REPUBLIC OF SOUTH AFRICA

BASIC EDUCATION LAWS

AMENDMENT BILL

(As introduced in the National Assembly (proposed section 76); explanatory summary of
Bill and prior notice of its introduction published in Government Gazette No. 45601 of
6 December 2021)
(The English text is the offıcial text of the Bill)

(MINISTER OF BASIC EDUCATION)

[B 2D—2022] ISBN 978-1-4850-0989-4

No. of copies printed .........................................150

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GENERAL EXPLANATORY NOTE:

[ ] Words in bold type in square brackets indicate omissions from

existing enactments.
Words underlined with a solid line indicate insertions in
existing enactments.

BILL
To amend—

● the South African Schools Act, 1996, to insert and amend certain definitions; to
provide that attendance of grade R is compulsory; to amend the penalty
provision in the case where the parent of a learner, or any other person,
without just cause, prevents a learner who is subject to compulsory attendance
from attending school, and to create an offence in respect of the interruption,
disruption or hindrance of official educational activities of a school; to enhance
the authority of the Head of Department in relation to the admission of a
learner to a public school, after consultation with the governing body of the
school; to provide that the South African Sign Language has the status of an
official language for purposes of learning at a public school, and that the Head
of Department may direct a public school to adopt more than one language of
instruction, where it is practicable to do so, and that, if the Head of
Department issues such a directive, he or she must take all necessary steps to
ensure that the public school receives the necessary resources to enable it to
provide adequate tuition in the additional language of instruction; to provide
the Minister with the authority to appoint a person, an organisation or a group
of persons to advise on curriculum and assessment-related matters; to provide
that the code of conduct of a public school must take into account the diverse
cultural beliefs, religious observances and medical circumstances of learners
at the school and to provide for the inclusion of an exemption clause in the code
of conduct and for disciplinary proceedings to be dealt with in an age-
appropriate manner and in the best interests of the learner; to refine the
provisions relating to the possession of drugs on school premises or during
school activities; to refine the provisions relating to suspension and expulsion
from public school for misconduct; to provide for the prohibition of corporal
punishment at school, during school activities and at hostels accommodating
learners of a school; to prohibit initiation practices during school activities; to
provide for the designation of a public school as a public school with a
specialised focus on talent; to further regulate the merger of public schools; to
provide for centralised procurement of identified learning and teaching
support material for public schools; to further regulate the withdrawal of the
functions of governing bodies; to provide that it is the Minister, and not the
Member of the Executive Council, who must make certain determinations in
regard to the composition, and related matters, of governing bodies of schools
for learners with special education needs; to provide for the membership of a
governing body of a public school that provides education with a specialised
focus on talent, sports and performing or creative arts; to provide that the
Head of Department may, on reasonable grounds, dissolve a governing body
that has ceased to perform its functions; to provide that a member of a
 3

governing body must declare a direct or indirect personal and financial

interest that he or she or his or her family member may have in the
recruitment or employment of staff at a public school, or in the procurement of
goods and services for a public school, and that the member of the governing
body must recuse himself or herself from a meeting of the governing body
under such circumstances; to provide further clarity regarding the prohibition
of the remuneration of members of governing bodies; to provide that it is the
Minister, and not the Member of the Executive Council, who must make
certain determinations in regard to the election of members of governing
bodies of public schools; to provide that, where reasonably practicable, only a
parent member of a governing body who is not employed by the public school
may serve as chairperson of the finance committee; to make a technical
amendment in regard to the status of learners serving on governing bodies of
public schools; to extend and refine the provisions relating to the closure of a
public school; to provide that lease agreements relating to a school’s
immovable property must be submitted to the Head of Department for
approval and that, in the case of a lease for a period not exceeding 12 months,
the approval of the Head of Department is not required; to further regulate
and refine matters relating to the budget of a public school; to further regulate
the circumstances under which a governing body may pay additional
remuneration, or give any other financial benefit or benefit in kind, to a state
employee; to provide that, where the parent of a learner applies for exemption
from the payment of school fees and information cannot be obtained from the
other parent of the learner, the parent may submit documentary evidence in
the form of an affidavit or court order in relation to the other parent; to
provide for financial record-keeping by the governing body of a public school,
for the drawing up of financial statements, and for the presentation of these to
a general meeting of parents; to extend the powers of the Head of Department
to conduct an investigation into the financial affairs of a public school and to
provide that the governing body of a public school must submit quarterly
reports on all income and expenditure to the Head of Department; to increase
the penalty provision in the case where a person establishes or maintains an
independent school and fails to register it; to empower the Member of the
Executive Council to determine conditions when granting a subsidy to an
independent school and to provide for financial reporting, by such subsidised
independent schools; to further regulate home education; to create an offence
where a parent supplies a public school with false or misleading information or
forged documents when applying for the admission of a learner or for
exemption from the payment of school fees; to provide for a dispute resolution
mechanism in the event of a dispute between the Head of Department or the
Member of the Executive Council and a governing body; to further regulate
the liability of the State for delictual or contractual damages; to extend the
power of the Minister to make regulations and to provide for offences to be
created in regulations made by the Minister; to amend the Preamble; and to
provide for matters incidental thereto; and
● the Employment of Educators Act, 1998, so as to amend certain definitions; to
exclude further education and training centres, adult basic education centres
and institutions, from the ambit of the Act; to prohibit an educator from
conducting business with the State and to create an offence in relation thereto;
to extend the powers of the Minister to make regulations; and to provide for
matters incidental thereto.
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B E IT ENACTED by the Parliament of the Republic of South Africa, as follows:—

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, section 4 of Act 31 of 2007 and section 4 of Act 15 of 2011 5

1. Section 1 of the South African Schools Act, 1996, is hereby amended—

(a) by the insertion in subsection (1) before the definition of ‘‘Constitution’’ of the
following definitions:
‘‘‘basic education’ includes grade R to grade 12, as evidenced in the
National Curriculum Statement; 10
‘benefit in kind’ means any benefit offered or afforded to an employee
employed in terms of the Employment of Educators Act, 1998 (Act No.
76 of 1998), or the Public Service Act, 1994 (Proclamation No. 103 of
1994), which is not a monetary benefit, including, but not limited to—
(a) exclusive private usage or ownership of a vehicle; 15
(b) free accommodation;
(c) free phone, including a cell phone;
(d) free holiday;
(e) groceries to the benefit of the employee; or
(f) garden services; 20
‘competent assessor’ means an educator registered with the South
African Council for Educators as defined in the South African Council
for Educators Act, 2000 (Act No. 31 of 2000), a recognised professional
body in the field of education, or a person or body registered with the
South African Qualifications Authority as defined in the National 25
Qualifications Framework Act, 2008 (Act No. 67 of 2008);’’;
(b) by the substitution in subsection (1) for the definition of ‘‘Constitution’’ of the
following definition:
‘‘‘Constitution’ means the Constitution of the Republic of South Africa,
1996 [(Act 108 of 1996)];’’; 30
(c) by the insertion in subsection (1) after the definition of ‘‘Constitution’’ of the
following definition:
‘‘‘corporal punishment’ means any deliberate act against a child that
inflicts pain or physical discomfort, however light, to punish or contain
the child, which includes, but is not limited to— 35
(a) hitting, smacking, slapping, pinching or scratching with the hand or
any object;
(b) kicking, shaking, throwing, throwing objects at, burning, scalding,
biting, pulling hair, boxing ears, pulling or pushing children; and
(c) forcing children to stay in uncomfortable positions, forced inges- 40
tion, washing children’s mouths out with soap, denying meals, heat
and shelter, forcing a child to do exercises which are not in
accordance with the curriculum applicable to the learner or denying
or restricting a child’s use of the toilet; and
(d) any acts which seek to belittle, humiliate, threaten, induce fear or 45
ridicule the dignity and person of a learner;’’.
(d) by the insertion in subsection (1) after the definition of ‘‘Council of Education
Ministers’’ of the following definition:
‘‘‘Criminal Procedure Act’ means the Criminal Procedure Act, 1977
(Act No. 51 of 1977);’’. 50
(e) by the insertion in subsection (1) after the definition of ‘‘dangerous object’’ of
the following definitions:
‘‘‘Department of Basic Education’ means the national department
established in terms of section 7(2), read with Schedule 1, of the Public
Service Act, 1994 (Proclamation No. 103 of 1994), responsible for basic 55
education;
‘drug’ means any—
(a) intoxicating or stupefying substance that has a psychological or
physiological effect;
 5

(b) substance that has the effect contemplated in paragraph (a) and that
is possessed contrary to the code of conduct of a school or contrary
to the laws of the Republic;
(c) substance, the possession or use of which, or the dealing in which,
is prohibited without a medical prescription or legal authorisation; 5
or
(d) performance-enhancing drug, prohibited performance-enhancing
substance, dependence-producing substance, dangerous depen-
dence-producing substance, undesirable dependence-producing
substance, unlawful substance, prohibited substance, illicit sub- 10
stance, illicit drug, or scheduled substance,
contemplated in any South African legislation that deals with the control
of medicines and related substances, with drug trafficking, substance
abuse in general, and with substance abuse in sport and in any
programmes or policies aimed at curtailing social and sport-related 15
substance abuse, and in any international instruments that deal with such
matters and to which South Africa subscribes or is a party;’’;
(f) by the insertion in subsection (1) after the definition of ‘‘education
department’’ of the following definition:
‘‘‘education district’ means a district in an area of a province which is 20
demarcated by the Member of the Executive Council for administrative
purposes;’’;
(g) by the insertion in subsection (1) after the definition of ‘‘grade’’ of the
following definition:
‘‘‘grade R’ means the Reception grade;’’; 25
(h) by the insertion in subsection (1) after the definition of ‘‘Head of Department’’
of the following definition:
‘‘‘home education’ means a purposeful programme of education for a
learner, alternative to school attendance, which—
(a) is provided under the direction of the learner’s parent, primarily in 30
the environment of the learner’s home;
(b) may include tutorial or other educational support, if necessary,
secured by the parent on specific areas of the curriculum followed
by the learner; and
(c) meets the requirements for home education contemplated in section 35
51 of this Act;’’;
(i) by the deletion in subsection (1) of the definition of ‘‘illegal drug’’;
(j) by the insertion in subsection (1) after the definition of ‘‘learner’’ of the
following definition:
‘‘ ‘liquor’ means liquor as defined in section 1 of the Liquor Act, 2003 40
(Act No. 59 of 2003);’’;
(k) by the substitution in subsection (1) for the definition of ‘‘loan’’ of the
following definition:
‘‘‘loan’ means any financial obligation based on agreement, which
obligation renders a school liable for making payment, in one or more 45
instalments, in favour of any person, but does not include the payment of
employees appointed by the governing body in terms of section 20(4) or
(5), or operational costs as determined in the annual budget contemplated
in section 38;’’;
(l) by the insertion in subsection (1) after the definition of ‘‘offıcer’’ of the 50
following definition:
‘‘‘other financial benefit’ means any benefit of a monetary nature,
including, but not limited to—
(a) exemption from the payment of school fees to the school in respect
of the child of an employee, but excluding exemption in terms of the 55
provisions of sections 39 to 41;
(b) a credit card linked to an employee for his or her personal use; or
(c) a petrol card linked to an employee for his or her personal use not
related to any school activity;’’;
 6

(m) by the substitution in subsection (1) in the definition of ‘‘parent’’ for

paragraph (c) of the following paragraph:
‘‘(c) the person who undertakes to fulfil the obligations of a person
referred to in paragraphs (a) and (b) towards the learner’s education
[at school];’’; 5
(n) by the insertion in subsection (1) after the definition of ‘‘registrar of deeds’’ of
the following definition:
‘‘‘required documents’ for learners shall have the following meaning in
relation to the following categories of learners:
(a) Where at least one or both biological or adoptive parents of a 10
learner are South African citizens, the following documents:
(i) An unabridged birth certificate of the learner;
(ii) the South African identity documents or cards of the learner’s
parents; and
(iii) where either or both parents are deceased, the relevant death 15
certificates;
(b) where both parents of the learner are foreign nationals and hold
either permanent residence permits or temporary residence visas,
the following documents:
(i) the learner’s foreign issued birth certificate; 20
(ii) the learner’s passport;
(iii) a study visa or permanent residence permit issued to the
learner;
(iv) the parents’ passports; and
(v) the parents’ temporary residence visas or permanent residence 25
permits;
(c) where the parents of the learner are refugees or asylum seekers, the
following documents:
(i) the parent’s asylum seeker or refugee visa;
(ii) the learner’s asylum seeker or refugee visa; 30
(iii) the learner’s birth certificate if the learner was born in the
Republic; and
(iv) where asylum seeker visas are provided, a refugee or long term
study visa must be provided within three years of admission of
the learner; and 35
(d) where the learner is in alternative care, the following documents:
(i) the relevant court order granting guardianship or custody; and
(ii) the learner’s unabridged birth certificate.’’; and
(o) by the insertion in subsection (1) after the definition of ‘‘school fees’’ of the
following definition: 40
‘‘‘special education needs’ means education designed to facilitate the
learning of individuals who, for a wide variety of reasons, require
additional support and adaptive pedagogical methods in order to
participate and meet learning objectives in an educational programme;’’.

Amendment of section 3 of Act 84 of 1996 45

2. Section 3 of the South African Schools Act, 1996, is hereby amended—

(a) by the substitution for subsection (1) of the following subsection:
‘‘(1) Subject to this Act and any applicable provincial law, every
parent must cause every learner for whom he or she is responsible to
attend [a] school, [from] starting from grade R on the first school day of 50
the year in which such learner reaches the age of [seven] six years and
not leaving school until the last school day of the year in which such
learner reaches the age of [fifteen] 15 years or [the ninth] will complete
grade nine, whichever occurs first.’’;
(b) by the substitution for subsection (6) of the following subsection: 55
‘‘(6) Subject to this Act and any other applicable law—
(a) any parent who, without just cause and after a written notice from
the Head of Department, fails to comply with subsection (1)[,] is
guilty of an offence and liable, on conviction, to a fine or to
imprisonment for a period not exceeding [six] 12 months, or to both 60
a fine and such imprisonment, alternatively a court may impose a
 7

sentence within the court’s discretion as contemplated in terms of

the Criminal Procedure Act;’’; or
(b) any other person who, without just cause, prevents a learner who is
subject to compulsory attendance from attending [a] school[,] is
guilty of an offence and liable, on conviction, to a fine or to 5
imprisonment for a period not exceeding [six] 12 months, or to both
a fine and such imprisonment, alternatively a court may impose a
sentence within the court’s discretion as contemplated in terms of
the Criminal Procedure Act;’’; and
(c) by the addition of the following subsection: 10
‘‘(7) Any person who, unlawfully and intentionally interrupts,
disturbs or hinders any official educational activity of a school, or hinders
or obstructs any school in the performance of the school’s official
educational activities, is guilty of an offence and liable, on conviction, to
a fine or to imprisonment for a period not exceeding 12 months, or to 15
both a fine and such imprisonment.’’.

Insertion of section 4A in Act 84 of 1996

3. The following section is hereby inserted in the South African Schools Act, 1996,
after section 4:

‘‘Monitoring learner attendance 20

4A. (1) The educator, principal and governing body are responsible
for promoting and monitoring the attendance of learners at school.
(2) The governing body must ensure that the code of conduct for
learners contains rules dealing with punctuality and regular school
attendance. 25
(3) If a learner is absent for three consecutive school days without
valid reason, the class teacher concerned must report the absence to the
principal.
(4) The principal must, within 24 hours after being informed of the
absence, investigate the matter by making a reasonable effort to contact 30
the parent of the learner by whatever means are suitable for the
circumstances of the school and the family concerned and report the
matter to the governing body of the school for further intervention.’’.

Amendment of section 5 of Act 84 of 1996, as amended by section 2 of Act 50 of 2002

4. Section 5 of the South African Schools Act, 1996, is hereby amended— 35

(a) by the substitution for subsection (1) of the following subsection:
‘‘(1) A public school must admit, and provide education to, learners
and must serve their educational requirements for the duration of their
school attendance without unfairly discriminating in any way.’’;
(b) by the insertion after subsection (1) of the following subsections: 40
‘‘(1A) Any learner whose parent or guardian has not provided any
required documents, whether of the learner or such adult person acting
on behalf of the learner, during the application for admission, shall
nonetheless be allowed to attend school.
(1B) The principal of the school must advise the parent or guardian to 45
secure the required documents.’’;
(c) by the substitution in subsection (4) for paragraph (a) of the following
paragraph:
‘‘(a) The admission age of a learner to a public school to grade R is age
four turning five by 30 June in the year of admission: Provided that, 50
if a school has limited capacity for admission in grade R, preference
must be given to learners who are subject to compulsory
attendance.’’;
(d) by the substitution for subsection (5) of the following subsection:
‘‘(5) Subject to this Act and any applicable provincial law, the 55
admission policy of a public school is determined by the governing body
 8

of such school in line with the Constitution and relevant legislation:

Provided that—
(a) the governing body, when considering the admission policy or any
amendment thereof for approval, must be satisfied that the policy or
the amendment thereof takes into account the needs, in general, of 5
the broader community in the education district in which the public
school is situated, and must take into account factors including, but
not limited to—
(i) the best interests of the child, with emphasis on equality as
provided for in section 9 of the Constitution, and equity; 10
(ii) whether there are other schools in the community that are
accessible to learners;
(iii) the available resources of the school and the efficient and
effective use of state resources; and
(iv) the space available at the school for learners; and 15
(b) the Head of Department, after consultation with the governing body
of the school, has the final authority, subject to subsection (9), to
admit a learner to a public school; and
(c) the governing body must review the admission policy determined in
terms of this section every three years or whenever the factors 20
referred to in paragraph (c) have changed when circumstances so
require, or at the request of the Head of Department.’’;
(e) by the substitution for subsection (9) of the following subsection:
‘‘(9) Any learner or parent of a learner who has been refused
admission to a public school may appeal against the decision to the 25
Member of the Executive Council within 14 days of receiving the
notification of the refusal of admission to the public school.’’; and
(f) by the addition of the following subsections:
‘‘(10) If an appeal contemplated in subsection (9) has been received,
the Member of the Executive Council must, within 14 days after 30
receiving such an appeal, consider and decide on the matter and inform
the learner or the parent of the learner of the outcome of the appeal.
(11) If the governing body is not satisfied with the decision of the Head
of Department as contemplated in subsection (5)(b), the governing body
may appeal against the decision to the Member of the Executive Council 35
within 14 days after receiving the decision of the Head of Department.
(12) If an appeal contemplated in subsection (11) has been received,
the Member of the Executive Council must, within 14 days after
receiving such appeal, consider and decide on the matter and inform the
governing body of the outcome of the appeal. 40
(13) While the Member of the Executive Council considers the appeal,
the admission policy shall remain valid and applicable, and only the
provisions that are the subject of the appeal shall be suspended pending
the finalisation of the appeal process.’’.

Amendment of section 6 of Act 84 of 1996 45

5. Section 6 of the South African Schools Act, 1996, is hereby amended—

(a) by the substitution for subsection (2) of the following subsection:
‘‘(2) The governing body of a public school may, subject to subsection
(7), determine the language policy of the school subject to the
Constitution, this Act and any applicable provincial law: Provided that 50
the language policy of a public school must be limited to one or more of
the official languages of the Republic as provided in section 6(1) of the
Constitution.’’;
(b) by the substitution for subsection (4) of the following subsection:
‘‘(4) [A recognised] South African Sign Language has the status of an 55
official language for purposes of learning at a public school.’’; and
(c) by the addition of the following subsections:
‘‘(5) The governing body of a public school, when determining the
language policy of the school or any amendment thereof, must be
satisfied that the policy or the amendment thereof takes into account the 60
language needs, in general, of the broader community in the education
 9

district in which the public school is situated, and must take into account
factors including, but not limited to—
(a) the best interests of the child, with emphasis on equality as provided
for in section 9 of the Constitution and equity;
(b) section 6(2) of the Constitution; 5
(c) section 29(2) of the Constitution;
(d) the changing number of learners who speak the language of
learning and teaching at the public school;
(e) the need for effective use of classroom space and resources of the
public school; and 10
(f) the enrolment trends of the public school.
(6) The governing body must review the language policy determined
in terms of this section every three years or whenever the factors referred
to in subsection (5) have changed, when circumstances so require, or at
the request of the Head of Department. 15
(7) Notwithstanding the provisions of subsection (2), the Head of
Department may, where it is practicable to do so and subject to
subsection (5), direct a public school to adopt more than one language of
instruction.
(8) The Head of Department, in determining whether it is practicable 20
for a public school to have more than one language of instruction, must
take into account factors including, but not limited to—
(a) the best interests of the child, with emphasis on equality as provided
for in section 9 of the Constitution and equity;
(b) the changing number of learners who speak the language of 25
learning and teaching at the public school;
(c) the need for effective use of classroom space and resources of the
public school; and
(d) the language needs, in general, of the broader community in the
education district in which the public school is situated. 30
(9) The Head of Department may not act in terms of subsection (7)
unless he or she has—
(a) in writing, informed the school and the governing body of his or her
intention to act as contemplated in subsection (7) and his or her
reasons therefor; 35
(b) notified the parents associated with the school, and the community
in which the school is situated, of his or her intention so to act and
the reasons therefor—
(i) by means of a notice in at least one newspaper circulating in
the area where the school is situated, if any newspapers 40
circulate in that area;
(ii) by causing the principal of the school to—
(aa) hand to every learner a notice containing the relevant
information; and
(bb) instruct the learners to hand the notice to their parents; 45
and
(iii) by means of any other acceptable form of communication that
will ensure that the information is spread as widely as possible;
(c) granted the school, the governing body, the parents associated with
the school, and the community in which the school is situated, a 50
reasonable opportunity to make representations to him or her in
relation to such action;
(d) conducted a public hearing, on reasonable notice, to enable the
community to make representations to him or her in relation to such
action; and 55
(e) given due consideration to any such representations received.
(10) The Head of Department must—
(a) inform the school and the governing body of his or her decision
contemplated in subsection (7) and his or her reasons therefor; and
(b) by means of the methods listed in subsection (9)(b), notify the 60
parents associated with the schools, and the communities in which
the schools are situated, of the decision.
 10

(11) If the Head of Department acts in terms of subsection (7), he or

she must, before his or her directive is implemented, take all necessary
steps to ensure that the public school concerned receives the necessary
resources, including, but not limited to—
(a) educators; and 5
(b) learning and teaching support material,
to enable that public school to provide adequate tuition in the additional
language or languages of instruction.
(12) If the governing body is not satisfied with the directive of the
Head of Department as contemplated in subsection (7), the governing 10
body may appeal against the directive to the Member of the Executive
Council within 14 days after receiving the directive.
(13) If an appeal contemplated in subsection (12) has been received,
the Member of the Executive Council must, within 14 days after
receiving such appeal, consider and decide the matter and inform the 15
governing body of the outcome of the appeal.
(14) While the Member of the Executive Council considers the appeal,
the language policy of the public school shall remain valid and
applicable, and only the provisions that are the subject of the appeal shall
be suspended pending the finalisation of the appeal process.’’. 20

Amendment of section 6A of Act 84 of 1996, as inserted by section 3 of Act 50 of

2002

6. Section 6A of the South African Schools Act, 1996, is hereby amended by the
addition of the following subsection:
‘‘(3) The Minister may, in writing, appoint a person, an organisation or a group 25
of persons to advise him or her in regard to the determination contemplated in
subsection (1).’’.

Amendment of section 8 of Act 84 of 1996, as amended by section 4 of Act 50 of

2002, and section 6 of Act 31 of 2007

7. Section 8 of the South African Schools Act, 1996, is hereby amended— 30

(a) by the substitution for subsection (1) of the following subsection:
‘‘(1) Subject to the Constitution, this Act and any applicable provincial
law, a governing body of a public school must adopt a code of conduct for
the learners after consultation with the learners, parents and educators
of the school.’’; 35
(b) by the substitution for subsection (2) of the following subsection:
‘‘(2) A code of conduct referred to in subsection (1) must be aimed at
establishing a disciplined and purposeful school environment, dedicated
to the improvement and maintenance of the quality of the learning
process, taking into account the diverse cultural beliefs, religious 40
observances and medical circumstances of the learners at the school.’’;
(c) by the substitution for subsection (4) of the following subsection:
‘‘(4) (a) Nothing contained in this Act exempts a learner from the
obligation to comply with the code of conduct of the school attended by
such learner. 45
(b) Despite paragraph (a), the code of conduct must contain an
exemption provision in terms of which a learner, or the parent of a
learner, may apply to the governing body for exemption of that learner
from complying with certain provisions of the code of conduct on
account of, but not limited to, the following circumstances that a learner 50
may bring to the attention of the principal or governing body of the
school:
(i) Cultural beliefs;
(ii) religious observances; and
(iii) medical grounds. 55
(c) On receiving an application contemplated in paragraph (b), the
school governing body must communicate its decision to the learner, or
the parent of the learner, as the case may be, within 14 days after
 11

receiving the application, and must in the case of a refusal provide

written reasons for the refusal.
(d) A learner, or the parent of a learner, who has been refused
exemption as contemplated in paragraph (c) may, within 14 days of
receiving the notice of the decision, appeal to the Head of Department 5
against the decision of the governing body, and the Head of Department
must, after considering the reasons for the appeal and the reasons for the
refusal by the governing body, communicate his or her decision to the
learner or the parent of the learner, as the case may be, and to the
governing body, within 14 days after receiving the appeal, and must 10
provide written reasons for his or her decision.’’; and
(d) by the addition to subsection (5) of the following paragraph:
‘‘(c) The disciplinary proceedings referred to in this subsection must
be age-appropriate, must be conducted in the best interests of the learner,
and must adhere to the principles of natural justice, fairness and 15
reasonableness prescribed by the Constitution.’’.

Amendment of section 8A of Act 84 of 1996, as inserted by section 7 of Act 31 of

2007

8. Section 8A of the South African Schools Act, 1996, is hereby amended—

(a) by the substitution for subsection (1) of the following subsection: 20
‘‘(1) Unless authorised by the principal for legitimate educational
purposes, no person may bring a dangerous object or [illegal] a drug
onto school premises or have such dangerous object or drug in his or her
possession on school premises or during any school activity.
(b) by the substitution for subsection (2) of the following subsection: 25
‘‘(2) Subject to subsection (3), the principal or his or her delegate may,
at random, search a learner or any group of learners, or the property of
a learner or group of learners, for any liquor, dangerous object or
[illegal] drug, if a fair and reasonable suspicion has been established—
(a) that liquor, a dangerous object or [an illegal] a drug may be found 30
on school premises or during a school activity; or
(b) that one or more learners on school premises or [during] at a school
activity are in possession of liquor, dangerous objects or [illegal]
drugs.’’;
(c) by the substitution in subsection (5) for the words preceding paragraph (a) of 35
the following words:
‘‘(5) Any liquor, dangerous object or [illegal] drug that has been seized must
be— ’’;
(d) by the substitution in subsection (5) for paragraph (c) of the following
paragraph: 40
‘‘(c) handed over to the police immediately to dispose of it in terms of
section 31 of the Criminal Procedure Act[, 1977 (Act No. 51 of
1977)].’’;
(e) by the substitution for subsection (6) of the following subsection:
‘‘(6) If the police cannot collect the liquor, dangerous object or 45
[illegal] drug from the school immediately, the principal or his or her
delegate must—
(a) take the liquor, dangerous object or [illegal] drug to the nearest
police station; and
(b) hand the liquor, dangerous object or [illegal] drug over to the police 50
to dispose of it in terms of section 31 of the Criminal Procedure
Act[, 1977 (Act No. 51 of 1977)].’’;
(f) by the substitution for subsection (7) of the following subsection:
‘‘(7) The police officer who receives the liquor, dangerous object or
[illegal] drug must issue an official receipt for it to the principal or to his 55
or her delegate.’’;
(g) by the substitution for subsection (8) of the following subsection:
 12

‘‘(8) The principal or his or her delegate may at random administer a

urine or other non-invasive test to any learner or group of learners that
is on fair and reasonable grounds suspected of using liquor or [illegal]
drugs, after taking into account all relevant factors contemplated in
subsection (3).’’; 5
(h) by the substitution in subsection (9) for the words preceding paragraph (a) of
the following words:
‘‘(9) A learner contemplated in subsection (8) may be subjected to a
urine or other non-invasive test for liquor or [illegal] drugs only if —’’;
(i) by the substitution for subsection (12) of the following subsection: 10
‘‘(12) A learner may be subjected to disciplinary proceedings if—
(a) liquor, a dangerous object or [illegal] any drug is found in his or her
possession; or
(b) his or her sample tested positive for [an illegal] liquor or any
drug.’’; and 15
(j) by the substitution in subsection (14) for paragraph (a) of the following
paragraph:
‘‘(a) a search contemplated in subsection (2) was conducted and liquor,
a dangerous object or [illegal] any drug was found; or’’.

Amendment of section 9 of Act 84 of 1996, as amended by section 7 of Act 48 of 20

1999, section 2 of Act 24 of 2005 and section 7 of Act 15 of 2011

9. Section 9 of the South African Schools Act, 1996, is hereby amended by the
substitution for subsection (1) of the following subsection:
‘‘(1) The governing body may, on reasonable grounds and as a precautionary
measure, suspend a learner who is [suspected] accused of serious misconduct 25
from attending school, but may only enforce such suspension [only after the
learner has been granted a reasonable opportunity to make representations to
it in relation to such suspension.] in the following manner:
(a) Where a learner is accused of committing the following acts of serious
misconduct— 30
(i) physical assault of a learner, employee, or other person related to the school,
with the intention to cause grievous bodily harm, or the imminent threat to
commit such an act, while on school premises or during any school activity, or
in any circumstance that could reasonably be connected to the school;
(ii) any form of harassment, including sexual harrassment of a learner, employee 35
or other person related to the school, including via electronic and social
media;
(iii) repeated offences related to bullying, or the imminent threat to commit such
an act;
(iv) the illegal possession of a drug or liquor; 40
(v) the repeated disruption of the school programme, or the imminent threat to
commit such an act;
(vi) serious transgressions relating to any test, examination or examination paper;
(vii) fraud;
(viii) theft or any other dishonest act to the prejudice of another person; 45
(ix) the possession of a dangerous object while on school premises, or during any
school activity, or in any circumstance that could reasonably be connected to
the school;
(x) the possession or distribution of pornographic material;
(xi) engaging in sexual activity on school premises or committing an act of sexual 50
assault, or the imminent threat to commit such an act; and
(xii) any other serious act contemplated in Schedule 1 to the Criminal Procedure
Act that prejudices the constitutional rights of learners, employees or other
persons related to the school,
such learner may be suspended only after the learner has been granted a reasonable 55
opportunity to make representations in relation to the accusation of such serious
misconduct; or
(b) where a learner is accused of committing the following acts of serious
misconduct—
(i) murder and attempted murder; 60
(ii) culpable homicide;
 13

(iii) any sexual offence including rape;

(iv) robbery;
(v) theft;
(vi) assault with intent to do grievous bodily harm;
(vii) breaking or entering any premises with an intent to harm a person; 5
(viii) any offence under any law relating to the illicit possession of any
dependence-producing drugs; or
(ix) theconveyance or supply of dependence-producing drugs at school and to
learners,
which occurs on a school premises or at a school activity, and the learner has been 10
formally charged by the South African Police Service, the governing body must
suspend such learner immediately without granting the learner an opportunity to
make representations in relation to the accusation of such serious misconduct.’’.

Amendment of section 10 of Act 84 of 1996

10. Section 10 of the South African Schools Act, 1996, is hereby amended by the 15
substitution for subsections (1) and (2) of the following subsections:
‘‘(1) [No] Corporal punishment is abolished and no person may [administer]
inflict or impose corporal punishment [at a school] to a learner at a school, during
a school activity, or in a hostel accommodating learners of a school.
(2) Any person who contravenes subsection (1) is guilty of an offence and liable 20
on conviction to a [sentence which could be imposed for assault] fine or to
imprisonment, or to both such fine and imprisonment, which a court may, in its
discretion, determine after considering the circumstances of each case.’’.

Amendment of section 10A of Act 84 of 1996, as inserted by section 5 of Act 50 of

2002 25

11. Section 10A of the South African Schools Act, 1996, is hereby amended by the
substitution for subsection (1) of the following subsection:
‘‘(1) A person may not conduct or participate in any initiation practices against
a learner at a school, during a school activity, or in a hostel accommodating
learners of a school.’’. 30

Amendment of section 12 of Act 84 of 1996, as amended by section 8 of Act 15 of

2011

12. Section 12 of the South African Schools Act, 1996, is hereby amended by the
insertion after subsection (3) of the following subsections:
‘‘(3A) The governing body of a public school may, in writing, apply to the 35
Member of the Executive Council for the public school to be designated as a public
school with a specialised focus on talent as contemplated in subsection (3)(a)(iii).
(3B) The Head of Department may, after consultation with the governing body
of a public school, identify the school and recommend to the Member of the
Executive Council that the school should be designated as a public school with a 40
specialised focus on talent as contemplated in subsection (3)(a)(iii).
(3C) The Member of the Executive Council may, in writing, designate a public
school from which an application contemplated in subsection (3A) has been
received, and a school identified and recommended as contemplated in subsection
(3B), as a school with a specialised focus on talent as contemplated in subsection 45
(3)(a)(iii), if it is in the interest of education in the province and if the school
complies with the norms and standards determined by the Minister in terms of
subsection (3)(b).
(3D) Before designating a public school as a school with a specialised focus on
talent as contemplated in subsection (3)(a)(iii), the Member of the Executive 50
Council must—
(a) give written notice to the school in question, and to its governing body, of the
intention to designate the public school as a school with a specialised focus on
talent and of the reasons therefor;
 14

(b) notify the parents associated with the school, and the community in which the
school is situated, of the intention to designate the public school as a school
with a specialised focus on talent and of the reasons therefor—
(i) by means of a notice in at least one newspaper circulating in the area
where the school in question is situated, if any newspapers circulate 5
in that area;
(ii) by causing the principal of the school in question to—
(aa) hand to every learner at the school a notice containing the
relevant information; and
(bb) instruct the learners to hand the notice to their parents; and 10
(iii) by means of any other acceptable form of communication that will
ensure that the information is spread as widely as possible;
(c) give the school in question, and its governing body, and any other interested
persons, an opportunity to make representations within a period of not less
than 90 days from the date of the notices and communication referred to in 15
paragraph (b);
(d) give due consideration to any such representations received; and
(e) be satisfied that the employers of staff at the public school have complied with
their obligations in terms of the applicable labour law.’’.

Amendment of section 12A of Act 84 of 1996, as inserted by section 8 of Act 48 of 20

1999

13. Section 12A of the South African Schools Act, 1996, is hereby amended—
(a) by the substitution for subsection (2) of the following subsection:
‘‘(2) Before merging two or more public schools, the Member of the
Executive Council must— 25
(a) give written notice to the schools in question, and to their governing
bodies, of the intention to merge them and of the reasons therefor;
(b) [publish a notice giving the reasons for the proposed merger in
one or more newspapers circulating in the area where the
schools in question are situated] notify the parents associated with 30
the schools, and the communities in which the schools are situated,
of the intention to merge the schools and of the reasons therefor—
(i) by means of a notice in at least one newspaper circulating in
the area where the schools in question are situated, if any
newspapers circulate in that area; and 35
(ii) by causing the principals of the schools in question to—
(aa) hand to every learner at each school a notice containing
the relevant information; and
(bb) instruct the learners to hand the notice to their parents;
and 40
(iii) by means of any other acceptable form of communication that
will ensure that the information is spread as widely as possible;
(c) give the [governing bodies of the] schools in question, and their
governing bodies, and any other interested persons an opportunity
to make representations within a period of not less than 90 days 45
from the date of the [notice] notices and communication referred to
in paragraph (b);
(d) [consider] give due consideration to any such representations
received; and
(e) be satisfied that the employers of staff at the public schools have 50
complied with their obligations in terms of the applicable labour
law.’’;
(b) by the insertion after subsection (2) of the following subsection:
‘‘(2A) (a) The Member of the Executive Council must, within 30 days
after receiving the representations referred to in subsection (2)(c), take a 55
decision on whether or not to go ahead with the merger, and—
(i) in writing, inform the schools in question, and their governing
bodies, of the decision; and
(ii) by means of the methods listed in subsection (2)(b), notify the
parents associated with the schools, and the communities in which 60
the schools are situated, of the decision.
 15

(b) If the Member of the Executive Council fails to act in terms of

paragraph (a), the contemplated merger will be deemed to have lapsed.
(c) If the decision of the Member of the Executive Council is to go
ahead with the merger, he or she must ensure that the merger is proceeded
with within 30 days after giving notice as contemplated in paragraph 5
(a).’’;
(c) by the substitution for subsection (4) of the following subsection:
‘‘(4) (a) If the Member of the Executive Council decides to merge the
public schools in question, he or she must, after consultation with the
governing bodies of the public schools that are to be merged, determine, 10
by notice contemplated in subsection (1)—
(i) the date of establishment of the public school;
(ii) the name of the public school; and
(iii) the physical location and official address of the public school.
(b) The single school contemplated in subsection (1) must be regarded 15
as a new public school.’’;
(d) by the substitution for subsection (6) of the following subsection:
‘‘(6) (a) [The] After the notice as contemplated in subsection (4)(a)
has been published, the governing bodies of the schools that are to be
merged must have a meeting [before the merger] to constitute a single 20
interim governing body comprising [of] all the members of the governing
bodies concerned, which single interim governing body will govern the
new school for a period not exceeding three months.
(b) The interim governing body must—
(i) elect office bearers; 25
(ii) decide on the budget [and];
(iii) reach consensus about differences in codes of conduct and school
fees[,] and, if applicable, about contractual obligations and the
utilisation and disposal of movable assets; and
(iv) make recommendations to the Head of Department on personnel 30
matters, as well as on any issue that is relevant to the merger or
which is prescribed in terms of this Act,
until a new governing body is constituted in terms of sections 23 and 28.
(c) The Member of the Executive Council may extend the period
referred to in paragraph (a) once for a further period not exceeding three 35
months.’’; and
(e) by the addition of the following subsections:
‘‘(8) A merger contemplated in subsection (1) does not affect the
liability of any person to be disciplined or prosecuted for any
misconduct, crime or offence. 40
(9) A learner is subject to the code of conduct applicable to the new
single public school as from the date of the merger contemplated in
subsection (1), but if any proceedings in respect of a charge of
misconduct had been instituted or commenced before the date of the
merger, such proceedings must continue in terms of the code of conduct 45
relevant to the public school immediately before the merger.
(10) The new single public school or the Head of Department, as the
case may be, may undertake rationalisation or redeployment of its
workforce according to operational requirements in accordance with
sections 189 and 189A of the Labour Relations Act, 1995 (Act No. 66 of 50
1995), the Employment of Educators Act, 1998 (Act No. 76 of 1998),
and any ratified collective agreement that deals with the rationalisation or
redeployment of a workforce.
(11) If two or more public schools are merged into a single public
school in terms of subsection (1), the new single public school continues 55
with all academic programmes offered by the former public schools
under the programmes applicable to the respective public schools
immediately before the date of the merger, until such programmes are
amended or restructured by the governing body or education department,
where applicable.’’. 60
 16

Amendment of section 21 of Act 84 of 1996, as amended by section 10 of Act 48 of

1999

14. Section 21 of the South African Schools Act, 1996, is hereby amended by the
insertion after subsection (3) of the following subsection:
‘‘(3A) Notwithstanding the provisions of subsections (1)(c) and (3) and section 5
22, the Head of Department may, in consultation with the governing body, centrally
procure identified learning and teaching support material for public schools on the
basis of efficient, effective and economic utilisation of public funds or uniform
norms and standards: Provided that the governing body—
(a) may, subject to paragraph (b), procure identified learning and teaching support 10
material from a supplier where such procurement will be more cost effective
than the central procurement of such material by the Head of Department; and
(b) must provide the Head of Department with documentary proof that the
procurement of the identified learning and teaching support material from the
supplier referred to in paragraph (a) will be more cost effective than the 15
central procurement thereof by the Head of Department.’’.

Substitution of section 22 of Act 84 of 1996

15. The following section is hereby substituted for section 22 of the South African
Schools Act, 1996:

‘‘Withdrawal of functions [from] of governing [bodies] body 20

22. (1) The Head of Department may, on reasonable grounds,

withdraw [a function] one or more functions of a governing body.
(2) The Head of Department may not take action [under] in terms of
subsection (1) unless he or she has—
(a) in writing informed the governing body of his or her intention so to 25
act and the reasons therefor;
(b) granted the governing body a reasonable opportunity to make
representations to him or her relating to such intention; [and]
(c) given due consideration to any such representations received; and
(d) informed the governing body of his or her final decision, in writing. 30
(3) In cases of urgency, the Head of Department may act in terms of
subsection (1) without prior communication to such governing body, if
the Head of Department immediately thereafter—
(a) furnishes the governing body with written reasons for his or her
actions; 35
(b) [gives] grants the governing body a reasonable opportunity to make
representations to him or her relating to such actions;
(c) duly considers any such representations received; and
(d) informs the governing body of his or her final decision, in writing.
(4) The Head of Department may for sufficient reasons reverse or 40
suspend his or her action in terms of subsection (1) or (3).
(5) [Any person aggrieved by a decision of] If the Head of
Department acts in terms of [this section may appeal against the
decision to the Member of the Executive Council] subsection (1) or (3),
he or she must appoint sufficiently qualified persons to perform the 45
withdrawn function or functions, as the case may be, for a period not
exceeding three months.
(6) The Head of Department may extend the period referred to in
subsection (5) by further periods not exceeding three months each, but
the total period may not exceed one year. 50
(7) The persons contemplated in subsection (5) must, within the period
of their appointment, build the necessary capacity to ensure that the
governing body will thereafter be able to perform the functions that it
previously failed to perform.
(8) The persons contemplated in subsection (5) shall have exclusive 55
voting rights and decision making powers on any function that they have
been appointed to perform.
 17

(9) Any person aggrieved by a decision of the Head of Department in

terms of this section may appeal against the decision to the Member of
the Executive Council, and the Member of the Executive Council must
communicate his or her decision to the aggrieved person within 30 days
after receiving the appeal and must provide written reasons for his or her 5
decision.’’.

Amendment of section 23 of Act 84 of 1996, as amended by section 11 of Act 48 of

1999

16. Section 23 of the South African Schools Act, 1996, is hereby amended—
by the substitution for subsection (6) of the following subsection: 10
‘‘(6) A governing body may co-opt a member or members of the community, or
persons from outside the community, with the relevant expertise, to assist it in
discharging its functions.’’.

Amendment of section 24 of Act 84 of 1996, as amended by section 7 of Act 100 of

1997 15

17. Section 24 of the South African Schools Act, 1996, is hereby amended—
(a) by the substitution for subsection (2) of the following subsection:
‘‘(2) Subject to this Act, the [Member of the Executive Council]
Minister must, by notice in the [Provincial] Gazette, determine the
number of members in each category referred to in subsection (1) and the 20
manner of election or appointment of such members at every public
school for learners with special education needs [within his or her
province].’’; and
(b) by the substitution for subsection (4) of the following subsection:
‘‘(4) The [Member of the Executive Council] Minister must consider 25
all such submissions, and thereafter may alter the notice contemplated in
subsection (2).’’.

Insertion of section 24A in Act 84 of 1996

18. The following section is hereby inserted in the South African Schools Act, 1996,
after section 24: 30

‘‘Membership of governing body of public school with specialised

focus on talent, including sport, performing arts or creative arts

24A. (1) The provisions of section 23, excluding subsection (5), will
apply to a governing body of a public school that provides education with
a specialised focus on talent, including sport, performing arts or creative 35
arts, as contemplated in section 12(3)(a)(iii).
(2) The authority to co-opt a member or members of the community as
contemplated in section 23(6) includes the authority to co-opt relevant
experts in the specialised focus of the public school, whether from inside
or outside the community.’’. 40

Substitution of section 25 of Act 84 of 1996, as amended by section 4 of Act 57 of

2001

19. The following section is hereby substituted for section 25 of the South African
Schools Act, 1996:

‘‘Dissolution of governing body 45

25. (1) The Head of Department may, on reasonable grounds, dissolve

a governing body that has ceased to perform its functions in terms of this
Act or any provincial law.
(2) If the Head of Department acts in terms of subsection (1), he or she
must appoint sufficiently qualified persons to perform all the functions of 50
the governing body for a period not exceeding three months.
 18

(3) The Head of Department may extend the period referred to in

subsection (2) by further periods not exceeding three months each, but
the total period may not exceed one year.
(4) The persons contemplated in subsection (2) shall have exclusive
voting rights and decision making powers on all the functions of the 5
governing body.
(5) The Head of Department may not take action in terms of
subsection (1) unless he or she has—
(a) in writing, informed the governing body of his or her intention so to
act and the reasons therefor; 10
(b) granted the governing body a reasonable opportunity to make
representations to him or her relating to such intention;
(c) given due consideration to any such representations received; and
(d) informed the governing body of his or her final decision, in writing.
(6) If the Head of Department has dissolved a governing body as 15
contemplated in subsection (1), he or she must ensure that a new
governing body is elected in terms of this Act, within a year after the
appointment of the persons contemplated in subsection (2).
(7) Any person aggrieved by a decision of the Head of Department in
terms of this section may appeal against the decision to the Member of 20
the Executive Council, and the Member of the Executive Council must
communicate his or her decision to the aggrieved person within 14 days
after receiving the appeal and must provide written reasons for his or her
decision.’’.

Substitution of section 26 of Act 84 of 1996 25

20. The following section is hereby substituted for section 26 of the South African
Schools Act, 1996:

‘‘Recusal by member of governing body

26. (1) Before a governing body discusses, or decides on, the

recruitment or employment of staff, or the procurement of goods and 30
services for a public school, a member must declare to the governing
body any direct or indirect personal and financial interest that the
member or any of his or her family members or close friends or business
partners has, including—
(a) a personal interest— 35
(i) in an entity conducting business with the school; or
(ii) in a business or a commercial or financial activity undertaken
by the governing body of the school;
(b) a financial or other obligation to an entity conducting business with
the school; and 40
(c) a gift, hospitality, sponsorship or other benefit received from an
entity conducting business with the school.
(2) Any person may in writing inform the chairperson of a governing
body or the principal of a school of a possible conflict of interest
concerning a governing body member. 45
(3) A governing body member must recuse himself or herself and
withdraw from a meeting of the governing body for the duration of the
discussion and decision-making on an issue in which the member has a
personal or financial interest as contemplated in subsection (1).
(4) If a governing body has knowledge that a member who is present 50
has a personal interest in a matter, the governing body may not take a
decision on that matter until the member has withdrawn as contemplated
in subsection (3).
(5) Where a governing body member contravenes the provisions of
this section, the Head of Department may, after due process as 55
contemplated in the code of conduct for the members of the governing
body—
(a) suspend the governing body member; or
(b) terminate the membership of the governing body member.
 19

(6) This section applies, with the necessary changes, to committees of

a governing body and committee members.
(7) For the purposes of this section, family member means a parent,
sister, brother, child or a spouse of a member of the governing body, and
includes— 5
(a) a person living with that member as if they were married to each
other, namely a life partner;
(b) a relative who resides permanently with that member; and
(c) any other relative who is dependent on such member.’’.

Amendment of section 27 of Act 84 of 1996 10

21. Section 27 of the South African Schools Act, 1996, is hereby amended by the
substitution for subsection (2) of the following subsection:
‘‘(2) No member of a governing body may be remunerated in any way for the
performance of his or her duties or for the attendance of meetings and school
activities.’’. 15

Amendment of section 28 of Act 84 of 1996

22. Section 28 of the South African Schools Act, 1996, is hereby amended by the
substitution for the words preceding paragraph (a) of the following words:
‘‘Subject to this Act, [and any applicable provincial law, the Member of the
Executive Council] the Minister must, by notice in the [Provincial] Gazette, 20
determine—’’.

Amendment of section 29 of Act 84 of 1996, as amended by section 12 of Act 48 of

1999

23. Section 29 of the South African Schools Act, 1996, is hereby amended by the
substitution for subsection (2) of the following subsection: 25
‘‘(2) (a) Only a parent member of a governing body who is not employed at the
public school may serve as the chairperson of the governing body.
(b) Where reasonably practicable, only a parent member of a governing body
who is not employed at the public school may serve as the chairperson of the
finance committee of that public school.’’. 30

Amendment of section 32 of Act 84 of 1996

24. Section 32 of the South African Schools Act, 1996 is hereby amended—
(a) by the substitution for the heading of the following heading:
‘‘Status of [minors] learners on governing bodies of public schools’’;
(b) by the substitution for subsections (1), (2) and (3) of the following 35
subsections:
‘‘(1) A member of a governing body who is a [minor] learner may not
contract on behalf of a public school.
(2) A member of a governing body who is a [minor] learner may not
vote on resolutions of a governing body which impose liabilities on third 40
parties or on the school.
(3) A member of a governing body who is a [minor] learner incurs no
personal liability for any consequence of his or her membership of the
governing body.’’; and
(c) by the addition of the following subsection: 45
‘‘(4) A member of a governing body who is a learner may not take part
in meetings at which recommendations for the appointment of staff to the
school are decided on, or form part of interview panels relating to the
appointment of staff, whether educators or non-educators, or in any other
way be involved in the appointment of staff to the school.’’. 50

Substitution of section 33 of Act 84 of 1996

25. The following section is hereby substituted for section 33 of the South African
Schools Act, 1996:
 20

‘‘Closure of public schools

33. (1) The Member of the Executive Council may, by notice in the
Provincial Gazette, close a public school.
(2) The Member of the Executive Council may not act [under] in terms
of subsection (1) unless he or she has— 5
(a) in writing informed the school and the governing body [of the
school] of his or her intention so to act and his or her reasons
therefor;
(b) [granted the governing body of] notified the parents associated
with the school, [a reasonable opportunity to make representa- 10
tions to him or her in relation to such action] and the community
in which the school is situated, of his or her intention so to act and
the reasons therefor—
(i) by means of a notice in at least one newspaper circulating in
the area where the school is situated, if any newspapers 15
circulate in that area;
(ii) by causing the principal of the school to—
(aa) hand to every learner a notice containing the relevant
information; and
(bb) instruct the learners to hand the notice to their parents; 20
and
(iii) by means of any other acceptable form of communication
that will ensure that the information is spread as widely as
possible;
(c) [conducted a public hearing on reasonable notice, to enable] 25
granted the school, the governing body, the parents associated with
the school, and the community in which the school is situated a
reasonable opportunity to make representations [to him or her] in
relation to such [actions] action; [and]
(d) conducted a public hearing, on reasonable notice, to enable the 30
community to make representations in relation to such action; and
(e) given due consideration to any such representations received.
(3) (a) Notwithstanding the provisions of subsection (2), the Member
of the Executive Council may, by notice in the Provincial Gazette, close
a public school in his or her sole discretion if no learners are registered 35
at that school.
(b) The Member of the Executive Council may not act in terms of
paragraph (a) unless he or she has verified, by means of a site inspection
by an official nominated by him or her, that no learners are registered at
that school. 40
(4) (a) The Member of the Executive Council may, by notice in the
Provincial Gazette, close a public school if, in the case of a primary
school, 135 or fewer than 135 learners are registered at that school, and,
in the case of a secondary school, 200 or fewer than 200 learners are
registered at that school: Provided that the provisions of this subsection 45
do not apply where the Member of the Executive Council has, before the
commencement of the Basic Education Laws Amendment Act, 2022,
acted in terms of subsection (2).
(b) The Member of the Executive Council may not act in terms of
paragraph (a) unless he or she has— 50
(i) given written notice to the school and the parents of the learners of
that school;
(ii) by means of a notice in at least one newspaper circulating in the area
where the school is situated, if any newspapers circulate in that area,
and by means of any other acceptable form of communication that 55
will ensure that the information is spread as widely as possible,
given notice of his or her intention to close the school and invited
comment;
(iii) consulted with the parents of the learners of the school and afforded
them an opportunity to make representations within a period of not 60
less than 30 days from the date of the notice or communication
referred to in subparagraphs (i) and (ii); and
 21

(iv) considered any representations and any comments received after

publication of the notice or communication referred to in subpara-
graphs (i) and (ii).
(5) After the consultation contemplated in subsections (2) and (4)(b),
the Member of the Executive Council must decide whether or not to go 5
ahead with the closure of the school and must—
(a) inform the school and the governing body of his or her decision; and
(b) by means of the methods listed in subsection (2)(b), notify the
parents associated with the school, and the community in which the
school is situated, of the decision. 10
(6) If the decision is to go ahead with the closure, the Member of the
Executive Council must, where applicable and before the closure takes
place, make alternative arrangements for the learners of the school to
attend another school that is able to accommodate those learners and,
where appropriate, make arrangements for the transport of qualifying 15
learners to that school.
(7) If a public school is closed in terms of [subsection (1)] this section,
all assets and liabilities of such school must, subject to the conditions of
any donation, bequest or trust contemplated in section 37(4), devolve on
the State unless otherwise agreed between the Member of the Executive 20
Council and the governing body of the school.
(8) The Member of the Executive Council, in determining whether to
act under subsection (1) or (4), must take into account—
(a) the needs, in general, of the broader community in the education
district in which the public school is situated; and 25
(b) factors including, but not limited to—
(i) the best interests of the child, with emphasis on equality as
provided for in section 9 of the Constitution, and equity;
(ii) whether there are other schools in the community that are
accessible to learners; and 30
(iii) the efficient and effective use of state resources.’’.

Amendment of section 36 of Act 84 of 1996, as amended by section 5 of Act 57 of

2001 and section 12 of Act 15 of 2011

26. Section 36 of the South African Schools Act, 1996, is hereby amended—
(a) by the substitution for subsection (2) of the following subsection: 35
‘‘(2) Despite subsection (1), a governing body may not, without the
written approval of the Head of Department, enter into any loan, lease or
overdraft agreement [so as to supplement the school fund, without the
written approval of the Member of the Executive Council] for any
purpose.’’; and 40
(b) by the substitution in subsection (4)(a) for subparagraph (i) of the following
subparagraph:
‘‘(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], or lease such property for such purpose: Provided that 45
such approval is not required for a lease of a period not exceeding
12 months; and’’.

Amendment of section 37 of Act 84 of 1996, as amended by section 6 of Act 57 of

2001

27. Section 37 of the South African Schools Act, 1996, is hereby amended by the 50
substitution for subsection (1) of the following subsection:
‘‘(1) The governing body of a public school must establish a school fund and
administer it in accordance with [directions] directives issued by the Head of
Department.’’.

Amendment of section 38 of Act 84 of 1996, as amended by section 7 of Act 57 of 55

2001 and section 7 of Act 50 of 2002

28. Section 38 of the South African Schools Act, 1996, is hereby amended—
 22

(a) by the substitution for subsection (3) of the following subsection:

‘‘(3) [The] When notice is given to the parents as contemplated in
subsection (2) [must also inform]—
(a) the budget, together with a document explaining the budget, must
be made available to the parents by means of the existing 5
communication channels of the school; and
(b) the parents must be informed that the document and the budget will
be available for inspection at the school at least 14 days prior to the
meeting.’’; and
(b) by the addition of the following subsections: 10
‘‘(4) If a governing body finds it necessary to—
(a) deviate from the initial budget that has been approved as contem-
plated in subsection (2), and the deviation will be 10 per cent or
more of the initial budget; or
(b) reallocate funds for use for a purpose different to that which was 15
approved by the parents as contemplated in subsection (2),
the governing body must present such deviation or reallocation to a
general meeting of parents convened specifically for that purpose, on at
least 14 days’ notice, for consideration and approval by a majority of
parents present and voting. 20
(5) When notice is given to the parents as contemplated in subsection
(4)—
(a) a document explaining and providing reasons for the deviation or
reallocation must be made available to parents by means of the
existing communication channels of the school; and 25
(b) the parents must be informed that the document will be available for
inspection at the school at least 14 days prior to the meeting.
(6) A quorum of 10 per cent of parents is required for the general
meetings of parents contemplated in subsections (2) and (4).
(7) If the quorum contemplated in subsection (6) is not reached at the 30
general meeting of parents—
(a) the chairperson shall determine the date, time and place for the
second meeting of the general meeting and notify parents 14 days
prior to such meeting;
(b) the principal shall, at least seven days prior to the date of the second 35
general meeting, distribute a copy of the notice to every learner at
the school with an instruction to hand the notice to the parents; and
(c) there shall be no quorum required at the second general meeting.’’.

Amendment of section 38A of Act 84 of 1996, as inserted by section 2 of Act 1 of

2004 40

29. Section 38A of the South African Schools Act, 1996, is hereby amended—
(a) by the substitution for subsection (2) of the following subsection:
‘‘(2) A governing body may apply to the employer for approval to pay
a state employee any [payment contemplated in subsection (1)]
remuneration, or to give to a state employee any other financial benefit, 45
or benefit in kind.’’;
(b) by the substitution for subsection (3) of the following subsection:
‘‘(3) Such application must be lodged in writing in the office of the
employer and must state—
(a) full details of the nature and extent of the [payment] remuneration, 50
other financial benefit, or benefit in kind;
(b) the reasons for the remuneration, other financial benefit, or benefit
in kind;
(c) if practicable, the monetary value of the remuneration, other
financial benefit, or benefit in kind; 55
(d) the process that will be followed and the resources that will be used
to compensate or remunerate the state employee; and
(e) the extent of compliance with section 20(5) to (9).’’;
(c) by the substitution for subsection (6) of the following subsection:
‘‘(6) An employer [must] may not unreasonably refuse an application 60
[contemplated] referred to in subsection (2).’’; and
 23

(d) by the substitution for subsection (8) of the following subsection:

‘‘(8) The [payment] remuneration, other financial benefit, or benefit in
kind contemplated in subsection (1) must be reflected in the school’s
budget, as presented to the general meeting of parents as contemplated in
section 38(2), and in such reflection in the budget, any remuneration, 5
other financial benefit, or benefit in kind must, if practicable, be accorded
a monetary value.’’.

Amendment of section 41 of Act 84 of 1996, as amended by section 5 of Act 24 of

2005

30. Section 41 of the South African Schools Act, 1996, is hereby amended by the 10
insertion after subsection (2) of the following subsections:
‘‘(2A) Notwithstanding subsection (2), a parent may submit to the governing
body an affidavit, as proof that the other parent of the learner—
(a) is untraceable;
(b) is unwilling to provide the first-mentioned parent with particulars of his or her 15
total annual gross income;
(c) has failed to provide the first-mentioned parent with particulars of his or her
total annual gross income despite the lapse of a reasonable time after a request
by or on behalf of the first-mentioned parent that he or she do so; or
(d) has provided the first-mentioned parent with incomplete or inaccurate 20
particulars about his or her total annual gross income and has refused to rectify
the deficiency or has failed to do so despite the lapse of a reasonable time after
a request by or on behalf of the first-mentioned parent that he or she do so.
(2B) Although the affidavit contemplated in subsection (2A) constitutes
sufficient proof, a parent may also submit to the governing body a court order or 25
any other documentary evidence that would support the proof contemplated in
subsection (2A).’’.

Substitution of section 42 of Act 84 of 1996

31. The following section is hereby substituted for section 42 of the South African
Schools Act, 1996: 30

‘‘Financial records and statements of public schools

42. The governing body of a public school must—

(a) keep records of all investments, donations and funds received and
spent by the public school and of its assets, liabilities and financial
transactions; [and] 35
(b) as soon as practicable, but not later than three months after the end
of each financial year, draw up annual financial statements
reflecting all the investments, donations and funds received and
spent by the public school in accordance with the guidelines
determined by the Member of the Executive Council; 40
(c) present the financial records and statements to a general meeting of
parents; and
(d) inform the parents that the financial records and statements will be
available for inspection at the school at least 14 days prior to the
meeting referred to in paragraph (c).’’. 45

Amendment of section 43 of Act 84 of 1996, as amended by section 10 of Act 31 of

2007

32. Section 43 of the South African Schools Act, 1996, is hereby amended by the
substitution for subsections (4) and (5) of the following subsections, respectively:
‘‘(4) If the [Member of the Executive Council] Head of Department deems it 50
necessary, on just cause shown, he or she may—
(a) authorise suitably qualified officers to conduct an investigation into the
financial affairs of a public school and, where necessary, after consultation
with the governing body, access documents relevant for the purposes of the
investigation; 55
 24

(b) request the Auditor-General to undertake an audit of the records and financial
statements of a public school; or
(c) appoint forensic auditors or forensic investigators to conduct a forensic
investigation into the financial affairs of a public school.
(5) A governing body must submit to the Head of Department[,]— 5
(a) within 30 days after the end of each quarter, a copy of the quarterly report on
all income and expenditure in accordance with directives issued by the Head
of Department; and
(b) within six months after the end of each financial year, a copy of the annual
financial statements, audited or examined in terms of this section.’’. 10

Amendment of section 46 of Act 84 of 1996

33. Section 46 of the South African Schools Act, 1996, is hereby amended by the
substitution for subsection (4) of the following subsection:
‘‘(4) Any person who contravenes subsection (1) is guilty of an offence and
liable, upon conviction, [liable] to a fine or to imprisonment for a period [of three] 15
not exceeding 12 months, or to both a fine and such imprisonment.’’.

Amendment of section 48 of Act 84 of 1996

34. Section 48 of the South African Schools Act, 1996, is hereby amended—
(a) by the substitution for subsection (2) of the following subsection:
‘‘(2) The Member of the Executive Council may, out of funds 20
appropriated by the provincial legislature for that purpose, grant a
subsidy to an independent school, subject to conditions determined by
the Member of the Executive Council.’’; and
(b) by the addition of the following subsection:
‘‘(6) An independent school must submit to the Head of Department— 25
(a) within 30 days after the end of each quarter, a copy of the quarterly
report on all income and expenditure relating to the subsidy
contemplated in subsection (2), in accordance with directives issued
by the Head of Department; and
(b) within six months after the end of each financial year, a copy of the 30
audited or examined annual financial statements relating to the
subsidy contemplated in subsection (2).’’.

Substitution of section 51 of Act 84 of 1996

35. The following section is hereby substituted for section 51 of the South African
Schools Act, 1996: 35

‘‘Home education

51. (1) If the parent of a learner who is subject to compulsory

attendance as contemplated in section 3(1) chooses to educate the
learner at home, such parent must apply to the Head of Department for
the registration of the learner to receive home education. 40
(2) The Head of Department must approve the application and register
the learner as contemplated in subsection (1)—
(a) if he or she is satisfied that—
(i) education at home, as provided for in this Act, is in the best
interests of the learner; 45
(ii) the parent understands what home education entails and
accepts full responsibility for the implementation of home
education for the learner; and
(iii) the proposed home education programme is suitable for the
learner’s age, grade level and ability and predominantly 50
covers the acquisition of content and skills at least compa-
rable to the relevant national curriculum determined by the
Minister; and
(b) if the parent undertakes to—
 25

(i) make suitable educational resources available to support the

learner’s learning;
(ii) monitor the learner’s academic progress;
(iii) arrange for the learner’s educational attainment to be
assessed by a competent assessor— 5
(aa) at the end of each phase, up to the end of the year in
which the learner reaches the age of 15 years or
completes grade 9, whichever occurs first; and
(bb) against a standard that is not inferior to the standard
determined in the National Curriculum Statement; and 10
(iv) submit to the Head of Department, at the end of each phase
and as evidence of the learner’s educational attainment, the
learner’s assessment report, signed by the competent asses-
sor.
(3) In considering the application, the Head of Department may, on 15
just cause shown and after notification to the parent, require a delegated
official to conduct a pre-registration consultation with the parents and
learner to verify the information supplied in the application documenta-
tion and to provide support, where necessary, with the application
process. 20
(4) If the Head of Department is satisfied that the parent does not meet
the requirements set out in subsection (2), or if the outcome of the
process set out in subsection (3) fails to satisfy the Head of Department
that home education is in the best interests of the learner, the Head of
Department must decline to register a learner to receive home education. 25
(5) If a parent educates a learner at home, and that learner has, at the
time of the commencement of this section, not been registered as
contemplated in this section, the parent must, within 30 days after the
commencement of this section, apply to the Head of Department for the
registration of the learner to receive home education. 30
(6) If the Head of Department does not respond within 60 days of
receipt of an application for home education as contemplated in
subsections (1) and (5), the application shall be deemed to have been
approved, on condition that the applicant must be able, on request, to
produce proof that an application for registration to receive home 35
education was submitted.
(7) A learner who is registered to receive home education is exempted
from school attendance as contemplated in section 3.
(8) The parent of a learner who has been registered as contemplated in
subsection (1) or (5) must notify the Head of Department at the end of 40
the—
(a) Foundation Phase (grades R to 3);
(b) Intermediate Phase (grades 4 to 6); and
(c) Senior Phase (grades 7 to 9),
of his or her intention to continue educating the learner at home. 45
(9) A parent who wishes to continue educating a learner at home after
the learner has reached the age of 15 years or has completed grade 9,
whichever occurs first, or who wishes to start educating such learner at
home at such time, is not required to apply for registration, as
contemplated in subsections (1) and (5), or to notify the Head of 50
Department, as contemplated in subsection (8).
(10) After a home-educated learner has completed grade 9 or has
reached the age of 15 years, whichever occurs first, the parent may enrol
the learner at a public school or an independent school for the
completion of grades 10 to 12. 55
(11) If the parent of a learner contemplated in subsection (9) desires
the learner to eventually write the National Senior Certificate examina-
tion, such parent must, before the learner embarks on any studies
following grade 9, ensure that the learner complies with the require-
ments stipulated in regulation 7(4A) of the Regulations Pertaining to the 60
Conduct, Administration and Management of the National Senior
Certificate Examination (published under R872 in Gazette No. 31337 of
29 August 2008), for a learner receiving home education.
 26

(12) The Head of Department must cancel a learner’s registration to

receive home education if, after investigation, the Head of Department is
satisfied that home education is no longer in the best interests of the
learner.
(13) The Head of Department may not decline to register a learner, as 5
contemplated in subsection (4), or cancel the registration of a learner, as
contemplated in subsection (12), before—
(a) informing the parent, in writing, of his or her intention so to act and
the reasons therefor;
(b) granting the parent a reasonable opportunity to make representa- 10
tions to him or her, which opportunity must include discussions
relating to such intention;
(c) giving due consideration to any such representations received; and
(d) providing the parent with written reasons for his or her decision.
(14) (a) The parent of a learner may appeal to the Member of the 15
Executive Council, within 30 days of receiving notice—
(i) that the Head of Department has declined the application to register
the learner to receive home education; or
(ii) that the Head of Department has cancelled the learner’s registration
to receive home education. 20
(b) If the parent of a learner is of the opinion that any decision of the
Head of Department in relation to the home education of the learner in
question is unreasonable, such parent may appeal to the Member of the
Executive Council within 30 days of receiving notice of such decision.
(15) If an appeal contemplated in subsection (14) is received, the 25
Member of the Executive Council must, within 30 days of receiving such
appeal, consider and decide on the matter and, in writing, inform the
parent of the outcome of the appeal.
(16) The Minister may make regulations relating to registration for,
and the administration of, home education.’’. 30

Amendment of section 59 of Act 84 of 1996, as amended by section 10 of Act 100 of

1997

36. Section 59 of the South African Schools Act, 1996, is hereby amended—
(a) by the substitution for the heading of the following heading:
‘‘Duty [of schools] to provide information’’; 35
(b) by the substitution for subsection (2) of the following subsection:
‘‘(2) Every school must provide such information about the school as
is reasonably required by the Head of Department, or by the Director-
General of the [national] Department of Basic Education in consultation
with the Head of Department.’’; and 40
(c) by the addition of the following subsection:
‘‘(3) If, when applying for admission to a public school or for
exemption from the payment of school fees, the parent of a learner, or
any other person—
(a) submits or provides information which he or she knows to be false 45
or misleading;
(b) submits a document which he or she knows to be forged; or
(c) submits a document and claims that it is a true copy of the original
when in fact it is not a true copy,
such person is guilty of an offence and liable, upon conviction, to a fine 50
or to imprisonment for a period not exceeding 12 months, or to both a
fine and such imprisonment.’’.

Insertion of section 59A in Act 84 of 1996

37. The following section is hereby inserted in the South African Schools Act, 1996,
after section 59: 55
 27

‘‘Dispute resolution

59A. (1) If a dispute arises between the Head of Department and a

governing body, the following procedure must be followed:
(a) All attempts must be made by the parties to resolve the dispute
informally. 5
(b) If the parties are unable to resolve the dispute informally as referred
to in paragraph (a), the following steps must be taken:
(i) The aggrieved party must give the other party written notice
of the dispute; and
(ii) such notice must include a description of the issues involved 10
in the dispute and a proposed resolution thereof.
(c) If the dispute has not been resolved within 14 days after the issuing
of the written notice contemplated in paragraph (b), each party must
nominate a representative within seven days, and those representa-
tives must meet within 14 days after their nomination in order to 15
resolve the dispute.
(d) If the parties cannot resolve the dispute as contemplated in
paragraphs (a), (b) and (c), the governing body may appeal to the
Member of the Executive Council against the decision that gave rise
to the dispute. 20
(e) If an appeal contemplated in paragraph (d) has been received, the
Member of the Executive Council must, within 30 days after
receiving such appeal, consider and decide on the matter and, in
writing, inform the governing body of the outcome of the appeal.
(2) If a dispute arises between the Member of the Executive Council 25
and a governing body, the following procedure must be followed:
(a) All attempts must be made by the parties to resolve the dispute
informally.
(b) If the parties are unable to resolve the dispute informally as referred
to in paragraph (a), the following steps must be taken: 30
(i) The aggrieved party must give the other party written notice
of the dispute; and
(ii) such notice must include a description of the issues involved
in the dispute and a proposed resolution thereof.
(c) If the dispute has not been resolved within 14 days after the issuing 35
of the written notice contemplated in paragraph (b), each party must
nominate a representative within seven days, and those representa-
tives must meet within 14 days after their nomination in order to
resolve the dispute.
(3) This section does not apply to matters in respect of which this Act 40
makes provision for an appeal process.’’.

Amendment of section 60 of Act 84 of 1996, as amended by section 14 of Act 48 of

1999, section 12 of Act 31 of 2007 and section 14 of Act 15 of 2011

38. Section 60 of the South African Schools Act, 1996, is hereby amended by the
substitution for subsection (4) of the following subsection: 45
‘‘(4) Despite the provisions of subsection (1), the State is not liable for any
damage or loss caused—
(a) as a result of any act or omission in connection with any enterprise or business
operated under the authority of a public school for purposes of supplementing
the resources of the school as contemplated in section 36, including the 50
offering of practical educational activities relating to that enterprise or
business; or
(b) if the provisions of section 36(2) have not been complied with.’’.

Amendment of section 61 of Act 84 of 1996, as amended by section 5 of Act 53 of

2000 and section 9 of Act 50 of 2002 55

39. Section 61 of the South African Schools Act, 1996, is hereby amended—
(a) by the insertion after paragraph (a) of the following paragraphs:
 28

‘‘(aA) on the management of learner pregnancy;

(aB) on the admission of learners to public schools;
(aC) on the prohibition of the payment of unauthorised remuneration or
the giving of other financial benefits, or benefits in kind to certain
employees; 5
(aD) on the minimum norms and standards for provincial educator
development institutes and district educator development centres;
(aE) on the organisation, roles and responsibilities of education
districts;
(aF) on a national education information system;’’; and 10
(b) by the addition of the following subsections, the existing section becoming
subsection (1):
‘‘(2) The regulations contemplated in subsection (1) may provide that
any person who contravenes a provision thereof or fails to comply
therewith is guilty of an offence and liable, on conviction, to a fine or to 15
imprisonment for a period not exceeding six months, or to both a fine and
such imprisonment.
(3) Any regulation made under subsection (1)(aA) and (aB) must,
before publication in the Gazette, be tabled in Parliament.’’.

Amendment of the Preamble of Act 84 of 1996 20

40. The Preamble of the South African Schools Act, 1996, is hereby amended by the
substitution for the second paragraph of the following paragraph:
‘‘WHEREAS this country requires a new national system for schools which will
redress past injustices in educational provision, provide an education of progres-
sively high quality for all learners and in so doing lay a strong foundation for the 25
development of all our people’s talents and capabilities, advance the democratic
transformation of society, combat racism and sexism and all other forms of unfair
discrimination and intolerance, contribute to the eradication of poverty and the
economic well-being of society, facilitate the education of children through the
promotion and protection of the right to basic education, protect and advance our 30
diverse cultures and languages, uphold the rights of all learners, parents and
educators, and promote their acceptance of responsibility for the organisation,
governance and funding of schools in partnership with the State; and’’.

Amendment of section 1 of Act 76 of 1998, as amended by section 6 of Act 53 of

2000, section 58 of Act 16 of 2006 and section 15 of Act 15 of 2011 35

41. Section 1 of the Employment of Educators Act, 1998, is hereby amended—

(a) by the deletion of the definition of ‘‘adult basic education centre’’;
(b) by the substitution for the definition of ‘‘educator’’ of the following definition:
‘‘ ‘educator’ means any person who teaches, educates or trains other
persons or who provides professional educational services, including 40
professional therapy and education psychological services, at any public
school[,] or departmental office [or adult basic education centre] and
who is appointed in a post on any educator establishment under this
Act;’’; and
(c) by the substitution for the definition of ‘‘provincial department of education’’ 45
of the following definition:
‘‘‘provincial department of education’ means a department respon-
sible for education in a province and includes all public schools[, further
education and training institutions,] and departmental offices [and
basic adult education centres] in such province;’’. 50

Amendment of section 5 of Act 76 of 1998

42. Section 5 of the Employment of Educators Act, 1998, is hereby amended by the
substitution for subsection (2) of the following subsection:
‘‘(2) The educator establishment of any public school[, further education and
training institution,] or departmental office [or adult basic education centre] 55
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
 29

said school[, institution,] or office [or centre] by the Head of Department from the
educator establishment of that department.’’.

Amendment of section 7 of Act 76 of 1998

43. Section 7 of the Employment of Educators Act, 1998, is hereby amended—

(a) by the substitution in subsection (1) for the words preceding paragraph (a) of 5
the following words:
‘‘(1) In the making of any appointment, [or] in any promotion, and in
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 10
Constitution of the Republic of South Africa, 1996 [(Act No. 108 of
1996)], and which include the following factors[, namely—]:’’; and
(b) by the substitution in subsection (2) for paragraph (a) of the following
paragraph:
‘‘(a) in a permanent capacity or in a promotion post, whether on 15
probation or not;’’.

Amendment of section 8 of Act 76 of 1998, as amended by section 16 of Act 48 of

1999, section 11 of Act 50 of 2002, section 58 of Act 16 of 2006, and section 3 of Act
1 of 2004

44. Section 8 of the Employment of Educators Act, 1998, is hereby amended— 20

(a) by the substitution for subsection (4) of the following subsection:
‘‘(4) A recommendation contemplated in subsection (2) shall be made
within two months from the date on which a governing body [or council]
was requested to make a recommendation, failing which the Head of
Department may make a transfer without such recommendation.’’; and 25
(b) by the substitution for subsection (7) of the following subsection:
‘‘(7) Despite section 6(3)(a) and subsection (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 30
establishment of a public school [or an adult education and training
centre].’’.

Amendment of section 9 of Act 76 of 1998

45. Section 9 of the Employment of Educators Act, 1998, is hereby amended by the
substitution in subsection (1) for paragraph (a) of the following paragraph: 35
‘‘(a) another Department of Basic Education, or another department;’’.

Amendment of section 11 of Act 76 of 1998

46. Section 11 of the Employment of Educators Act, 1998, is hereby amended by the
substitution in subsection (1) for paragraphs (b) and (c) of the following paragraphs:
‘‘(b) on account of the abolition of the educator’s post or any reduction in, or 40
reorganisation or readjustment of the post establishments of, departments,
schools[, institutions,] or offices [or centres];
(c) if, for reasons other than the educator’s own unfitness or incapacity, the
educator’s discharge will promote efficiency or economy in the department,
school[, institution,] or office [or centre] in which the educator is employed, 45
or will otherwise be in the interest of the State;’’.

Amendment of section 17 of Act 76 of 1998, as amended by section 10 of Act 53 of

2000

47. Section 17 of the Employment of Educators Act, 1998, is hereby amended—

(a) by the deletion in subsection (1) of the word ‘‘or’’ at the end of paragraph (e); 50
(b) by the insertion in subsection (1) of a semi-colon and the word ‘‘or’’ at the end
of paragraph (f); and
 30

(c) by the addition to subsection (1) of the following paragraph:

‘‘(g) committing any other act which, in any other law that applies to the
educator in so far as his or her employment is concerned, is
classified as serious misconduct.’’.

Amendment of section 18 of Act 76 of 1998, as amended by section 11 of Act 53 of 5

2000, and section 58 of Act 16 of 2006

48. Section 18 of the Employment of Educators Act, 1998, is hereby amended—

(a) by the substitution in subsection (1) for paragraph (b) of the following
paragraph:
‘‘(b) wilfully or negligently mismanages the finances of the State[,] or a 10
school [or an adult learning centre];’’;
(b) by the substitution in subsection (1) for paragraph (c) of the following
paragraph:
‘‘(c) without permission possesses or wrongfully uses the property of the
State, a school, [an adult learning centre,] another employee or a 15
visitor;’’;
(c) by the substitution in subsection (1) for paragraph (d) of the following
paragraph:
‘‘(d) wilfully, intentionally or negligently damages or causes loss to the
property of the State[,] or a school [or an adult learning centre];’’; 20
(d) by the substitution in subsection (1) for paragraph (f) of the following
paragraph:
‘‘(f) unjustifiably prejudices the administration, discipline or efficiency
of the Department of Basic Education, a provincial department of
education, an office of the State or a school [or adult learning 25
centre];’’; and
(e) by the substitution in subsection (1) for paragraph (g) of the following
paragraph:
‘‘(g) misuses his or her position in the Department of Basic Education, a
provincial department of education or a school [or adult learning 30
centre] to promote or to prejudice the interests of any person;’’.

Insertion of section 19 in Act 76 of 1998

49. The Employment of Educators Act, 1998, is hereby amended by the insertion after
section 18 of the following section:

‘‘Conducting business with State 35

19. (1) An educator may not—

(a) conduct business with the State; or
(b) be a director of a public or private company conducting business
with the State.
(2) A contravention of subsection (1)— 40
(a) is an offence, and any person found guilty of such offence is liable,
on conviction, to a fine or to imprisonment for a period not
exceeding five years, or to both a fine and such imprisonment; and
(b) constitutes serious misconduct, and the employer must terminate
the employment of any person who is alleged to have contravened 45
the subsection and who, during a disciplinary process, is found
guilty of such misconduct.’’.

Amendment of section 35 of Act 76 of 1998

50. Section 35 of the Employment of Educators Act, 1998, is hereby amended by the
insertion after paragraph (c) of the following paragraph: 50
‘‘(cA) norms and standards for district staffing;’’.

Repeal of section 38 of Act 76 of 1998

51. Section 38 of the Employment of Educators Act, 1998, is hereby repealed.

 31

Amendment of Schedule 1 to Act 76 of 1998, as inserted by section 15 of Act 53 of

2000, and amended by section 12 of Act 50 of 2002

52. Schedule 1 to the Employment of Educators Act, 1998, is hereby amended by the
substitution in item 1(2) for paragraph (a) of the following paragraph:
‘‘(a) the extent to which the incapacity impacts on the work of the Department of 5
Basic Education, the [or] provincial department of education, or the public
school[, public further education and training institution or public adult
learning centre];’’.

Amendment of Schedule 2 to Act 76 of 1998, as inserted by section 15 of Act 53 of

2000 and amended by sections 8 to 11 of Act 57 of 2001, section 13 of Act 50 of 2002 10
and section 6 of Act 1 of 2004

53. Schedule 2 to the Employment of Educators Act, 1998, is hereby amended—

(a) by the substitution in item 3(3) for paragraph (a) of the following
paragraph:
‘‘(a) the extent to which the misconduct impacts on the work of the 15
Department of Basic Education, the [or] provincial department of
education, or the public school[, public further education and
training institution or public adult learning centre];’’; and
(b) by the substitution in item 9(5) for the words preceding paragraph (a) of the
following words: 20
‘‘(5) The Member of the Executive Council or the Minister, as the case
may be, must, within 30 days after receiving the appeal, consider the
appeal, and may—’’.

Short title

54. This Act is called the Basic Education Laws Amendment Act, 2024, and comes 25
into operation on a date fixed by the President by proclamation in the Gazette.
 32

MEMORANDUM ON THE OBJECTS OF THE BASIC EDUCATION

LAWS AMENDMENT BILL, 2022

1. BACKGROUND AND OBJECTS OF BILL

1.1 In 2013, the Minister of Basic Education (‘‘Minister’’) instructed a task team
to review the basic education legislation as a strategic priority for the
Department of Basic Education (‘‘Department’’). The task team identified the
South African Schools Act, 1996 (Act No. 84 of 1996) (‘‘SASA’’), and the
Employment of Educators Act, 1998 (Act No. 76 of 1998) (‘‘EEA’’), as
needing amendments.

1.2 The Basic Education Laws Amendment Bill (‘‘Bill’’), which was published
for public comment under Government Notice No. 1101 in Gazette No. 41178
on 13 October 2017, proposed to amend the SASA and the EEA so as to align
them with developments in the education landscape and to ensure that systems
of learning and excellence in education are put in place in a manner which
respects, protects, promotes and fulfils the right to basic education enshrined
in section 29(1) of the Constitution of the Republic of South Africa, 1996
(‘‘Constitution’’). Another aim of the Bill was to bring about certain technical
and substantive adjustments in the SASA and the EEA, to clarify certain
existing provisions and to insert certain provisions to cover matters which are
not provided for in the existing legislation.

1.3 One of the developments in the education landscape came about in 2009,
when the then Department of Education was split into two new departments,
being the Department and the Department of Higher Education and Training
(in terms of Proclamation No. 44 of 2009, signed by the President on 20 June
2009 and published in Gazette No. 32367 on 1 July 2009).

1.4 The general public and education stakeholders submitted just under 5 000
comments in respect of the Bill. There were also 144 petitions, containing a
total of 195 695 names, objecting to certain clauses of the Bill.

1.5 On 19 February 2018, a task team consisting of representatives from the

Department and three of the provincial education departments (namely the
education departments of Gauteng, Limpopo and the Western Cape) started
with the process of perusing the submissions and amending the Bill by
incorporating constructive comments into the Bill. During the period from 19
February 2018 to 14 February 2020, the task team had 31 meetings (57 days
altogether) and held extensive discussions with other Department officials in
order to clarify issues raised by some of the commentators and, where
necessary, sought advice and inputs from persons outside the Department as
well.

1.6 Late in January 2020, the Minister met with representatives of school
governing body associations, teachers’ unions, and home education associa-
tions to further discuss pertinent matters with them. Further comments
submitted by those stakeholders in relation to that meeting were also
considered. A series of meetings with the National Economic Development
and Labour Council (‘‘Nedlac’’) also took place between February 2020 and
September 2020, and the inputs made by Nedlac were also taken into
consideration.

1.7 The version of the Bill that is currently under consideration is the result of the
incorporation of many of the commentators’ inputs, many hours of discus-
sions at task team meetings, countless hours of individual work put in by task
team members, and inputs from a variety of officials and other persons who
were consulted.
 33

2. CLAUSE-BY-CLAUSE ANALYSIS

Amendments to South African Schools Act, 1996 (Act No. 84 of 1996)

2.1 Clause 1: Amendment of section 1

2.1.1 This clause provides for the insertion of new definitions and seeks to
amend certain existing definitions.

2.1.2 A definition for ‘‘basic education’’ has been inserted to clarify that
basic education includes grades R to 12, as evidenced in the National
Curriculum Statement Grades R–12. This was necessary in order to
clarify the fact that basic education continues until the end of grade 12
even though a learner who has completed grade 9 is no longer subject
to compulsory school attendance.

2.1.3 Definitions for ‘‘benefit in kind’’ and ‘‘other financial benefit’’ are
inserted in order to create clarity regarding the provisions of section
38A of the SASA, which prohibits the payment of unauthorised
remuneration and the giving of financial benefit or benefit in kind to
certain employees.

2.1.4 Definitions for ‘‘competent assessor’’ and ‘‘home education’’ are

included in order to provide more certainty in the home education
environment.

2.1.5 A definition for ‘‘corporal punishment’’ has been inserted as there

exists a gap in regulating this definition in the sector. The incidents of
corporal punishment are increasing within the school environment as
well as the home environment and it is anticipated that the inclusion of
the definition will provide clarity on what corporal punishment entails.

2.1.6 The definition for ‘‘Constitution’’ is amended to bring it in line with

the provisions of the Citation of Constitutional Laws Act, 2005 (Act
No. 5 of 2005).

2.1.7 A definition for ‘‘Criminal Procedure Act’’ is inserted due to the

numerous references thereto in the Bill and the SASA.

2.1.8 A definition for ‘‘Department of Basic Education’’ is inserted in order

to reflect the new education dispensation.

2.1.9 A definition for ‘‘drug’’ is inserted in order to better accommodate the

kinds of issues with which schools struggle in relation to drugs and, by
means of referencing applicable drug-related legislation, to make
provision for recent legislative changes in regard to cannabis. As a
result of the insertion of this new definition, the definition of ‘‘illegal
drug’’ is therefore deleted.

2.1.10 A definition for ‘‘education district’’ is inserted in order to facilitate

matters relating to a school’s admission and language policies.

2.1.11 A definition for ‘‘grade R’’ is inserted in order to clarify that grade R
is a Reception grade that must be completed before grade 1.

2.1.12 A definition for ‘‘home education’’ is inserted in order to explain what

home education entails and to distinguish it from school attendance.

2.1.13 A definition for ‘‘liquor’’ is inserted in support of the proposed

amendment to section 8A of the SASA.
 34

2.1.14 The definition of ‘‘loan’’ is amended to allow public schools to deal

with the day-to-day business of the school without obtaining the
written approval of the Member of the Executive Council (‘‘MEC’’).

2.1.15 The clause proposes the insertion of a definition for ‘‘other financial
benefit’’ which means any benefit of a monetary nature, including an
exemption from the payment of school fees in respect of the child of an
employee, and a credit card or a petrol card linked to an employee for
his or her personal use.

2.1.16 The definition for ‘‘parent’’ is amended in order to align it with the
changes in the provisions relating to home education.

2.1.17 The clause proposes the insertion of a definition for ‘‘required

documents’’ in order to provide clarity in respect of the documents
which must be submitted for the purpose of the admission of learners
to schools.

2.1.18 Finally, the clause proposes the insertion of a definition for ‘‘special
education needs’’ considering the numerous references thereto in the
SASA.

2.2 Clause 2: Amendment of section 3

2.2.1 This clause seeks to amend section 3(1) of the SASA to provide that
school attendance is compulsory from grade R and no longer only
from grade 1. The clause further proposes to increase the penalty
provision in section 3(6) of the SASA from six to 12 months in the
case where the parent of a learner, without just cause, fails to ensure
that a learner, who is subject to compulsory attendance, attends school,
or where any other person, without just cause, prevents such a learner
from attending school.

2.2.2 The clause proposes the addition of subsection (7) which provides that
it is an offence where any person unlawfully and intentionally
interrupts, disturbs or hinders any official educational activity of a
school, or hinders or obstructs any school in the performance of the
school’s official educational activities. The latter amendment is
necessitated by incidents, in several provinces, in which communities,
or portions of communities, prevented learners from attending school
in an attempt at making a political or other point.

2.3 Clause 3: Insertion of section 4A

2.3.1 This clause seeks the insertion of section 4A into the SASA to ensure
that the educators, principals and school governing bodies (‘‘SGB’’)
are accountable and responsible for the learners in their care.
Enrolment of learners and their regular and punctual attendance at a
school are a pre-requisite for an educated nation. Moreover, enrolment
and punctual regular attendance at a school is important because a
school that successfully curbs absenteeism without valid reason will
most likely improve learner retention and performance. This will
assist in mitigating the high learner dropout rate.

2.3.2 Educators, the principal and the SGB as parentis in loco, must take
responsibility and accountability for learners that are within their
school community by ascertaining the whereabouts of a learner who
absents himself of herself from school for a period of more than three
days without valid reason.

2.3.3 The principal, upon receiving a report from the educator that the
learner is absent without valid reason, must within 24 hours
investigate the matter by making reasonable effort to contact the
 35

parents to ascertain the reason as to why the learner is not present at

school. Furthermore, the principal has a responsibility to report the
matter to the SGB for further intervention.

2.3.4 The reason for establishing such a process is to ensure that learners
attend school regularly thereby preventing them from dropping out of
school. This requires a collective effort from the immediate school
community, starting with the educator, principal and SGB.

2.4 Clause 4: Amendment of section 5

2.4.1 This clause seeks to amend section 5 of the SASA. Section 5(1) is
amended to provide that a public school must admit and provide
education to learners and must serve their educational requirements
for the duration of their school attendance without unfairly discrimi-
nating in any way. In order to ensure that no learner is discriminated
against in any way, the clause proposes the insertion of subsections
(1A) and (1B) which provide that any learner whose parent or
guardian has not provided the required documents will nonetheless be
allowed to attend school and that the principal of the school must
advise the parent or guardian to secure the required documents.

2.4.2 The clause substitutes section 5(4)(a) and provides that despite the age
at which school attendance is compulsory, as stipulated in section 3(1),
a parent may, if he or she so wishes and subject to a few conditions,
enrol a child at a school to start attending grade R at a younger age.

2.4.3 The clause proposes the amendment of subsection (5) which provides
that the SGB must take into account certain prescribed factors when
considering the admission policy or any amendment thereof. Further-
more, the SGB must review the admission policy at certain intervals or
under certain conditions.

2.4.4 The clause further proposes an amendment to subsection (9) and

provides for time periods within which a learner who has been refused
admission to a public school, or the parent of such a learner, may
appeal to the MEC against the decision. Furthermore, the clause
proposes the addition of subsections (10) to (13) which provides that
the MEC must respond to an appeal contemplated in subsection (9)
within 14 days after receiving such an appeal and provides for an
appeal by an SGB to the MEC if the SGB is not satisfied with the
HoD’s decision in terms of subsection (5)(b).

2.4.5 The aforementioned amendments have become necessary as a result

of the confusion created by section 5(5) and 5(7) in respect of the
admission of learners to public schools and who has the final authority
to admit a learner to a school. When exercising the authority to admit
learners, the HoD is not rigidly bound by a school’s admission policy.
The general position is that admission policies must be applied in a
flexible manner and that the right of a learner to be admitted to a
school takes precedence over the right of a school to enforce the
criteria set out in its admission policy.

2.5 Clause 5: Amendment of section 6

2.5.1 This clause seeks to amend section 6 of the SASA to provide that
South African Sign Language has the status of an official language for
purposes of learning at a public school. The language policy of a
public school may not list, as one of the languages of learning and
teaching of the public school, a language other than one of the official
languages provided for in section 6(1) of the Constitution. The
language policy of the school must take into account the provision of
sections 6(2) and 29(2) of the Constitution. The process that an SGB
 36

must follow in this regard, and factors that it must take into account
when considering a language policy, or an amendment thereto, are also
provided. As is the case with the admission policy, the SGB must
review the language policy at certain intervals, or under certain
conditions.

2.5.2 The clause seeks to empower the HoD to direct a public school to
adopt more than one language of instruction, after taking certain
prescribed factors into account, and after the prescribed procedures
have been followed. The factors to be taken into account, and the
manner in which the HoD must act before he or she directs a public
school to adopt more than one language of instruction, are set out in
the clause. Where a school has been so directed, the HoD must, before
his or her directive is implemented, take all the necessary steps to
ensure that the public school receives the necessary resources to
enable that public school to provide adequate tuition in the additional
language of instruction.

2.5.3 Provision is made for an SGB, which is not satisfied with the HoD’s
direction to a school to adopt an additional language of instruction, to
appeal against the HoD’s direction to the MEC.

2.5.4 The proposed amendments to section 6 of the SASA are consistent

with the Constitutional Court judgment of Head of Department,
Mpumalanga Department of Education v Hoërskool Ermelo and
Another [2010(2) SA 415 (CC)] (‘‘Ermelo judgment’’), in which the
Constitutional Court made it clear that even though the function of
determining a school’s language policy is a devolved function (or
responsibility), in terms of section 6(2) of the SASA, it is not the
exclusive preserve of an SGB. The devolution of power does not mean
that the SGB’s right to decide the language policy is absolute. This
power is subject to the Constitution, the SASA and any applicable
provincial law. The Constitutional Court in the Ermelo judgment
further held that the SGB’s extensive powers and duties do not mean
that the HoD is precluded from intervening, on reasonable grounds, to
ensure that the admission and language policies of a school pay
adequate heed to section 29(2) of the Constitution.

2.5.5 Moreover, the Ermelo judgment, as well as the Constitutional Court

judgment of Head of Department, Department of Education, Free
State Province v Welkom High School and Another; Head of
Department, Department of Education, Free State Province v Har-
mony High School and Another [CCT 103/12 [2013] ZACC 25], made
it necessary to incorporate further checks and balances above and
beyond those that are currently in the SASA in respect of the language
and admission policies of schools.

2.5.6 The Constitutional Court in the Ermelo judgment held that the SGB of
a school must recognise that it is entrusted with a public resource
which must be managed not only in the interests of those who happen
to be learners and parents at the time but also in the interests of the
broader community in which the school is located and in the light of
the values of our Constitution.

2.5.7 For the above reasons, it is also necessary to empower the HoD to
direct a public school to adopt more than one language of instruction
where it is practicable to do so. A number of checks and balances have
been included in the clause to guide the HoD’s decision in this regard.
Furthermore, a comprehensive consultation process is provided for to
ensure that the views of all interested parties are obtained and are
given proper consideration.
 37

2.6 Clause 6: Amendment of section 6A

This clause seeks to amend section 6A of the SASA to empower the Minister
to appoint a person, organisation or group of persons to advise the Minister on
matters relating to a national curriculum statement and a national process and
procedures for the assessment of learner achievement. This allows the
Minister to obtain inputs from a broader spectrum of people.

2.7 Clause 7: Amendment of section 8

2.7.1 Clause 7 seeks to amend section 8 of the SASA by providing that the
SGB of a public school must adopt a code of conduct for the learners
subject to the Constitution, the SASA and any applicable provincial
law.

2.7.2 The clause further amends section 8 to provide that the code of
conduct of a public school must also take into account the diverse
cultural beliefs, religious observances and medical circumstances of
the learners at the school. The clause makes provision for an
exemption clause, making it possible to exempt learners, upon
application and on account of cultural beliefs, religious observations
and medical grounds, from complying with certain provisions of the
code of conduct. If an application for exemption is refused, the learner
or the parent of the learner may appeal to the HoD against the decision
of the SGB and time periods within which these actions must take
place are provided for.

2.7.3 The clause also provides that disciplinary proceedings must be age-
appropriate, should be conducted in the best interest of the learner, and
should adhere to the principles of justice, fairness and reasonableness
prescribed by the Constitution.

2.7.4 This amendment is informed by the United Nations Convention on the

Rights of the Child, 1989, and the latest jurisprudence on this issue, as
expressed in the Constitutional Court judgment of MEC for Educa-
tion: Kwazulu-Natal and Others v Pillay [CCT 51/06 [2007] ZACC
21]. The amendment seeks to bring the SASA in line with such
jurisprudence.

2.8 Clause 8: Amendment of section 8A

2.8.1 This clause seeks to extend the provisions of section 8A of the SASA
regarding the possession of liquor by a learner and to make
consequential amendments to the section in this regard and in regard to
the new definition of ‘‘drug’’.

2.8.2 The clause also makes it clear that a school has the right to search an
individual learner and not only a group of learners and consequential
amendments in this regard are proposed to the section.

2.8.3 This amendment is necessitated by the fact that learners have

increasingly been found in possession of, or abusing, liquor and a
variety of drugs, dependence-producing substances, performance-
enhancing substances and the like and that there are many cases of
learners being expelled because of such abuses.

2.9 Clause 9: Amendment of section 9

Clause 9 seeks to amend section 9 of the SASA by proposing the insertion of

a detailed definition of serious misconduct by a learner in order to provide
greater clarity in this regard. In particular, the insertion is an attempt at
addressing the growing incidents of violence at schools.
 38

2.10 Clause 10: Amendment of section 10

Clause 10 seeks to amend section 10 of the SASA by extending the prohibition

of corporal punishment being administered to learners to include ‘‘during a
school activity or in a hostel accommodating learners of a school’’. This
amendment is necessary to close an existing gap.

2.11 Clause 11: Amendment of section 10A

Clause 11 seeks to amend section 10A of the SASA by extending the

prohibition of initiation practices to include ‘‘during a school activity’’. As
with corporal punishment, the amendment is aimed at closing a gap in the
legislation.

2.12 Clause 12: Amendment of section 12

2.12.1 Clause 12 seeks to amend section 12 of the SASA by providing that the
SGB of a public school may apply to the MEC to be designated as a
public school with a specialised focus on talent. The HoD may also
identify a public school to be so designated and may make a
recommendation to the MEC in this regard, and the MEC may so
designate a public school if it is in the best interest of education in the
province and if the school complies with the norms and standards
determined by the Minister. The process to be followed before a
school may be so designated is also set out in the clause.

2.12.2 This amendment is necessary to close a gap in the current legislation

and to clarify the process that a school needs to follow to be designated
as a public school with a specialised focus on talent. It further clarifies
whose responsibility it is to designate such schools and the criteria that
will be applied in the case of such a designation.

2.13 Clause 13: Amendment of section 12A

2.13.1 Clause 13 seeks to amend section 12A of the SASA to provide that, in
instances where two or more schools are merged, a new public school
will be established. Methods of communicating with interested parties
in regard to such a merger are also clarified, and timeframes within
which the MEC must act are set out. Provision is made for the case
where the MEC fails to act within the stipulated periods, and further
details of the process to be followed by the MEC and the SGBs
concerned are set out.

2.13.2 The clause further provides that a merger will not affect the liability of
any person to be disciplined or prosecuted for any misconduct, crime
or offence and further provides for the rationalisation or redeployment
of the workforce of the new public school. In addition, after the merger
of two or more public schools, the newly formed school will continue
with all the academic programmes offered by the former public
schools and provision is made for the governance of the new public
school.

2.13.3 This amendment is proposed for the sake of clarity and uniformity in
the manner in which schools are merged.

2.14 Clause 14: Amendment of section 21

Clause 14 seeks to amend section 21 of the SASA to empower the HoD to

centrally procure identified learning and teaching support material for public
schools, in consultation with the SGB and on the basis of efficient, effective
and economic utilisation of public funds or uniform norms and standards.
Furthermore, an SGB may procure the material from another supplier where
such procurement will be more cost effective than the central procurement
 39

thereof. This amendment is proposed in order to bring about economies of

scale.

2.15 Clause 15: Amendment of section 22

2.15.1 Clause 15 seeks to amend section 22 of the SASA to empower the

HoD to withdraw, on reasonable grounds and after complying with
prescribed requirements, ‘‘one or more functions’’ of an SGB and not
only ‘‘a function’’, as the section currently reads. It also provides that,
in cases of urgency, the HoD may withdraw functions without prior
communication with such SGB. In such a case, the HoD must
immediately thereafter furnish the SGB with written reasons for his or
her actions, grant the SGB a reasonable opportunity to make
representations, duly consider such representations, and inform the
SGB of his or her final decision. Further provision is made for steps
that the HoD must take if he or she acts in terms of this section,
including the appointment of sufficiently qualified persons to perform
the withdrawn function or functions for a specified period. The
appointed persons must build capacity to ensure that the SGB will in
future perform the functions that it failed to perform. The clause also
deals with the voting rights of such persons and provides for an appeal
process.

2.15.2 The proposed amendment will create clarity regarding the powers of
the HoD to withdraw functions of SGBs and clearly indicates the
processes that need to be followed when functions are withdrawn.

2.16 Clause 16: Amendment of section 23

This clause seeks to amend section 23 of the SASA by substituting subsection

(6) to provide that SGB representatives may co-opt members from within the
community, as well as from outside the community, to assist the SGB in
discharging its functions. The amendment is proposed to enable the SGB to
co-opt experts in relevant fields where such experts may not be found within
the community. In this way, the SGB is allowed to co-opt members with the
requisite skills from outside the community in which the school is located
without changing the requirement that the majority of SGB members must be
parents.

2.17 Clause 17: Amendment of section 24

Clause 17 seeks to amend section 24 of the SASA by substituting ‘‘Member of

the Executive Council’’ with ‘‘Minister’’ and the ‘‘Provincial Gazette’’ with
‘‘Gazette’’ in regard to arrangements for the election of members of an SGB
of a public school for learners with special education needs. Currently, each
province deals with these matters in its own preferred way, and this
amendment will bring about uniformity across the provinces.

2.18 Clause 18: Insertion of section 24A

2.18.1 Clause 18 proposes the insertion of section 24A into the SASA to
provide that the provisions of section 23 of the SASA, excluding
subsection (5), which deal with the membership of SGBs of ordinary
public schools, will apply to a public school with a specialised focus
on talent and that the authority to co-opt members includes the
authority to co-opt relevant experts in the specialised focus of the
public school, whether from inside or outside the community.

2.18.2 This amendment is necessary to address a gap in the SASA and to

ensure uniformity in the establishment of the governance structures
for public schools with a specialised focus on talent.
 40

2.19 Clause 19: Substitution of section 25

2.19.1 Clause 19 proposes to substitute section 25 of the SASA in order to

empower the HoD to dissolve an SGB that has ceased to perform the
functions allocated to it in terms of the Act, if the HoD has reasonable
grounds to do so. Provision is made for steps that the HoD must take
if he or she acts in terms of this section, including the appointment of
sufficient qualified persons to perform the functions of the SGB for a
specified period. The clause also deals with the voting rights of such
persons and provides that the HoD may act in terms of this section
only after following certain prescribed procedures. The clause also
provides that the HoD must ensure that a new SGB is elected within
one year, and provides for an appeal process.

2.19.2 The proposed amendment creates clarity regarding the powers of the
HoD to dissolve an SGB and clearly indicates the processes that need
to be followed when an SGB is dissolved.

2.20 Clause 20: Substitution of section 26

2.20.1 Clause 20 proposes to substitute section 26 of the SASA and provides

for the declaration of a direct or indirect personal and financial interest
that an SGB member, or any of his or her family members, close
friends or business partners has and where such a personal interest
exists, the SGB member must recuse himself or herself and withdraw
from a meeting of the SGB for the duration of the discussion and
decision-making on an issue in which such member has a personal or
financial interest.

2.20.2 The clause further provides that should a SGB have knowledge that a
member who is present has a personal interest in a matter under
discussion, the SGB may not take a decision on the matter until such
member has withdrawn from the meeting. Furthermore, the clause
provides for the imposition of a sanction, after due process, where an
SGB member contravenes the provisions of the section. The amend-
ment also applies to a committee of an SGB and to committee
members. A definition for ‘‘family member’’ has also been inserted
into the clause.

2.20.3 The proposed amendment is made to promote the prevention of

corruption and to promote good governance.

2.21 Clause 21: Amendment of section 27

Clause 21 seeks to amend section 27 of the SASA which provides that SGB
members are not entitled to be remunerated for the performance of their
duties, by adding the words ‘‘or for the attendance of meetings and school
activities’’. This amendment is proposed merely to clarify the matter of
remuneration.

2.22 Clause 22: Amendment of section 28

2.22.1 Clause 22 seeks to amend section 28 of the SASA by substituting

‘‘Member of the Executive Council’’ with ‘‘Minister’’ and ‘‘Provincial
Gazette’’ with ‘‘Gazette’’ in regard to arrangements for the election of
members of an SGB of a public school and by deleting the reference to
‘‘any applicable provincial law’’.

2.22.2 Currently, each province deals with the election of the members of a
SGB in its own preferred way and this amendment will bring about
uniformity across all provinces.
 41

2.23 Clause 23: Amendment of section 29

Clause 23 seeks to amend section 29 of the SASA to provide that, where

reasonably practicable, only a parent member of an SGB, who is not
employed at the school, may serve as the chairperson of the finance committee
of that public school. This amendment seeks to promote good governance.

2.24 Clause 24: Amendment of section 32

Clause 24 seeks to amend section 32 of the SASA to provide for a technical

amendment that is required as a result of the provisions of the Children’s Act,
2005 (Act No. 38 of 2005), which changed the age of majority from 21 to 18
years. This will ensure that learners 18 years and older are not a party to
litigation by virtue of their membership of the SGB. A new provision is also
inserted to ensure that learners who are SGB members are not involved in the
appointment of educators.

2.25 Clause 25: Substitution of section 33

2.25.1 Clause 25 proposes to substitute section 33 of the SASA which deals

with the closure of public schools. The MEC must embark on a
comprehensive consultation process before closing a school. The
proposed amendment also empowers the MEC to close a public school
in his or her sole discretion if there are no learners registered at that
public school. However, the MEC must first verify, by means of a site
inspection by an official nominated by him or her, that there are no
learners registered at that school. The amendment also empowers the
MEC to close a public school after following a prescribed consultation
process if, in the case of a primary school, 135 or fewer than 135
learners are registered at that school, and, in the case of a secondary
school, 200 or fewer than 200 learners are registered at the school. The
MEC must inform interested parties of his or her decision in the above
regard and, if the decision is to close a public school, must make
arrangements for the learners of the school to attend another school
and, where appropriate, make arrangements for the transport of
qualifying learners to that school. The MEC must, furthermore, take
certain prescribed factors into account before acting under this section.

2.25.2 The purpose of this amendment is to provide for a proper consultation

process and to simplify the procedure when dealing with the closure of
a school.

2.26 Clause 26: Amendment of section 36

2.26.1 Clause 26 seeks to amend section 36 of the SASA to provide that the
SGB must also seek the approval of the HoD to enter into lease
agreements, for any purpose, including loans and overdrafts which are
already provided for in the said section. The clause also provides that
the approval of the HoD is not required in regard to the lease of
immovable property of the school if the lease is for a period not
exceeding 12 months.

2.26.2 With regard to lease agreements, the proposed amendment seeks to

ensure good governance, economies of scale, that money is spent
economically, and a reduction in the risk that the State will be held
responsible for acts or omissions on the part of schools.

2.26.3 The proposed amendment further reduces the burden on schools to

apply for permission when entering into small lease agreements in
regard to immovable property.
 42

2.27 Clause 27: Amendment of section 37

Clause 27 seeks to amend section 37 of the SASA by substituting the word

‘‘directions’’ with the word ‘‘directives’’. The proposed amendment is a
technical correction.

2.28 Clause 28: Amendment of section 38

2.28.1 Clause 28 seeks to amend section 38 of the SASA to provide that a

document explaining the budget of a school, together with the budget
itself, must be made available to parents before the budget is presented
to a general meeting of parents for consideration. It also sets out the
procedure that an SGB must follow if it proposes to deviate from the
initial budget by 10 per cent or more of the initial approved budget, or
if it proposes to reallocate funds for a purpose that is different from the
purpose set out in the budget originally approved by a general meeting
of parents.

2.28.2 Reasons for the deviation or reallocation must also be made available
to the parents prior to the meeting and parents must be informed that
this information will be available for inspection at the school at least
14 days prior to the meeting. A quorum of 10 per cent of the parents is
required for the general meetings referred to above. If a quorum
cannot be achieved at the first meeting, a second meeting must be
arranged, at which no quorum is required. A copy of the notice of the
second meeting must also be distributed to every learner at the school
with an instruction to hand the notice to their parents. This amendment
is proposed to address issues concerning governance and fairness.

2.29 Clause 29: Amendment of section 38A

2.29.1 Clause 29 seeks to amend section 38A of the SASA to extend its
application to a state employee who is paid any additional remunera-
tion or any other financial benefit or benefit in kind. It requires SGBs
to provide full details of the nature and extent of the remuneration or
benefit; the reasons for the remuneration or benefit; if practicable, the
monetary value of the remuneration or benefit; and details of the
process that will be followed and the resources that will be used to
compensate or remunerate the employee.

2.29.2 The proposed amendment is necessary to provide clarity and to reduce

the financial burden on parents who pay substantial school fees at
fee-paying schools.

2.30 Clause 30: Amendment of section 41

Clause 30 seeks to amend section 41 of the SASA by inserting a new

subsection (2A) to provide that when a parent applies for exemption from the
payment of school fees, such parent may submit additional documentary
evidence in the form of an affidavit in instances where information cannot be
obtained from the other parent of the learner. The proposed amendment aims
to lessen the burden on single parents whose ex-partners are untraceable or
unwilling to provide information on their financial situation.

2.31 Clause 31: Substitution of section 42

Clause 31 proposes to substitute section 42 of the SASA to provide that the

SGB of a public school must keep detailed records on prescribed aspects of its
financial affairs; draw up annual financial statements within a specified time
and in a specified manner; and present the financial records and statements to
a general meeting of parents. The proposed amendment expands the existing
provision contained in section 42 to ensure transparent accounting and good
governance.
 43

2.32 Clause 32: Amendment of section 43

2.32.1 Clause 32 seeks to amend section 43 of the SASA to empower the

HoD, if he or she deems it necessary, on just cause shown, to authorise
an investigation into the financial affairs of a public school; to request
the Auditor-General to undertake an audit of the records and financial
statements of a public school; or appoint forensic auditors or forensic
investigators to conduct a forensic investigation into the financial
affairs of a public school. All of these steps must be taken in
accordance with specified requirements.

2.32.2 The clause also places a responsibility on the SGB to provide the HoD
with quarterly reports on all income and expenditure in accordance
with directives issued by the HoD. The provision that the SGB must
submit a copy of the annual financial statements within six months
after the end of each financial year to the HoD remains unchanged.

2.32.3 The proposed amendment further expands on the existing provision by

creating more options for the HoD if he or she needs to have the
financial matters of a school investigated after, for example, receiving
allegations of corruption, fraud and the like. In addition, the
amendment seeks to create certainty with regard to reporting and to
promote open and transparent accounting and financial accountability,
bearing in mind that public funds and parents’ money are at stake.

2.33 Clause 33: Amendment of section 46

Clause 33 seeks to amend section 46 of the SASA by increasing the penalty

provision from six to 12 months in the case where a person establishes or
maintains an independent school that is not registered by the HoD.

2.34 Clause 34: Amendment of section 48

2.34.1 Clause 34 seeks to amend section 48 of the SASA to provide that the
subsidy granted to an independent school can be made subject to
conditions determined by the MEC. The amendment also provides that
an independent school must submit quarterly reports to the HoD on all
income and expenditure relating to the subsidy, and must, within six
months after the end of each financial year, provide the HoD with a
copy of the audited financial statements relating to the subsidy.

2.34.2 The proposed amendment seeks to create certainty in regard to

reporting and to promote open and transparent accounting for the sake
of financial accountability when dealing with public funds.

2.35 Clause 35: Substitution of section 51

2.35.1 Clause 35 seeks to substitute section 51 of the SASA to provide clarity

with regard to home education. The amendment makes it clear that
learners may be educated at home only if they are registered for such
education. A parent must, at the end of each of the three school phases,
notify the HoD if he or she intends to continue educating the learner at
home. The criteria that the HoD must consider, when deciding whether
or not to approve an application, are also set out.

2.35.2 The amendment provides that the HoD may, on just cause shown and
after notification to the parent when considering an application,
require a delegated official to conduct a pre-registration consultation
with the parents and learner to verify the information supplied in the
application documentation and to provide support, where necessary,
with the application process. It also sets out the main responsibilities
of a parent who wishes to educate his or her child at home.
 44

2.35.3 The amendment stipulates that, in the case of learners who are not yet
registered for home education, application must be made within 30
days after the section comes into operation. Provision is also made for
a time limit within which the HoD must respond to an application for
registration for home education. The amendment further stipulates that
home-educated learners must be assessed by a competent assessor at
the end of each phase and sets out the options for a home-educated
learner after reaching the age of 15 or after completing grade 9.

2.35.4 Clarity is also provided to ensure that a learner who is educated at

home after the age of 15, or after completion of grade 9, will not be at
a disadvantage. In the case of a learner who will be writing the NSC,
the parent must, before the learner embarks on any studies following
grade 9, ensure that the learner complies with the requirements
stipulated in regulation 7(4A) of the Regulations Pertaining to the
Conduct, Administration and Management of the National Senior
Certificate Examination, for a learner receiving home education.

2.35.5 The amendment further provides that the HoD must decline to register
a learner for home education if the HoD is satisfied that the parent does
not meet certain requirements, or that home education is not in the best
interests of the learner; and that the HoD may cancel a learner’s
registration for home education if, after investigation, the HoD is
satisfied that home education is no longer in the best interests of the
learner. Before so cancelling a learner’s registration, the HoD must
satisfy certain requirements. Provision is also made for an appeal
process.

2.35.6 The amendment provides that the Minister may make regulations
relating to the registration and administration of home education. The
proposed amendment creates clarity on the powers and responsibilities
of officials and of the parents of a learner who is educated at home and
proposes steps to protect parents who want to educate their children at
home in the Further Education and Training Phase (grades 10 – 12)
and will ensure that the final qualification obtained will give the
learner opportunities for further study at institutions of higher
education.

2.36 Clause 36: Amendment of section 59

Clause 36 seeks to amend section 59 of the SASA to provide for a technical

amendment and provides that where a parent, or any other person, applies for
the admission of a learner to a public school, or applies for exemption from the
payment of school fees, and submits false or misleading information, or
submits a forged document or a document he or she claims is a true copy of the
original but is not, is guilty of an offence.

2.37 Clause 37: Insertion of section 59A

Clause 37 proposes the insertion of section 59A into the SASA to provide for
dispute resolution mechanisms in the event of any dispute between an SGB
and the HoD, or any dispute between an SGB and an MEC. It is anticipated
that this proposed amendment will save costs for all concerned parties and
will enable the parties involved to resolve disputes amicably.

2.38 Clause 38: Amendment of section 60

Clause 38 seeks to amend section 60 of the SASA. This section deals with the
liability of the State for any delictual or contractual damages caused as a result
of any school activity conducted by a public school for which the public
school would have been liable. The proposed amendment to section 60
excludes the liability of the State if the provisions of section 36(2) of the
SASA have not been complied with. This amendment seeks to protect the
 45

interests of the State in the case where a school does not comply with the
provisions of the SASA.

2.39 Clause 39: Amendment of section 61

2.39.1 Clause 39 seeks to amend section 61 of the SASA to extend the powers
of the Minister to make regulations on the management of learner
pregnancy; on the admission of learners to public schools; on the
prohibition of the payment of unauthorised remuneration or the giving
of other financial benefits or benefits in kind to employees; on
minimum norms and standards for provincial teacher development
institutes and district teacher development centres; on the
organisation, roles and responsibilities of education districts; and on a
national education information system. The clause also provides for
the possibility of creating offences in the regulations made by
Minister.

2.39.2 The amendment provides that any regulation contemplated in section

61(1) may provide that any person who contravenes a provision of the
regulation, or fails to comply therewith, is guilty of an offence.

2.39.3 Furthermore, the clause provides that any regulations made on the
management of learner pregnancy and the admission of learners to
public schools must be tabled in Parliament before publication in the
Gazette.

2.40 Clause 40: Amendment of Preamble

Clause 40 provides for the insertion of a phrase into the Preamble of the SASA
to facilitate the education of children through the promotion and protection of
the right to basic education.

Amendments to Employment of Educators Act, 1998 (Act No. 76 of 1998)

2.41 Clause 41: Amendment of section 1

Clause 41 seeks to amend section 1 of the EEA by deleting obsolete provisions

in order to align the Act with the new education dispensation. The proposed
amendment deletes the references to ‘‘adult basic education centre’’ and
‘‘further education and training Institution’’.

2.42 Clause 42: Amendment of section 5

Clause 42 seeks to amend section 5 of the EEA by deleting obsolete provisions

in order to align the Act with the new education dispensation. The clause
deletes the references to ‘‘further education and training institution’’, ‘‘adult
basic education centre’’, ‘‘institution’’ and ‘‘centre’’.

2.43 Clause 43: Amendment of section 7

Clause 43 seeks to amend section 7 of the EEA to extend the application

thereof to promotions on any educator establishment and to bring it in line
with the provisions of the Citation of Constitutional Laws Act, 2005 (Act No.
5 of 2005). The clause further provides for the possibility that an appointment
to a promotional post can be made on probation. The intention is to close the
gap and extend the provision to promotional posts in addition to appoint-
ments.

2.44 Clause 44: Amendment of section 8

Clause 44 seeks to amend section 8 of the EEA by proposing the deletion of

the obsolete references to ‘‘council’’ and ‘‘adult education and training
centre’’.
 46

2.45 Clause 45: Amendment of section 9

Clause 45 seeks to amend section 9 of the EEA to provide for the secondment
of educators to another department.

2.46 Clause 46: Amendment of section 11

Clause 46 seeks to amend section 11 of the EEA by proposing the deletion of

obsolete references to ‘‘institutions’’ and ‘‘centres’’.

2.47 Clause 47: Amendment of section 17

Clause 47 seeks to amend section 17 of the EEA by inserting a phrase that

expands the list of acts of serious misconduct. This is necessary because
‘‘conducting business with the State’’ is a new act of serious misconduct that
is introduced in the Bill in the proposed insertion of section 19 in the EEA and
the current section 17 of the EEA is no longer adequate. The new phrase is
worded in a manner which will ensure any acts of misconduct that may be
identified in future legislation will be covered.

2.48 Clause 48: Amendment of section 18

Clause 48 seeks to amend section 18 of the EEA by proposing the deletion of

the obsolete references to ‘‘adult learning centre’’ and includes a provincial
department of education within the ambit of the section.

2.49 Clause 49: Insertion of section 19

Clause 49 proposes the insertion of a new section 19 into the EEA, which
prohibits educators from conducting business with the State or from being a
director of a public or private company conducting business with the State and
provides that a contravention of the aforementioned provision is an offence.
Such contravention will also constitute serious misconduct, which shall result
in the termination of the educator’s employment by the employer. This
proposed amendment aims to promote good governance to protect the
financial interests of the State and to prevent corruption.

2.50 Clause 50: Amendment of section 35

Clause 50 seeks to amend section 35 of the EEA to extend the powers of the
Minister to make regulations on norms and standards for district staffing.

2.51 Clause 51: Repeal of section 38

Clause 51 seeks to repeal section 38 of the EEA which has become obsolete.

2.52 Clause 52: Amendment of Schedule 1

Clause 52 seeks to amend Schedule 1 to the EEA by proposing the deletion of

the obsolete references to ‘‘public further education and training institution or
public adult learning centre’’.

2.53 Clause 53: Amendment of Schedule 2

Clause 53 seeks to amend Schedule 2 to the EEA by proposing the deletion of

the obsolete references to ‘‘public further education and training institution or
public adult learning centre’’. It also provides for a timeframe within which an
appeal contemplated in Schedule 2 must be considered.
 47

2.54 Clause 54: Short title

Clause 54 provides the short title of the envisaged Act and provides that the
envisaged Act comes into operation on a date fixed by the President by
proclamation in the Gazette.

3. DEPARTMENTS, ORGANISATION AND INSTITUTIONS CONSULTED

The following national and provincial Departments, agencies, major stakeholders

in the basic education sector and other organs of state responsible for the following
functions were consulted:
• All nine provincial education departments;
• all national government departments;
• the Heads of Education Departments Committee;
• the Council of Education Ministers;
• South African Democratic Teachers Union (SADTU);
• SA Onderwysersunie (SAOU);
• National Professional Teachers Organisation of South Africa (NAPTOSA);
• Federation of Association of Governing Bodies (FEDSAS);
• Governance Alliance (GA);
• National Association of School Governing Bodies (NASGB);
• Governing Body Foundation;
• the Pestalozzi Trust for Home Educators;
• National Economic, Development and Labour Council (NEDLAC);
• The Technical Working Group; and
• The Social Protection, Community and Human Development Cluster.

4. FINANCIAL IMPLICATIONS FOR STATE

The Bill will create financial liability for the State in the form of implementation
costs relating to the following:
• In terms of the provision of Grade R, it is estimated that an additional amount of
R5.26 billion will be required. The amount is composed of both the funding
needed for equalisation of conditions of service and the funding of appointment
of additional educators to address the estimated increased learner enrolment. The
calculations are based on the current provisioning of Grade R in public schools;
• in terms of additional infrastructure, a total of 7 888 schools still need to be
provided with Grade R classrooms, and an amount of R12 billion is required to
address the shortfall. The shortfall will continue to be funded from the Education
Infrastructure Grant, the equitable share and other funding mechanisms to ensure
that schools receive the requisite spaces to accommodate Grade R learners;
• Home Education Assessment costs have been divided into two categories,
namely, the sourcing, preparing of exam papers and marking of scripts and
Invigilation. A suggested rate of R100 per hour for marking of scripts and R150
could be added for sourcing and preparing of papers. The estimated cost for
invigilators is R40 per hour. The bearers of these costs will be the parents.

5. PARLIAMENTARY PROCEDURE

5.1 The State Law Advisers and the Department are of the opinion that the Bill
must be dealt with in accordance with the procedure established in section 76
of the Constitution.

5.2 Chapter 4 of the Constitution specifies the manner in which legislation must
be enacted by Parliament. It prescribes different procedures for Bills,
including ordinary Bills not affecting provinces (section 75 procedure), and
ordinary Bills affecting provinces (section 76 procedure). The determination
of the procedure to be followed in processing the Bill is referred to as tagging.

5.3 In terms of section 76(3) of the Constitution, a Bill must be dealt with in
accordance with section 76 if it falls within a functional area listed in Schedule
4. Schedule 4 to the Constitution lists functional areas of concurrent national
and provincial legislative competence. In the Constitutional Court judgment
 48

of Ex-Parte President of the Republic of South Africa In Re: Constitution-

ality of the Liquor Bill1 (‘‘Liquor Bill judgment’’), Cameron AJ held the
following:

‘‘[27] It must be borne in mind that section 76 is headed ‘ordinary Bills

affecting provinces’. This is my view, a strong textual indication that
section 76(3) must be understood as requiring that any Bill whose
provisions in substantial measure fall within a functional area listed in
Schedule 4 be dealt with under section 76.

...

[29] Once a Bill falls within a functional area listed in Schedule 4, it

must be dealt with not in terms of section 75, but by either the
section 76 (1) or the section 76(2) procedure . . .’’.

5.4 Following the Liquor Bill judgment, the Constitutional Court in the judgment
of Tongoane and Others vs Minister for Agriculture and Land Affairs and
Others2 (‘‘Tongoane judgment’’) confirmed the following:

‘‘[59] . . . the tagging test focuses on all the provisions of the Bill in order to
determine the extent to which they substantially affect functional areas
listed in Schedule 4, and not on whether any of its provisions are
incidental to its substance.’’.

5.5 Furthermore, the Constitutional Court held that:

‘‘[66] . . . procedural safeguards are designed to give more weight to the

voice of the provinces in legislation substantially affecting themàthey
are fundamental to the role of the NCOP in ensuring that provincial
interests are taken into account in the national sphere of government
. . .’’.

5.6 As the Court held in the Tongoane judgment, a Bill must be tagged as a
section 76 Bill if its provisions in substantial measure deal with a Schedule 4
functional area. We are therefore of the view that the Bill should be classified
as a section 76 Bill, which is an ordinary Bill affecting provinces, as its
provisions in a substantial measure fall within a functional area listed in
Schedule 4 to the Constitution, namely ‘‘Education at all levels, excluding
tertiary education’’.

5.7 The State Law Advisers are of the opinion that it is not necessary to refer the
Bill to the National House of Traditional and Khoi-San Leaders in terms of
section 39(1)(a)(i) of the Traditional and Khoi-San Leadership Act, 2019 (Act
No. 3 of 2019), as it does not contain any provisions which directly affect
traditional or Khoi-San communities or provisions which pertain to custom-
ary law or customs of traditional or Khoi-San communtities.

1. (CCT/12/99) [1999] ZACC 15.

2. 2010 (8) BCLR 741 (CC).

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