Lesson 1 - Regulatory Frameworks & Government Structures-Basic Concepts PPT 2023 (3) (1) (1).pptx

Education Law and Policy Regulatory framework & government structures: basic concepts WEEK1: 9 APRIL SESSION 2  Basic concepts  Supremacy of the Constitution  The 3 spheres & 3 branches of government  Co-operative governance  The separation of powers  The Regulatory...

Education Law and Policy Regulatory framework & government structures: basic concepts WEEK1: 9 APRIL SESSION 2  Basic concepts  Supremacy of the Constitution  The 3 spheres & 3 branches of government  Co-operative governance  The separation of powers  The Regulatory Framework – some concepts and instruments  Administrative justice - 3 legal principles  Other mechanisms of accountability  The Supremacy of the Constitution  South Africa is a democratic state governed by the rule of law  Section 2 of the Constitution: “This Constitution is the supreme law of the Republic; law or conduct inconsistent with it is invalid, and the obligations imposed by it must be fulfilled”  Spheres of Government  Section 40(1) of the Constitution: “In the Republic, government is constituted as national, provincial and local spheres of government which are distinctive, interdependent and interrelated”  Section 41(1)(h) of the Constitution - all spheres must also co-operate with each other in mutual trust & good faith  Principle of co-operative governance (also a standard)  The 3 branches of government  Legislative branch – is responsible for passing law;  Executive Branch – is responsible for executing that law & translating that into action;  Judicial Branch – is responsible for resolving disputes concerning how that law is applied within, amongst others, the different branches of government.  Separation of powers - the Constitution mandates it  legislativ executiv judicial e e President/ Parliament Minister of National NA/NCOP each Department Premier/ MEC Provincial Provincial of each Courts Local Legislature Department government – municipaliti School Principal and es and Institutional Governing school Body Management wards Branches of government -  legislativ executiv e e President/ National Parliament Minister and Department Premier/ MEC Provincial Provincial and Local Legislature Department government – School municipaliti Principal and Institutional Governing es and Management wards Body Administration in the Province MEC HoD DDG DDG DDG  DBE Regulatory Framework  Legislature (Parliament & provincial legislatures)= passing laws  Constitution remains supreme  Some important national education laws:  South African Schools Act 84 of 1996 (BELA BILL)  Employment of Educators Act 76 of 1998  South African Council for Educators Act 31 of 2000  National Education Policy Act 27 of 1996  Other legislation with implications for education / children  Children’s Act 38 of 2005 & Children’s Amendment Act 41 of 2007  The Criminal Procedure Act 51 of 1977  DBE Regulatory Framework Provincial legislation:  Gauteng School Education Act 6 of 1995  Gauteng Education Laws Amendment Act 5 of 2011  Gauteng Education Policy Act 12 of 1988 Definition of laws: laws set out standards, procedures and principles that must be followed. Non-compliance is an offence, and those violating the law may be prosecuted in court and punished. Passed by Parliament  Regulations & policies  Policy: Made by either the Minister (national) or MEC (provincial ). It is not law, and not binding on the public, but binding on department officials (like a management instruction). It also outlines what a government ministry hopes to achieve, (its goals), the methods and principals it will use to achieve this, and will often mention those laws necessary to achieve its goals.  Regulations / Norms and Standards: Subordinate legislation, made by either the Minister (national) or MEC (provincial) in terms of legislation. These deal with implementation and are binding. These documents are published in the government gazette. (e.g. National Regs on School Infrastructure, provincial regs on the admission of  School Policies & Circulars  School policies: School policies are made by SGBs under the authority of national legislation. These normally deal with the implementation of broader law or policy.  Circulars: Not law or policy, but employer directives or instructions to DBE officials (National & provincial) See national and provincial DBE websites.  The legal hierarchy Nationa Provinc School l e Constitution Laws Laws Regulations Regulations Policy Policy Policy Circulars Circulars Rules  Administrative Justice  Section 33(1) of the Constitution- “Everyone has the right to administrative action that is lawful, reasonable and procedurally fair”  Promotion of Administrative Justice Act 3 of 2000  Just administrative action – 3 legal principles Lawfulness  Is there a rule?  Is the rule constitutional and/or consistent with legislation  Who has the authority? (ultra vires) - acting beyond legal power or authority Reasonableness  Proportionate  “Reasonable person” standard  Just administrative action – 3 legal principles Fairness  Procedures followed Having or exhibiting a disposition that is free of favouritism or bias;  Impartial (audi alteram partem) - listen to the other side – both sides must be heard  Other Oversight bodies : some examples  South African Human Rights Commission  Portfolio Committee for Basic Education  Civil Society Organisations & coalitions  Equality Court Thank you