Education Laws Amendment Act [No. 53 of 2000]
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REPUBLIC OF SOUTH AF~~c* ‘-----;---’-Q~._::~__j:j
GOVERNMENT GAZETT4
STAATSKOERANT ‘
VAN DIE REPUBLIEK VAN SUID-AFRIKA
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Registered at the Post Oflce as a Newspaper As ‘n NuusbkUi by die Poskantoor Geregi treer
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CAPE TOWN, 22 NOVEMBER 2000 VOL. 425 N(). 21783
KA.4PSTAD, 22 NOVEMBER 2000
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THE PRESIDENCY DIE PRESIDENSIE
I —..— I No. 1195. 22 N~vember 200(j ~ No. 1 IC)5, 22 N(wnber’ ?000
I It is hereby notified thi~t the President has assented to the ‘ Hierby word bekend gemaak &tt die Presi(lent sy gmxl-
fo!lowing Act which is hereby p u b l i s h e d for ymeral ht.uring yhe~ he[ Jan die ondersta:mde Wet tial hierby ter in forTLation:- ~l[Sernene ill[ig[ing gepubliseer wor~i:--
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,, No. 21783 GC)VERNMENT GAZETTE. 22 NO”VEMBER 2000 . — . . — _ _ .—
Act NO. 53, ~()()() EL) UCA-l i(JX L,4W’S AhlENr)MENI’ ACT, 2W0
GENERAL EXPLANATORY NOTE:
[ 1 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 17 November 2000.)
ACT To amend the South African Qualifications Authority Act, 1995, so as to increase the representation of organised labour on the Authority; to amend the South African Schools Act, 1996, so as to make further provision for public schools on private property; to provide for the governance of a new public school until a governing body is constituted; and to provide for safety measures at public schools; to amend the Employment of Educators Act, 1998, so as to substitute certain definitions; to make provision for the appointment of educators to new public schools, public further education and training institutions and public adult learning centres; to amend the provisions dealing with incapacity, misconduct and appeals; to make provision for an incapacity code and procedure and a disciplinary code and procedure; to amend the Further Education and Training Act, 1998, so as to provide additional functions for the council of a public further education and training institution and to amend provisions relating to exemptions of existing private institutions; and to provide for matters connected therewith.
B E IT ENACTED by the Parliament of the Republic of South Africa, asfollows: Amendment of section 4 of Act 58 of 1995
1. Section 4 of the South African Qualifications Authority Act, 1995, is hereby amended by the substitution in subsection (3) for pardgraph (e) of the following 5 paragraph:
“(e) [two] three members nominated by the national organisations representing organised labour; ”.
Amendment of section 14 of Act 84 of 1996, as amended by section 5 of Act 100 of 1997 10
2. Section 14 of the South African Schools Act, 1996, is hereby amended by the substitution for subsection (1) of the following subsection:
“(1 ) Subject to the Consrirurion and [this Act] an expropriation in terms of section 58 of land or a real right to use the property on which the pub[ic school is situated, a public SChOOl may be provided on private property only in terms of an 15 agreement between the Met?lber of the Executive Council and the owner of the
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p;ivate property.”.
4 x,) 21 7s.; G()\’ERNMI;NT GAZETTE, z? NOVEhlBER ?000 — . — _
Acl No. 53.2000 ~:]>~C,,~rI()~- L,L\4”S .\hl F;NDh4 EN T .4C”T. 2000”
.Anlendnlent of section 16 of Act 84 of 1996. as amended by section 9 of Act 48 of 1999
3. Section 16 of the South African SCI1OO1S Act, 1996, is heleby amended by the addition of the follo~vins subsection:
“(7 ) If a new pt{l)lic .YChOO1 is provided in terms of section 12. the governance of 5 that school vests in the Head of Deporrmenr until a ,qo)’eming both has been constituted in terms of t/7i.Y Act.’”.
Amendment 01 Section L(J 01 Act 3401 1YY6, as amemlect by sectmn 001 Act lUU 01 1997
4. Section 20 of the South African Schools Act, 1996, is hereby amended by the substitution for paragraph (k) of subsection ( 1 ) of the following paragraph:
“(k) at the request of the Heud of Department, allow the reasonable use under fair conditions determined by the Head ~~Deparrment of the facilities of the SChOOl for educational programmed not conducted by the school;”.
Amendment of section 61 of Act 84 of 1996
5. The South African Schools Act, 1996, is hereby amended by the substitution for section 61 of the following section:
“Regulations
61. The A4ini.rfer may make regulations — (o) to provide for safety measures at publ~schoo[s; (bJ on any matter which must or may be prescribed by regulation under
this Act: and (c) on any ‘matter which may be necessary or expedient to prescribe in
order to achieve the objects of rhis Act.”.
Amendment of section 1 of Act 76 of 1998
6. Section 1 of the Employment of Educators Act, 1998, is hereby amended— (a) by the substitution for the definition of “further education and training
institution” of the following definition: “ ‘further education and training institution’ means a further education and training institution as defined in section 1 of the Further Education and Training Act, 1998 (Act No. 98 of 1998), but does not include any private further education and training institution:”; and
(b) by the substitution for the definition of “this Act” of the following definition: “ ‘this Act’ includes a regulation and the Schedules to this Act:”.
Amendment of section 6 of Act 76 of 1998, as amended by section 15 of Act 48 of 1999
7. Section 6 of the Employment of Educators Act, 1998, is hereby amended by the addition to subsection (3) of the following paragraph:
“(e) Until the relevant Rovernir?? body or council is established, the appoint- ment, promotion or transfer in a tenlporary capacity to any post on the educator establishment must be made bv the Head of Department where a— (i)
(ii)
(iii)
new public school is established in terms of the South African Schools Act, 1996, and any applicable provincial law; new further education and training institution is established in terms of the Further Education and Training Act, 1998, and any applicable provincial law; or new public adult learning centre is established in terms of the Adult Basic Education and Training Act, 2000. and any applicable provincia~”.
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(1 No. 21783 GtlVERNMENT G,4ZETTE, 22 NOVEMBER 2000
.Act No. 53, 2000” EDUCATION L,4W’S AMENDMEh’T ACT. 2000
Substitution of section 12 of Act 76 of 1998
8. The Employment of Educators Act. 1998, is hereby amended by the substitution for section 12 of the following section:
“Discharge on account of ill-health
12. An educator may be discharged on accounl of ill-health in the 5 circumstances referred to in Schedule 1.“.
Substitution of section 16 of Act 76 of 1998
9. The Employment of Educators Act. 1998, is hereby amended by the substitution for section 16 of the following section:
“Incapable educators 10
16. If it is alleged that an educator is unfit for the duties attached to the educator’s post or incapable of carrying out those duties efficiently, the employer must assess the capacity of the educator and may take action against the educator in accordance with the incapacity code and procedures for poor work performance as provided in Schedule 1.”. 15
Substitution of section 17 of Act 76 of 1998
10. The Employment of Educators Act, 1998, is hereby amended by the substitution for section 17 of the following section:
“Serious misconduct
17. (1) An educator must be dismissed if he or she is found guilty of— 20 (a)
(b)
(c)
(d)
(e)
(f)
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theft, bribery, fraud or an act of corruption in regard to examinations or promotional reports; committing an act of sexual assault on a learner. student or other employee; having a sexual relationship with a learner of the school where he or she is employed; seriously assaulting, with the intention to cause grievous bodily harm to. a learner, student or other employee; illegal possession of an intoxicating, illegal or stupefying substance; or causing a learner or a student to perform any of the acts contemplated in paragraphs (a) to (e).
~ z ) If it is alleged that an educator committed a serious misconduct I contemplated in subsection (1), the employer must institute disciplinary proceedings in accordance with the disciplinary code and procedures 35 provided for in Schedule 2.”.
Substitution of sections 18 to 24 of Act 76 of 1998
11. The Employment of Educators Act. 1998, is hereby amended by the substitution for sections 18 to 24 of the following section:
“Misconduct 40
18. (1) Misconduct refers to a breakdown in the em~~ment relationship and an educator commits misconduct if he or she-—
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(a) fails to comply with or contravenes this Act or any other statute, regulation or legal obligation relating to education and the employ- ment relationship; 45
(b) wilfully or negligently mismanages the finances of the State, a school, a further education and training institution or an adult learning centre;
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x No. 217s3 GOVERNMENT GAZETTE, 22 NOVEMBER 2000
Ad N(). 53. 2(}00
( c )
(d)
(e)
u)
(g)
(h)
(i)
(j)
(k)
(1) (m)
(}1)
(o) (P)
(9)
(l-)
(s) (t)
(u) (v)
(M’)
(x)
()’) (c)
EDLIC,ATIOX LAWS AMENDklENT ACT. 200()
without permission possesses or wrongfully uses the property of’ the State. a school, afurther education and training institution. anxlull learning centre, another employee or a visitor; w,ilfully, intentionally or negligently damages or causes loss to the propel~y of the Sta(e. a school. a further education and training institution or an adult learning centre; in tl~ecourse ofdutyendangers thelives ofhilllself orherselfor others by disregarding set safety rules or regulations; unjustifiably prejudices the administration, discipline orefflciencyof the Department of Education. an office of the State or a school. further education and training institution or adult learning centre; misuses his or her position in the Department of Education or a school. further education and training institution or adult learning centre to promote or to prejudice the interests of any person; accepts any compensation in cash or otherwise from a member of the public or another employee for performing his or her duties without written approval from the employer; fails to carry out a lawful order or routine instruction without just or reasonable cause; absents himself or herself from work without a valid reason or permission; unfairly discriminates against other persons on the basis of race, gender, disability, sex, pregnancy, marital status, ethnic and social origin, colour, sexual orientation, age, disability, religion, conscience, belief, culture, language, birth, family responsibility, HIV status, political opinion or other grounds prohibited by the Constitution: performs poorly or inadequately for reasons other than incapacity; without the written approval of the employer, performs work for compensation for another person or organisation either during or outside working hours; without prior permission of the employer accepts or demands in respect of the carrying out of or the failure to carry out the educator’s duties, any commission, fee, pecuniary or other reward to which the educator is not entitled by virtue of the educator’s office, or fails to report to the employer the offer of any such commission, fee or reward; without authorisation, sleeps on duty; while on duty, is under the influence of an intoxicating, illegal, unauthorised or stupefying substance, including alcohol; while on duty, conducts himself or herself in an improper, disgraceful or unacceptable manner; assaults, or attempts to or threatens to assault. another employee or another person; incites other personnel to unprocedural and unlawful conduct: displays disrespect towards others in the workplace or demonstrates abusive or insolent behaviour; intimidates or victimises fellow employees. learners or students; prevents other employees from exercising their rights to free]Y associate with trade unions in terms of any labour legislation; operates any money-lending scheme for employees for his or her own benefit during working hours or from the premises of the educational institution or office where he or she is employed; carries or keeps firearms or other dangerous weapons on State premises, without the written authorisation of the employer; refuses to obey security regulations; gives false statements or evidence in the execution of his or her duties;
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[0 N(). 2178.7 GOVERNivtENr GAZETTE. 22 NO\’EMBER 2000” — . — . . . —
.4ct No. 53.2000” ED[!C,\TION LAW’S.4MENDMEN TACT ,2000
(au) fidlsifies records c)ranyother docu]?qentatioll:
(bb)
(cc)
(old) (ee) (f)
participates in unproceduml. unprotected or unlawful industrial action: fails or refuses to-- (i) follow a formal programme ofcounselling as contemplated in
item 2(4) of Schedule 1; (ii) subject himself orherself toa medical examination ascontem-
plated in item 3(3) of Schedule 1 and in accordance with section 7 of the Employment Equity Act. 1998 (Act No. 55 of 1998); or
(iii) attend rehabilitation or follow a formal rehabilitation programme as contemplated in item 3(8) of Schedule 1:
commits a common law or statutory offence; commits an act of dishonesty: or victimises an employee for, amongst others, his or her association with a trade union.
(2) If it is alleged that an educator committed misconduct as contem- plated in subsection (1), the employer must institute disciplinary proceed- ings in accordance with the disciplinary code and procedures contained in Schedule 2.
(3) If, after having followed the procedures contemplated in subsection (2), a finding is made that the educator committed misconduct as contemplated in subsection (1). the employer may, in accordance with the disciplinary code and procedures contained in Schedule 2, impose a sanction of— (a) counseling; (b) a verbal warning; (c) a written warning; (d) a final written warning; (e) a fine not exceeding one month’s salary; ~) suspension without pay for a period not exceeding three months; (g) demotion; (h) a combination of the sanctions referred to in paragraphs (a) to (j: or (i) dismissal, if the nature or extent of the misconduct warrants dismissal.
(4) Any sanction contemplated in subsection (3)(e), (~) or (g) may be suspended for a specified period on conditions determined by the employer.
(5) An educator maybe dismissed if he or she is found guilty of— (a) dishonesty, as contemplated in subsection (l)(ee): (b) victimizing an employee for, amongst others, his or her association
with a trade union, as contemplated in subsection (1 )~); (c) unfair discrimination, as contemplated in subsection (1 )(k); (d) rape, as contemplated in subsection ( I)(dd); (e) murder, as contemplated in subsection (1 )(dd); (f) contravening section 10 of the South African Schools Act, 1996 (Act
No. 84 of 1996), as contemplated in subsection (1 )(dd).
Substitution of section 25 of Act 76 of 1998
12. The Employment of Educators Act, 1998, is hereby amended by the substitution for section 25 of the following section:
“Appeals
25. ( 1 ) An educator may appeal to the Minister or the Member of the Executive Council, as the case may be, against a decision to demote, ~ 50 transfer or terminate the services of the educator on the grounds of incapacity contemplated in section 16.
(2) An educator has a right to appeal to the Minister or the Member of the Executive Council. as the case may be, against the finding by the presiding officer of a disciplinary hearing that the educator has committed miscon- duct, as contemplated in section 17 or 18, and against the sanction imposed in terms of section 18(3)(e) to (i).
(3) In lodging an appeal. the educator must comply with the procedure
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laid down in-Schedule ‘2.”.
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Ad N(). 53, ?()()() ED L’C,\T lOti 1, .4\\’S 4tvl EN DMENT ACT. 2000
Amendment of section 36 of Act 76 of 1998
13. Section 360ftlle Elllpl(~\n~e[lto fEduc:]torsA ct. 1998, is hereby a m e n d e d - (\fENT, \CT. 2000
The alleged misconduct and the available evidence is based on the following e!idencc:
5 [A DETAILED DESCRIPTION OF MISCONDUCT MAY BE AT- TACHED].
The hearing will held at —. [PLACE] on [ DATE]
[TIME]. If you do not attend and cannot gi~a~ 10 reasonable grounds for failing to attend, the hearing will be held in your absence.
A fellow employee or a representative of a recognised union may represent you at the hearing.
You may give evidence at the hearing and adduce evidence in the form of 15 documents or through witnesses. You are entitled to question any witness called by the employer.
If the presiding officer finds that you are guilty of misconduct, you may present any relevant circumstances which you wish to be taken into account by the presiding officer in determining the sanction. 20
SIGNATURE OF EMPLOYER DATE
ACKNOWLEDGEMENT OF RECEIPT BY EMPLOYEE DATE
SIGNATURE OF WITNESS (if applicable) DATE
FORM D
SUMMONS TO APPEAR AT DISCIPLINARY HEARING
DATE:
TO: 30
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(Name and residential address of person summoned) You are hereby summoned to appear personal ly on the
day of — 20 I at (time) at 35
(place) before the presiding officer of a I
disciplinary hearing in terms of Schedule 2 to the Employment of Educators Act, -1998 (Act N-o. 76 of 1998), for the purpose of giving evidence regarding the following misconduct:
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and to submit the following book, document or object in your possession, custody or control, which may have a bearing on (he matter: 45
(specify the book, document or ob~ct)
SIGNATURE OF REPRESENTATIVE OR EMPLOYER 50
~b No. ?17s3 CJOVERXMENT G.AZETI’E, 22 NO\/EMBER 2!300
Act No. 53.2000 EDL~CATIOX LAWS AMENDMENr ACT, 2000
FORM E
NOTICE OF APPEAL [DATE] [NAME OF APPEAL AUTHORITY]
1. , [NAME OF EMPLOYEE] hereby 5 appeal against the FINDINGS and/or SANCTION that have been imposed in terms of the Disciplinary Code and Procedure on [DATE] at [PLACE].
I attach a copy of the final outcome of the disciplinary enquiry. [THE APPEAL REQUEST IS NOT VALID UNLESS THIS DOCUMENT IS 10 ATTACHED]
My reasons for appeal are:
The desired outcome of the appeal is: 15 I wish/do not wish [CHOOSE ONE] to provide additional evidence not
available at the time of the disciplinary proceedings.
20 SIGNATURE OF EMPLOYEE DATE [PERSAL NO] PERSONAL DETAILS OF THE EMPLOYEE]
NB: Educators may only appeal against the finding and resultant sanction 25 of—
1. suspension without pay for a period not exceeding three months: 2. demotion; 3. a fine; 4. a combination of the above sanctions together with warnings; or 30 5. dismissal.”.
Amendment of section 9 of Act 98 of 1998
18. Section 9 of the Further Education and Training Act, 1998, is hereby amended by the substitution for subsection (1) of the following subsection:
“(l) The council of a public further education and training institution must 35 perform all the functions, including the provision of public adult learning centres, which are necessary to govern the public further education and training institution, [subject to this Act and any applicable provincial law] subject to this Act and any applicable national or provincial law.”.
Substitution of section 51 of Act 98 of 1998 40
19. The following section is hereby substituted for section51 of the Further Education and Training Act, 1998:
“Exemption of existing private institutions
51. Sections 24 and 44(3) and (4) do not apply to a person who [was] ~ providing further education and training programmed at a private institution 45 immediately prior to the date [of commencement of this Act, until a date] determined by the Minister by notice in the Gazette.”.
Short title
20. This Act is the Education Laws Amendment Act, 2000