23 August 2005

The FAK responds as follows to the Minister of Education’s request for comment on the Education Laws Amendment Bill in the Government Gazette no. 27599 of 27 May 2005.

1. Fundamental argument

1.1 In accordance with the letter and sprit of the South African Constitution, two apparently exclusive principles are acknowledged, namely the principle of general accessibility and the principle of the right to mother-tongue education. Over the past few years the essential balance between these two principles in South African education has been placed under serious strain. The FAK believes that such strain is unconstitutional and that any amendment to the education laws should be conducted in the spirit of a search for a balance between these two principles.

In the FAK’s opinion the one-sided emphasis on the principle of accessibility to education is not in the interests of democracy and that it strengthens the undemocratic desire for centralisation.

1.2 Historically nation-states have constantly been tempted to skew the balance between these two principles. From their earliest origins in the beginning of the modern world nation-states have had the tendency to subject the majority of communities within their borders to the uniform workings of their own bureaucratic rationality. Smaller language communities were often the victims of this. In responding to centralistic tendencies in nation-states, it is of cardinal importance to bear in mind the balance between the general and the particular and – with regard to education – a balance between the principle of general accessibility and the right to an own special protection of language.

2. The Education Act Amendment Bill

2.1 The FAK is convinced that on certain cardinal points the Amendment Bill threatens the balance of the above principles and therefore shows signs of undemocratic tendencies.

2.2 There would appear to be great cause for concern about the extent to which the proposed amendments curtail the powers of governing bodies. The most important curtailment concerns the appointment of educators. In terms of the Amendment Bill (as reflected in the amendment of section 6 of Act 76 of 1988, as amended by section 15 of Act 48 of 1999 and section 7 of Act 53 of 2002), the powers of governing bodies in the appointment of educators have been seriously curtailed. This curtailment means that the authority vested in schools in the particular communities has been taken out of their hands and placed in the hands of the central authority.

3. Conclusion

Understanding has to be shown for the fact that the curtailment of the powers of governing bodies may be necessary in certain circumstances and for functional reasons. Bureaucratic intervention may, for example, be necessary where the infrastructure of the school has collapsed.

Directors: Prof DP Goosen (chairperson), Mr RD Henwood (vice chairperson), Prof F Bredenkamp, Prof P Duvenage, Adv CAC Korf, Mr PF Potgieter, Dr D Prinsloo, Dr CH Stander, Mr W van Ryneveld, Mr HC de Wet (Managing Director).

Direct correspondence to: The Managing Director

Because of the dangers inherent in centralisation, such interventions should, however, always in turn be subject to fundamental considerations. According to the FAK, it is dangerous to use crises as an excuse to entrench bureaucratic interventions in legislation, because centralistic tendencies in nation-states are in this way legitimated. In other words, exceptional circumstances often supply the rationale for the so-called ‘normalisation’ of the entire institutional structure. What this does is to further erode the principle that a balance should be sought between the above-mentioned principles.

Instead of subjecting all schools in all communities to a paralysing process of disempowerment, the Minister should rather put mechanisms in place according to which ‘sound judgement’ can be applied. Governing bodies should only be subjected to curtailment of powers in the appointment of teachers where it is found by ‘sound judgement’ to be absolutely necessary.

The guideline for taking action that should be applied throughout, however, should still be the idea of balance. Unless this is conscientiously defended, one of the cornerstones of the modern democratic tradition will be eroded.