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”

Question:

The chairman of Stuurman Primary school phone you for advise.  They want to know if the grade R parents are allowed to vote in the SGB elections and if their names should appear on the voters role? 

Answer:

Section 1 of the South African Schools Act defines a school as a public or an independent school which enrol learners in one or more grades from grade R to grade 12.

In the case where grade R forms part of the school - it is not being managed separately by the governing body but do receive funds or posts from the Department, then all parents of learners on the admission register of the school may take part in the election and will be electable to the governing body.

The number of grade R learners will be seen as part of the total number of learners of the school, which determine the size of the governing body, as well as the quorum which should be reached at the election.

Question:

The chairperson of Stuurman Primary wants to know whether the Grade R and grade RR educators and assistants may participate in the governing body election and if so in what category of the SGB may they serve?

Answer:

The SA Schools Act contains the following provisions regarding educators:

Definitions

'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;

'school' means a public school or an independent school which enrols learners in one or more grades from grade R (Reception) to grade twelve;

Section 20 

20(4) Subject to this Act, the Labour Relations Act, 1995 (Act 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.

20(5) Subject to this Act, the Labour Relations Act, 1995 (Act 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 103 of 1994).

Section 20 (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.”

To serve on the SGB in the educator component the following requirements must be met:

  1. The person must be appointed as an educator in terms of the South African Schools Act, with specific reference to the Employment of Educators Act and Basic Conditions of Employment Act.
  2. The person must be appointed as an educator for any grades R to 12.
  3. The person must be registered as an educator with SACE.
  4. Staff who are appointed to exclusively perform extracurricular duties are excluded to serve on the Educator component of the SGB (depending on circumstances these employees may serve on the non-educator component). 

Question:
Sydney Primary’s school principal calls for urgent advice. At Thursday’s (26/02/2009) governing body meeting, two members were co-opted to replace a parent of a learner who went to high school, and a parent who resigned at the same meeting. The latter parent resigned because the family is moving to another province. The school principal informed the meeting that the triennial governing body election for the province will take place during May. The governing body feels a by-election is unnecessary and that the two co-opted members must stay on until May. The school principal also reports that he has written a letter to the Provincial Education Department to request permission for the two persons to stay on until May without having a by-election. He has not received any response from the Department. Advise the school governing body on the legal position as well as the documents that FEDSAS can make available.

Answer:
By way of introduction, it is important to be familiar with Section 23 of the South African Schools Act (SASA).

Section 23(9) provides that, at all times, the parents who are elected onto the governing body should comprise one more than the total of other governing body members. 

If this is not the case, Section 23(10) provides that the governing body must co-opt parents. Parents may be co-opted with voting rights for 90 days, but an election must take place before the 90 days lapse.

Section 23(12) of SASA provides that, as soon as an elected parent member of the governing body no longer falls under the category in which he/she was elected, his/her membership automatically terminates, in which case someone needs to be co-opted to fill the vacancy immediately.

Section 31(1) of SASA provides that a parent member of the governing body may not serve for longer than three years. Also see the court judgement in the matter Stutterheim High School v.  MEC Eastern Cape on the FEDSAS website. Of course, the member is eligible for re-election.

In a nutshell, therefore, the answer is as follows:

The parent who resigned on 26 February 2009 should not be a problem. Co-option for 90 days lapses on 26 May, and therefore, this member could be replaced at the triennial election (provided that the province’s election indeed takes place in May).

With regard to the parent whose child went to high school, the co-option applies from the last day of the 2008 school year, namely 10 December, and therefore terminates on 10 March 2009. At that stage, a by-election will have to be held in terms of the prescripts, as the Education Department has no jurisdiction to make any exceptions. The request submitted to the Education Department to grant approval for an extension of the parent’s term of office is therefore a futile exercise. In my view, a parent whose child completes the matric examination ceases to be a member from the day on which it becomes certain that the child has passed matric.

Question:
Sydney Primary’s school principal calls for urgent advice. One of the administrative officials at the school (departmental appointment) has confessed to the school principal that she had embezzled more than R200 000 of the school’s money over a period of 12 years. She was caught out after one of the new governing body members had inspected the school’s finances. The lady is willing to pay back R1 000 per month until her son has finished university, whereafter she will be able to pay back R2 500 per month. Advise the school governing body.

Answer:
The school and governing body cannot accept this offer. Firstly, it flies in the face of everything FEDSAS represents. We cannot cover up these actions and still pride ourselves on accountable and transparent management. Secondly, there are certain risks for the school and governing body – the repayment may not materialise. Governing body members could incur personal liability if they cannot account for school funds.

There are two options:

The lady could resign and pay back the money from her pension, with a criminal charge laid against her at the South African Police Service (SAPS).

OR

Disciplinary action continues (with dismissal the only option), the matter is reported to SAPS, and the school sues the employee for the outstanding amount.

The employer is the Provincial Department; therefore, the Department should take the disciplinary steps.

The employee’s emotional plea should not affect the outcome for the school. The lady could rather use it, as well as the fact that she will pay back the money from her pension, as mitigation in her criminal case.

Question:
Sydney Primary’s school principal calls for urgent advice. On her way to the principal’s office, one of the school’s young teachers slipped on a loose tile and fell. She was immediately taken to her general practitioner, and the principal just received a call to inform him that she has broken her leg. Advise the school on further action.

Answer:
The answer to this problem can be found in a newsletter that FEDSAS distributed on 17 February 2009.  

The Compensation for Occupational Injuries and Diseases Act (COID Act) provides for insurance against injuries and diseases that employees may sustain or contract while on duty. It is extremely important that employers comply with the Act’s provisions, as non-compliance could lead to fines imposed by the Compensation Commissioner, and could also offer employees the opportunity to institute claims against the employer for any injury or disease that they sustained or contracted at work.
An accident is an incident with a known date, time and place that arises from and in the course of an employee’s service, and that leads to personal injury.
All accidents, or alleged accidents, that lead to medical expenses and absence from work for more than three days, must be reported to the Commissioner within seven days.

In practice, this means the following: 
The school must report the accident in terms of the COID Act.
The teacher must send all medical bills to the Commissioner in order for the teacher to be compensated. This will also apply if the school assists her with medical care (even though they are not compelled to).
The school will immediately have to launch an investigation into the accident in terms of the Occupational Health and Safety Act (OHS Act), and the school’s safety representative will have to play a leading role in this. Also, all the necessary repairs will have to be effected.
The Education Department will have to be informed so that a temporary appointment can be made for the period of absence

Question:
Sydney Primary’s school principal requires more information on his responsibilities with regard to appointments additional to the state’s establishment. Advise the principal with specific reference to sources and exactly where these sources can be found.

Answer:
All educators and non-educators additional to the state’s establishment are the school’s responsibility. The governing body is therefore responsible for these staff members, and management is delegated to the school principal. Therefore, the school principal acts as the manager of each of these staff members. The most important applicable legislation is the Labour Relations Act, Act 66 of 1995, and the Basic Conditions of Employment Act, Act 75 of 1997.

The FEDSAS website contains extensive resources to assist employers in this regard.

Under “Examples”:
    Draft employment contracts
    Draft grievance and disciplinary codes
    Human resource management in schools

Under “Legal opinions – educators”:
    Guidelines for the management of educators and non-educators additional to the state’s establishment
    Supervision and evaluation by staff appointed by the governing body

Question:
Sydney Primary phones for advice. Although the school is still closed for the Easter holiday, one of the secretaries is at work. She received a call from the Department of Public Works, asking her to open the school hostel so that the Department’s officials could stay there for two weeks. According to the Department, they are responsible for all state buildings, and therefore also have the right to use any state building. The secretary cannot get hold of the school principal, and wants to know what she should do. Advise her and carefully explain where she can obtain the necessary documents.

Answer:
Only the school governing body is responsible for school hostel management and governance.

Under no circumstances should the secretary open the hostel for the Department. If the Department wishes to use the hostel, they should address a request to that effect to the governing body, whereafter the governing body could decide to lease the hostel to the Department.

Special Newsletter 9 of 2009 was distributed to schools on 23 March 2009, and contains the necessary information on hostel management and governance. The document refers to specific sections in the South African Schools Act, and also includes a legal opinion on several aspects of hostel management.
 
The newsletter is available on the FEDSAS website (www.fedsas.org.za) as well.

Question:
Sydney Primary’s governing body chairman phones you for advice. At the beginning of the year, they appointed two young teachers for Grade R and Grade 1. The school is the employer. The Grade 1 teacher only recently found out that she is pregnant. The governing body chair wants to know what the school’s obligations are towards the teacher, and what her obligations are towards the school.

Answer:
There are two possible options:
1.    The teacher’s employment contract will define the terms. Therefore, we hope that the FEDSAS employment contracts are used. The FEDSAS employment contract provides that the teacher is entitled to four months’ unpaid maternity leave. She must give the school at least 20 days’ written notice prior to the commencement of the maternity leave, of her intention to take such leave, also mentioning the start date of the maternity leave and the date of return thereafter. This notice must be accompanied by a medical certificate confirming the estimated due date.
 
The employment contract is available on www.fedsas.org.za under the heading “Examples” as “Draft employment contract for educators and non-educators”.

2.    If there is no written employment contract, the provisions of Section 25 and 26 of the Basic Employment Conditions Act, Act 75 of 1997, will apply. 
In brief, these sections provide as follows:

•    Four consecutive months’ maternity leave
•    The maternity leave may commence any time from four weeks prior to the estimated due date, or another date necessitated by the health of the employee and/or her unborn child, as certified by a medical practitioner or midwife.
•    An employee may not return to work until six weeks after the birth of her child, unless a medical practitioner or midwife certifies that she is fit to work.
•    An employee who has a miscarriage during the third trimester or whose child is stillborn is entitled to six weeks’ maternity leave following such miscarriage or stillbirth.

Unless the employee is unable to do so, she must give her employer four weeks’ prior notice of the envisaged start date of maternity leave and her date of return.
The Basic Conditions of Employment Act does not provide for payment during maternity leave, and therefore, maternity leave is unpaid leave. However, an employee is entitled to maternity benefits in terms of the Unemployment Insurance Act. She could also enter into an agreement with her employer to provide for payment, or a union could enter into a collective agreement through collective negotiations that could provide for paid maternity leave.
The governing body does have a responsibility, though, to ensure that a pregnant woman or a breastfeeding mother does not perform work that poses a danger to her and/or her baby. Also see the “Code of Good Practice on the Protection of Employees during Pregnancy and after the Birth of a Child” contained in the Basic Conditions of Employment Act.  

The school will have to make a temporary appointment as substitute for the teacher who is on maternity leave, for as long as she is on maternity leave. 

Relevant information is available on www.fedsas.org.za under the heading “Appointment of additional staff”. 

Question:
In the last two weeks, Sydney High’s school principal has frequently read about schools in the news. In light of the Waterkloof events, he requires clarity on the following: 1. May a sports organiser be paid out of school funds without in any way being involved in education? Note that this organiser is involved in one sporting code only. 2. May staff receive a 10% commission when they secure a substantial sponsorship? 3. If an educator has cheap/free housing on the school premises, must this be declared as a tax benefit? If so, what is the school’s role to recover the tax or declare it to the Receiver of Revenue?

Answer:
1. Yes, on the following terms and conditions:
a.     That there is a proper employment contract, fully outlining the organiser’s duties and responsibilities.
b.     That the specific portfolio is provided for in the annual budget, which is approved by the parents.
c.     Should this apply to one sporting code only, it is advisable for such expenditure to fall within the sporting code’s annual budget. This would further imply that the sporting code shall attempt to generate additional income. It would be extremely unfair if all the learners in the school had to ‘sponsor’ one sporting code only while they do not even participate in it.
d.     Please also refer to the following documents on the FEDSAS website, www.fedsas.org.za: 
       Under members’ documents:    Questions on school fees 
                                                    Appointment of additional staff

2.
a.     Firstly, as far as appointments by the Department are concerned, we are dealing with two aspects, namely “Additional remuneration for public servants” (available on the website), read with “Guidelines for the implementation of Section 38(a)”.
b.     Secondly, as far as other staff are concerned, i.e. those appointed by the governing body, I would advise against it, unless the employment contract specifically provides that the person is also responsible for securing sponsorships, as well as the percentage that would be granted as a ‘reward’. However, all expenses are subject to the governing body’s approval and the budget. The term ‘substantial’ is concerning, though. After all, sponsorships are secured for a specific cause, otherwise they merely supplement the school fund, falling under the normal budget and expenditure of the school. A ‘substantial’ sponsorship of R2 000 for the chess team could therefore be compared to the R20 000 sponsorship for the rugby team. One has to be very careful and act consistently in this regard.

This could work as an incentive, although the principles in Section 36(1) as well as Section 37(1), (2), (3), (4), (5), (6) and (7) of the South African Schools Act (SASA) still apply. In this regard, see Section 37(6), which provides as follows:

“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.”

Section 38A imposes further restrictions on such payments, and it would be advisable first to have another look at Section 37–39 and 42–44 of SASA.
Therefore, the answer is no, unless all the requirements are met. 

3. In this regard, I again refer you to the FEDSAS website, where you’ll find a document entitled “Residential units on school grounds”. The document outlines the situation in as far as the accommodation is seen as an additional employment benefit. If it is seen as a hostel matter, however, Section 38A as well as the document on hostels apply.

The Employment of Educators Act is also available on the FEDSAS website.

Question:
Sydney Primary’s school principal calls you for advice. The school has a satellite pre-primary school for pre-school children from 4 to 6 years of age. The Grade R class is the school’s biggest feeder source. However, the pre-primary school principal has identified three learners who turn 7 the following year, but are not yet ready for school. The primary school principal fears that the school will incur liability if the children are not advanced to primary school. Advise him.

Answer:
Section 3 of the South African Schools Act (SASA) provides that parents are responsible to ensure that a learner attends school from the first school day of the year in which the learner turns 7. 
The school will therefore not incur any liability if the children are not enrolled at a school; the parents will. However, it still is the pre-primary school’s duty to inform the parents accordingly. 

If the pre-primary school reckons that the children are not ready for school, the parents must be informed and assisted to apply for exemption from school attendance.

Section 4(1) of SASA provides that the Head of Department may grant a learner full, partial or conditional exemption from compulsory education if it is deemed to be in the best interests of the particular learner.

In the past, the child guidance clinics provided this service. However, it is common knowledge that this role is no longer fulfilled everywhere, and parents will therefore have to cover the costs of the school readiness report themselves. Also, it seems as if the process and documents may vary between provinces.

Question:
Sydney Primary’s school principal calls you for advice. She wants to know whether the Grade R parents may participate in the governing body election, and how the number of learners in the Grade R class will affect the number of learners in the school for the purposes of the election.

Answer:
In Section 1 of the South African Schools Act (SASA), a school is defined as “a public school or an independent school which enrols learners in one or more grades from grade zero [Grade R] to grade twelve”. 

All the parents on the school’s admission register may therefore participate in the election and are eligible for election onto the governing body.

The number of learners in Grade R is regarded as part of the total number of learners that would determine the size of the governing body.

Question:
According to the school principal of Sydney High, the school is doing really well and he is on top of all school matters. However, the chairman of the governing body informs you that the school principal will be retiring in the next 12 months, and that, already, he is spending more time on farming than on school activities. Advise the chairman on possible action.

Answer:
There are several solutions to this problem. However, the challenge is to arrive at the best possible solution in the school’s interests.

Firstly, there is the hard way, i.e. disciplinary action in terms of the Employment of Educators Act. The complaint is directed to the Department, whereafter the Department will drive the process.

Secondly, there is the line of least resistance, i.e. rather riding out the 12 months.

Thirdly, there is the responsible way.  

A former school principal replied as follows: “I would advise the governing body chair speedily to have an informal yet serious discussion with the principal. The chair must point out to the principal that he may not have two occupations simultaneously, and must try and convince the principal to spend more time on school affairs. If this does not have the desired effect, the discussion must be repeated, only now, the chair must deliver factual proof that the principal is neglecting his normal duties and even that it is getting out of hand. The chair must submit evidence as part of the warning. He must cite a number of critical matters and demand a weekly report thereon, as well as insist that the principal attends important events. If this lifeline is rejected, the chair must prepare a report, which has to be addressed to the Head of Department for his/her attention and further action. I assume that the principal has been in office for quite some time, has performed well throughout, only now to have a somewhat excessive yearning for retirement. Rather than disciplinary action, he needs encouragement and empathy.”

If the situation still does not improve and the school principal is a member of the South African Teachers’ Union (SAOU), this could be an opportunity to use the ‘protocol of cooperation’ to address the problem in the best interests of the school.

Question:
Sydney High’s governing body election is scheduled for Friday. There are 12 educators appointed by the school, and 32 educators on the state’s establishment. The school principal is not sure whether those educators additional to the state’s establishment may be elected as educators on the governing body. Advise the school principal.

Answer:
The South African Schools Act refers to educators only, and does not draw any distinction between departmental appointments and educators additional to the state’s establishment. Therefore, any educators may be elected as educators on the governing body. 

Question:
Sydney High’s governing body election took place on Friday, and the new governing body’s first meeting to elect the different office-bearers is scheduled for next Thursday only. The school principal wants to know which governing body is responsible until Thursday: the old one or the newly elected one?

Answer:
The old governing body stops functioning the moment the new one is announced. The term ‘constitute’ really only refers to an election of office-bearers and should in no way be seen as the starting point or commencement of a new governing body. A governing body’s term of office is three years. If that term lapses prior to the next election, there simply is no governing body. See the judgement in the matter Stutterheim High School v. MEC Eastern Cape.

Question:
Sydney High regularly receives circulars from the Department in which certain instructions are issued. The chair of the new governing body wants to know whether the Education Department may by way of a circular announce and enforce measures that violate an act or regulations promulgated in terms of an act.

Answer:
No. Although the Department may implement policy, policy cannot create rights and obligations. This can only be done through laws of the national and provincial legislatures, and regulations promulgated in terms of such laws.

See the document on the ranking order of acts and the legal status of circulars on the FEDSAS website.

Question:
Sydney Primary’s school principal calls you and seems very upset. He just received instructions from a departmental official immediately to provide the Department with an inventory of all the school’s movable assets, so that the state could ascertain which of its assets are located at the school. The new governing body chair refuses to heed this request, and has instructed the school principal to enquire about the ownership of movable assets. Advise the governing body.

Answer:
All public schools are the owners of all movable property that they have procured since the commencement of the South African Schools Act (SASA), i.e. since 1 January 1997 (see Section 37(5) of SASA). Already prior to 1 January 1997, all former state-aided (‘Model C’) schools were the owners of all movable property in their possession at that stage – see Section 52(2) of SASA. All Section 21 schools who are not former Model C schools became the owners of all movable property in their possession from the date on which they were awarded Section 21 status – see Section 52(3) of SASA. 

In other words, the only movable property at public schools that could still belong to the state is those assets that prior to 1 January 1997 were, and still are, held by public schools other than former Model C schools or Section 21 schools.

Question:
Sydney High’s principal calls you and seems very worried. A departmental official told him that the Department has not yet ratified his school’s new governing body, and urgently awaits the names so that a legal governing body could be established. The principal tells you that their governing body has already held four meetings as well as a strategic summit over the weekend. The principal wants to know whether this means that none of their resolutions can be enforced.

Answer:
The South African Schools Act requires no ratification of a governing body by any department. As soon as the governing body election results have been announced, the newly and lawfully elected governing body must immediately commence with their activities.

The requirement in some provinces that the names of governing body members must be submitted to the Department within 14 days of the election is for administrative purposes only and in no way affects the legality of the governing body. There is therefore nothing to ratify.

Question:
You receive another worried call from Sydney High’s principal. He just received correspondence from his Provincial Head of Education that prohibits all liquor sales on school grounds. He clearly states that this pertains to all functions (weddings, etc.), and that so-called governing body events would be regarded as school activities. In future, the Department will oppose all applications for liquor licences and will institute disciplinary action against any school principal who wrongly advises his governing body in this regard

Answer:
FEDSAS has checked its interpretation with Advocate Boshof from the National Department. We at least agree on one matter, namely that the prohibition on liquor use does not apply to schools’ fundraising events. Therefore, the Head of Education’s correspondence is radically wrong – see the legal opinion on alcoholic beverages on school grounds on the FEDSAS website.

Also see the definition of school activity in the South African Schools Act, as well as the judgement in the Ferdinand Postma matter. Therefore, the statement that a governing body cannot organise any event other than a ‘school activity’ also seems to be wide of the mark.

Also see the FEDSAS extraordinary newsletter in this regard.

Question:
Sydney Primary’s governing body chair enquires about the school’s tuck shop, and wants to know the following: Are only Section 21 schools allowed to run a business and undertake other projects in order to generate additional income for the school?

Answer:
No, all public schools may (in fact must) launch projects, which could include operating a business, in order to generate additional funds for the school. This arises from the duty imposed on governing bodies in terms of Section 36(1) of the South African Schools Act to “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”.

Question:
Sydney Primary’s governing body chair calls you for urgent advice on the budget process. A senior official of the Provincial Department has requested a copy of the budget and insists on addressing the parents at the budget meeting. This is the new governing body’s first budget, and the acting school principal used to be a head of department. Also, the school has a new hostel, and wants to know whether the hostel must also form part of the budget.

Answer:
Section 38 of the South African Schools Act deals with the budget process. The Department does not form part of the process and is therefore not entitled to insist on a copy of the budget or to address the meeting.

The school has one bank account only and the hostel is inextricably part of the school. Therefore, the hostel will have to form part of the budget.

Question:
Sydney High’s governing body chair calls you for urgent advice. They recently advertised two educator posts on the school’s establishment, and one of the governing body members’ partners applied. How should the chair deal with the matter?

Answer:
This question deals with ethical, responsible, accountable and transparent decision making. The governing body should take a principled decision that members should excuse themselves or withdraw from a discussion if they have an interest in a particular matter. The interest must be declared. This would be the way for the governing body chair to deal with this problem as well.

Question:
Sydney Primary’s governing body chair phones you for advice. He is concerned that coming Thursday’s budget meeting will not attract a quorum, and that the governing body will therefore not be able to make any financial commitments.

Answer:
The South African Schools Act sets no requirement for a quorum at budget meetings. However, in terms of Section 38, proper (30 days’) notice must be given and the budget must be open to public inspection 14 days prior to the budget meeting.

Question:
Sydney Primary’s governing body chair phones you for advice. He tells you that the governing body held a lekgotla during the holiday and reviewed all policies. He has been specifically tasked to investigate risks on the school grounds, and requires your assistance.

Answer:
Please see the legal opinions on risks on the FEDSAS website.

Although FEDSAS can point out certain risks, OHS is the consultancy who could help schools manage the risks on their grounds. See their advert on our website.

Question:
Sydney High’s governing body chair calls you for advice. On Thursday, a number of learners had a party at the local dam after school. The school principal was aware that the learners would be going to the dam. A video recording made at the party clearly shows the learners drinking alcohol and smoking dagga. One of the learners is the school’s deputy head girl. What should the school do?

Answer:
The key to the solution is found in the definition of a school activity in terms of Section 1 of the South African Schools Act (SASA). Even though the principal was aware of the party, he was not responsible for the learners’ actions – it clearly was not a school activity, and therefore the parents were responsible for their children. The only learner who could be liable to disciplinary action is the deputy head girl. However, this would only be possible if the code of conduct of the Representative Council of Learners (RCL) stipulates that RCL members should at all times be ambassadors for the school and the RCL (or something to that effect). Governing bodies and educators should guard against developing a ‘persecution mentality’ and assuming parents’ responsibilities. Governing bodies and educators can only act within the framework of SASA.

Question:
Sydney Primary’s governing body chair calls you for advice. The school currently has a large number of educators in its employ, and, at this stage, it seems that there will not be sufficient funds for all the additional educators. He would like to know how they should deal with the matter.

Answer:
All school employees must be informed of the financial state of affairs as soon as possible, as well as of the possibility that the number of available posts for the following year will have to be reduced. Most of our members have year contracts; therefore, it is good practice to advertise the posts for the following year after the budget meeting, so that no expectation is created that the contracts will merely be ‘extended’.

Actually, the governing body should consider, plan and budget for the creation of additional posts every year. The posts as such are linked to the budget and not the contracts. The contracts only serve as binding force between the incumbents and the school.  

If funds are insufficient, all affected staff must be informed as soon as possible. In the case of permanent staff, the process of termination due to operational reasons in terms of the Labour Relations Act will have to be followed. See the document “Appointment of additional staff” on the FEDSAS website. It is advisable to involve an expert in the retrenchment process. 

Question:
Sydney High’s school principal calls you for advice. Some of the school’s parents are very unhappy about the learner who was named head boy at Friday’s prize-giving function, and have referred their dispute to the Department. The Department wants to come and see the school principal on Thursday, and the principal now urgently needs your help.

Answer:
The point of departure is the provincial regulations on the composition and election of the governing body as well as the Representative Councils of Learners. (These vary between provinces.) The learner representative on the governing body is not necessarily the head boy/head girl.

However, the abovementioned process should not be confused with the election of so-called chief leaders – this process is managed by the school itself, and falls within the governing body’s jurisdiction. See the document “Pupils’ councils at public schools” on the FEDSAS website.

Question:
Sydney Primary’s governing body chair calls you for advice. The school principal will be retiring the following week, and an acting principal will therefore have to be appointed until the vacancy of principal is filled. The school currently has a vice-principal and two heads of department, but the chair prefers another young and dynamic man (post level 1) on the school staff. The governing body has already met and supports the proposal, but is not sure about the process that the Department will follow.

Answer:
Paragraph 1.3(iii) of the Personnel Administration Measures (PAM) provides that an educator may only be appointed to act in a post that is one post level higher than the position he/she occupies at that stage. Therefore, the only person who may act in the vacancy is the vice-principal – also see PAM, Chapter A, item 4, which states service as acting principal in the absence of the principal as one of the vice-principal’s duties. The governing body must apply for a substitute and must recommend the vice-principal, following which the Department must approve the appointment. Acting allowances will be payable only if the acting party acts for more than six weeks, for a maximum of 12 months.

The governing body should rather use their energy to find the right school principal than to quibble about the acting principal.

Question:
Aruab High just joined FEDSAS. Aruab’s governing body chair calls you for advice. The Provincial Education Department informed the school that it shall be expected to start offering an English band from Wednesday, when 24 English-speaking Grade 8 learners will start attending the school. The district office based its instruction on the Constitutional Court judgement in the Ermelo matter, clearly stating that the school still has room left for learners, and should therefore consider the community’s needs. Which steps should the school take immediately, and what is the best way for the school principal to deal with the matter on Wednesday?

Answer:
Surely Aruab High is the first of many schools who experienced this problem last week.

The immediate step for the governing body is to minute a decision on the admission of learners, and to instruct the school principal to implement it. (This is because the school principal received an instruction from his employer, the Department, and could be liable to disciplinary action if he does not give effect to the instruction. In terms of Section 20(g), however, the governing body is responsible for the management of the school grounds and buildings.) The governing body is also advised personally to take control of entry at the school gates, and to call in the South African Police Service’s assistance where needed to control those who enter the school grounds unlawfully.

The governing body could simply ask the district office to address their request to the governing body in writing, in order for the governing body to adhere to the FEDSAS language strategy (“Language in schools” – pp 23–35) and follow the necessary steps to reach an informed decision. (In this regard, please again consult the document on the Ermelo judgement in your bundle, pp 15–22.)


It is important, though, not to yield immediately to the pressure and admit learners who do not comply with the school’s admission and language policy. 

The fact that the school still has room available does not mean that it should be allocated immediately. The consultation process should still run its course.

Question:
Aruab Primary’s governing body chair calls you for advice. On Friday, the local branch of the ABN party met with him and the school principal, and insisted that the school admits 35 English-speaking children. The ABN members made it clear that they would storm the school and take over if their request is not immediately heeded. They also threatened that governing body members would not be safe. The ABN wants to have another meeting with the entire governing body this coming Tuesday, and the chair wants to know how he should deal with the matter.

Answer:
Aruab Primary is one of many schools who experience political pressure. The South African Schools Act (SASA) grants no political party any rights on school grounds. In terms of Section 20(1)(g), the governing body is responsible for controlling the school grounds. Should there be any threat of occupation or trespassing, the governing body is responsible to instruct the school principal to close the school grounds. The South African Police Service should immediately be informed of the threat, and requested to be present at the school.

Admission policy is the exclusive responsibility of the governing body, and should be amended only following proper consultation.

Although it is true that a learner has a right to education, the Department must see to it that this right is exercised. If 35 learners have not received school placements, the parents and learners must report to the district office, from where the necessary consultative process could start. In terms of Section 5(7) of SASA, an application for admission should be submitted to the Head of Department, and the governing body is entitled to determine the school’s admission policy in accordance with the provisions of SASA and other applicable provincial legislation. 

Therefore, the political leaders should also be informed of this, and confrontation on the school grounds should be avoided at all costs.

However, constructive engagement with community leaders should not be disregarded or simply dismissed. The first step in dealing with an accusation/complaint/allegation is to obtain all information in order to determine the road ahead. However, guard against rash responses or short-sighted answers.

Question:
Aruab Primary’s governing body chair calls you for advice. It seems that more than 35 farm children in the district have not been able to find a place in any of the two farm schools. Currently, Aruab Primary has 65 Afrikaans-speaking learners in the school. The school’s facilities can accommodate more than 300 learners. What is the school’s responsibility towards these learners?

Answer:
Aruab Primary’s governing body still determines the admission policy in terms of the South African Schools Act (SASA), and, in terms of Section 20(1)(g), the governing body is responsible for the governance and administration of the school grounds. 

The Department will rely on Section 29 of the Constitution, which provides that every child has a right to basic education. However, this right should be claimed from the state, and not the school, as the state has a responsibility towards the children in this regard. The state should therefore also provide the resources to accommodate the farm children.

In terms of SASA, Aruab Primary’s governing body has no statutory duty towards any of the farm children.

However, if one looks at the Constitutional Court’s judgement in the Ermelo matter, and if an application for admission does indeed follow (which naturally would be a policy matter), the governing body will have to consider all the factors (as listed in the document on the implications of the Ermelo judgement).  

The school does have a moral duty, though. It would be difficult to convince any court that the farm children are not welcome on the school grounds, while the school in actual fact has room for another 235 children. It is clear that the grounds are not optimally utilised; therefore, the argument has an ethical side to it as well.

The governing body could negotiate with the Department for additional resources that would be required to accommodate the new learners, or could explore the possibility of having two schools on one site. If these negotiations succeed, the end result must be put in writing very accurately. The governing body does not have to yield to any pressure to part with its own identity or the character of the school, but should participate in the discussion to look after the interests of all the learners in the area in order for Aruab Primary to survive and continue to exist.

FEDSAS must play a leading role in this process.

Question:
Aruab High’s school principal calls you for advice. Over the previous four years, the Department has made available a large number of study bursaries for education students, and, this year, most of these students reported for duty in the Department as required by their bursary agreements. These young educators hold university qualifications and include mathematicians, scientists and economists, but cannot find placements. Consequently, the Department addressed correspondence to all schools, informing them that the young educators will be placed at schools without any process. The school principal is not sure how to act if one of these young educators arrives at his school that week.

Answer:
The problem should be seen against the backdrop of positive action by the Department again to make available a large number of bursaries for education students of all languages and cultures. Funza Lushaka bursary students are graduating, and must report for duty in terms of their bursary agreements. If the Department cannot provide the students with posts, the students are exempted from all bursary conditions. The Department therefore experiences substantial pressure to place these students, which pressure will inevitably be transferred to schools.

Section 20(1)(i) of the South African Schools Act provides that, with due regard to the Employment of Educators Act, governing bodies may make recommendations to the Department on the appointment of educators. The Employment of Educators Act specifically deals with the first appointment of an educator, but in Subsection 6A(2)(a) provides that the governing body should be consulted on the post requirements at the school.

The latter section reads as follows:

Employment of Educators Act, Act 76 of 1998

“6A    First appointment or appointment after break in service of educator
(1) Despite section 6(3)(a), in the case of a first appointment or an appointment after one or more years’ break in service to any provincial department of education, the employer may: 
(a)    receive applications from first-time applicants or applicants returning after a break in service; 
(b)    process the applications and match applications to vacant posts; and 
(c)    make appointments to a school subject to subsection (2).

(2) The appointment contemplated in subsection (2) may only be made after the employer has: 
(a)    consulted the relevant governing body on the specific post and the requirements thereof; 
(b)    ensured that the applicant to be appointed matches the requirements of the post; and 
(c)    ensured that the applicant has prescribed qualifications.”

Therefore, it is evident that the Department must first follow a procedure before making an appointment, and that an educator may under no circumstances be appointed without due process.

During the interview, the governing body must consider the following:

1.    The operational requirements of the school (language, culture, curriculum, etc.)
2.    The post provisioning of the Department, and posts covered by the governing body

Aspects that are normally to be assessed include the following:
Language proficiency
Communication skills
Qualifications
Subject and general knowledge
Achievements
Community involvement
Leadership
Extramural involvement and activities
Experience

This is not a closed list and will have to be adapted for every school depending on the circumstances. However, it is vitally important that the governing body provides the Department with a well-motivated recommendation in light of the court judgement in the matter Federasie van Beheerliggame van Suid-Afrikaanse Skole: Vrystaat en Ander v. Departementshoof : Departement van Onderwys Vrystaat (2064/2004) [2004] ZAFSHC 39 (20 May 2004). 

In the above case, Judge Kruger remarked as follows:

“[31] An appointment at a school occurs after the Provincial Education Department has obtained the relevant governing body’s opinion on the particular post and its requirements. Thereafter, the Education Department itself must ensure that the applicant who is to be appointed meets the requirements of the post and holds the necessary qualifications. In terms of Section 6A, the governing body’s function is restricted to only airing its view on the particular post and its requirements. The Education Department is not bound by it. Therefore, the governing body serves as an advisor or consultant.

[32] One remark seems fitting, namely the following: The Provincial Education Department carries a heavy responsibility with the appointment of educators in terms of Section 6A. They alone will have to account for the fact that the appointed candidate does meet the requirements of the post and holds the necessary qualifications.”        
                                                                                 (Judgement delivered in Afrikaans)

The governing body must instruct the school principal not to accept any educator before the governing body has made a recommendation on the person. Should a student report for duty because the Department has placed him/her without following the correct procedure, the FEDSAS correspondence for redundant educators could be used.

Question:
Aruab High’s school principal calls you for advice. A large group of parents are unhappy with certain decisions made by the governing body, and have signed a petition requesting the governing body to resign immediately so that all members can be replaced. The parents also request the use of the school hall for a parent meeting, which they will convene themselves.

Answer:
The school governing body is the lawfully elected body with the legal capacity to make decisions (see Section 16 of the South African Schools Act). These decisions must be made responsibly and rationally. (Also see the website for the Ethics SA document on decision making.)

It is good practice to give the school community regular feedback on any governing body decisions, as well as to create mechanisms through which members of the school community could request reasons for decisions or lodge complaints.

No parent or parent group could however relieve the governing body of its duties. Only in certain (and highly exceptional) cases could the Head of Education take drastic measures in terms of Section 18A, 22 and 25, and relieve individuals of their duties or disband the governing body as a whole. Due process must however be followed, and there must be conclusive evidence that the governing body did not fulfil its duties or has ceased functioning altogether.

The governing body must request the aggrieved parents to put their grievances in writing in order for the governing body to launch a proper investigation or to draft a reply. The governing body could also consider meeting with a parent delegation in a smaller set-up to try and resolve the dispute. (FEDSAS could act as facilitator in this regard.)  

It is not recommended that school facilities be made available for pressure group meetings. The governing body should control the process, and should never allow the centre of power to shift.  

If the governing body has followed the process above and is ready with their replies to the parents’ questions, it could consider convening a parent meeting in order to give feedback. However, the governing body should preside over such meeting.

Question:
The governing body chair of Aruab Primary wants to know the following from you: May their school’s admission policy be amended to deny admission to learners who come from other schools and whose parents are known as school fee defaulters? The governing body is already taking into account children’s disciplinary records when considering applications.

Answer:
It would be very difficult to amend the admission policy, as such a provision would almost constitute a ‘penal sanction’ against the learner.

The South African Schools Act (SASA) provides that the governing body of a school is responsible to determine the school’s admission policy, subject to SASA and provincial legislation [Section 5(5)]. In the matter The MEC of Education v. Queenstown Girls High School, it was mentioned that admission policy is subject to a number of important restrictions. Firstly, such policy must be in line with the Constitution. This means that the policy may not in any way discriminate unfairly against anyone (Paragraph 28). Section 29(1)(a) and 2 of the Constitution further provide that everyone has the right to basic education as well as to receive education in public education institutions in the official language of his/her choice.  

Furthermore, the policy must comply with the provisions of SASA. Section 5(3) of the Act provides that no child may be denied admission to a school on the grounds that his/her parents are unable, or simply refuse, to pay school fees. Therefore, school policy may not refuse a child admission because parents do not want to pay school fees. 

If the parents are unable to pay school fees, they could apply for exemption, as provided by the Education Department’s regulations for exemption from the payment of school fees. Section 41(7) furthermore provides that no learner may be deprived of his/her right to participate in any activities of the school, despite his/her parents’ non-payment of school fees.    

The only way to deal with the matter is to control learner admission in such a way that learners who want to bypass another school to come to yours, are first waitlisted and only granted admission after you have ensured that your closest learners have been accommodated. Therefore, you only admit them if there still is space available (and hope that those learners whose parents fulfil their responsibilities fill up the school). The right to education is a right against the state, and not against a particular school. Your school’s admission policy may indeed provide for a geographic feeder area. Therefore, you may exclude learners who bypass other schools, or, stated more positively, give preference to learners who live closer to the school. (Of course, this could be a problem if your school is not entirely full.)

The governing body must institute a process to collect school fees, and have such process managed, and must take the necessary legal action against defaulters. Section 41 of SASA provides that the school could enforce the payment of school fees by way of legal action. They are therefore forced to admit the learner, but do have options available to enforce the payment of school fees if the parents default without good reason.

A learner’s disciplinary record could indeed be taken into account when admission is considered. In this regard, see the FEDSAS draft admission policy as well as the two court cases of Queenstown Girls’ High on our website.

Question:
Aruab High’s governing body chair phones you and sounds very worried. For some time now, the area has been suffering from a shortage of schools. Although their school is already crammed with Afrikaans-speaking learners, they experience immense pressure also to admit English-speaking learners. Every time the governing body has turned the Department away, as there literally are no vacant classrooms. On Friday, the Department informed the school principal that, on Thursday, the Department will erect six prefabricated classrooms, which could then be used for the neighbouring overcrowded English-speaking school’s learner overflow. The governing body is a FEDSAS member and knows its rights with regard to language and admission policy, but requires advice on the new prefabricated classrooms.

Answer:
Of course, bar a few exceptions, the grounds and buildings on and in which the school is situated belong to the state. However, in terms of Section 13 of the South African Schools Act (SASA), the school (as a juristic person) has the right to occupy and utilise those grounds and buildings.

Section 13 provides as follows:

“(2) Subject to section 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.”

The two rights created by the two words in bold above are the right of possession and the right of use. In South African law, both these rights are called real rights, as they pertain to physical, tangible matters. Bar certain exceptions, real rights are in a certain sense ‘absolute’ rights, i.e. rights that you enjoy and exercise to the exclusion of others. For example, unless you agree otherwise, you are the sole owner of land or an object, and no one may infringe upon that right. 

The rights of possession and use entrenched in SASA are such exclusive rights. Other people (even the owner, i.e. the Education Department) are excluded from having and using the property.  

This should be read with Section 20(1)(g) of SASA, which reads 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 …”

(The last part of this section, “but the exercise of this power must not … interfere with or otherwise hamper”, was added in 2007. Currently, there is no right or policy that empowers the Member of the Executive Council or Head of Department to take a decision as contemplated in this section.)

If one understands the legislation’s implications correctly, this means that no person, not even a departmental official, has the right to enter or in any way use the school grounds without the governing body’s permission. 

The Department could therefore only erect the temporary classrooms at the school if the governing body has been consulted and has agreed to it. The minimum requirements for physical facilities, such as ablution facilities and safety, must also be adhered to, and sufficient additional teachers and textbooks must be made available to the school, before a governing body could consider approving such a step.

School principals should not drive this process, as that would expose them to various pressures from their employer. The governing body must display strong leadership in this regard, and must take the lead in these discussions. The governing body must instruct the school principal not to accept any delivery of any structure, or allow any delivery vehicle onto the school grounds. If the delivery man enters the school grounds, the school should contact the South African Police Service to remove him.

Let this serve as a warning to us all. We have evidence of FEDSAS members who had been dragged into these processes with all kinds of coaxing, only to come off second best. The Department has a problem. They cannot deal with the problem, and the easiest way out is to shift the problem onto a well-functioning governing body or school. The moment they have disposed of the problem (by passing it on to you), they simply move on in the blissful knowledge that you are competent enough eventually to solve the problem – you will not burn tyres, obstruct roads, burn down buildings and throw stones. You will submissively deal with the problem.

The Western Cape Education Department, for example, is currently driving an official programme to make space at successful schools in order for them to admit additional learners. Through erecting additional classrooms they want to make space for an additional 400 000 learners at these schools. This is not necessarily a problem for single-medium schools, who are able to admit more learners. However, it is a huge problem for parallel or double-medium Afrikaans/English schools, where the increase will be an increase in English-speaking learners only, putting pressure on Afrikaans as medium of instruction.   

In brief: These six classrooms should rather be delivered to the English-speaking school after consultation with their governing body.

Question:
Aruab High recently joined FEDSAS. Aruab’s governing body chair phones you for advice. The provincial education department has informed the school that it (the school) will be offering an English band from Wednesday, and that 24 English-speaking Grade 8 learners will arrive for education. The district office referred to the Constitutional Court’s judgement in the Ermelo matter, and made it clear that the school still has room left for learners and that the needs of the community must therefore be taken into account.

Answer:
Aruab High certainly was the first of many schools who encountered this problem last week.
The governing body’s immediate step should be to minute a resolution on learner admission, and to instruct the school principal to implement it. (The reason for this is that the school principal received an instruction from his employer, the Department, and could face disciplinary charges if he fails to act on it. However, in terms of section 20(g), the governing body is responsible for controlling the school grounds and buildings.) Also, it is advisable for the governing body themselves to take control at the gates when the school year starts. If needed, the South African Police Service must be called in to contain trespassers.
The governing body can merely ask the district office to put their request to the governing body in writing, so as to enable the governing body to follow the FEDSAS language strategy (“Language in schools” – pp 23–35) and go through the required steps to take an informed decision. However, it remains important not to buckle under the first pressure and admit learners who do not comply with the school’s admission and language policy. 
The fact that the school has space available does not mean that those places need to be allocated immediately. The consultation process must still run its course.
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