Education is not only pivotal to economic prosperity in South Africa, but it also plays a crucial role in enabling the country to improve the quality of life of the people of South Africa, particularly those who were ostracised from the country’s economic, political and social life by the long years of apartheid.

The South African Laws Amendment Bill [B23 – 2005], which was introduced by the Minister of Education, the Honourable Naledi Pandor (MP), in the National Assembly as a section 76 Bill, is intended to strengthen existing education legislation in South Africa in order to ensure that learners receive their constitutionally entitled right to education. The Bill amends the South African Schools Act (Act 84 of 1996) and the Employment of Educators Act (Act 76 of 1998).

This paper provides an overview of the Bill. It looks at the implication of the proposed amendments of the Bill in strengthening existing education legislation in South Africa.

Although, section 9 of the South African Schools Act provides for the disciplining of learners in public schools, it does not provide a time frame within which the Head of Department must make a decision whether to expel a learner on the recommendation of a School Governing Body. As a result in some cases the Head of Department takes too long to make a decision whether to expel a learner or not, resulting in the prejudice and denial of learners of their right to education.

Therefore, the proposed South African Laws Amendment Bill amends section 9 of the South African Schools Act in order to provide a time limit for a decision on whether to expel a learner or not. This will ensure a clear and fair process for the disciplining of learners in public schools.

In some public schools, if a learner has appealed against the decision of the Head of Department to expel him or her, that learner is not allowed to attend classes pending a decision by the responsible Member of the Executive Council. In terms of the Bill, a learner who has appealed against expulsion from a public school must, pending the outcome of the appeal, be given access to education in the manner determined by the Head of Department.

Although, the Bill provides amendments to ensure a more credible and fair process for the disciplining of learners in public schools, the Act, as it still stands, it still caters for learners who have parents to appeal against a decision to expel them. In South Africa there is a growing number of child-headed households, where siblings who have lost both their parents and do not have any adult to act as a parent, look after each other.

The migration of parents to the urban areas, who later die of diseases such as HIV and AIDS has dilapidated the kinship system. Learners who have lost their parents are forced to fend for themselves and their siblings. Many of these learners do not have any adult supervision. Therefore, the amendment of the South African Schools Act has provided an opportunity to ensure that learners who do not have parents, especially those from child-headed households be provided with an opportunity to ask someone to represent them during the appeal process.

It is, therefore, proposed that the Committee considers amending this section as follows:

or

(c) A learner or caregiver of a leaner who has been expelled…

The Bill amends section 35 of the South African Schools Act in order to ensure that the norms and standards for funding determined by the Minister in consultation with the Council of Education Ministers, the Financial and Fiscal Commission and the Minister of Finance, provide a criteria that a Member of the Executive Council must apply when he or she drafts a list of schools falling within each of the national quintiles.

The norms and standards must also provide for the following:

• A system in terms of which learners at all public schools can be placed into quintiles according to their financial means.

• A system in terms of which all public schools can be placed into quintiles according to the distribution of their learners.
• Determine the procedure in terms of which a Member of the Executive Council must apply the criteria for the distribution of state funding to all public schools in a fair and equitable manner.

School fees are traditionally charged for learners to attend school in South Africa. The amount payable by a learner is set at an annual public meeting of the Governing Body of a public school where parents vote on the amount to be paid by the learners as their schools fee. Parents who cannot afford to pay, or who can only afford a lesser amount, are supposed to be granted an exemption or reduction in the amount they must pay.

However, there have been concerns of the exorbitant cost of education for parents. As result, the government adopted a Plan of Action to ensure the improvement of access to free and quality education for all. The Plan intended, among other things, to ensure the abolition of compulsory school fees for 40% of learners in the poorest schools by granting of automatic fee exemptions to learners who qualify for certain social service grants and payments.

Despite attempts by government to exempt poor learners from paying fees, there were concerns that the policy was applied arbitrary by schools and often degrading to parents. In many instances poor parents who did not afford to pay for the school fees of their children were not applying for exemption and those who applied were subjected to a long process that discouraged parents from applying for exemption. With the lack of a clear policy on the charging of school fees, some schools where learner could not pay their school fees were suspended from attending classes, participating in cultural and sporting school activities or have their school reports or transfers withheld.

The Bill intends strengthening the existing law by prohibiting public schools from charging any registration, administration or other fee, except school fees as defined by the Act. It also prohibits public school from charging any learner school fees based on curriculum or extramural curriculum within the same grade.

The Bill also amends section 41 of the South African Schools Act to provide for a process of which a Governing Body of a public school must follow when choosing to enforce the payment of school fees by parents who are liable to pay in terms of the Act. It prohibits schools from attaching the dwelling in which a parent of a learner who failed to pay school fees resides. It also prohibits public schools from victimising and depriving a learner his or her right to participate in all aspects of the programme of a public school despite the non-payment of school fees by his or her parent. This includes, but not limited, to:

• Suspension from classes.
• Verbal or non-verbal abuse.
• Denial access to cultural, sporting or social activities of the school or the nutrition programme of the school for those learners who qualify for such a programme.
• Denial of a school report or transfer certificate.

South Africa faces a large dilemma pertaining to property and property rights, particularly in terms of state property. During apartheid in the country, there was a large proliferation of government departments, institutions, territories and systems with a lack of a proper accounting and inventory control system. Up until as late as 2000, the Department of Education in particularly had no system for accounting for all the properties that belong to public schools and the various provincial Departments of Education.

In order to protect state property in schools, the Bill adds a new section to prohibit any person to attach or dispose of any assets owned by a public school to another person or body without a written approval of the Member of the Executive Council. However, the Member of the Executive Council may determine that certain categories of assets below a certain value be alienated without his or her written approval. He or she must determine and publish the value of such assets by notice in the Provincial Gazette.

Currently, section 6(3) of the Employment of Educators Act provides that if the Head of Department declines a recommendation of a Governing Body of a public school or the Council of the Further Education and Training (FET) for any appointment, promotion or transfer to any post on the educator establishment of a public school or Further Education and Training institution, he or she has to refer the whole mater back to the Governing Body and the whole process starts afresh.

In order to address this situation, the Bill seeks to insert a new provision, which provides that if the Head of Department declines a recommendation of a governing body or council, he or she may consider all applications for that post and appoint a suitable candidate temporarily or re-advertise the post.

If the governing body or council is not satisfied with the temporary appointment of an educator by the Head of Department, it may appeal to the Member of the Executive Council. The appointment of the will remain temporary until the appeal is finalised. If the appeal is upheld, the process of appointment will start from the beginning. If the appeal is dismissed or not lodged within 14 days from receiving the notice of appointment, the Head of Department may appoint the educator permanently.

The Bill demonstrates the commitment made by the country, particularly the Department of Education to ensure the protection of learners in order to ensure that they receive their constitutionally entitled right to education. It strengthens the existing education legislation to close all possible loopholes that may be used to prevent a learner from accessing education in South African public schools.