influence on the members of the governing body or the council, as the case may be. ( c ) The governing body or the council, as the case may be, must submit, in order of preference to the Head of Department, a list of- (i) at least three names of recommended candidates; or (ii) fewer than three candidates in consultation with the Head of Department. ( d ) When the Head of Department considers the recommendation contemp!ated in paragraph (c), he or she must, before making an appointment, ensure that the governing body or council, as the case may, has met the requirements in paragraph (b). ( e ) If the governing body or council, as the case may be, has not met the requirements in paragraph (b), the Head of Department must decline the recommen- dation. (fl Despite the order of preference in paragraph (c) and subject to paragraph (d), the Head of Department may appoint any suitable candidate on the list. 45 50 55 12 No. 28426 GOVERNMENT GAZETTE, 26 JANUARY 2006 Act No. 24,2005 EDUCATION LAWS AMENDMENT ACT, 2005 ( g ) If the Head of Department declines a recommendation, he or she must- (i) consider all the applications submitted for that post; (ii) apply the requirements in paragraph (b)(i) to (iv); and (iii) despite paragraph (a), appoint a suitable candidate temporarily or re-advertise the post. ( h ) The governing body or the council, as the case may be, may appeal to the Member of the Executive Council against the decisior. of the Head of Department regarding the temporary appointment contemplated in paragraph (g). (i) The appeal contemplated in paragraph (h) must be lodged within 14 days of receiving the notice of appointment. (j) The appeal must be finalised by the Member of the Executive Councii within 30 days. ( k ) If no appeal is lodged within 14 days, the Head of Department may convert the temporary appointment into a permanent appointment as contemplated in section 6B. (1) A recommendation contemplated in paragraph (a) shall be made within two months from the date on which a governing body or council, as the case may be, was requested to make a recommendation, failing which the Head of Department may, subject lo paragraph (g), make an appointment without such recommendation. (m) Until the relevant governing body or council, as the case may be, is established, the appointment, promotion or transfer i n a temporary capacity to any post on the educator establishment must be made by the Head of Department where a- (i) new public school is established in terms of the South African Schools Act. 1996, and any applicable provincial law; (ii) new further education and training institution is established in terms of the Further Education and Training Act, 1998, and any applicable provincisl law; or (iii) new public adult learning centre is established in terms of the Adult Basic Education and Training Act, 2000, and any applicable provincial !aw.”. (2) Any vacant post that was advertised before the commencement of this section must be filled in terms of the provisions of the Employment of Educators Act, 1998, as it existed immediately before the commencement d this scction if interviews in respect of the vacant post were held before such commencement. Insertion of section 6B in Act 76 of 1998

8. The Employment of Educators Act, 1998, is hereby amended by the insertion after section 6A of the following section: “Conversion of temporary employment to permanent employment 5 10 15 !O !5 30 35

6B. The Head of Department may, after consultation with the governing body of a public school or the council of a further education and training 40 institution, as the case may be, convert the temporary appointment of an educator appointed to a post on the educator establishment of the public school or the further education and training institution into a permanent appointment in that post without the recommendation of the governing L-3. _ _ .L- . :1 OOUY or [ne councii, as me case may oe. . .* 1 - 1 . I 43 Repeal of laws

9. The laws mentioned in the second column of the Schedule are hereby repealed to the extent indicated in the third column of that Schedule. Short title

10. This Act is called the Education Laws Amendment Act, 2005. so 14 No. 28426 GOVERNMENT GAZETTE, 26 JANUARY 2006 Act No. 24,2005 EDUCATION LAWS AMENDMENT ACT, 2005 SCHEDULE LAWS REPEALED (SECTION 9) No. and year of law Act No. 25 of 1941 Short title Higher Education (Amendment) Act, Extent of repeal The whole. 5