South African Schools Act

15 November 1996 It is hereby notified that the President bas assented to the following Act which is hereby published for general infor mation:- No. 84 of 1996: South African Schools Act, 1996. Hierby word bekend gemaak dat die President sy goed keuring geheg het aan die onderstaande Wet wat hierby ter algemene inligting gepubliseer word:- No. 84 van 1996: Suid-Afrikaanse Skolewet, 1996. 2 No. 17579 Ad No. 84, 1996 GOVERNMENT GAZETTE, 15 NOVEMBER 1996 f SOUTH AfRICAN SCHOOLS ACT, 1996 GENERAL EXPLANATORY NOTE: [ Words in bold type in square brackets indicate omissions from existing enacnnents. Words underlined with a solid line indicate insenions in existing enacnnents. ACT To provide for a uniform system for the organisation, governance and funding of scllools; to amend and repeal certain laws relating to schools; and to provide for matters connected therewith. PREA!\-1BLE WHEREAS the achievement of democracy in South Africa has consigned to history the past system of education which was based on racial inequality and segregation; and WHEREAS this country requires a new national system for schooLs which will redress past injustices in educational provision, provide an education of progressively high quality for all learners and in so doing lay a strong foundation for the development of all our people's talents and capabilities, advance the democraric transfonnation of society, combat racism and sexism and all other fonns of unfair cliscrimination and intolerance, contribute to the eraclication of poveny and the economic well-being of society, protect and advance our eli verse cultures and languages, uphold the rights of all learners, parents and educators, and promote their acceptance of responsibility for the organisation, governance and fuocling of schools in partnership with the State; and WHEREAS it is necessary to set uniform norms and standards for the education of learners at schools and the organisation, governance and funding of schools throughout lhe Republic of South Africa; (English text signed by the President.) (Assenred to 6 November 1996.) BE IT THEREFORE ENACfED by the Parliament of the Republic of South Africa, as follows:- CHAPTER 1 DEFINITIONS AND APPLICATION OF ACT Dcftnidons 5

1. In this Act, unless the context indicates otherwise- 4 No. 17579 Act No. 84, 1996 GOVERNMENTGAZElTE, 15 NOVEMBER 1996 SOUTH AFRICAN SCHOOLS'ACf, 1996 (i) "Constitution" means the Constitution of the'Republic of South Africa, 1993 (Act No. 200 of 1993); (ii) "Council of Education Ministers" means 'the Council of Education Ministers established by the National Education Policy Act, 1996 (Act No. 27 of 1996); (xix) · (iii) "education department'' means the department establish~ by section 7(2) of the Public Service Act, 1994 (Proclamation No. 103 of 1994), which is responsible for education in a province; (xi) (iv) "educa1or'' means an educator as defined in the Educators Employment Act, 1994 (Proclamation No. 138 of 1994); (xiii) (v) "governing body" means a governing body contemplated in section 16(1 ); (ii) "grade" means that part of an educational programme which a learner may complete in one school year, or any other education programme which the Member of the Executive Council may deem to be equivalent thereto; (iv) "Head of Department" means the head of an education department; (iii) "independe11t school" means a school registered or deemed to be registered in terms of section 46; (x) "learner" means any person receiving education or obliged : to receive education in terms of thls Act; (vii) "member of staff" means a person employed at a school; (xiv) "Member of the Executive Council" means the Member of the Executive Council of a province who is responsible for education in that province; (vili) "Minister" means the Minister of Education; (ix) .,. 5 10 IS 20 (vi) (vii) (viii) (ix) (x) (xi) (xiv) (xii) (xili) "ojJicer" means an employee of an education department appointed in terms 25 of the Educators Employment Act 1994 (Proclamation No. 138 of 1994). or the Public Service Act, 1994 (Proclamation No. 103 of 1994); (i) "parent" means- ( a) (b) (c) the parent of'guardian of a lea mer; · the person legally entitled to custody of a Ieamer; or the person who undertakes to fulfil the obligations of a person referred to in paragraphs (a) and (b) towards the learner's education at school; (xiv) "principal" means an educator appointed or acting as the head of a school; (xvi) (xv) •• 30 I ' (xvi) "province" means a province established by section 124 of the Constitution; 35 ·, (xviii) "provincial legislature" means a provincial legislature contemplated in section 125 of the Constitution; (xvii) · · • "public school" means a school contemplated in Chapter 3; (xii) "school" means a' public school or an independent school which enrols 40 leamers·in one or more1grades between grade zero and grade twelve; (xx) "this Act" means this Act and all regulations promulgated under this ACt. (vi) · (xvii) (xviii) (xix) (xx) Application of Act 2. (l) This Act applies to school education in the Republic of South Africa. (2) A Member of the Executive Council and a Head of Department must exercise any 45 power conferred upon them by or under this Act, after taking full account of the applicable policy determined in terms of the National Education Policy Act, 1996 (Act No. 27 of 1996). (3) Nothing in this Act prevents a provincia/legislature from enacting legislation for school education in a province in accordance with the Constitution. 50 CHAPTER2 LEARNERS Compulsory att~ndance 3. (1) Subject to this Act and any applicable provincial law, every parent must cause .,• -· ,· 6 No. 17579 A~t 'o. 84, 1996 GOVERNMENTGAZE1TE. IS NOVEMBER 1996 SOUTH AFRICAN SCHOOLS ACf 1996 every leamu for whom be or she is responsible to attend a school from lhe first school day of the year in which such Ieamer re.ache the age of seven years until the last school day of the year in which such komer reaches the age of fifteen years or the ninth gradtt, wbicbeveT occurs first (2) The Muustu must, by notice in the Government Gnzene. detemune the ages of 5 compulsory attendance at school for leamus with specutl education needs. (3) Every Member of the Executive Council must ensure that there are enough school places so that e\ery child who lives m his or her provinct can onend school as required by subsections (I) and (2). ( 4) If a Member of the Executive Counctl cannot comply with subsection (3) because 10 of a lack of capacity existing at the date of commencement of this AcL, he or she must take steps to remedy any such lack of capacity as soon a possible and must make an annual report to the Minister on the progress achieved in doing so. (5) lf a learner ~ho is subject to compulsory attenduncc in terms of subsection (1) is not enrolled at or fails to attend a school, the Head of Department may- (a) (b) (c) investigate the circumstances of the learner's absence from school; take appropriate measures to remedy the situation; and falling such a remedy, issue a written notice to the parent of the Ieamer requaring compliance with sub ection (I). (6) Subject to this Act and any other applicable law- 15 20 (a) any parent who. without just cause and after n written notice from the Httad of Depanment. fails to comply with sub ection (I). is guilty of an offence and liable on conviction to a fine or to imprisonment foro period not exceeding six months; or {b) any other person who, without just cau e, prevents a Ieamer who is subject to 25 compulsory attendance from aueodiog a school. i gualty of an offence and liable on convtction to a fine or to imprisonment for a penod ncx exceeding six months Exemption from compulsory attendance 4. ( 1) A Head of Department may exempt a lttamu entirely. partially or conditionally 30 from compulsory school attendance if 1t is in the best intere ts of the Ieamer. (2) Every Head of Department must maintain a regaster of all learners exempted from compulsory school attendance. Admission to public schools S. (I) A public school must admit learners and serve their educational requirements 35 wathout unfairly discriminating in any way · (2) The govttming body of a public school may not adminio;ter any test related to the adrrussion of a Ieamer to a public school, or direct or authorise the principal of the school or any other person to administer such test. (3) No Leamer may be refused admi sion to a public school on the grounds that his or 40 her pareru- (a) is unable to pay or has not paid the school fee.'i detenruned by the govttming bod)· under section 39; (b) does not subscribe to the mi {c) has refused to enter into a contract 10 terms of wtuch the parent waJves any 45 ion statement of the Jcltool; or claim for damages arising out of the educauon of the Ieamer. ( 4) The Minister may by notice in the Government Gazette, after consuhauon with the Council of Education Ministers, determine age reqwrements for the admission of learners to a school or different grades at a school. (5) Subject to this Act and any applicable provmctal law, the admission policy of a 50 public school is determined by the govemrng body of such rclrool. (6) ln determining the placement of a Ieamer with special education needs, the Head of Department and principal must take into account the rights and wishes of the parents of such Ieamer. 8 No. 17579 Act No. 84, 1996 CiOVERNMENTGAZElTE, IS NOVEMBER 1996 SOUTH AFRICAN SCHOOl.S ACT, 1996 (7) Ao application for rhe admission of a l~amu to a public school must be made to lhe ~ducarion dtpartmolt in a manner determined by !he Head of Deparrmen1. (8) If an application in terms of subsection (7) is refused, !he Head of Dtparrment must inform the pa"n1 in writing of such refusal and lhe reason therefor. (9) Any Ieamer or parent of a Ieamer who bas been refused admission to a public 5 school may appeal against the decision to the Member of tltt Executive Council. Language policy or public schools 6. (1) Subject to the Constitution and this Act, the Mimster may. by notice in the Government Gazette, after consultation with the Council of Education Ministers, determine norms and standards for language policy in public schools. (2) The governing body of a public school may determine the Language policy of the school subject to the Constitution, this Act and any applicable provincial law. (3) No form of racial discrimination may be practised in implementing policy 10 detennined under this section. (4) A recognised Sign Language has the status of an official language for purposes of 15 learning at a public school. Freedom of conscience and religion at publk schools

7. Subject to the Constitution and any applicable provincial law, religious observances may be conducted at a public scl1ool under rules issued by lhe governing body if such observances are conducted on an equitable basis and attendance at them by 20 learners and ~mbers of staff IS free and voluntary. Code or conduct 8. (J) Subject to any applicable provincial law, 11 govemmg body of a public school must adopt a code of conduct for the learners after consuhatJon wilh !he learners, parents and educators of the school. 25 (2) A code of conduct referred to in subsection ( I) must be auned at estabhshing a disciplined and purposeful school environment, dedicated to the improvement and maintenance of lhe quality of the learning process. (3) The Minister may, after consultation with lhe Council of Education Ministers, determine guidelines for the considerarlon of governing bodies in adopting a code of 30 conduct for leamers. (4) Nothing contained in this Act exempts a Ieamer from lhe obligation to comply with the code of conduct of the school attended by such Ieamer. (5) A code of conduct must contain provisions of due process safeguarding the mterests of the Ieamer and any other party mvolved in discaplinary proceedings. 35 Suspension and expulsion from public school 9. (I) Subject to this Aa and any applicable provinciaJ Jaw. lhe governing body of a public school may, after a fair hearing. suspend a leamtr from attending !he school ( a) as a correctional measure for a period not longer than one week; or (b) pendmg a decision as to whether the Ieamer is to be expelled from the school 40 by lhe Head of Deparrment. (2) Subject to any applicable provincial Jaw, a Ieamer at a public sphool may be expelled only- ( a) by lhe Head of Depo~nr, and (b) if found guilty of serious m1sconduct after a fair heanng. (3) The Member of the Executive Council must detennine by nooce in the Provincial Gazelle- (a) the behaviour by a Ieamer at a public school wluch may consntute serious misconduct; (b) disciplinary proceedings to be followed in such cases; 45 50 10 No. 17579 Act No. 84, 1996 GOVERNMENT GAZETIE, 15 NOVEMBER 1996 SOUTH AFRICAN SCHOOLS ACT, 1996 (c) provisions of due process safeguarding the interests of the Ieamer and any other party involved in disciplinary proceedings. (4) A Leamer or the paren! of a Ieamer who has been expelled from a public school may appeal against the decision of the Head of Department to the Member of the Executive Council. (5) If a Leamer who is subject to compulsory attendance in terms of section 3(1) is expelled from a public school, the Head of Department must make an alternative arrangement for his or her placement at a public school. 5 Prohibition of corporal punishment 10. (1) No person may administer corporal punishment at a school to a Ieamer. (2) Any person who contravenes subsection (l) is guilty of an offence and liable on 10 conviction to a sentence which could be imposed for assault. Represen tative council of learners 11. (1) A representative council of learners at the school must be established at every public school enrolling learners in the eighth grade and higher. 15 (2) A Member of the Executive Council may, by notice in the Provincial Gazette, detefl'lllne guidelines for the establishment, election and functions of representative councils of learners. (3) The Member of the Executive Council may, by notice in the Provincial Gazette, exempt a public school for learners with special education needs from complying with 20 subsection (1) if it is not practically possible for a representative council of learners to be established at the school. CHAPTER3 PUBLIC SCHOOLS Provision of public schools 12. {1) The Member of the Executive CoulZCil must provide public schools for the education of learners · out of funds appropriated for this purpose by the provilZCial legislature. (2) The provision of public schools referred to in subsection. (1) may include the provision of hostels for the residential accommodation of learners. (3) A public school may be an ordinary public school or a public school for learners with special education needs. (4) The Member of the Executive Council must, where reasonably practicable, provide education for learners with special education needs at ordinary public schools and provide relevant educational support services for sucli learners. (5) The Member of the Executive Council must take all reasonable measures to ensure that the physical facilities at public schools are accessible to disabled persons. (6) Nothing in this Act prohibits the provision of gender-specific public schools. 25 30 35 Public schools on State property 13. (1) In this section, immovable property owned by the State includes immovable 40 property held in trust on behalf of a tribe by a trust created by statute. {2) Subject to section 20(l)(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. 45 (3) The right referred to in subsection (2) may only be restricted- (a) by the Member of rhe Executive Council; and (b) if the immovable property is not utilised by the school in the interests of education. (4) The Member of the Executive Council may not act under subsection (3) unless he 50 or she has- ( a) informed the governing body of the school of his or her intention so to act and the reasons therefor; 12 No. 17579 AC1 No. 84, 1996 GOVERNMENT GAZETIE, 15 NOVEMBER 1996 SOI.mi AFRJCAN SCHOOLS ACf 1996 (b) granted the governing body of the school a reasonable opportumry to make representanons ro him or her in relauon to such acuon: (c) duly cons1dered any uch represent.auons received (5) The ngbt contemplated in subsectJoo (2) 1 enforceable agatn t any successor tn utle to the owner of the immovable property 10 question 5 (6) No immovable property owned by the State and occupied by a public school may be alienated unless an agreement contemplated 10 secuon 14 has been concluded between the Member of the Executive Council and the prospecuve owner of the immovable property. (7) The registrar of any deeds registry may not execute, au est to or register a transfer 10 deed in respect of the immovable property in question unle s the owner has provided the registrar with proof of the agreement contemplated in subsection (6). (8) The provisions of the Deeds Registries Act, 1937 (Act No. 47 of 1937), do not apply to the right contemplated in subsection (2). PubUc schools on private property 14. (I) Subject to the Constitution and this Act, a public school may be provided on private property only in terms of an agreement between the Membu of the Executive Council and the owner of the private property. (2) An agreement contemplated in subsection (I) must be consiStent w1th this Act and in pan1cular must provide for- 15 20 (a) the provision of education and the performance of the normal functions of a public school: (b) governance of the school, includtng the relation~h1p between the gqveming body of the school and the owner. (c) access by all interested parties co the property on whJcb the school stands; (d) security of occupation and use of the propeny by the school; (e) maintenanc-e and improvement of the school buildings and the property on 25 "'hich the school stands'and the supply of nece Sat') services. (/) protection of the owner's rights in respecr oflhe property occup1ed, affected or used by the school. (3) The provisions of the Deeds Regismes AcL, 1937 (Acl No. 47 of 1937), do not apply to a real nght, excluding ownership, acquired by the State, a public school or another party in terms of an agreement contemplated in this secuon. (4) The right contemplated in subsection (3) is enforceable agamst any successor in title to the owner of the immovable property in question. (5) Despite subsection (3), a registtar of a deeds registry 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 receives- (a) nn application for such endorsement by the owner of the property, or the 30 35 Member of the Executive Council or any other holder'of a right contemplated 40 in subsection (3). together with the utle deed of the property; and {b) affidavits by lhe owner of the property and the Member of the Executive Council stating lhat an agreement conremplnted 1n thiS ection has been concluded. (6) The Afcnwer must. after consultanon With the Council of Education Ministers, 45 make regulations regarding the nurumum requirements of an agreement contemplated in thi secuon (7) Ally transfer duty, stamp duty. fees or costs payable tn respect of the regiscrauon of a nghtm tenns of subsection (3) may be pa1d in full or tn pan from funds appropnated by the provincial legislature for that purpo e, but the public school contemplated 10 50 subsection (I) is not responsible for such duues, fees or costs Status of public schools

15. Every public school is a Juristic person. with legal capacity to perform its functions in terms of this Act. 14 No. 17579 Act No. 84, 1996 GOVERNMENTGAZEITE, IS NOVEMBER 1996 SOIJrH AFRICAN SCHOOLS ACf, 1996 Governance and professional management of public schools 16. (l) Subject to this Act, the governance of every public school is vested in its governing body. (2) A governing body stands in a position of trust towards the school. (3) Subject to this Act and any applicable provincial Jaw, the professional management of a public school must be undertaken by the principal under the authority of the Head of Department. 5 Governing body serving two or more schools 17. (1) The Member of the Executive Council may deten:tllne that the governance of two or more public schools must vest in a single governing body if it is in the best interests of education at the schools in question. (2) The Member of the Executive Council may not act under subsection (1) unless he I 0 or she has- ( a) given notice in the Provincial Gazette of his or her intention so to act; (b) given interested parties an opportunity to make written submissions within a 15 period of not less than 30 days; and (c) considered all such submissions. Constitution of governing body 18. (1) Subject to this Act and any applicable provincial law, the governing body of a public school must function in terms of a constitution which complies with minimum 20 requirements determined by the Member of the Executive Council by notice in the Provincial Gazette. (2) A constitution contemplated in subsection (l) must provide for- ( a) a meeting of the governing body at least once every school term; (b) meetings of the governing body with parellfs, Learners, educators and other 25 staff at the school, respectively, at least once a year; recording and keeping of minutes of governing body meetings; (c) (d) making available such minutes for inspection by the Head of Department; and rendering a report on its activities to parents, learners, educators and other (e) staff of the school at least once a year. 30 (3) The governing body must submit a copy of its constitution to the Head of Department within 90 days of its election. Enhancement of capacity of governing bodies 19. (l) Out of funds appropriated for this purpose by the provincial legislature, the Head of Depamnent must establish a programme to- 35 (a) provide introductory training for newly elected governing bodies to enable them to perform their functions; and (b) provide continuing training to governing bodies to promote the effective performance of their functions or to enable them to assume additional functions. 40 (2) The Head of Department must ensure that principals and other officers of the education department render all necessary assistance to goveming bodies in the performance of their functions in terms of this Act. Functions of all'governing bodies 20. ( 1) Subject to this Act, the governing body of a public school must- 45 (a) promote the best interests of the school and strive to ensure its development through the provision of quality education for all Learners at the school; (b) adopt a constitution; (c) develop the mission statement of the school; (d) adopt a code of conducffor learners at the school; 50 16 No. 17579 Act No. 84, J996 GOVERNMENT OAZETrE. lS NOVEMBER 1996 SOUTH AFRICAN SCHOOLS ACT, 1996 (e) support the principal, educaJors and other :.ta.ff of the school in the performance of their professional functions ; (f) determine times of the school day consistent with any applicable conditions of employment of staff at the school; (g) administer and control the school's property, and buildings and grounds 5 occupied by tbe school. including school hostels. if applicable; (h) encourage parents, learners, educators and other staff at the school to render (i) U) voluntary services to the sclwol; recommend to the Bead of Department the appointment of educators at the school, subject to the Educators Employment Act, 1994 (Proclamation No. 10 138 of 1994), and the Labour Relations Act, 1995 (Act No. 66 of 1995); recommend to the Head of Departmell( the appointment of non-educator staff at the school, subject to the Public Service Act, 1994 (Proclamation No. 103 of 1994 ), and the Labour Relations Act, L995 (Act No. 66 of 1995); (k) at the request of the Head of Departme/11, allow the reasonable use under fair IS conditions of rhe facilities of the school for educational programmes not conducted by the school; (/) discharge all other functions imposed upon the goveming body by or under this Act; and {m) discharge other functions consistent with this Act as determined by the 20 Minister by notice in lbe Government Gazette, or by the Member of the Executive Council by notice in the Provincial Gazeue. (2) The governing body may allow the reasonable use of the facilities of the school for communi(}', social and school fund-raising purposes, subject to such reasonable and equitable conditions as the governing body may determine. which may include the 25 charging of a fee or tariff which accrues to the school. (3) The governing body may join a voluntary o.ssociauon represenong go,·eming bodies of public schools. Allocated functions of governing bodies 21. ( l) Subject to chis Act, a goveming body may apply to the Head of Department in 30 writing to be allocated any of the following functions: (a) To maintain and improve the school's property, and buildings and grounds (b) occupied by the school, including school hostels, if applicable; to determine the extra-mural curriculum of the school and the choice of subject options in terms of provincial curriculum policy; to purchase textbooks, educational materials or equipment for the school; to pay for services to the school; or (c) (d) (e) other functions consistent with this Act and any applicable provincial law. (2) The Head of Department may refuse an application contemplated in subsection (I) only if the governing body concerned does not have the capacity to perform such 40 function effectively. 35 (3) The Head of DeparrmenJ may approve such application unconditionally or subject to conditions- (4) The decision of the Head of Deparrment on such application muSt be conveyed in writing to the governing body concerned, giving reasons. (5) Any person aggrieved by a decision of the Head of Department in terms of this section may appeal to the Member of the Executive Council. (6) The Member of the Executive Council may, by notice in the Provincial Gazette, determine that some governing bodies may exercise one or more functions without making an application contemplated in subsection (I). if- (a) he or sne is satisfied that the governing bodies concerned have the capacicy to 45 50 perfonn such function effectively; and there is a reasonable and equitable basis for doing so. (b) 18 No. 17579 AC1 No. 84, 1996 GOVERNMENTGAZc~ISNOVEMBERI~ SOUTH AFRICAN SCHOOLS Acr. 1996 Withdrawal of functioo.s from governing bodies s 22. (l) The Head of Depanmenr may, on reasonable grounds, Withdraw a function of (2) The Head of DeparrmenJ may not take action under subsection ( I ) unless be or she a go\'trning body. w- (a) informed the g(ll,·erning body of his or her LOtention so 10 act and the reasons therefor; (b) granted the governing body a reasonable opportunity to make representations to him or ber relating to such intention; and (c) given due consideration to any such representations received. 10 (3) ln cases of urgency, the Head of Department may act in terms of subsection (I) without prior communication to such governing body, if the Head of Department thereafter- ( a) furnishes the governing body with reasons for his or her actions; (b) gives the governing body a reasonable opportunity to make representations 15 relating to such actions; and (c) duly considers any such representations received.

4 . The Head of Departmenr may for sufficient reasons reverse or suspend his or her action in tenns of subsection (3).

5. Any person aggrieved by a decision of the Head of D~panmem in terms of !his 20 seen on may appeal against the decision to the Member of the Executil't Council. Membership or governing body of ordinary public school 23. {l) Subject to this Act, the membership of the governing bod) of an ordinary public school comprises- ( a) elected members; (b) (c) co-opted members. the principal, in his or her official capac1ty; (2) Elected members of the governi11g body shall comprise a member or members of each of the following categories: (a) Parents of learners at lhe school; (b) educators at the school; (c) members of staff at the school who are not educators; and learners in the eighth grade or higher at the school. (d) (3) A parent who is employed at the school muy not represent parentS on the governing body in terms of subsection (2)(a) . (4) The representative council of learners referred to in section II (I) must elect the Ieamer or learners referred to in subsection {2)(d). (5) The governing body of an ordinary public school which provides education to /tamers with special needs must, where practically possible, co-opt a person or persons with expertise regarding the special education needs of such learners. (6) A governing body may c<H>pt a member or members of the commumty to assist it 10 dtscbargmg its functions. 25 30 35 40 (7) The governmg body of a publrc school contemplated in secuon 14 may co-opt the owner of the property occupied by the school or the nomtnated representative of sucb owner. 45 (8) C<H>pted members do DOl have voting rights on the go\·erning body. (9) The number of parem members must compnse one more than the combined total of other members of a governing body wbo have voung nghts. Membership of governing body ot public school for learners with special education needs 50 24. (I) The following categories of persons must be represented on a governing body of a public school for learners with special educat1on needs, in each case by a member or members of the respective category: (a) Parents of learners at the school, if reasonably practicable; (b) educators at the school; (c) members of staff at the school who are not educators; 55 20 No. 17579 Act No. 84, 1996 GOVER~MENTGAZE1TE. 15 NOVEMBER 1996 SOUTH AFRICAN SCHOOLS ACT, 1996 learners anending the eighth grade or higher, if reasonably practicable; {d) (e) representatives of sponsoring bodies, if appJicable; (/) representatives of organisations of parents of learners w1lb special education needs. if applicable; (g) representatives of organisations of disabled persons. if applicable; (h) disabled persons, if applicable; and (1) experts in appropriate fields of special needs education. 5 (2) Subject to this Act, the Member of the Executive Council must, by notice in lbe Provincia] Gazette, deteonine the number of members in each category referred to in subsection (I) and the manner of election or appointment of such members at every 10 public scllool for learners with special education needs within his or her province. (3) A notice contemplated in subsection (2) must give interested parties an opportunity to make written submissions within a period of not less than 30 days. (4) The Member of the Executive Council must consider all such submissions. and thereafter may alter the notice contemplated in subsection (2). 15 Fallure by governing body to perform functions 25. (1) If a governing body has ceased to perfonn its functions, the Head of Department must appoint sufficjem persons to perform those functions for a period not exceeding three months. (2) The Head of Departmem may ex rend the period referred to in subsection (1 ), by 20 further periods not exceeding three months each, but the total period may not exceed one year. (3) The Head of Department must ensure that a governing body is elected m terms of this Act within a year after the appointment of persons contemplated in subsection (1). RecusaJ by members of governing body 25

26. A member of a governing body 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. Reimbursement of members of governing body 27. (1) Necessary expenses incurred by a member of a governing body in the 30 performance of his or her duties may be reimbursed by the goveming body. (2) No member of a goveming body may be remunerated in any way for the performance of his or her duties. Election of members of governing body

28. Subject to this Act and any applicable provincial law. the Member of the Executive 35 Council must, by notice in the Provincial Gazette, determine-- the term of office of members and office-bearers of a goveming body. (a) (b) the designation of an officer to conduct the process for the nomination and (c) election of members of the governing body; the procedure for the disqualification or removal of a member of the 40 governing body or the dissolution of a governing body, for sufficienL reason in each case; the procedure for the filling of a vacancy on the governing body; the achievement of the highest practicable level of (d) (e) guidelines for representativicy of members of the governing body; (f) a formula or formulae for the calculation of the number of members of the governing body to be elected in each of the categories referred to in section 23(2), but such formula or formulae must provide reasonable representation for each category and must be capable of application to the different sjzes and circumstances of public schools; and (g) any other matters necessary for the election. appointment or assumption of 45 50 office of members of the governing body. 22 No. 17579 Ac:t No. 84, 1996 GOVERNMENT GAZETTE. IS NOVEMBER 1996 SOliTH AFRICAN SCIIOOI.S ACT, 1996 Oflice-bearers or governing bodies 29. (1) A go,emmg body must. from amongst its members, elect office-bearers. who must inctude at least a chairperson, a neasurer and a secretary. (2) Only a partnt member of a go~emmg body who IS not employed at the public school may serve as the cbairperson of the governing bod). 5 Commit1ees of governing body 30. ( I) A governing body may- ( a) establish committees, including an executive committee; and (b) appoim persons who are not members of the governing body to such committees on grounds of expertise, but a member of the governing body must 10 chair each committee. (2) A governing body of an ordinary public school which provides education to learners with special education needs must establish a committee on special education needs. Term of office of members and office-bearers of governing bodies 15 31. (I) The 1erm of office of a member of a govemmg body other than a Ieamer may not exceed three years. (2) The tenn of office of a member of a go,·eming body who IS a Ieamer may nor exceed one year. (3) The term of office of an office-bearer of a govemmg body may not exceed one 20 year. (~)A member or office-bearer of a go ... emutg bod) may be re-elected or co-opted. as the case may be, after the expiry of his or her term of office. talus of minors on governing bodies of pubUc schools 32. (l) A member of a governing body who is a mmor may not contract on behalf of 25 a public school. (2) A member of a governing body who IS a minor may not vote on resolutions of a governing body which impose liabilities on third parties or on the scltool. (3) A member of a governing body who is a minor incurs no personal liability for any consequence of his or her membership of the governing body. Closure or public schools 33. ( I) The Member of the Execunve Council may, by notice in the Provinc1al Gazeue, close a public school. (2) The Member of the Executive Counc1l may not act under subsection (I) unless be or she has- (a) informed the governing body of the school ofh1s or her intention so to act and his or her reasons therefor; 30 35 (b) granted the governing body of the scltool a reasonable opporturuty to make representanons to him or her m relation to such acuon. (c) conducted a public hearing on reasonable nouce, to enable the community to 40 make representations to him or her in relation to such actions; and (d) given due consideration to any such representatiOns rece1ved. (3) rr a public school is closed in terms of subsection (I) aJI assets and liabilities of such school must. subject to the conditions of any donauon, bequest or trust contemplated in section 37(4). devolve on the State unless otherwL~ agreed between the 45 Member of the Executive Council and the governing body of the school. 24 No. 17579 Act ~o. 84, 1996 GOVERNMENT GAZETTE, IS NOVEMBER 1996 SOUTH AFRICAN SCHOOLS ACT, 1996 CHAPTER4 FUNDING OF PUBLIC SCHOOLS Responsibility of State 34. (I) The State must fund public schools from public revenue on an equitable basis 10 order to ensure the proper exercise of lbe rightS of /tamers to education and the redress of past inequalities in education provision. (2) The State must. on an annual basis, provide sufficient infonnatioo to public schools regarding the funding referred to in subsection ( I) to enable public schools to prepare their budgets for the next financial year. Norms and standards for fundJng of public schools

35. Subject to the Constitution and this Act, the Minister must dctcnnjne nonns and minimum standards for the funding of public schools nfter consultation with the Council of Education Ministers, the Financial and Fiscal Commiss1on and the Minister of Finance. Responsibility of governing body

36. A govemmg body of a public school must take rut reasonnble measure witlun its means to supplement the resources supplied by the State 10 order to tmprove the quality of education provided by the school to aU /tamers at the school 5 10 15 chool funds and assets of public schools 37. (I) The governing body of a public school must e tabhsh a school fund and 20 admiru ter it in accordance with directions issued by the 1/ead of Deporrmenl. (2) Subject to subsection (3), all money received by a public sclloo/mcluding school fees and voluntary contributions must be paid 1010 the .rchool fund (3) The governing body of a public school must open and maintain a banlcing account. (4) Money or other goods donated or 'bequeathed to or received in trust by a public 25 school must be applied in accordance with the conditions of such donation, bequest or trust. (5) All assets acquired by a public school on or after the commencement of this Act are lhe property of the school. (6) The school fund, aU proceeds thereof and any other assets of the public school 30 must be used only for- { a) educational purposes, at or in connection with such school; (b) educational purposes, at or in connection wnh another pub/1c school. by agreement with such other public school and with the consent of the Head of Deportment: the performance of the functions of the govmung bod). or (c) (d) another educational pwpose agreed between the go~·~mmg body and the Head 35 of Depamn011. Annual budget of public school 38. (I) A governing body of a pub/1c school mu t prepare a budget each year, 40 accordmg to guidelines determined by the Member of the £xecut1ve Council, which hows the estimated income and ex.penditure of the .rchool for the following financial year (2) Before a budget referred to in subsection (1) is approved by the governing body, 1t must be presented to a general meeting of parentS convened on at least 30 days' notice, 45 for consideration and approval by a majority of parents present and voting. 26 No. 17579 Act No. 84, L996 GOVERNMENT GAZETTE, 15 NOVEMBER 1996 SOUTII AFRICAN SCHOOLS ACT. 1996 School fees at public schools 39. (I) Subject to this Act, school fees may be detennined and charged at a public school only if a resolution to do so has been adopted by a majority of parents attending the meeting referred to in section 38(2). (2) A resolution contemplated in subsection (1) must provide for- the amount of fees to be charged; and (a) (b) equitable criteria and procedures for the total, partial or conditional exemption of parents who are unable to pay school fees. (3) The governing body must implement a resolution adopted at the meeting contemplated in subsection (1). (4) The Minister must, after consultation with the Council of Education Ministers and the Minister of Finance, make r~gul ations regarding the equitabte· criteria and procedures referred to in subsection (2)(b). 5 lO Parent's liability for payment of school fees 40. {l) A parent is Uable t6 pay the school fees determined in terms of section 39 15 unless or to the extent that he or she has been exempted from payment in terms of this Act. (2) A parent may appeal to the Head of Department against a decision of a governing body regarding the exemption of such parent from payment of school fees. (3) ln deciding an appeal referred to in subsection (2), the Head of Department must 20 follow due process which safeguards the interests of the parent and the governing body. Enforcement of payment of school fees

41. The governing body of a public school may by process of law enforce the payment of school fees by parents who are liable to pay in tenns of section 40. Financial records ·aod statements of public schools 25

42. The governing body of a public school must- ( a) keep records of funds received and spent by the public school and of its assets, liabilities and financial transactions; and (b) as soon as practicable, but not later than three months after the end of each ... financial year, draw up annual financial statements in accordance with the 30 guidelines determined by the Member of the Executive Council. Audit or examination of financial records and statements 43. ( 1) The governing body of a public school must appoint a person registered as an accountant and auditor in terms of the Public Accountants and Auditors Act, 1991 (Act No. 80 of 1991), to audit the records and financial statements referred to in section 42. 35 (2) If the audit referred to in subsection (1) is not reasonably practicable, the governing body of a public school must appoint a person to examine and report on the records and financial statements referred to in section 42, who- (a) is qualified to perform the duties of an accounting officer in tenns of section 60 of the Close Co1p0rations Act, 1984 (Act No. 69 of 1984); or is approved by the Member of the Executive Council for this purpose. (3) No person who has a financial interest in the affairs of the public school may be (b) 40 appointed under this section. ( 4) If the Member of the Executive Council deems it necessary, he or she may request the Auditor-General to undertake an audit of the records and financial statements of a 45 public sehool. (5) A governing body must submit to the Head of Department, within six months after the end of each financial year, a copy of the annual financial statements, audited or examined in terms of this section. 28 No. 17579 Act No. 84, l996 GOVERNMENT OAZ1!11 F., IS NOVEMBER 1996 SOUTH AFRICAN SCHOOLS ACT, 1996 (6) At the request of an interested person, the govemrng body must make the records referred tom secuon 42. and the audited or exammed financial ~talemenlS referred to in thts ~uon, available for inspection. Financial year of public school

44. The financial year of a public school commence on the firM day of January and 5 ends on the las1 day of December of each year. CHAPTERS lliDEPENDENTSCHOOLS Establishment of independent school

45. Subject to this Act and any applicable provincial law, any person may, at his or her 10 own cost. establish and maintain an independem school. Registration of independent school 46. (I) No person may establish or rruuntain an wdependent school unJess ll is reg1stered by the Head of Department. (2) The Member of the Executil'e Council mu t. by notice 10 the Provtncial Gazette. 15 de1enrune the grounds on which the registration of an independent school may be granted or Withdrawn by the Head of Depanment (3) A Head of Depanment must register an mdependent schooltf he or she tS satisfied thai- ( a) (b) (c) the standards to be maintained by such tclrool will not be mferior to the 20 tandards in comparable public schools; the admission policy of the school does not drscnmtnate on the grounds of race; and the school complies with the grounds for regtstratton contemplated in subsection (2). 25 ( 4) Any person wbo contravenes subsection ( I) is guilty of an offence and upon conviction liable to a fine or imprisonment for a period or three months. Withdrawal of registration of independent school 47. (1) No withdrawal of the registration of an independent school is valid unless- ( a) (b) the owner of such independent school has been furnished by the Head of 30 Deporrmenl with a notice of intention 10 withdraw the registration, stating lhe reasons why such withdrawal is contemplated, the owner of such independent school has been granted an opportunity to make written representations to the Head of Depanment as 10 why lhe registration of the independent school hould not be wtthdrawn; and 35 (c) any such representations received have been duly cons1dered. (2) The owner of an independenr school may apperu to the Member of the Executive Counctl against the withdrawal of rhe registration of such tndependent school. ubsidies to registered independent schools 48. (I) The Minister may, by notice in the Government Gaune, de1emune norms and 40 mtrumum standards for lhe granting of substdles to mdtptndent schools after consultation with the Council of Education Mimsters and the Fmanctal and FtScal Commission and with the concurrence of 1he Minister of Finance. (2) The Member of the Executive Council may. out of fundt~ appropriated by the provincia/legislature for that purpose, grant a subsidy to an independent school. 45 (3) If a condition subject to whlch a subsidy was granted has not been complied with, the Head of Department may terminate or reduce the subsidy from a date determined by him or her. (4) The Head of Department may not terminate or reduce o subsidy under subsection (3) unless- 50 30 No. 17579 Act No. 84, 1996 GOVERNMENT GAZETTE. IS NOVEMBER 1996 SOt.rTH AFRICAN SCHOOLS ACI". 1996 (a) the owner of such independent school has been furnished with a notice of intention to terminate or reduce the subsidy and the reasons therefor; (b) such owner has been granted an opportunity to make written representations as to why the subsidy should not be terminated or reduced; and (c) any such representations received have been duly considered 5 (5) The owner of an independent school may appeal to the Member of the Executive Council against the termination or reduction of a subsidy to such independent school. Dedaration of independent school as public school 49. ( I) The Member of the Executive Council may, with the concurrence of the Member of the Executive Council responsible for finance, enter into an agreement with 10 the owner of an independent school in terms whereof such independent school is declared to be a public school. (2) Notice of the change of status contemplated in subsection ( I) must be published in the Provincial Gazette. Duties of Member of Executive Council relating to independent schools 15 50. (1) The Member of the Executive Council must. by notice in the Provincial Gazette, determine requirements for- ( a) the admission of learners of an independent school 10 examinations conducted by or under the supervision of the education deportment; (b) the keeping of registers and other documents by an independent school; (c) criteria of eligibiliry, condjtions and manner of payment of any subsidy to an 20 independent school; and (d) any other matter relating to an intkpendem school which must or may be prescribed in terms of this Act. (2) Different requirements may be made onder subsection ( I) in respect of different 25 independent schools. (3) The Member of the Executive Council musr allow the affected parties a reasonable period to comment on any requirement he or she intends to determine under subsection (1). Registration of learner for education at home 30 51. (1) A parent may apply to the Head of Department for the registratjon of a learner to receive education at the learner's home. (2) The Head of Department must register a learner as contemplated in subsection ( 1) if he or she is satisfied that- ( a) (b) the registration is in the interests of the Ieamer. the education likely to be received by the Ieamer at home- (i) will meet the minimum requirements of the curriculum at public schools; 35 and (ii) will be of a Standard not inferior to the standard of education provided at public schools; and 40 (c) r.he parent will comply with any other reasonable conditions set by the Head of Deportment. (3) The Head of Department may, subject to subsection ( 4), withdraw the registration referred to m subsection (1). (4) The Head of Department may not withdraw the registration until he or she- 45 (a) has infonned the parent of his or her intention so to act and the reasons therefor; (b) bas granted the parent an opponunit.y to make representations to him or ber in relation to such action; and (c) has duly considered any such representations received. (5) A parem may appeal to the Member of the Executive Council against the withdrawal of a registration or a refusal to register a Ieamer in terms of this Act. so 32 No. 17579 Art No. 84, 1996 GOVcRNMENTOAZETll:.. IS NOVE.\1BER 1996 SOUTH AFRJCAN SCHOOLS Acr. 1996 CRAPTER6 TRANSITIONAL PROVISION Transitional pro"isions relating to .scbools other than private 'tehools 52. ( I) Any school which was established or was deemed to h4Ye been eswblished in terms of any law governing school education an the Republic of South Africa and whicb existed immediately prior to me commencement of this Act, other than a private school referred to in section 53 is deemed to be a public school. 5 (2) The assets and liabilities wbich vested in a school contemplated in subsection (1) immediately prior to the commencement of this Act, vest in the public school in question. 10 (3) Funds and other moveable assets used by. or held for or on behalf of, n public school contemplated in subsection (1) and which in Jaw nrc the property of the State, remain ntthe disposal of the school, and devolve on the school on a date and subject to conditions determined by the Minister by notice in the Government Ga7.tlte. after con ultation with the Council of Education Min isters. (4) Any transaction entered into prior to the commencement of tlus Act by a school contemplated in subsection (1 ), which had the effect of t:ran~ferring funds or other assets of such school to another person or body without value, is anvalid 15 Transitional provisions relating to private schools

53. A pnvate school wbicb was registered or deemed to have been regastered under the 20 prova~aons of a law regulating school educanon rn the Republic of Soulh Africa and which exJsted IIJlDlediately prior to the commencement of tllu Act, as deemed to be an independent schooL Transitional provisions relating to go''erning bodies 54. (1) The Minister must, after consultation wath the Member of tile Executive 25 Council and by notice in the Government Gazette, determine dates- ( a) by which the election of members of governing bodies at all public schools in a province must be finalised in terms of this Act; and (b) from which the governing bodies referred to in subsection ( l )(a) must function 1n terms of this Act. 30 (2) Different dates may be determined in terms of subsection (l)(b) in respect of governing bodies in the different provinces. (3) Any governing body, management council or similar authority of a public school, which existed immediately prior to the commencement of this Act, continues to function until the day before the date on whicb the relevant governing body is elected and must 35 perform all the functions it performed prior to the commencement of tlus Act which a govemmg body can lawfully perform in terms of thts Act. (4) Until a governing body begins to funcnon an terms of subsection l(b), such go\'emtng body of a school deemed to be a public school an terms of section 52( 1) must perform the functions lawfully perfooned by ats predece or wh1ch are capable of being 40 performed b) a governing body in terms of this Act Transitional provisions relating to immovable property of certain schools 55. (l) The immovable property of a school wh1ch was declared to be a state-aided rchool under section 29(2A) of the Education Alfai~ Act, 1988 (House of Assembly) (Act No. 70 of 1988), devolves upon the State on a date determaned by the Minister by 45 notice in the Government Gazette. (2) The Minister may detennine different dates in respect of different .schools under subsection ( I). (3) Any notice detennining a date or dates referred to in subsection (l) or (2) must grant all interested parties a period of not less thon 30 days in which to make written 50 submissions. (4) The Minister must consider all such submissions received, and thereafter may alter any notice referred to in subsection (1). 3-1 No 17579 Ac1 o. 84, 1996 SOliTH AFRICAN SCHOOLS ACf. 1996 {5) Any transfer duty, stamp duty, other fees or costs payable as a result of the transfer of lhe immovable property contemplated in subsection ( I ) must be prud in full or in pan from funds appropnated by Parliament for that purpose. (6) The Minister may, with the concurrence of lhe Maruster of Finance. darect that no tranSfer duty, stamp dory, other fees or costs contemplated 10 ubsecuon (5} be paad in 5 respect of a particular tranSfer under t.lus section. {7) The rights of third parties with claims against the school in respect of the immovable property affected by the transfer contemplated an this section are not extinguished by the transfer and- (a) a third party acquires no right of execution agaanst the immovable property as lO a result of such transfer alone; (b) a third party is obliged to excuss the school an question af the school fails to (c) meet its commitments to the third pany; and the State indemnifies such a third party in its claims against the school which were secured by the immovable property, but the third party does not acquire 15 a greater right against the State than that which it had against the school prior to the transfer. (8) The fact that compensation for any land and real rights in or over land expropriated in tenns of subsection {1) has not been fin ala ed or prud, does not impede the transfer of such land and real rights in or over land to the State. {9) Until the date contemplated an subsection (1), a publtc school referred to an that subsection may not let, sell or otherwise alienate its immovable property, or grant to any person any real right thereon or servitude thereon wathout the wnrten consent of the M~mbu of the Executtve Council. 20 ( I 0) Any claam for compensation ansmg from subsectaon ( I) must be determined as 25 contemplated an the Consritupon. Transitional provisions relating to public schools on private property 56. [fan agreement contemplated in section 14 does not exist n1 the commencement of this Act in respect of a sclwo/, standing on private property and which is deemed to be a public school in terms of section 52( I), the M~mber of 1he Executiv~ Council must 30 take reasonable measures to conclude uch an agreement withan six months of the commencement of this Act. Transitional provisJons relating organisation to private property owned by religious

57. If the owner of the private property referred to in section 56 is a religious 35 organisation, such owner may require that the agreement contemplated in section 14 must recognise, in an appropriate manner consistent with tlus Act, the distinctive religious character of the school. CHAPTER 7 GENERAL PROVISION 40 Expropriation 58. ( I) The Member of the Execun"e Council may, af IllS an the pubLic mterest to do so, expropriate land or a real right in or over land for any purpose relating to school education in a provinc~. {2) The M~mber of the Executive Council must give nouce an the Provincial Gazerte 45 of his or her intention to expropriate in terms of sub ection ( I). (3) A notice contemplated in sub ection (2) must- ( a) identify the land or any real nght in or over the land: (b) give interested parties an opporruruty to make written submissions regarding (c) the expropriation withjn a period of not less than 30 days: and invite any person claiming compensation as a result of the expropriation to enter into negotiations with the Member of the Executive Council in that regard, and draw attention to the provisions of subsection (5). 50 (4) The Member of tire Executive Council may, after considering all such written submissions, expropriate the land or any real right tn or over the land referred to in 55 subsection (3) by notice in the Provincial Gazette. 36 No. 17579 Act No. S.., 1996 GOVERNMENT GAZEITE. IS NOVEMBER 1996 SOUTH AFRICAN SCHOOLS ACf, 1996 {5) Any expropriation contemplated in subsection (4) takes effect immediately even though compensation payable in respect of such land or real right in or over such land has not been finally detennined or paid. (6) If the Member of the Executive Council and an owner of the land or real right fail to reach agreement regarding the payment of compensation, either party may refer the matter to a coun for determination, or they may agree to refer the dispute to an arbitrator for arbitration. (7) The arbitrator detennines the time, venue and procedures which apply in the arbitration. (8) The arbitrator determines the dispute and makes a written award giving reasons for such award as soon as possible after the arbitration, and his or her determination is binding. 5 lO (9) The arbitrator may not make an award of costs. (IO)The arbitrator is paid, out of moneys appropriated for this purpose by the provincia/legislature, such fees and allowances as the Member of the Executive Council 15 may detcnnine, with the concurrence of the Member of the Executive Council responsible for finance. (11) Any transfer duty, stamp duty. other fees or costs payable as a result of any transfer of land or a real right contemplated in subsection ( l ) may be paid in full or in part from funds appropriated by the provincia/legislature for that purpose. ( 12) Any claim to compensation arising from the expropriation contemplated in subsection (4) must be determined as contemplated in the ConsTitution and this section. 20 Duty of schools to provide information 59. (1) A school must make information available for inspection by any person, insofar as such information is required for the exercise and protection of such person's 25 rights. , .. - (2) Every school must provide such infonnation about the school as is reasonably required by the He_ad of Depanment. Liability of State 60. ( 1) The State is liable for any damage or loss caused as a result of any act or 30 omission in connection with any educational activity conducted by a public school and for which such public school would have been Liable but for the provisions of t~s section. (2) The provisions of the State Liability Act, 1957 (Act No. 20 of 1957), apply to any claim under subsection (l). Regulations

61. The Minister may make regulations on any matter which must or may be prescribed by regulation under this Act and any maner which may be nece sary or expedient to prescribe in order co achieve the _objects of this Act. Delegation of powers 35 40 62. (I) The Member of the Executive Council may, subject to such conditions as he or she may detennine, delegate any power conferred upon him or her by or under this Act to the Head of Depamnenl or an officer, except the power to publish a notice and the power to decide an appeal lodged with him or her in terms of this Act. (2) The Head of Department may, subject to such conditions as he or she may 45 determine, delegate to an officer any of his or her powers in terms of this Act or delegated to him or her in terms of subsection (1 ). (3) A delegation under subsection (l) or (2) does oot prevent the Member of tlte Executive Council or Head of Department, as the case may be, from exercising such power or performing such duty. 50 38 No. 17579 Act No. 84, 1996 GOVERNMENT GAZETTE, 15 NOVEMBER 1996 SOUTH AFRICAN SCHOOLS ACT, 1996 Repeal and amendment of laws 63. (l) The laws listed in the first column of Schedule 1 are hereby repealed to the extent set out in the third column of that Schedule. (2) The Educators' Employment Act, 1994 (Proclamation No. 138 of J 994), is hereby amended to the extent set out in Schedule 2. 5 Short title and commencement

64. This Act is the South African Schools Act, 1996, and comes into operation on a date fixed by the President by proclamation in the Government Gazette. 40 No. 17579 Act No. 84, 1996 GOVERNMENT GAZETTE. IS NOVEMBER 1996 SOUTH AfRICAN SCIIOOLS ACT, 1996 SCHEDULE 1 Short titlr loured Ptnons Educauon Ace, 1963 ndians Education Act, 1965 IIOIIS I A 8 10 20, 26 and 28 to 31 cion) lB. 8 to 20, 26. 28. 29. 31 d 33CI){gJ uons lA, 3, 4, lito 29, 31 32, 4 .C.S{ l)(h ) \'lite Schools Aa (House of ~m ly), 1986 ucation Affairs Act (Hout.c of Assem ections 3 and 6S and Chapter 7 ly), 1988 42 No. 17579 Act No. 84, 1996 GOVER.t'IMENT GAZETIE, 15 NOVEMBER 1996 SOUTH AFRICAN SCHOOLS ACT, 1996 SCHEDULE2 (Amendment of Educators' Employment Act, 1994, by section 63)

1. Amendment of section 1 by- ( a) the insertion of the following definitions: " 'De artment' means a de artment contem lated in section 7 2 of the Public Service Act, 1994 (Proclamation No. 103 of 1994), responsible for education in the national government; 'educational institution' means a public school, college of education, technical college, other college or an office controlling such a school or college or rendering a support service to such a school or college where educators are employed, in regard to which the terms and conditions of employment of such educators are determined by this Act but excludes a university, technikon, independent school or independent college; 'Labour Relations Act' means the Labour Relations Act, 1995 (Act No. 66 of 1995); 'public educational institution' means an educational institution which is not a state-aided college; . 'public school' means a public school as defined in section 1 of the South African Schools Act, 1996; 'state-aided college' means a college of education, technical college or other college which is wholly or partly funded by the State in respect of the remuneration and conditions of service of educators in posts on the establishment created in terms of section 3(1) and in regard to which the college is the employer of such educators; 'unsubsidised post' means a post at a state-aided college in respect of which no subsidy in terms of a law is paid by the State;"; (b) substitution for the definitions of "educator", ''employee member" and "employer" of the following definitions, respectively- J'educator' means any person who teaches, educates or trains other persons or provides professional [therapy] educational services includ ing professional therapy at any [school, technical college or college of etlocation] educational institution [or assiSts in rendering professional services or performs educational management services or educa· tional auxiliary services provided by or in a department of education] and whose [employment] appointment and tenns and conditions of employment [is] are regulated by this Act; .... employee mep1ber' means an employee organisation that is a member of the Education Labour Relations Council established in terms of section [6 of the Education Labour Relations Act] 37(3)(b) read with item 20 of Schedule 7 to the Labour Relations Act; "'employer' rneans- (a) in the case of a [departmental] public educational institution [or office), the head of a department; [and] in the case of a state-aided [educational institution] college, the body which employs an educator; for the purposes of section 5(1}(a) and (b) the Minister in respect of educators appointed to posts created in terms of sections 3(1) and (3); and in the case of an unsubsidised post at a public school referred to in section 3A, the body which employs the educator."; and (b) (c) (d) {c) the deletion of the following definitions. namely !(.departmental educational institution" T•subsidised post" "state-aided educational institution" /.Executive Council" >'Education Labour Relations Act" 44 No. 17579 Act No. 84, 1996 GOVERNMENT GAZETTE, 15 NOVEMBER 1996 SOUTH AFRICAN SCHOOLS ACf, 1996

2. The substitution for section 3 of the following section: " Educator Establishment of educational institutions and Department 3. (1) Notwithstanding anything to the contrary contained in any other law, but subject to this Act and the National Policy [for General Education Affairs] on the Salaries and Conditions of Employment of Educators Act, 1984 (Act No. 76 of 1984), the educator establishment at an [a state] educational institution in a. province shall consist of the postS which the Member of the Executive Council creates and the. educator establishment of the Department of Education shall consist of the posts which the Minister creates. (2) [The employer] A state-aided college may create unsubsidised posts additional to the educator establishment referred to in subsection (1). (3) Educators may be appointed [on a temporary basis] additional to the establishment referred to in subsection (1) with the approval of the Member of the Executive Council or the Minister, as the case may be. (4) A post Ieferred to in subsection (1) may be regraded, redesignated, converted or abolished by the Member of the Executive Council or the Minister, as the case may be.".

3. By the .insertion after section 3 of the following section: "TransitionaJ arrangement 3A. 1 The authori to create unsubsidised osts, to em lo educators in such posts and all other matters incidental thereto which, in terms of section 3(2), vested in a state-aided school prior to the commencement of this Act, shall remain intact for such school until 31 December 1997, and thereafter such authority shall cease. (2) Contracts of employment of educators appointed to posts referred to in subsection (1) entered into after the commencement of this Act, shall not be valid after 31 December 1997.".

4. The substitution for section 4 of the following section: "Appointment and promotion o~ educators 4. (1) The qualifications for appointment and promotion as an educator shall be [prescribed] determined by the Minister. . (2) Sub ject to the provisions of the Constitution, the Labour Relations Act, 1995 (Act No. 66 of 1995), and agreements reached in terms thereof [Posts] posts shall be filled by appointment, transfer or promotion and the power to fill a post created under section 3 shall, subject to the provisions of ihis Act, vest in the employer, who shall exercise such power with regard . to posts referred to in section 3(1) and ill subject to the prior approval of the Member of the Executive Council or the Minister, as the case ma be. - (3) The au.thority to fill a post referred to in section 3(1) and (3) at a public school in terms of subsection (2) is exercised on the recommendation of a public school, as represented by its governing body, and the employer may only deviate from such recommendation if: (a) · (b) the candlidate does not have the required qualifications; the candidate has been found guilty of misconduct; or · (c) sufficient proof exists that the recommendation made by the school was based on improper influence. [(3)]{12 An educator may be appointed under [subsection (2)] this section- ( a) (b) in a permanent capacity, which shall include an appointment to the permanent relief staff, whether on probation or not; or temporarily or on special contract, whether in a full-time or part-time capacity. 46 No. 17579 Act No. 84, 1996 GOVERNMENTGAZETIE, 15 NOVEMBER 1996 SOUTH AFRICAN SCHOOLS ACT, 1996 [(4)]ill An appointment, transfer or promotion referred to in subsection (2) shall be effected in such manner and subject to such conditions as may be detennined by the Minister. [(5)]@ An educator appointed in terms of any law repealed by this Act shall be deemed to have been appointed in terms of this Act to the appropriate post on the establishment of the [state] educational institution in question. (7) An educator appointed in terms of the Public Service Act, 1994, shall be deemed to have been appointed in terms of this Act. (8) An educator appointed at a public school shall not, by virtue of an amendment of this Act by the South African Schools Act, 1996, be regarded as having changed employers.".

5. The amendment of section 5- (a) by the substitution for subsection (1) of the following subsection: "(1) Notwithstanding anything to the contrary contained in any other law, but subject to the provisions of the National Policy on the Salaries and Conditions of Employment of Educators Act [for General Education Affairs], 1984 (Act No. 76 of 1984), and the [Education] Labour Relations Act [and subsection (2)] - (a) [(b) .@l[c] the salaries, salary scales, [and] allowances and other terms and conditions of employment of educators appointed, transferred or promoted to posts referred to in section 3(1) and (3) shall be determined by the Minister; the other terms and conditions of employment and service benefits of educators referred to in paragraph (a) shall be prescribed by the Minister ; and] the salaries, salary scales, allowances and other terms and conditions of employment referred to in [paragraphs] paragraph (a) [and (b)] y.itb a financial implication shall be determined by the Minister with the concurrence of the Minister responsible for finance at national level; and {£l[d] the salaries, salary scales, allowances and other terms and conditions of employment of educators at a state-aided college appointed, transferred or promoted to posts referred to in section 3[(2)lill shall be determined by the employer."; and (b) by the deletion of subsection (2).

6. The substitution for section 6 of the following section: "Transfer [and secondment] of educators 6. (1) Subject to the provisions of this section, section 4(3) and applicable terms and conditions of employment, an educator employed in [an office or departmental] a public educational institution may be transferred from the post in which he or she serves to any other post- ( a) at [the same departmental educational institution or office or at another departmental educational institution or office] a public educational institution under the control of the same provincial education department by the Member of the Executive Council; or (b) at a [departmental] public educational institution [or office) in a different province or the Department at national level by the Member of the Executive Council, or the Minister, as the case may be, with the concurrence of the Member of the Executive Council of such other province or the Minister, as the case may be. (2) Subject to the provisions of this section, an educator employed at a state-aided [edncational institution] college may [with his or her consent], be transferred from the post in which he or she serves to any other post at the same or to any other state-aided [educational institution] college or public [departmental] educational institution- 48 No 17579 Art No. 84, 1996 GOVERNMENT GAZETTE. 15 NOVEMBER 1996 SOUTH AFRICA~ SCHOOLS ACT. 1996 (a) in the same province by the Member of the Execuuve CounctJ, with the concurrence of the employer or employers concerned; or (b) in a different province by the Member of the ExecutiVe Council, with the concurrence of the Member of the Executive Council of such other province and the employeno concerned; or (c) at the Depanment at national level with the concurrence of the Minister. (3) Subject to the prov1sions of thi secuon. an educator at a [departmental] public educationalm~tiruuon {or omce] may. [with his or her consent,] be transferred from the post 10 which he or she erves co any other post at a state-aided [educational lnstitution] college, and in such a case the provisions of subsectiOn (2) must apply mmatis mutandis. (4) A transfer provided for in subsecrions ( I). (2) and (3) may be effected irrespective of whether the post to which an educator is transferred is of the same, a lower or higher grade: Provided that- ( a) the salary and salary scale of an educator shall not be lowered without his or her consent; and (b) paragraph (a) shall not apply in respect of an educator transferred in terms of section 19(1). (5) An educator who is employed 10 a pennanent capacity at [a state] public educational instiruoon 10 a po t of a lower or h1gher grndtng than lhat appropriate to his or her rank shall, subject to secoon 4[(4)) (5) and (6) be tranSferred to a post with a grading appropn ate to his or her runJc as soon as a SUitable vacancy arises." .

7. The amendment of section 7 by the subsutuuon for the expression "state educational mstirution", wherever it occurs, of the express1on "pubhc educational insoruuon" .

8. The amendment of section 8 by the subsurulion for the express1on ''state educational institution". wherever it occurs, of the expres ion "public educational mstinuion".

9. The amendment of section 10 by the substitution for the expression "state educational institution". wherever it occurs, of the expression " public educational institution" .

10. The amendment of section J.l by the substitution for subsection (3) of the following subsection: "(3) If the name of an educator is struck off a register of educators kept by [a body recognised by the Minister in terms of the National Polley for General Education A!'airs Act, 1984 (Act No. 76 of 1984),] the South African Council for Educators he or she shall notwithstanding anything to the contrury contained in this Act, be deemed to have resigned with effect from the date following tmmediately upon the day on which his or her name was so struck off."

11. The substirution for section 22 of the following section· "Tl'ansfer of educators on declaration of public educationallnstitution to be state~aided college 22. (I) An educator who was employed at a [departmental] public educational instirutioo immediately pnor to the date of declaranon of such tnsritution to be a state-aided [educational institution] college shall with effecl from that date with his or her consent be transferred to and appointed in the service of the state-aided [educational Institution} college in question. (2) An educaror transferred and appointed under subsection (1) shall be appointed on the tenns and conditions of employment applicable to persons in the service of! state-aided college [educationallnstltudons]: Provided that- SO No. 17579 Act No. 84, 1996 GOVERNMENT OAZEITE. IS NOVEMBER 1996 SOUTH AFRICAN SCHOOLS ACT, 1996 (a) his or her salary shall not be reduced wathout his or ber consent as a result of such ttansfer and appoin~.ment , (b) for the purposes of the said terms and condiuons of employment. including pension benefits, his or her pe.nod in the servtce of the [state-aided] public educauonal an titution hall be deemed to be a period in the service [of tbe provtntiaJ government] at the state-aided coUege cuncemed, (c) sick leave or vacation leave credit obtained by him or ber as a result of his or her continuous service in a [departmental] public educational institution shall be deemed, subject to the condltions determined by the Minister, to have been obtained by tum or her as a result of his or her service at the state-aided [educational institution] college in question; and (d) any clisciplinary proceedings instituted or to be instituted against him or· her in respect of misconduct which he or she allegedly committed prior to the date contemplated in subsection ( I) shall be disposed of or instituted, as tbe case may be. in tenns of this Act.".

12. The substitution for section 23 of the following ~ection · " Transfer of educators on declaration of state-aJded college to be public educational institution 23. (1) An educator who was employed an a subsidised post at a state-aided [educational institution ] college immediately poor to the date of declaration of such institution to be [departmental) a public educational m nrution sbaJl with effect from that date Wlth his or her consent be transferred to and appointed in the servace of the provincial government concerned. (2) An educator transferred and appomted under subsection (I ) shall be appointed on the terms and conditions of employment applicable to educators in the service of the provincial government concerned; Provided that- ( a) his or her salary shall not be reduced without his or her consent as a (b) result of such transfer and appointment; for the purposes of the said tenns and conditions of employment, including pension benefits, his or her period in the service of the state-aided [educational institution I college shall be deemed to be a period in the service of the provincial government concerned; (c) sick or vacation leave credit obtained by him or her as a result of his or her continuous service at the state-aided [educational Institution] coll~ shall be deemed. subject to the conditions determined by the Minister, to have been obtained by him or her as a result of his or her period in the service of the provincial government concerned; and (d) any disciplinary proceedings instituted or to be instituted against him or her in respect of misconduct allegedly corrurutted prior to the said date shall be disposed of or tnstiruted. as the case may be. m terms of this Act.".