Act which is hereby published for general information:- NO. 76 OF 1998: EMPLOYMENT OF EDUCATORS ACT, 1998. (English text signed by the President.) (Assented to 30 September 1998.
To provide for the employment of educators by the State, for the regulation of the conditions of service, discipline, retirement and discharge of educators and for matters connected therewith.
"Labour Relations Act" means the Labour Relations Act, 1995 (Act No.
"public school" means a public school as defined in section 1 of the South African Schools Act, 1996 (Act No.
"trade union" means any trade union which is a member of the Education Labour Relations Council.
departmental offices; and adult basic education centres.
and the Head of Department shall be the employer of educators in the service of the provincial department of education in posts on the educator establishment of that department for all purposes of employment.
For the purposes of determining the salaries and other conditions of service of educators, the Minister shall be the employer of all educators.
Minister shall be the employer of educators in the service of the said Department; an on the educator establishment of a provincial department of education, the Member of the Executive Council shall be the employer of educators in the service of that department.
A public school shall be the employer of persons in the service of the said school as contemplated in section 20(4) or (5) of the South African Schools Act, 1996 (Act No 84 of 1996).
A further education and training institution shall be the employer of persons in the service of the said institution as contemplated in section 14(2) or (3) of the Further Education and Training Act, 1998.
Notwithstanding anything to the contrary contained in any law but subject to the provisions of this section, the Labour Relations Act or any collective agreement concluded by the Education Labour Relations Council, the Minister shall determine the salaries and other conditions of service of educators.
Different salaries and conditions of service may be so determined in respect o different ranks and grades of educators, educators appointed at or outside educational institutions or educators appointed in different sectors of education.
A determination of the Minister under this section involving expenditure from the National Revenue Fund may only be made with the concurrence of the Minister o: Finance.
the educator establishment of the Department of Education shall consist of the posts created by the Minister; and the educator establishment of a provincial department of education shall consist of the posts created by the Member of the Executive Council.
The educator establishment of any public school, further education and training institution, departmental office or adult basic education centre under the control of a provincial department of education shall, subject to the norms prescribed for the provisioning of posts, consist of the posts allocated to the said school, institution, office or centre by the Head of Department from the educator establishment of that department.
the power to create a post under this section shall include the power to grade, to regrade, to designate, to redesignate, to convert or to abolish the post; and the power to allocate a post under this section shall include the power to reallocate the post.
in the service of the Department of Education shall be made by the Director-General; or in the service of a provincial department of education shall be made by the Head of Department.
Subject to the provisions of this Chapter, the Labour Relations Act or any collective agreement concluded by the Education Labour Relations Council, appointments in, and promotions or transfers to, posts on any educator establishment under this Act shall be made in accordance with such procedure and such requirements as the Minister may determine.
Any appointment, promotion or transfer to any post on the educator establishment of a public school or a further education and training institution, may only be made on the recommendation of the governing body of the public school or the council of the further education and training institution, as the case may be, and, if there are educators in the provincial department of education concerned who are in excess of the educator establishment of a public school or further education and training institution due to operational requirements, that recommendation may only be made from candidates identified by the Head of Department, who are so in excess and suitable for the post concerned.
sufficient proof exists that the recommendation of the said governing body or council, as the case may be, was based on undue influence; or the recommendation of the said governing body or council, as the case may be, did not have regard to the democratic values and principles referred to in section 7(1).
If the Head of Department declines a recommendation in terms of paragraph (b), the governing body or council concerned shall make another recommendation in accordance with paragraph (a), for consideration by the Head of Department.
In the making of any appointment or the filling of any post on any educator establishment under this Act due regard shall be had to equality, equity and the other democratic values and principles which are contemplated in section 195(1) of the Constitution of the Republic of South Africa, l 996 (Act No.
the ability of the candidate; and the need to redress the imbalances of the past in order to achieve broad representation.
in a temporary capacity for a fixed period, whether in a full-time, in a part-time or in a shared capacity; or on special contract for a fixed period or for a particular assignment, whether in a full-time or in a part-time capacity.
the Director-General or the Head of Department may transfer any educator in the service of the relevant department to any post or position in any other department of State with the prior approval of the person in that other department of State having the power to appoint or to transfer and with the consent of that educator; and the Director-General may transfer any educator in the service of the Department of Education to any other post in the Department; and the Head of Department may transfer any educator in the service of the provincial department of education to any other post in that department.
No transfer to any post on the educator establishment of a public school or a further education and training institution shall be made unless the recommendation of the governing body of the public school or the council of the further education and training institution, as the case may be, has been obtained.
The salary and other conditions of service of an educator may not be adversely affected by a transfer under this section without the consent in writing of that educator, except in accordance with the provisions of Chapter 5.
or any other body or person, for a particular service or for a stated period on such conditions, in addition to the conditions prescribed by or under any law, as may be determined by the Director-General or the Head of Department, as the case may be.
While so placed at such disposal, the educator shall remain subject to the provisions of this Act.
(a) Subject to the provisions of this section, an educator shall have the right to retire, and shall be so retired, on the day on which the educator attains the age of 65 years.
An educator who attains the said age after the first day of a month shall be deemed to have attained that age on the first day of the following month.
Notwithstanding the provisions of subsection (1), an educator who was in employment immediately before 2 September 1994 in terms of a law repealed by the Educators' Employment Act, 1994 (promulgated under Proclamation No. 138 of 1994), shall have the right to retire on or after attaining the retirement age applicable to the educator immediately before the said date.
Notwithstanding the provisions of subsection (1) or (2), an educator shall have the right to retire on or after attaining the age of 55 years.
who was in employment immediately before 1 May 1996; and who, without interruption of service, has completed a period of ten years continuous pensionable service in terms of the pension law applicable to the educator; and who has attained the age of 50 years, shall have the right to retire.
if the educator was appointed in the post in question on the grounds of a misrepresentation made by the educator relating to any condition of appointment; and if, in the case of an educator appointed on probation, the educator's appointment is not confirmed.
If an educator is discharged from service under paragraph (f) of subsection (l), that educator shall be deemed to have been discharged on account of misconduct.
(a) Whenever there are reasonable grounds for believing that an educator is incapable of carrying out the duties attached to the educator's post on account of continuous ill-health, the employer may appoint a team of examiners of at least two medical practitioners to examine the educator at the State's expense and to report on the educator's state of health.
An educator is entitled to nominate any other medical practitioner of the educator's choice and at the educator's own expense as a member of the team of examiners.
if the employee has consented in writing to the release of that information.
If an educator refuses or fails to be subjected to an examination under this section when requested to do so by the employer, the educator may be discharged from service, in which case the educator shall be deemed to have been discharged on account of misconduct.
If an educator applies for a discharge from service on account of continuous ill-health, the provisions of subsection (1) shall apply, with the necessary changes, to such application.
extend the period of probation of the educator; or after reasonable notice to the educator, discharge the educator from service upon the expiry of the period of probation or any extension thereof.
the educator is in all respects suitable for the post which the educator holds; and the educator has complied with all the conditions applicable to the educator's appointment, transfer or promotion.
An educator whose transfer or promotion on probation is not confirmed and who immediately before such transfer or promotion was an educator, other than an educator on probation, shall be transferred to the post formerly held by that educator, or to a post of equivalent grading.
Certain educators deemed to be discharged 14.
while suspended from duty, resigns or without permission of the employer assumes employment in another position; or while disciplinary steps taken against the educator have not yet been disposed of, resigns or without permission of the employer assumes employment in another position, shall, unless the employer directs otherwise, be deemed to have been discharged from service on account of misconduct, in the circumstances where paragraph (a) or (b) is applicable, with effect from the day following immediately after the last day on which the educator was present at work; or paragraph (c) or (d) is applicable, with effect from the day on which the educator resigns or assumes employment in another position, as the case may be.
If an educator who is deemed to have been discharged under paragraph (a) or (b) of subsection (l) at any time reports for duty, the employer may, on good cause shown and notwithstanding anything to the contrary contained in this Act. approve the reinstatement of the educator in the educator's former post or in any other post on such conditions relating to the period of the educator's absence from duty or otherwise as the employer may determine.
An educator may resign by giving 90 days' notice in writing or such shorter notice as the employer may approve at the request of the educator.
If the name of an educator is struck off the register of educators kept by the South African Council for Educators, the educator shall, notwithstanding anything to the contrary contained in this Act, be deemed to have resigned with effect from the day following immediately after the day on which the educator's name was so struck off.
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 may appoint in writing a person to inquire into the relevant allegations.
The person who is to conduct the inquiry shall, in consultation with the employer, determine the time and place of the inquiry, and the employer shall give the educator concerned reasonable notice in writing of the time and place so determined and furnish that educator with a statement in writing setting out the grounds on which the educator is alleged to be unfit for the duties attached to the educator's post or incapable of carrying out those duties efficiently.
to adduce evidence and arguments in support of the allegations contemplated in subsection (2); and to cross-examine any person who has given evidence in rebuttal of the said allegations.
to cross-examine any person called as a witness in support of the allegations contemplated in subsection (2); and to have access to documents produced in evidence.
The person conducting the inquiry shall keep a record of the proceedings at the inquiry and of all evidence given thereat.
inform the educator of the finding; and report to the employer on the result of the inquiry.
If the person conducting the inquiry has found that the educator concerned is unfit for the duties attached to the educator's post or incapable of carrying out those duties efficiently, that educator may, within 14 days after the day on which the educator was informed of that finding, submit to the employer representations in writing regarding the steps which may be taken under subsection (8).
take the steps contemplated in subparagraph (ii) as well as the steps contemplated in subparagraph (iii); or discharge the educator from service with effect from such date as the employer may determine.
The employer shall as soon as possible inform the educator concerned in writing of the decision taken by the employer under paragraph (a) and of that educator's right of appeal in terms of subsection (9).
An educator shall have the right to appeal to the Minister or the Member of the Executive Council, as the case may be, against the finding that the educator is unfit for the duties attached to the educator's post or incapable of carrying out those duties efficiently or against the decision of the employer, or against that finding as well as that decision, within 21 days after the day on which the educator was informed of that decision.
If the educator notes an appeal in accordance with paragraph (a), the decision of the employer shall not be implemented before the disposal of the appeal.
The Minister or the Member of the Executive Council, as the case may be, may condone any late noting of an appeal upon good cause being shown.
dismiss the appeal and confirm that decision; or uphold the appeal wholly or in part and set aside or vary that decision, or substitute for that decision such other decision as the employer, in the opinion of the Minister or the Member of the Executive Council, as the case may be, ought to have taken.
The Minister or the Member of the Executive Council shall cause the educator who noted an appeal and the employer to be informed in writing of the decision on the appeal.
without leave or a valid reason, is absent from office or duty; or with a view to obtaining any privilege or advantage in connection with the employer's official position or duties, or to causing prejudice or injury to the State or a department of education or a fellow employee, makes a false or incorrect statement knowing it to be false or incorrect.
The acquittal or the conviction of an educator by a court of law on a charge of any offence shall not preclude the taking of disciplinary steps against the educator in terms of this Act, even if the facts set out in the charge of misconduct, should they be proven, would constitute the offence set out in the charge on which the educator was so acquitted or convicted or any other offence on which the educator could have been convicted in the trial on the former charge.
the conviction has been set aside by a competent court; or it is proved that the educator was in fact erroneously convicted.
to obtain evidence in order to determine whether there are grounds for a charge of misconduct against that educator; and to report to the employer thereon.
that the educator is not obliged to make any statement; and that any statement so made may be used in evidence against the educator.
The employer may in writing charge an educator with misconduct if the employer is of the opinion that sufficient grounds for such a charge exist, whether or not an investigation contemplated in section 18 was carried out.
A charge of misconduct shall be served on the educator concerned in the prescribed manner, and shall be accompanied by a direction calling on the educator to submit within 21 days after the service of the charge a written admission or denial of the charge and, should the educator so desire, an explanation in writing regarding the misconduct with which the educator is charged.
The employer may at any time withdraw a charge of misconduct.
If the employer has been informed that an educator charged with misconduct is a member of a trade union, the employer shall in writing notify the trade union concerned of the charge and of the particulars thereof.
An educator who admits the charge shall be deemed to be guilty of the misconduct with which the educator has been charged.
Subject to the provisions of this section, the Labour Relations Act or any collective agreement concluded by the Education Labour Relations Council, the employer may at any time before or after charging an educator with misconduct suspend that educator from duty on such conditions as the employer may determine.
furnish the educator with the reasons for the intended suspension; and call upon the educator to show cause within the period specified in the notice which period shall not be less than 14 days from the date of the notice, why the educator should not be so suspended.
After considering any representations received in accordance with subsection (2)(c), the employer may proceed with the suspension of the educator under subsection (l), or refrain from taking any further steps under the said subsection (l) and the employer shall inform the educator concerned in writing of the decision under this subsection.
If an educator charged with misconduct denies the charge; or fails to comply with the direction contemplated in section 19(2), the employer shall appoint a disciplinary tribunal consisting of a chairperson and two other persons, one of whom shall be nominated by the educator or the trade union of which the educator is a member, to inquire into the charge.
The chairperson of the disciplinary tribunal shall, in consultation with the employer, determine the time and place of the inquiry, and the employer shall give the educator and trade union concerned 14 days' notice in writing of the time and place so determined.
examine or require any person who has been called upon in terms of paragraph (b) to produce any book, document or object in that person's possession or custody or under that person's control which may have a bearing on the subject of inquiry.
signed by the chairperson of the disciplinary tribunal or any other person designated by the chairperson; and served in the prescribed manner.
In connection with the examination of any person by, or the production of any book, document or object before, the disciplinary tribunal under this section, the law relating to privilege, as applicable to a witness summonsed to give evidence or to produce any book, document or object before a court of law, shall apply.
to adduce evidence and arguments in support of the charge; and to cross-examine any person who has given evidence in rebuttal of the charge.
to cross-examine any person called as a witness in support of the charge; and to have access to documents produced in evidence.
The disciplinary tribunal shall keep a record of the proceedings at the inquiry and of all evidence given thereat.
if the disciplinary tribunal finds that the educator is guilty of the misconduct with which the educator has been charged, make a recommendation regarding any steps which may be taken under section 24(2); and inform the educator of the finding.
any remarks which the disciplinary tribunal wishes to make in connection with the inquiry; and the recommendation of the disciplinary tribunal regarding any steps which may be taken under this section.
discharge the educator from service with effect from such date as the employer may determine.
Except where the employer takes the steps contemplated in paragraph (a)(iv), the employer may take steps under more than one of the subparagraphs of paragraph (a), and the employer may suspend any one or more of those steps on such conditions and for such period, which period shall not exceed one year, as the employer may determine.
The employer shall as soon as possible inform the educator concerned in writing of the decision taken by the employer under subsection and of that educator's right of appeal in terms of section 25.
(a) An educator shall have the right to appeal to the Minister or the Member of the Executive Council, as the case may be, against the finding of the disciplinary tribunal that the educator is guilty of the misconduct with which the educator has been charged or against the decision of the employer under section 24(2), or against that finding as well as that decision, within 21 days after the day on which the educator was informed of that decision in terms of section 24(3).
If notice of appeal has been given in accordance with subsection (1), the employer shall furnish the educator concerned with a copy of the record of the proceedings at the enquiry and the other documents referred to in section 24(1)(b).
The educator may within 14 days after the day on which the educator received the copy of the record and other documents submit to the Minister or the Member of the Executive Council, as the case may be, representations in writing in support of the appeal.
The employer may within 14 days after the day on which the employer received a copy of the representations in writing submit to the Minister or the Member of the Executive Council, as the case may be, any reply in writing which the employer wishes to make to those representations, and shall furnish a copy of that reply to the educator concerned.
The educator may within 14 days after the day on which the educator received a copy of the reply in writing submit to the Minister or the Member of the Executive Council, as the case may be, any reply in writing which the educator wishes to make to that reply.
The Minister or the Member of the Executive Council, as the case may be, may condone any non-compliance with a time period specified in this section upon good cause being shown.
In each case where steps were taken against any educator under section 24(2), other than the cautioning or reprimanding of the educator, the employer shall furnish the South African Council for Educators with the record of the proceedings at the inquiry and all other documents relating thereto.
The South African Council for Educators, which was established in terms of a collective agreement reached in the Education Labour Relations Council, shall be deemed to be established in terms of this Act.
The South African Council for Educators is a juristic person which functions in terms of this Act.
The current chairpersons and members of the South African Council for Educators continue to perform the functions which they performed prior to the commencement of this Act, until their current terms of office expire.
Subject to this Act and the National Education Policy Act, 1996 (Act No.
have the power to establish committees and assign functions to them; and subject to this Act, perform any function which is necessary for the proper functioning of the Council.
The existing registration procedure, code of professional ethics and procedures of the South African Council for Educators remain in force until amended or repealed by the Council.
A person may not be appointed as an educator unless such person is registered or provisionally registered with the South African Council for Educators.
Any person registered or provisionally registered by the South African Council for Educators prior to the commencement of this Act, is deemed to be registered in terms of the provisions of this Act.
Any educator not registered or provisionally registered with the South African Council for Educators at the commencement of this Act, shall apply for registration within six months after the commencement of this Act.
After a date determined by the Minister by notice in the Gazette, no employer may employ or retain in employment, an educator not registered or provisionally registered with the South African Council for Educators.
the convening of meetings of the Council and its committees and the procedure at those meetings, including the quorum for such meetings; and any other matter which the Minister may deem necessary or expedient for the functioning of the South African Council for Educators.
and other income received by the South African Council for Educators from any other source.
may in any financial year submit adjusted statements of its estimated income and expenditure to the Minister for his or her approval; and may not incur any expenditure which exceeds the total amount approved in terms of paragraphs (a) and (b).
If the Minister does not approve the statement of estimated income and expenditure of the South African Council for Educators, the Minister shall require the Council to provide a revised statement within a specified period to him or her.
The funds contemplated in subsection (1) must be used by the South African Council for Educators in accordance with the approved statement referred to in subsection (2), and any unexpended balance must be carried forward as a credit to the following financial year.
Subject to subsection (4), the South African Council for Educators may invest any portion of its funds in a manner as the Minister may approve.
The books of account and financial statements of the South African Council for Educators must be audited at the end of each financial year by a registered chartered accountant appointed by the Council.
A copy of the audited financial statements shall be submitted to the Minister within three months after the end of a financial year.
The South African Council for Educators shall, within three months after the end of each financial year, submit a report to the Minister on the performance of its functions during that financial year.
The Minister shall table copies of the report in Parliament as soon as reasonably practicable.
performs voluntarily; or has been ordered to perform by a competent authority.
The employer may order an educator to perform duties on a temporary basis other than those duties ordinarily assigned to the educator which are appropriate to the grade, designation or classification of the educator's post.
has been called upon in terms of section 21 (3)(b) and who refuses to be sworn or to affirm as a witness; or fails without sufficient cause to answer fully and satisfactorily any question lawfully put to that person under section 21(3)(c); or to produce any book, document or object in that person's possession or custody or under that person's control which that person was required to produce in terms of the said section 21(3)(c), shall be guilty of an offence and liable on conviction to a fine or to imprisonment for a period not exceeding six months or to both such fine and such imprisonment.
any matter required or permitted to be prescribed by regulation under this Act; and in general, any matter which the Minister may consider necessary or expedient to prescribe or regulate in order to achieve the objects of this Act.
The Minister may delegate to the Director-General or any other person in the service of the Department of Education any power conferred upon the Minister by or under this Act, other than the power referred to in section 16(10), 25(3) or 35, on such conditions as the Minister may determine; or authorise the said Director-General or person to perform any duty assigned to the Minister by or under this Act.
Director-General by or under this Act.
The Member of the Executive Council may delegate to the Head of Department or any other person in the service of the provincial department of education any power conferred upon the Member of the Executive Council by or under this Act, other than the power referred to in section 16(10) or 25(3), on such conditions as the Member of the Executive Council may determine; or authorise the said Head of Department or person to perform any duty assigned to the Member of the Executive Council by or under this Act.
The Head of Department may delegate to any person in the service of the provincial department of education any power conferred upon the Head of Department by or under this Act, on such conditions as the Head of Department may determine; or authorise the said person to perform any duty assigned to the Head of Department by or under this Act.
Subject to the provisions of subsection (2), the Educators' Employment Act, 1994, is hereby repealed.
Anything done under the said Act and which could be done under a provision of this Act, shall be deemed to have been done under that provision.
Notwithstanding the repeal of the said Act, any inquiry into inefficiency and any proceedings in respect of a charge of misconduct instituted or commenced under the said Act shall be continued and concluded as if the said Act had not been repealed.
Notwithstanding the repeal of the said Act, the regulations which were made under the said Act and were in force immediately before the commencement of this Act, and which are not inconsistent with this Act, shall continue in force until they are repealed, withdrawn or amended by regulations made under section 35 of this Act.
"the repealed Act" means the Educators' Employment Act, 1994 (promulgated under Proclamation No. 138 of 1994).
In order to deal effectively with any matter relating to the employment of educators at any college until such time as that college is declared to be a higher education institution under the Higher Education Act, 1997 (Act No.
an educator holding the said post or employed additional to the said educator establishment; or the salary or other conditions of service of the said educator, as are necessary to deal with any such matter: Provided that any inquiry into inefficiency and any proceedings in respect of a charge of misconduct instituted or commenced against that person under the repealed Act shall be continued and concluded as if the said section 37(1) had not been enacted.
Act, a college may create posts additional to the establishment contemplated in subsection (2).
The college shall be the employer of persons holding the said posts.
The provisions of this section, other than the proviso to subsection (2), shall cease to apply to the college, post, establishment, person, salary or conditions of service concerned on the date on which that college is declared to be a higher education institution under the Higher Education Act, 1997, or a further education and training institution under the Further Education and Training Act, 1998, as the case may be.
This Act shall be called the Employment of Educators Act, 1998.