Vol. 454 Pretoria 29 April 2003 No.
Higher Education Amendment Bill, 2003.
The Director-General, Private Bag X895, Pretoria, 0001, for attention: Ms M Locke, Fax No. (012) 326-9128 or e-mail: Locke.M@doe.gov.za, telephone number (012) 312 5356.
Kindly provide the name, address, telephone number and fax number and e-mail address of the person or organization submitting the comments.
The comments should reach the Department not later than 21 May 2003.
To amend the South African Qualifications Authority Act, 1995, so as to effect textual corrections; and to make provision for the increase of the number of members nominated by the organized teaching profession; to provide for the extension of term of office of members of the Authority; to amend the South African Schools Act, 1996, so as to provide for the prohibition of the payment of any remuneration to an educator employed in terms of the Employment of Educators Act, 1998, by a School Governing Body; to amend the Employment of Educators Act, 1998, so as to effect textual corrections; and to provide for an appeal by the employer against the finding of the presiding officer of a disciplinary hearing; to amend the General and Further Education and Training Quality Assurance Act, 2001, so as to extend the definition of the Council; and to provide for matters connected therewith.
Amendment of section 4 of Act 58 of 1995 1.
"(1) The Authority shall consist of a chairperson who shall be appointed in terms of subsection (2), such members as shall be appointed in terms of subsections (3) and (4), and an executive officer who shall be appointed in terms of subsection [(7)] (8).".
"(3)(n) [two] three members nominated by the organised teaching profession.".
"(9) Despite subsection (6), the Minister may extend the term of office of any member or members.".
Insertion of section 38A in Act 84 of 1996 2.
except for the payment of travel and subsistence expenses in amounts comparable to those paid for similar expenses incurred by public servants.
The travel and subsistence expenses contemplated in subsection (1) must be directly related to official school activities.
The payment contemplated in subsection (1) must be reflected in the school's budget.
any person who made such payment without the authorization of the school governing body.
Amendment of section 8 of Act 76 of 1998, as amended by section 11 of Act 50 of 2002 3.
"(7) Despite [section] sections 6(3)(a) and 8(2) in the case of an educator who has been awarded a bursary by the employer to follow a course approved by the employer, the employer may transfer such an educator, with his or her consent, to any suitable post on the educator establishment of a public school, a further education and training institution or an adult basic education and training centre.".
Amendment of section 25 of Act 76 of 1998 4.
(2) An educator or an employer 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, as contemplated in section 17 or 18, and against the sanction imposed in terms of section 18(3)(e) to (i).
In lodging an appeal, the educator or employer must comply with the procedure laid down in Schedule 2.
Amendment of section 34 of Act 76 of 1998 5.
Shall be guilty of an offence an liable on conviction to a fine or to imprisonment for a period not exceeding six months or both such fine and such imprisonment'.'.
Amendment of item 9 of Schedule 2 to Act 76 of 1998 6.
(1) An educator or an employer may appeal against a finding or sanction by making an application in accordance with Form E attached to this Schedule.
The educator or the employer must, within five working days of receiving notice of the final outcome of a disciplinary hearing, submit the appeal form to the Member of the Executive Council or the Minister, as the case may be.
If the Member of the Executive Council or the Minister, as the case may be, chooses to allow further representations by the educator, [or] his or her representative, or an employer, he or she must notify the educator or employer respectively of the date, time and place where such representation must be made.
Substitution of Form E of Schedule 2 to Act 76 of 1998 7.
I, , [NAME OF EMPLOYEE OR EMPLOYER] hereby 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.
I wish/do not wish [CHOOSE ONE] to provide additional evidence not available at the time of the disciplinary proceedings.
Amendment of section 1 of Act 58 of 2001 8.
Amendment of section 4 of Act 58 of 2001 9.
"4. A juristic person to be known as Umalusi, the Council for General and Further Education and Training Quality Assurance [Council] is hereby established.".
This Act is the Education Laws Amendment Act, 2003, and commences on the date of publication in the Government Gazette.
General and Further Education and Training Quality Assurance Act 58 of 2001 2.
The Acts are amended so as to make certain technical adjustments to clarify matters and to insert certain provisions to cover matters which are not provided for by the existing provisions of the Acts.
of section 4 of the Act and not subsection (7). It is therefore necessary to effect such textual correction.
Given that there are three main teacher unions, section 4(3)(n) of the Act is amended so as to increase the number of the representatives of educators in the Authority from two to three.
Section 4(6) of the Act determines that a member of the Authority may be re-appointed only once. But sometimes it is necessary to keep a member due to his or her expertise and experience in matters relating to the functions of the Authority. To make room for such a member, section 4 is amended to enable the Minister to extend the term of office of a member or members of the Authority.
During the investigation into the cost of education in public schools, requests were made to the Minister to regulate the additional remuneration to state employed educators by governing bodies. The school fund in most public schools consists mainly of compulsory contributions by parents of learners, but parents are kept uninformed about amounts paid to such educators and of the reasons for such additional remuneration.
In principle, all educators employed by the provincial departments, that is, state employed educators, must be compensated within the same salary ranges and on the same salary level for the same or similar duties. It is unfair and inappropriate for any state official, including educators who are being paid by their employer, to receive any additional remuneration or benefits in kind for work done in an official capacity, unless the employer gave prior approval to the official to receive such benefits.
The governing body of a school is not the employer of educators, except for those educators employed by the governing body in terms of section 20(4) of the South African Schools Act. If the school requires an educator to perform duties which do not fall within the educator's job description and working hours, such activities will require the governing body to create a specific post. The creation of a post by a governing body requires it to reflect the number of, and sufficient details of the posts when presenting its budget in accordance with section 38 of the Act. The budget must reflect the cost relating to the employment of staff in such posts, and the manner in which such costs will be met. Once a post is created by a governing body, it must be filled in an open and transparent manner and any person may compete for such a post, as prescribed by labour laws. If a state employed educator is the most suitable person for the job and it does not interfere with his or her normal duties or working hours at the school, prior approval must be obtained from his or her employer by the governing body, and if approval is obtained, such an educator will be appointed to the post.
The main aim of the amendment is not to ban extra remuneration for educators employed by the State completely, but to curb the irresponsible manner in which it is done. The proper way of paying such remuneration is first and foremost to seek the approval of the Head of Department and secondly, the remuneration must be reflected in the annual budget of the school as contemplated in section 38 of the Act.
The current position is that educators who receive such remuneration are subject to disciplinary measures in terms of sections 33 and 18(1)(h) of the Employment of Educators Act, 1998 (Act No. 76 of 1998). These provisions of the Act prevent any educator employed by the Head of Department to receive any remuneration or any compensation in cash without the written approval of the Head of Department. It is not desirable to make many educators vulnerable to disciplinary action, since the additional remuneration is offered to them. This amendment seeks to address it in a systemic manner, by prohibiting governing bodies to make such illegal temptations to educators, and not necessarily to prosecute educators for receiving such illegal donations.
There was an omission when section 8 of the Act was amended by section 11 of the Education Laws Amendment Act 50 of 2002. Reference was made only to section 6(3)(a) instead of referring also to section 8(2) of the Act because both sections are dealing with recommendations for appointment of an educator by the governing body to the Head of Department.
The amendment of section 25 of the Act is designed to allow the employer to appeal either to the MEC or to the Minister, as the case may be, against the finding of the presiding officer. This is helpful in cases where the presiding officer did not apply his or her mind properly to all the evidence before him or her and set the accused free despite the fact that evidence suggested otherwise. This applies to instances where the presiding officer decided on a sanction that does not match the misconduct committed by the accused.
3.4 General and Further Education and Training Quality Assurance Act 58 of 2001 The amendment of section 4 of the Act is proposed as a result of a request from the Council. The Council and the staff of the General and Further Education and Training Quality Assurance Council found it difficult to work with an institution with such a long and cumbersome name. The acronym, namely GENFETQAC, was also not satisfactory.
The Council has, with the help of professional word-smiths in the advertising world, adopted the name "UMALUSI" to be used to refer to the General and Further Education and Training Quality Assurance Council. The name is derived from the Nguni "uMalusi" meaning "shepherd" or, in the African context, "guardian of the family assets". UMALUSI is to take care of some of the nation's most valued possessions - general and further education and training. It will encourage and support, but also be firm on growth in quality through powerful and effective learning.
The Department of Education and the Sate Law Adviser are of the opinion that the procedures contemplated in section 73 and 76 of the Constitution, Act 108 of 1996 should be followed since the Bill falls within the ambit of Schedule 4 of the Constitution.