Author: Gary Moore

Date: 27 May 2017

The South African Schools Act, 1996[1] is an Act to provide for a uniform[2] system for the organisation, governance and funding of schools.[3]

It states a public school’s governing body may[4] suspend from attending school a learner suspected of serious misconduct,[5] must[6] conduct disciplinary proceedings[7] and, if the learner is found guilty of serious misconduct, may suspend the learner[8] or recommend to the Head of Department[9] (“HoD”) that the learner be expelled from the school.[10])

The Act stipulates the Member of the Executive Council[11] (“MEC”) must[12] determine the behaviour by a learner at a public school which may constitute serious misconduct.[13]

But the Act contains no criteria to guide the MEC in making the determination.

This violates the Rule of Law principle that a power must not be so broad that the authority exercising it cannot determine its scope, for this may lead to arbitrary exercise of the power. There should be constraints on the exercise of the power. The constraints, if not appearing from the statute’s provisions, should appear from its policies and objectives.[14]

Yet, the Act’s policies and objectives afford no constraint on exercise of the MEC’s power to determine what behaviour may constitute serious misconduct: The Act’s objects refer only to a need to set uniform norms and standards for school education and school organisation, governance and funding.[15]

(A discretionary power may legitimately be broad if factors relevant to exercise of the power are too numerous or varied to identify in advance in the statute, or if the relevant factors are clear, or if the decision-maker has expertise relevant to the decision.[16]

(But it is doubted if factors relevant for determining behaviour constituting serious misconduct are too numerous or varied to identify in advance.[17] Yet relevant factors will not be clear unless spelt out in the statute. It is submitted that MECs would not necessarily all have expertise relevant to the decision.[18])

The Act states[19] the MEC may[20] close a public school.[21] But the Act contains no criteria to guide the MEC in determining when to close a public school. This, too, violates the Rule of Law principle that a power must not be so broad the authority exercising it cannot determine its scope. [22]

The MEC is not required to consult the public school about its intended closure,[23] even though a public school is a juristic person[24] and assets acquired by it are its property.[25] (If the MEC closes a public school, its assets[26] would then vest in[27] the State.[28])

The Act states the MEC may not close a public school, unless he[29] has informed the school’s “governing body”[30] of the intended closure and reasons and given it an opportunity to make representations; conducted a public hearing[31] to enable “the community” to make representations; and given due consideration to any such representations received.[32]

The Act’s failure to require that the public school also be given an opportunity to make representations (about its closure and the disposition of its assets) violates the principles of the Rule of Law that no person should be deprived of freedom or property arbitrarily, or be subjected to administrative action that is not procedurally fair.[33]

The Act states the MEC must[34] determine the grounds on which registration of an independent school may be granted or withdrawn by the HoD.[35] No person may establish[36] an independent school unless it is registered by the HoD.[37] A person contravening this prohibition commits an offence.[38]

The Act contains no criteria to guide the MEC in determining the grounds on which registration of an independent school may be granted or withdrawn by the HoD. This, also, violates the Rule of Law principle that a power must not be so broad the authority exercising it cannot determine its scope.

(The Act states withdrawal of an independent school’s registration is not valid unless: The HoD has given its owner notice of intention to withdraw registration stating the reasons for contemplating it; the owner has been granted an opportunity to make representations why registration should not be withdrawn; and any representations have been duly considered. The owner may appeal to the MEC against withdrawal of registration.[39]

(But no criteria to guide the MEC when determining grounds on which registration of an independent school may be withdrawn can be derived from any such consultation or appeal: The MEC is not bound by the views of those consulted.[40]

(An appeal would be after the MEC had already determined the grounds for withdrawing registration. Appeal to the MEC would probably not include attacking the grounds for withdrawal of registration determined by the MEC. Indeed, any such appeal attacking the grounds determined by the MEC for withdrawal of registration would be to the very functionary who determined those grounds, contrary to the Rule of Law.)[41]

[1] South African Schools Act 84 of 1996.

[2] Education other than tertiary education is a functional area of concurrent national and provincial legislative competence. Constitution Schedule 4.

The National Assembly, with the National Council of Provinces, may pass legislation regarding any matter in that functional area. Constitution s 44(1)(a)(ii), s 44(1)(b)(ii) read with s 76.

A provincial legislature may also pass legislation for its province regarding any matter in that functional area. Constitution s 104(1)(b)(i).

[3] South African Schools Act, Long title.

[4] On reasonable grounds and as a precautionary measure.

[5] After the learner has been granted a reasonable opportunity to make representations to it in relation to such suspension. South African Schools Act s 9(1).

[6] Within seven school days.

[7] South African Schools Act s 9(1A) read with s 8(5)–(9).

[8] For a (further, presumably) period of no longer than seven school days, or (“impose”, presumably) any other sanction contemplated in the school’s code of conduct. South African Schools Act s 9(1C)(a). The Act’s provisions are not well drafted.

[9] The Head of the Education Department in the province concerned. South African Schools Act s 1(1) svv “Head of Department” read with “education department”.

[10] South African Schools Act s 9(1C)(b).

If the HoD decides not to expel a learner, he may after consulting the governing body impose a suitable sanction on the learner or refer the matter back to the governing body for a sanction in terms of the school’s code of conduct, short of expulsion: s 9(8) and (9).

A learner may be expelled only by the HoD: s 9(2)(a).

[11] The Member of the Executive Council of a province who is responsible for education in that province. South African Schools Act s 1(1) sv “Member of the Executive Council”.

[12] By notice in the Provincial Gazette.

[13] South African Schools Act s 9(3)(a).

[14] Affordable Medicines Trust and others v Minister of Health and ano 2005 (6) BCLR 529 (CC) para [34].

[15] South African Schools Act, Long title, Preamble.

(The provisions requiring a governing body of a public school to adopt for its learners a code of conduct state that such a code must be aimed at establishing a disciplined and purposeful school environment dedicated to improvement and maintenance of the quality of the learning process: s 8(1) and (2).

(This is not a constraint on the MEC’s determination: Different public schools will have different codes of conduct, whereas the MEC’s determination would apply to all public schools in the province.)

[16] Dawood and ano v Minister of Home Affairs and others 2000 (8) BCLR 837 (CC), para [53].

[17] Thus, for example, the Act’s provisions prohibiting “initiation practices” at schools identify (albeit in general terms) certain acts constituting initiation practices. South African Schools Act s 10A(3)(a)–(f).

[18] MECs’ and ministers’ decisions are not infrequently found by the courts to be unlawful.

(E.g., a regulation by the national Minister concerning employment of educators was set aside as unlawful. Larbi-Odam and others v Member of Executive Council for Education (North-West Prov) and ano 1997 (12) BCLR 1655 (CC) (setting aside reg 2(2) of Educators Employment Terms and Conditions Regulations (Govt Notice R1743 of 13 Nov 1995) made under Educators’ Employment Act 138 of 1994 (Proc 138 of 1994).

[19] Inter alia.

[20] By notice in the Provincial Gazette.

[21] South African Schools Act s 33(1).

[22] The Act could, for example, have stated that the MEC may close a rural or farm public school if it experiences a declining number of learners which prejudices the cost-effective maintaining of the school or results in it being unable to provide adequate curriculum choices, or if educators are required to teach many grades across phases in one classroom, or if the school lacks adequate facilities or infrastructure such as libraries, laboratories, sports fields or the like. See Minister of Education for Western Cape and ano v Beauvallon Secondary School and others [2015] 1 All SA 542 (SCA) paras [5], [21] and [33].

[23] See the critical remarks about this omission in Bennie Groenewald Primêre Skool en andere v Premier van die Noord-Kaap en ’n ander [1998] 3 All SA 426 (NC) 435.

[24] South African Schools Act s 15.

[25] South African Schools Act s 37(5).

[26] And liabilities.

[27] The Act says the assets “devolve on” the State (a term more appropriate to a delegating of power).

[28] Unless the MEC and the school’s governing body otherwise agree. South African Schools Act s 33(3).

Assets donated or bequeathed to a public school or received by it in trust must be applied in accordance with the conditions of the donation, bequest or trust: s 37(4).

[29] Or she.

[30] Just as a public school has legal personality, so too (confusingly) does a public school’s governing body. Bennie Groenewald Primêre Skool en andere v Premier van die Noord-Kaap en ’n ander op cit 434-6.

(Governance of a public school is vested in its governing body. This includes adopting a code of conduct for learners at the school, supporting the principal and educators in their professional functions, controlling the school’s property and buildings and grounds occupied by the school, and recommending to the HoD the appointment of educators and staff: South African Schools Act ss 16(1) and 20(1)(d), (e), (g), (i) and (j).

(Professional management of the school is undertaken by its principal, under authority of the HoD. This includes implementing educational programmes, managing educators and other staff, managing use of learning support material, and safekeeping of school records: ss 16(3) and 16A(2)(a)(i)–(iii) and (v).)

[31] On reasonable notice.

[32] South African Schools Act s 33(2)(a)–(d).

[33] These Rule of Law principles are also fundamental rights. Constitution, Ch 2 (Bill of Rights) s 12(1)(a) (freedom and security of the person), s 25(1) (property), s 33(1) (just administrative action).

It is a Rule of Law principle that the law must afford adequate protection of fundamental human rights. Lord Bingham, “The Rule of Law.” Sixth Sir David Williams Lecture, 2006. Centre for Public Law, University of Cambridge: fourth sub-rule.

[34] By notice in the Provincial Gazette.

[35] South African Schools Act s 46(2).

[36] Or maintain.

[37] South African Schools Act s 46(1). An HoD must register an independent school if satisfied the school complies with the grounds for registration determined by the MEC: s 46(3)(c).

The HoD must also be satisfied that the school’s standards will not be inferior to those in comparable public schools, and that its admission policy does not discriminate on grounds of race: s 46(3)(a) and (b).

[38] And is on conviction liable to a fine or three months’ imprisonment. South African Schools Act s 46(4).

(The fine currently corresponding to three months’ imprisonment is R10,000. Adjustment of Fines Act 101 of 1991 s 1(1)(a), read with Magistrates’ Courts Act 32 of 1944 s 92(1)(a) and (b) and Govt Notice 217 of 27 March 2014.)

[39] South African Schools Act s 47(1)(a), (b) and (c) and (2).

[40] See Maqoma v Sebe NO [1987] 3 All SA 414 (Ck).

[41] Adjudicative procedures should be fair. Lord Bingham, “The Rule of Law,” op cit: seventh sub-rule.

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Gary Moore

Gary Moore BA LL.B. (Witwatersrand) LL.M. (UC London) is a South African lawyer and Senior Researcher at the Free Market Foundation.

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