Education Law and Policy Week 1

Regulatory Framework and Government Structures

• South Africa is a democratic state governed by the rule of law.
• The Constitution is the supreme law of the Republic, and any law or conduct inconsistent with it is invalid.
• The Republic is divided into three spheres of government: national, provincial, and local.
• These spheres are distinctive, interdependent, and interrelated, and must co-operate with each other in mutual trust and good faith.

The 3 Branches of Government

• The Legislative Branch is responsible for passing laws.
• The Executive Branch is responsible for executing laws and translating them into action.
• The Judicial Branch is responsible for resolving disputes concerning how laws are applied.

Separation of Powers

• The Constitution mandates the separation of powers between the three branches of government.

Regulatory Framework

• The Legislature (Parliament and provincial legislatures) passes laws.
• The Constitution remains supreme.
• Important national education laws include the South African Schools Act, Employment of Educators Act, South African Council for Educators Act, and National Education Policy Act.
• Other legislation with implications for education/children includes the Children's Act and the Criminal Procedure Act.

Provincial Legislation

• Examples of provincial legislation include the Gauteng School Education Act, Gauteng Education Laws Amendment Act, and Gauteng Education Policy Act.

Laws, Regulations, and Policies

• Laws set out standards, procedures, and principles that must be followed, and non-compliance is an offence.
• Regulations/Norms and Standards are subordinate legislation made by the Minister (national) or MEC (provincial) in terms of legislation.
• Policies are made by either the Minister (national) or MEC (provincial) and outline goals, methods, and principles to achieve them.

School Policies and Circulars

• School policies are made by School Governing Bodies under the authority of national legislation and deal with the implementation of broader law or policy.
• Circulars are employer directives or instructions to DBE officials (National & Provincial).

Administrative Justice

• Everyone has the right to administrative action that is lawful, reasonable, and procedurally fair.
• The Promotion of Administrative Justice Act 3 of 2000 promotes administrative justice.
• Just administrative action has three legal principles: lawfulness, reasonableness, and procedural fairness.

Labour Rights

• Every worker has the right to form and join a trade union, participate in trade union activities, and strike
• Teachers have the right to strike

Children's Rights

• Every child has the right to a name and nationality from birth
• Children have the right to family care or alternative care, basic nutrition, shelter, health care, and social services
• The best interests of the child are of paramount importance in every matter concerning the child
• A child is a person under 18 years of age

Right to Education

• Everyone has the right to a basic education, including adult basic education
• The state must make further education progressively available and accessible
• Everyone has the right to receive education in the official language or languages of their choice in public educational institutions
• Independent educational institutions can be established, but they must not discriminate and must maintain standards not inferior to public institutions

Human Dignity

• Everyone has inherent dignity and the right to have their dignity respected and protected
• Corporal punishment is not allowed

Freedom of Religion, Belief, and Opinion

• Everyone has the right to freedom of conscience, religion, thought, belief, and opinion
• Religious observances can be conducted at state or state-aided institutions, but must follow rules and be equitable and voluntary

Freedom of Expression

• Everyone has the right to freedom of expression, including freedom of the press, receiving or imparting information, artistic creativity, and academic freedom
• The right to freedom of expression does not extend to propaganda for war, incitement of imminent violence, or advocacy of hatred based on race, ethnicity, gender, or religion

Labour Practices

• Everyone has the right to fair labour practices

Generations of Rights

• Human rights fall into three generations: civil and political rights (first-generation), social and economic rights (second-generation), and environmental and cultural rights (third-generation)
• South Africa is one of few countries to entrench second-generation rights, including access to food, water, housing, healthcare, and social security

Right to Equality

• Everyone is equal before the law and has the right to equal protection and benefit of the law
• Equality includes the full and equal enjoyment of all rights and freedoms
• The state may take measures to protect or advance disadvantaged persons or categories of persons
• Unfair discrimination is prohibited on grounds including race, gender, sex, pregnancy, marital status, ethnic or social origin, colour, sexual orientation, age, disability, religion, conscience, belief, culture, language, and birth