1. SADTU agrees with the content of this proposed amendment. The union welcomes the clarification of this matter and the fact that it recognises the importance of the reception year. It is critical that the amendment goes hand in hand with the provision of resources to make Grade R a reality for all learners and not a privilege for a few.

It may merely be a numbering problem, but there does not seem to be a section 5(4)(b).

SADTU supports this proposed amendment.

See paragraph 10 below.

SADTU welcomes the prohibition of humiliating and harmful initiation practices. SADTU therefore supports this proposed amendment.

SADTU supports this proposed amendment and welcomes this initiative. The code of conduct should be drawn up in consultation with all stakeholders.

SADTU supports this proposed amendment.

SADTU supports this proposed amendment.

1. SADTU supports the proposed insertion of section 6A. It believes that this amendment will –
1. promote a fairer distribution of teachers between schools and communities, particularly in favour of poor rural and working class schools;
2. promote a fairer distribution of skills that are in short supply, for example, maths and science teachers;
3. promote the racial desegregation of teaching staff;
4. ensure that first time applicants are not disadvantaged by applicants who have previously accepted a severance package.
2. SADTU believes that the process of appointing first time appointees or appointees who have had a break in service must be discussed at the ELRC and a collective agreement regulating the procedures for their appointment should be agreed upon.
3. Other amendments to section 6 of the EEA
1. SADTU believes that other amendments to section 6 are necessary. Both SASA and the EEA provide that the school governing body ("SGB") must recommend the appointment, promotion or transfer of an educator to a post before such an appointment, promotion or transfer can be made. (See section 6(3)(a) of the EEA and section 20(1)(i) of SASA.) In making their recommendation and in appointing educators to posts the SGB and employer must act in accordance with such procedure and such requirements as the Minister may determine. His powers in this regard are subject to, amongst other things, agreements concluded in the Education Labour Relations Council ("ELRC"). (See section 6(2) of the EEA.)
2. Collective agreements have been concluded at the ELRC and provincial chambers of the ELRC that regulate the procedures for appointment. These procedures are detailed and are designed to ensure that there is a fair and transparent process. These procedures envisage the establishment of an interviewing committee comprising SGB members. The interviewing committee conducts the interviews and proposes to the SGB whom it should recommend to the Department. The procedures to be followed by the interviewing committee are rigorous and detailed.
3. The problem arises when the SGB disregards the recommendations of the interviewing committee and in disregard of the procedures for selecting candidates recommends someone else. In such a case the very purpose of the collective agreement and the procedures that the interviewing committee must follow are undermined.
4. Although SADTU maintains that this kind of action by a SGB is not legal as the SGB is obliged to ratify the recommendations of the interviewing committee, it does recognise that there is substantial debate about this matter. It also believes that if the law were more explicit about this issue it would prevent unnecessary practices and disputes.
5. SADTU therefore recommends that section 6 of the EEA be amended so that it is made clear that if an interviewing committee is set up to perform the functions of interviewing candidates then the SGB may only deviate from the interviewing committee’s recommendations if that committee has committed a gross irregularity.
6. SADTU will submit to the Department is due course a proposed amendment to section 6 that gives effect to this submission.

SADTU does not oppose this amendment.

1. SADTU supports the notion that minors should be protected as witnesses in a disciplinary hearing from undue pressure and that they should be provided with a secure environment in which to give their testimony.
2. However, SADTU is extremely concerned that this amendment will compromise the rights of the accused, especially the right to cross-examine. This fear is all the more pronounced if one considers that the burden of proof in a disciplinary hearing is the civil standard of "on a balance of probabilities" as opposed to the criminal standard of "beyond reasonable doubt".
3. There are other concerns relating to this issue. The first relates to the nature of the body that administers the process. It is the presiding officer in the case of a disciplinary hearing for an educator and the SGB in the case of a hearing for a learner. Many of these persons or bodies will be capable of doing a good job, others not as they a not suitably qualified, legally trained and, in the case of SGB’s, many are rife with conflicts. It must be noted that in the Criminal Procedure Act it is a legally trained person in the form of a magistrate or judge that administers the process. SADTU is not confident that many presiding officers at disciplinary hearings or SGB’s will have the experience and know-how to administer the process involving an intermediary.
4. Secondly, there is no process for determining who will be a capable intermediary. In the Criminal Procedure Act the Minister of Justice determines the person or category or class of persons who are competent to be appointed as intermediaries. There is no similar provision in these proposals and therefore theoretically anyone could be appointed an intermediary. Such a position is a difficult one and cannot be left up to anyone. It is important to note that the Minister of Justice has limited the categories of persons to the following: medial practitioners who have specialities in psychiatry and paediatrics, family councillors registered as social workers or educational or counselling psychologists, qualified child care workers, social workers, educators with more than four years experience and psychologists.
5. Thirdly, the presiding officer in the case of disciplinary hearings involving educators and the SGB in the case of disciplinary hearings involving learners are able to cross-examine. While there is a similar provision in the Criminal Procedure Act, this function is performed by a judge or magistrate, and not, as is often the case in this context, by lay people who are frequently less clear about the need for due process. This is very worrying, especially in the case of SGB’s.
6. Fourthly, no acknowledgement in the proposals seems to have been accorded to the extensive guidelines adopted by the criminal courts in relation to the appointment of intermediaries. (See S v Stefaans 1999 (1) SACR 182 (C).) These guidelines depict the complexities of implementing these procedures, including the determination of the factual question of whether a person would suffer mental stress or suffering if he or she testified at the proceedings. These complexities serve as a warning not to provide for procedures where the persons implementing and administering the procedure are not experienced and legally trained.
7. On the basis of the above, its practicality and the serious invasion of the accused’s rights, SADTU opposes this amendment and the similar amendment to SASA.

1. SADTU proposes that two further amendments to the EEA be proposed to the Legislature.
2. Section 3 of the EEA
1. The first is to section 3 of the EEA. This section determines who the employer of educators is. It makes it clear that the identity of the educator’s employer depends on where the educator is employed (i.e. the national as opposed to the provincial departments of education) and the nature of the issue (for example, the determination of terms and conditions of employment or the creation of posts).
2. This is confusing as it gives the impression that there is a multiplicity of employers, when in fact there is only one employer, namely the State. The so-called employers are in fact the State’s functionaries i.e. they perform functions and duties on behalf of the State as employer. Therefore section 3 should be amended to state explicitly that the employer is the State. It should then identify the functionaries that perform the employer’s functions.
3. Section 14 of the EEA
1. The second is to section 14 of the EEA. In this section certain categories of educators including the educator who has been absent from work for more than 14 days, is deemed to have been dismissed for misconduct. Several courts, including the old Appellate Division and the new Labour Court, as well as several arbitrators appointed in terms of the ELRC dispute resolution procedures have held that this means that the termination of their services is by operation of law and does not constitute a dismissal. Consequently it has been held that the ELRC does not have the jurisdiction to hear a dispute relating to the termination of an educator’s services in terms of section 14. Such an educator is therefore forced to approach the High Court. SADTU believes that these arbitrations and cases have been wrongly decided.
2. However, the effect of these awards and judgements is that it is extremely expensive for the educator and his or her union to resolve the dispute. Likewise it is also very expensive for the employer. This is because generally parties need to use lawyers (including advocates) to litigate in the High Court. Forcing parties to resolve such disputes in the High Court will also lengthen the proceedings.
3. Moreover, from a policy point of view there is no need to approach the High Court because such cases do not usually involve complex issues of legal interpretation, but only the determination of factual disputes, which people that are not legally trained can do quite easily. Requiring educators to approach the High Court also undermines the policy approach to concentrate the determination of labour disputes in specialist tribunals such as the CCMA, bargaining councils and the Labour Court.
4. Therefore SADTU recommends that in order to ensure that such disputes are resolved within the auspices of the ELRC and to prevent technical arguments about such matters, this section should be amended to make it clear that the termination of an educator’s services is not by operation of law and constitutes a dismissal in terms of the Labour Relations Act, Act No. 66 of 1995, as amended.

SADTU supports these amendments.

1. the automatic substitution of the new employer for the old employer;
2. the transfer of rights and obligations from the old to the new employer;
3. the responsibility of the new employer for the actions of the old employer, which includes the dismissal of employees and the commission of unfair labour practices;
4. the uninterrupted nature of an employee’s continuity of service;
5. the transfer of employees to new retirement funds;
6. the binding nature of the arbitration awards and collective agreements obtained or concluded before the transfer on the new employer; and
7. guarantees for severance benefits if the employee is retrenched within 12 months of the transfer.