Frequently asked questions

Frequently asked questions


Question:

Nosob High’s governing body chair phones you for advice. On Wednesday, the governing body received notice that the Department would, in terms of section 8(5), transfer four educators from a neighbouring school, as Nosob has been showing substantial growth and the neighbouring school is set to close. Nosob needs at least three additional posts, which must be urgently filled. The chairperson wants to know whether the Department is entitled to send four persons for three posts and whether their actions are indeed correct.

Answer:

Section 8(5) of the Employment of Educators Act 76 of 1998 states:
“(5) The Head of Department may, without a recommendation contemplated in subsection (2), transfer an educator temporarily for a stated period from a post at a public school or public further education and training institution, to a post at another public school or public further education and training institution.”
The emphasis is on “temporarily” and “for a stated period”.
Section 8(6) goes on to say:
“(6) An educator referred to in subsection (5) shall return to his or her previous post at the end of the period contemplated in that subsection.”
The question here, however, is how these teachers will be able to return to their previous posts if those posts no longer exist, as their former school will have closed. Clearly, they will not be able to return.
Transfer of educators
The transfer of excess educators from one school to another is regulated by the Employment of Educators Act and Collective Agreement 4 of 2016.
An educator cannot be transferred into a post without the post having been advertised in an open or closed Bulletin, and without the recommendation the governing body of the school.
The Department cannot simply send educators in excess to a school, even if that school has vacancies. The prescripts of Collective Agreement 4 of 2016 must be followed. The school should therefore not accept the four educators. Once the school has had its vacancies advertised in a Bulletin, the four educators can be interviewed and if they are found to be suitable by the governing body, the governing body can then recommend to the Department that the educators be transferred. It is not the Department’s prerogative to determine an educator’s suitability for a post. Only the governing body of the school can make that determination.
References
1. Employment of Educators Act 76 of 1998
2. Collective Agreement 4 of 2016
3. The document “Checklist for appointments” on the FEDSAS website (under the link “Documents”/“Legal opinions”/“Educators”)
4. FEDSAS v Limpopo Department of Education

Question:

Nosob Primary’s governing body chair phones you for advice. The Department has instructed the principal to provide it with an asset inventory at the start of each year. The Department also requires a full list of all donations, sponsors and donors’ names. The principal believes that the information is available and that the school has nothing to hide. The chairperson urgently seeks guidance.

Answer:

For more detailed information on the ownership, control and administration of school assets, please see the documents “Financial and asset management in public schools” and “Right of ownership of public schools”.
This reply is premised on the fact that the school owns its moving assets, which are administered and controlled by the governing body.
Section 42 of the South African Schools Act (SASA) provides that the governing body must keep record of the school’s assets. This record-keeping will naturally require the drafting of an inventory.
Section 43(6) stipulates that, at the request of an interested person, the governing body must make the records referred to in section 42 available for inspection. These records would then include the inventory, and an official of the Department would obviously qualify as an interested person (provided the official can prove the Department’s “interest” in the inventory, of course).
However, it is important to note that the governing body is responsible for drafting and keeping the school’s inventory, and not the school principal. Only the governing body may delegate this function to the principal, and not the Department. 
Section 58A(1) of SASA provides that the Head of Department (HOD) is entitled to compile and inspect an inventory of all the assets of the school.
This provision, however, does not authorise the HOD to inspect or lay claim to the assets contained in the inventory. The HOD may simply compile the inventory or, if one already exists, inspect it. No copies of any inventory already compiled by the school have to be sent to the HOD.
In respect of the list of donations, sponsors and donors’ names, section 59(1) of SASA provides that a school must make information available for inspection by any person in so far as such information is required for the exercise and protection of such person’s rights. Should the Department rely on this section, it must prove that the information regarding the donors and sponsors is vital for the exercise and protection of a right. And the Department’s ability to prove any such right relating to the information on donors and sponsors is strongly doubted.
In terms of section 59(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. This section refers to “information about the school”. The information required by the Department in this case is not information about the school, but rather information about the school’s donors and sponsors, and does therefore not have to be made available.
References:
The South African Schools Act
The document “Schools’ obligation to provide information to provincial officials”
The document “Submission of asset register of schools”

Question:

Nosob High’s governing body chair phones you for advice. The school is situated on private property, which was recently sold. The governing body is very concerned about the future of the school, as some of the school parents claim that a clinic will be built on the property, while others have heard that it has been earmarked for a service station. The chairperson urgently requires assistance.

Answer:

The following provisions as contained in section 14 of SASA refer:
“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.
[Sub-s. (1) substituted by s. 2 of Act No. 53 of 2000.]
(2) An agreement contemplated in subsection (1) must be consistent with this Act and in
particular must provide for -
(a) ...;
(b)...;
(c)...;
(d) security of occupation and use of the property by the school;
(e)...; and
(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.
(6) ...
(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.
[Sub-s. (7) inserted by s. 5 (b) of Act No. 100 of 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.
[Sub-s. (8), previously sub-s. (7), renumbered by s. 5 (b) of Act No. 100 of 1997.]”
Firstly, it must be determined whether an agreement as contemplated in section 14 existed between the Member of the Executive Council (MEC) and the previous owner, which afforded the public school the right to operate on private property. If so, section 14(4) will apply. The agreement has given the school the right to use and occupy the property, i.e. a real right, which had to be noted as such by the Registrar of Deeds. The school should now be able to enforce this real right in respect of the new owner as well. The real right will only terminate if the MEC closes down the school in terms of section 33 of SASA. The Regulations Relating to the Minimum Requirements for an Agreement between the Member of the Executive Council and the Owner of the Private Property on which a Public School is situated also stipulate that such an agreement remain valid for as long as the school exists. Therefore, the agreement does not depend on the existence of the owner, but the existence of the school. The school should thus inform the MEC of the new developments, and the owner of the new property must be informed of the school’s existence and right to continue providing education on the property. The MEC must conclude an agreement with the new owner in respect of those issues contained in section 14(2).
If there was no agreement between the MEC and the previous owner, the school must inform the MEC of the sale of the property. The MEC must then contact the new owner and attempt to conclude a section 14 agreement. This agreement must be in line with section 14(2) and the provisions defined in the Regulations Relating to the Minimum Requirements for an Agreement between the Member of the Executive Council and the Owner of the Private Property on which a Public School is situated. Should the new owner not be interested in concluding an agreement, the MEC is obligated to find alternative buildings or another property for the school. See the matter of Governing Body of the Juma Musjid Primary School v Essay N.O, where it was found that the MEC, and not the owner, was primarily responsible for protecting and fulfilling learners’ right to basic education. The owner has a constitutional duty not to interfere with or impede the learners’ right to basic education, and must afford the MEC a reasonable period of time to come up with alternative plans.
References:
The Constitution of the Republic of South Africa, 1996
The South African Schools Act 84 of 1996
Regulations Relating to the Minimum Requirements for an Agreement between the Member of the Executive Council and the Owner of the Private Property of the Private Property on which a Public School is Situated, GG 19 December 1997 No. 18566
Governing Body of the Juma Musjid Primary School v Essay N.O CCT 29/10 [2011] ZACC 13  

Question:

The governing body chair of Nosob Primary phones you for advice. An official of the Department of Transport contacted the school and wanted to schedule a meeting with the governing body to discuss the establishment of a scholar patrol. In recent months, traffic volumes in Nosob have drastically increased with normal traffic, heavy construction vehicles and army trucks. The chairperson wants to know whether a scholar patrol is compulsory, and who will eventually be held liable should any damage or loss be incurred as a result.

Answer:

To start with, a scholar patrol certainly is not compulsory. Section 57(5) of the National Road Traffic Act provides as follows:
“5) In such circumstances and subject to such conditions as the MEC concerned may determine, scholars or students may be organised into patrols (to be known as scholar patrols) for the purpose of displaying, in the prescribed manner, an appropriate road traffic sign so as to ensure the safety of scholars or students crossing a public road.”
Therefore, the school may decide whether or not they wish to establish a scholar patrol.
With regard to liability for damage or loss, section 60 of SASA will apply, as a scholar patrol qualifies as a school activity. Section 60(1) of SASA reads as follows:
“60. Liability of State
(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.”
It then follows that the Department of Education will be liable for any damage or loss that may arise, irrespective of whether or not the Department of Transport is involved.
In paragraph 4.1.2.1(d) of chapter A, the Personnel Administration Measures make provision for educators to render scholar patrol services. Educators will therefore not be performing “additional work”, which obviates the need for additional remuneration.
As the governing body is obligated in terms of section 20(1)(a) to promote the best interests of the school, it would be advisable for them to interact with the Transport and Education departments and discuss the possibility of a scholar patrol. The chairperson should therefore request the school principal as well as an official from the Department of Education also to join the meeting.
For more information on the registration of a scholar patrol, the respective parties’ functions and other information, feel free to visit http://www.arrivealive.co.za/pages.aspx?nc=Scholar_Patrol_Authorisation.

Question:

Nosob High’s governing body chair phones you for advice. The Department has temporarily transferred Nosob’s vice-principal to a neighbouring school to perform the functions of acting principal. However, the vice-principal serves as the educators’ elected representative in the governing body at Nosob. The chairperson wants to know whether they should now call a by-election, and whether the governing body’s current composition is legitimate.

Answer:

In terms of section 8(5) of the Employment of Educators Act, the Head of Education may, for a specified period, temporarily transfer an educator from a position at one public school to a position at another public school, without requiring the governing body’s recommendation (section 8(2)). Section 8(6) of the act further provides that the transferred educator must return to his/her previous post at the end of the specified period.
This implies that such an educator does not vacate his/her position at the school when being transferred to another school. Section 23(12) of SASA stipulates that a member of the governing body of a public school will cease being a member as soon as he/she no longer falls within the category in respect of which he/she was elected. However, in this case, the vice-principal did not vacate the position, which means that there is no vacancy, which obviates the need for a by-election. The same argument would apply if, for example, the vice-principal went on leave or was absent due to ill health. The vice-principal remains a member of the governing body, unless he/she resigns. However, if required, nothing prevents the governing body from co-opting another educator in terms of the prescripts. (Also see section 23(6) of SASA.) The governing body is entitled to co-opt another educator as a substitute for the vice-principal up until the vice-principal’s return, although such a co-opted member will not have voting rights.  

Question:

Nosob Primary’s governing body chair phones you for advice. Last year, the school granted a divorced mother exemption from the payment of school fees following her application. In her application, she claimed inter alia that she had no contact with the father of the child and also did not know his whereabouts. However, the father paid over school fees to the amount of R7 000 at the end of November. The mother now demands that the money be paid out to her, as she was granted exemption. The chairperson wants to know what their course of action should be.

Answer:

Section 40(1) of SASA provides that a parent is liable for the payment of school fees, unless or to the extent that he or she has been exempted from payment following application to the school. Exemption is granted in accordance with the provisions of the 2005 Regulations Relating to the Exemption of Parents from the Payment of School Fees.
Also note the legal opinion on “Divorced parents’ liability for the payment of school fees” and “Implications of the 2016 Western Cape school fee exemption case”.
The question is whether the governing body can rely on item 7 of the Regulations to withdraw the mother’s exemption? The answer is no, as the mother’s financial position has not changed, and the governing body granted exemption based on her position alone. The governing body was negligent in not even attempting to obtain/request both parents’ information, granting the mother exemption based on an incomplete profile. Exemption means that the children’s school fees are literally written off for the year; therefore, when the governing body decided in 2012 to grant exemption, the entire debt ‘disappeared’. 
It further implies that the father is also automatically exempted, and the R7 000 will have to be refunded to him. If the father cannot be tracked down, the money could be carried over to 2013. The school could also utilise the R7 000 to appoint a detective agent to try and locate the father for the money to be refunded to him, or to obtain his permission to utilise the money in settling the children’s school fees for 2013 (also see item 11).
The R7 000 belongs to the father, and cannot be paid out to the mother. Therefore, the school will have to look very carefully at future applications, paying particular attention to applications from so-called single parents. 
It cannot be argued that this was a voluntary payment after exemption had been granted, as the father was not even aware of the exemption when he paid the money to the school.  

Question:

Nosob High’s governing body met on Tuesday, at which meeting the chairperson resigned. This was so noted, with the written resignation to follow. On Thursday, however, he withdrew his resignation. The ‘new’ chairperson now wants to know whether the previous chair did in fact resign (never having submitted his written resignation) and whether the verbal resignation still stands. The governing body wants to make absolutely certain, as the member is an advocate and a hothead.

Answer:

Resignation is a unilateral action. As soon as a resignation has been communicated (and noted, as in this case), it is final. It cannot actually be withdrawn. If an employee has resigned from his job, he may ask the employer whether he could withdraw his resignation. Technically, if the employer agrees, this will give rise to a new employment relationship, which would in effect imply re-employment.
The regulations of some of the provinces refer to a “written resignation”. This would simply be for purposes of evidence. The parties’ intention is the deciding factor, and particularly the existence of a noted decision (in front of witnesses) should be sufficient to meet the requirements.
If one resigns from a position to which you have been elected, such as that of elected governing body member, a vacancy arises. That vacancy cannot be filled by way of agreement, but through the prescribed process. That would imply co-option for a maximum of 90 days as well as a by-election.

Question:

The governing body chair of Nosob Primary phones you for advice. It has been exactly one year since the governing body was elected. The Department has now instructed the principal to ensure that new office-bearers are elected.

Answer:

Section 31 of SASA provides as follows:
“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.”
The gist of this provision is that office-bearers must be elected, although they do not necessarily have to be “new”. The governing body itself makes decisions on continuity and succession planning, and will act according to the law without it being necessary for the Department to remind them of their duty.

Question:

The governing body chair of Nosob High phones you for advice. On the last day of the term, the Department informed the principal that they will require the school hall for CAPS training during the holiday. The school must ensure that the hall is unlocked/locked up every day, that it is cleaned, and that restrooms are available. However, the principal and staff will not be in Nosob during the holiday and the governing body now wants to know whether the school is obligated in any way.

Answer:

Section 20(1)(g) of SASA provides as follows:
“(1) Subject to this Act, the governing body of a public school must -
(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 …”
Section 20(1)(k) also stipulates:
“(1) Subject to this Act, the governing body of a public school must –
(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 …”
In the first instance, it is clear that the governing body is entitled to decide who may enter and use the school grounds. However, the Head of Education’s decision to use the school hall does not qualify as a decision envisaged by section 20(1)(g), as it has not been made in terms of any right or policy.
Section 20(1)(k), however, provides that the governing body must allow the use of the school’s facilities at the request of the Head of Department, provided that this will be for the hosting of educational programmes and will take place under fair conditions. It is to be debated whether CAPS training qualifies as an educational programme; it will probably be educational for the teachers in attendance. However, the conditions under which the request was made were not fair. The HOD was supposed to have given the school/governing body a reasonable period of time to prepare the facilities as well as to arrange for a staff or governing body member to unlock in the morning and lock up again at the end of the day. As the governing body controls the school grounds, they may decide not to allow another person to perform these functions. Therefore, the school is not obligated to comply with the Department’s request.
The next issue that needs to be addressed is cost. The Department will have to cover the costs incurred; the school cannot be expected to function as the Department’s sponsor. There should be a proper rental agreement as well as an agreement with regard to other costs.
Also see “The rights of a public school regarding immovable property” on the website.

Question:

The governing body chair of Nosob Primary phones you for advice. The chairperson has received correspondence from the Department in which all governing body members are instructed to complete a declaration form of all personal interests. This form requires members to declare information regarding all shares or other financial interests held, director’s positions occupied, partnerships held, remunerated and/or consultancy work performed, or gifts received from any person other than a relative while serving on the governing body. The chairperson wants to know whether members are obligated to complete the form.

Answer:

Section 26 of SASA provides that a member 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.
Section 14 of the Constitution guarantees the right to privacy. This form represents a material infringement upon individuals’ right to privacy. Much of the information requested from governing body members as stipulated in the declaration/disclosure form is in no way relevant to a potential conflict of interest between individual members of the governing body and the school.
It is important to keep in mind that members may not receive remuneration for their service on the governing body, which is therefore rendered voluntarily. If potential parent members of governing bodies had prior knowledge that their personal information would have to be disclosed to one and all in this way, they would have simply refused to volunteer their services as governing body members. That would mean that essential expertise, experience and knowledge are lost to governing bodies and the important work they do.
Section 26 of SASA adequately provides for the disclosure of personal-interest information.
Therefore, the members do not have to complete the form.
References:
The South African Schools Act 84 of 1996
The Constitution of the Republic of South Africa, 1996
The document “Schools’ obligation to provide information to provincial officials”

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