Basic Education Laws Amendment Act

Link to law: http://www.gov.za/documents/basic-education-laws-amendment-act
Published: 2011-09-19

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Basic Education Laws Amendment Act 15 of 2011
Please note that most Acts are published in English and another South African official language. Currently we only have capacity to publish the English versions.
This means that this document will only contain even numbered pages as the other language is printed on uneven numbered pages.
Government Gazette
REPUBLIC OF SOUTH AFRICA
Vol. 555 Cape Town 19 September 2011 No. 34620
THE PRESIDENCY
No. 775 19 September 201 1
It is hereby notified that the President has assented to the following Act, which is hereby published for general information:-
No. 15 of 2011: Basic Education Laws Amendment Act, 2011.
R.
2 No. 34620 GOVERNMENT GAZETTE, 19 SEPTEMBER 20 II
Act No. 15 of2011 BASIC EDUCATION LAWS AMENDMENT ACT, 20 II
GENERAL EXPLANATORY NOTE:
To amend-
Words in bold type in square brackets indicate omissions from existing enactments.
Words underlined with a solid line indicate insertions in existing enactments.
(English text signed by the President) (Assented to 15 September 20ll)
ACT
* the National Education Policy Act, 1996, so as to amend or delete certain definitions;
* the South African Schools Act, 1996, so as to amend certain definitions and to define "loan"; to provide for consultation with the Minister of Finance before uniform minimum norms and standards are determined; to ensure that there is no unfair discrimination in respect of official languages; to provide for the imposition of a suitable sanction if an appeal by a learner who had been expelled from a public school has been upheld by the Member of the Executive Council; to provide for public schools that provide education with a specialised focus on talent; to provide for additional functions of a principal of a public school; to provide for the training of governing bodies by recognised governing body associations; to prohibit political activities during school time; to empower the Member of the Executive Council to identify additional schools that may not charge school fees; and to further regulate the liability of the State for certain damages;
* the Employment of Educators Act, 1998, so as to amend certain definitions; and to regulate afresh the application of the said Act;
* the South African Council for Educators Act, 2000, so as to amend certain definitions; to empower the council to manage a system for the promotion of the continuing professional development of all educators; and to provide the council with funding from money appropriated by Parlia- ment; and
* the General and Further Education and Training Quality Assurance Act, 2001, so as to amend certain definitions;
and to provide for matters connected therewith.
B E IT ENACTED by the Parliament of the Republic of South Africa, as follows:- Amendment of section 1 of Act 27 of 1996
1. Section I of the National Education Policy Act, 1996, is hereby amended- ( a) by the substitution for the definition of "Director-General" of the following 5
definition: "~Director-General' means the Director-General: Basic Education;";
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4 No. 34620 GOVERNMENT GAZETTE, I 9 SEPTEMBER 20 I I
Act No. 15 of2011 BASIC EDUCATION LAWS AMENDMENT ACT, 20 I I
(b) by the substitution for the definition of "education institution" of the following definition:
" 'education institution' means any [institution providing education, whether early childhood education, primary, secondary, further or higher education, other than a university or technikon, and also an 5 institution providing specialised, vocational, adult, distance or community education] school contemplated in the South African Schools Act, 1996 (Act No. 84 of 1996);";
(c) by the substitution for the definition of "Minister" of the following definition: "'Minister' means the Minister of Basic Education;"; and 10
(d) by the deletion of the definition of "student".
Amendment of section 3 of Act 27 of 1996, as amended by section 11 of Act 100 of 1997 and section 4 of Act 48 of 1999
2. Section 3 of the National Education Policy Act, 1996, is hereby amended by the substitution in subsection (4)(n) for the words preceding the proviso of the following 15 words:
"control and discipline of [students]learners at education institutions".
Amendment of section 4 of Act 27 of 1996, as amended by section 12 of Act 100 of 1997
3. Section 4 of the National Education Policy Act, 1996, is hereby amended- 20 (a) by the substitution in paragraph (a) for subparagraph (v) of the following
subparagraph: ''(v) of every [student]learner to be instructed in the language of his or
her choice where this is reasonably practicable;"; and (b) by the substitution for paragraph (b) of the following paragraph: 25
"(b) enabling the education system to contribute to the full personal development of each [student] learner, and to the moral, social, cultural, political and economic development of the nation at large, including the advancement of democracy, human rights and the peaceful resolution of disputes;". 30
Amendment of section 1 of Act 84 of 1996, as amended by section 1 of Act 100 of 1997, section 6 of Act 48 of 1999, section 1 of Act 50 of 2002, section 1 of Act 24 of 2005 and section 4 of Act 31 of 2007
4. Section I of the South African Schools Act, 1996. is hereby amended- ( a) by the insertion in subsection (I) after the definition of "learner" of the 35
following definition: " 'loan' means any financial obligation based on agreement, which obligation renders a school liable for making payment, in one or more instalments, in favour of any person, but does not include the payment of staff appointed by the governing body in terms of section 20(4) or (5);''; 40
(b) by the substitution in subsection (I) for the definition of "Minister" of the following definition:
" 'Minister' means the Minister of Basic Education;": and (c) by the substitution in subsection OJ for paragraph (a) of the definition of
"parent" of the following paragraph: 45 "(a) the biological or adoptive parent or legal guardian of a learner;".
6 No. 34620 GOVERNMENT GAZETTE, 19 SEPTEMBER 20 II
Act No. 15 of2011 BASIC EIJUCATION LAWS AMENDMENT ACT. 2011
Amendment of section SA of Act 84 of 1996, as inserted by section 5 of Act 31 of 2007
5. Section 5A of the South African Schools Act, 1996, is hereby amended by the substitution in subsection (l) for the words preceding paragraph (a) of the following words: 5
"The Minister may, after consultation with the Minister of Finance and the Council of Education Ministers. by regulation prescribe minimum uniform norms and standards for-··.
Insertion of section 68 in Act 84 of 1996
6. The following section is hereby inserted in the South African Schools Act, 1996, I 0 after section 6A:
''Non-discrimination in respect of official languages
68. The governing body of a public school must ensure that- (a) there is no unfair discrimination in respect of any official languages
that are offered as subject options contemplated in section 21(l)(b); 15 and
(b) the first additional language and any other official language offered, as provided for in the curriculum. are offered on the same level.".
Amendment of section 9 of Act 84 of 1996, as amended by section 7 of Act 48 of 1999 and section 2 of Act 24 of 2005 20
7. Section 9 of the South African Schools Act, 1996, is hereby amended by the addition of the following subsection:
"(II) (a) If an appeal in terms of subsection (4) by a learner who has been expelled from a public school is upheld by the Member of the Executive Council, the Member of the Executive Council must ensure that a suitable sanction is then 25 imposed on the learner within 14 days of the date on which the appeal was upheld.
(b) For the purposes of the imposition of a suitable sanction contemplated in paragraph (a), the provisions of subsections (8) and (9) apply with the changes required by the context.".
Amendment of section 12 of Act 84 of 1996
8. Section 12 of the South African Schools Act, 1996, is hereby amended by the substitution for subsection (3) of the following subsection:
"(3) (!11 A public school may be= (i) an ordinary public school [ort
30
@ a public school for learners with special education needs; or 35 (iii) a public school that provides education with a specialised focus on talent,
including sport, performing arts or creative arts. (b) Subject to the relevant provisions of this Act, the Minister must determine
norms and swndards for school funding and norms and standards for governance and educator provisioning for public schools contemplated in paragraph (a)(iii).". 40
Amendment of section 16A of Act 84 of 1996, as inserted by section 8 of Act 31 of 2007
9. Section 16A of the South African Schools Act, 1996, is hereby amended by the deletion in subsection (2) of the word "and" at the end of paragraph If), the insertion in that subsection of the word "and" at the end of paragraph (g) and the addition to that 45 subsection of the following paragraphs:
"(h) assist the gm•erning body with the management of the school's funds, which assistance must include- (i) the provision of information relating to any conditions imposed or
directions issued by the Minister, the Member of the Executive Council 50 or the Head of Department in respect of all financial matters of the school contemplated in Chapter 4; and
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Act No. 15 of201J BASIC EDUCATION LAWS AMENDMENT ACT, 2011
(ii) the giving of advice to the governing body on the financial implications of decisions relating to the financial matters of the school;
(i) take all reasonable steps to prevent any financial maladministration or mismanagement by any staff member or by the governing bod}' of the school;
(j) be a member of a finance committee or delegation of the goveming body in 5 order to manage any matter that has financial implications for the school; and
(k) report any maladministration or mismanagement of financial matters to the governing bodv of the school and to the Head of Department.".
Amendment of section 19 of Act 84 of 1996
10. Section 19 of the South African Schools Act, 1996, is hereby amended by the 10 addition of the following subsections:
"(3) The norms and standards for school funding must include- ( a) criteria for authorising a governing body association to perform the functions
contemplated in subsection (4); (b) criteria relating to any financial implications that would be incurred or costs 15
that would have to be paid by the Head of Departmem in relation to the performance of the functions contemplated in subsection (4);
(c) guidelines relating to the nature, content, extent and duration of the functions contemplated in subsection (4); and
(d) criteria for granting a governing body an allocation for contribution towards 20 membership of a recognised governing body association.
(4) (a) The Head of Department may request a recognised govenzing body association or other appropriate training authority to train members of a goveming body of a particular school or group of schools and to build the capacity contemplated in section 25(4). 25
(b) For the purposes of paragraph (a), the Head of Department- (i) must enter into an agreement with the governing body association;
(ii) must specify the nature, content, extent, duration and financial implications of the training in the agreement contemplated in subparagraph (i); and
(iii) may include a request for the training of members of a governing body of a 30 school that is not a member of the governing body association requested to conduct the training in the agreement contemplated in subparagraph (ii).''.
Insertion of section 33A in Act 84 of 1996
11. The following section is hereby inserted in the South African Schools Act, 1996, after section 33: 35
"Prohibition of political activities during school time
33A. (1) No party-political activities may be conducted at a school during school time determined by the governing body of the school in terms of section 20(1 )(}).
(2) The party-political activities contemplated in subsection (1) include, 40 but are not limited to- (a) campaigning; (b) the conducting of rallies; (c) the distribution of pamphlets and Hiers; and (d) the hanging or putting up of posters and banners. 45
(3)A member of a political party may not, for the purposes of conducting party-political activities, encroach on the school time.
(4) A school may not allow the display of material of a party-political nature on its premises unless such party-political material is related to the curriculum at the school.". 50
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Act No. 15 of2011 BASIC EDUCAJ'\ON LAWS AMENDMENT ACT, 20 II
Amendment of section 36 of Act 84 of 1996, as amended by section 5 of Act 57 of 2001
12. Section 36 of the South African Schools Act, 1996, is hereby amended by the addition of the following subsections:
"(4) (a) A governing body may, with the approval of the Member of the 5 Executive Council- (i) lease, burden, convert or alter immovable property of the school to provide for
school activities or to supplement the school fund of that school; and (ii) allow any person to conduct any business on school property to supplement
the sehoul fund. I 0 (b) A governing body may not allow any activity on school property that is
hazardous or disruptive to learners or prohibited by this Act. (5) For the purposes of subsection (4), 'school property' means immovable
property owned by the State, including property contemplated in sections 13 and 55 and any immovable property bought by a school from the school funds or donations 15 to the school.".
Amendment of section 39 of Act 84 of 1996, as amended by section 4 of Act 24 of 2005
13. Section 39 of the South African Schools Act, 1996, is hereby amended by the addition of the following subsections: 20
"(13) Subject to subsection (7), the Member of the Executive Council may, after consultation with the relevant governing bodies, annually by notice in the Provincial Gazette identify additional public schools within his or her province that. although they have not been included in the list of schools contemplated in subsection (I 0)( c), may not charge school fees. 25
(14) The schools contemplated in subsection (13) must be the schools that have been ranked as the poorest schools in that province fa11ing outside the list of schools contemplated in subsection (IO)(c).
(15) The Member of the Executive Council may act in terms of subsection (13) only if sufficient funding has been secured in the province to fund learners in the 30 schools affected by such action.
(16) For the purposes of subsection (15), 'sufficient funding' means funding that is not less than the no fee threshold. ".
Amendment of section 60 of Act84 of 1996, as amended by section 14 of Act 48 of 1999 and section 12 of Act 31 of 2007 35
14. Section 60 of the South African Schools Act, 1996, is hereby amended by the substitution in subsection (I) for paragraph (a) of the fo11owing paragraph:
"(a) Subject to paragraph (b), the State is liable for any delictual or contractual damage or loss caused as a result of any act or omission in connection with any school activity conducted by a public school and for which such public school 40 would have been liable but for the provisions of this section.".
Amendment of section 1 of Act 76 of 1998, as amended by section 6 of Act 53 of2000 and section 58 of Act 16 of 2006
15. Section I of the Employment of Educators Act, 1998, is hereby amended- ( a) by the substitution for the definition of "departmental office" of the following 45
definition: " 'departmental office' means any office or institution controlled or administered by the Department of Basic Education or any provincia) department of education, but does not include any public school [or adult basic education centre];"; 50
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ActNo.I5of20ll RASIC EllUCAIION LAWS AMENDMENT ACT, 2011
(b) by the substitution for the definition of "Department of Education" of the following definition:
" 'Department of Basic Education' means the department established in terms of section 7(2), read with Schedule l, of the Public Service Act, 1994 (Proclamation No. 103 of 1994), responsible for basic education at 5 national level;";
(c) by the substitution for the definition of ''Director-General" of the following definition:
"'Director·General' means the Director-General: Basic Education;''; (d) by the substitution for paragraph (a) of the definition of "employer" of the 10
following paragraph: "(a) an educator in the service of the Department of Basic Education,
means the Director-General;"; and I e) by the substitution forthe definition of "Minister" of the following definition:
'' 'Minister' means the Minister of Basic Education;". 15
Substitution of section 2 of Act 76 of 1998, as amended by section 58 of Act 16 of 2006
16. The following section is hereby substituted for section 2 of the Employment of Educators Act, 1998:
"Application of Act
2. This Act applies in respect of the employment of educators at- (a) public schools; and (b) departmental offices.".
Substitution of certain expressions in Act 76 of 1998
20
17. The Employment of Educators Act, 1998, is hereby amended- 25 (a) by the substitution for the expression "Department of Education", wherever
it occurs, of the expression "Department of Basic Education"; and (b) by the substitution for the expression "adult basic education and training",
wherever it occurs, of the expression " adult education and training".
Amendment of section 1 of Act 31 of 2000, as amended by section 19 of Act 31 of 30 2007
18. Section I of the South African Council for Educators Act, 2000, is hereby amended-
( a) by the substitution for the definition of "institution" of the following definition: 35
" 'institution' means any school[, further education and training institution or adult learning centre] contemplated in the South African Schools Act, 1996 (Act No. 84 of 1996);"; and
(b) by the substitution for the definition of "Minister" of the following definition: " 'Minister' means the Minister of Basic Education:". 40
Amendment of section 5 of Act 31 of 2000
19. Section 5 of the South African Council for Educators Act, 2000, is hereby amended by the substitution in paragraph (b) for subparagraph (iv) of the following subparagraph:
"(iv) must manage a system for the promotion of the continuing professional 45 development of all educators;".
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Act No. 15 of 2011 BASIC EDUCATION LAWS AMENDMENT ACT. 2011
Amendment of section 19 of Act 31 of 2000
20. Section 19 of the South African Council for Educators Act, 2000, is hereby amended by the insertion in subsection (l) after paragraph (a) of the following paragraph:
"(aA) money appropriated by Parliament:". 5
Amendment of section 1 of Act 58of2001, as amended by section 8 of Act 1 of2004 and section 2 of Act SO of 2008
21. Section l of the General and Further Education and Training Quality Assurance Act, 2001, is hereby amended-
( a) by the substitution for the definition of "department of education" of the 10 following definition:
" •department of education' means= (a) the [department] Department of Basic Education, which is
responsible for school education at national level [or]; 1.!!1 a department responsible for school education in a province; or 15 (c) the Department of Higher Education and Training. which is
responsible for further education and training colleges and adult education and training centres at national level;";
(b) by the substitution for the definition of "Director-General" of the following definition: 20
"'Director-General', in respect of functions relating to- (a) school education, means the Director-General [of the department
responsible for education at national level]: Basic Education; and (b) further education and training colleges and adult education and
training centres, means the Director-General: Higher Education and 25 Training;"; and
(c) by the substitution forthe definition of "Minister" of the following definition: "'Minister', in respect of functions relating to-
Saving
(a) school education, means the Minister of Basic Education; and (b) further education and training colleges and adult education and 30
training centres, means the Minister of Higher Education and Training;".
22. The provisions of this Act must not be construed as limiting, amending, repealing or otherwise altering the administration and powers and functions entrusted by the 35 legislation identified in item 1.7 of the Schedule to Proclamation No. 44 of 2009, published in Government Gazette No. 32367 of l July 2009, to the Minister of Higher Education and Training insofar as the administration and powers and functions pertain to further education and training colleges and adult education and training centres.
Short title 40
23. This Act is called the Basic Education Laws Amendment Act, 20 ll.