Lesson 4 - SASA - Learners (1) (1).pptx

Education Law & Policy The South African Schools Act - Part 1 WEEK 2 – APRIL 16 - LESSON 5  Before SASA  Bantu Education Act, 1953 (Later became the Education and Training Act of 1979)  Coloured Person Education Act of 1963  Indian Education Act of 1965  Educa...

Education Law & Policy The South African Schools Act - Part 1 WEEK 2 – APRIL 16 - LESSON 5  Before SASA  Bantu Education Act, 1953 (Later became the Education and Training Act of 1979)  Coloured Person Education Act of 1963  Indian Education Act of 1965  Education Affairs Act of 1988 PREAMBLE... 3 WHEREAS this country requires a new national system for schools which will redress past injustices in educational provision, provide an education of progressively high quality for all learners and in so doing lay a strong foundation for the 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, protect and advance our 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 WHEREAS it is necessary to set uniform norms and standards for the education of learners at schools and the organisation, governance and funding of schools throughout the Republic of South Africa;  Structure of SASA  Preamble  Chapter 1 - Definitions & Applications of the Act  Chapter 2 - Learners  Chapter 3 - Public Schools  Chapter 4 - Funding of Public Schools  Chapter 5 - Independent Schools  Chapter 6 - Transitional Provisions  Chapter 7 - General Provisions  5 Chapter 1 : Definitions "parent" means - a) the parent or guardian of a learner; b) the person legally entitled to custody of a learner; or 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;  Compulsory attendance - Section 3 (1) ”... every parent must cause every learner for whom he or she is responsible to attend a school from the first school day of the year in which such learner reaches the age of seven years until the last school day of the year in which such learner reaches the age of fifteen years or the ninth grade, whichever occurs first.” (3) ”Every Member of the Executive Council must ensure that there are enough school places so that every child who lives in his or her province can attend school as required by subsection (1)”  Compulsory attendance - Section 3 Subsection 3(5) - If a learner who is subject to compulsory attendance in terms of subsection (1) is not enrolled at or fails to attend a school, the Head of Department may - a) investigate the circumstances of the learner's absence from school; b) take appropriate measures to remedy the situation; and c) failing such a remedy, issue a written notice to the parent of the learner requiring compliance with subsection (1).  Compulsory attendance - Section 3 Subsection 3(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 months; 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 imprisonment for a period not exceeding six months. Entire, partial, or conditional exemptions are possible (See subsection 4)  Admission to Public Schools - Section 5 Subsection 5(1) - A public school must admit learners and serve their educational requirements without unfairly discriminating in any way. (Gives effect to the right to equality in section 9 of the Constitution) Subsection 5(2) - The governing body of a public school may not administer any test related to the admission of a learner to a public school, or direct or authorise the principal of the school or any other person to administer such test.  Admission to Public Schools - Section 5 Subsection 5(3) - No learner may be refused admission to a public school on the grounds that his or her parent: a) is unable to pay or has not paid the school fees determined by the governing body under section 39; b) does not subscribe to the mission statement of the school; or c) has refused to enter into a contract in terms of which the parent waives any claim for damages arising out of the education of the learner.  Phakamisa High School case – undocumented learners  In a circular published in 2019 - the EDoE stated that learners without the correct documentation (birth certificates, passports, ID documents, study permits) would be granted “conditional acceptance” for 12 months providing that parents submitted proper documentation.  National admission policy confirmed this approach of conditional admission – see clauses 15 & 21  National Admission Policy for Ordinary Public Schools  Section 15: “When a parent applies for admission of a learner to an ordinary public school, the parent must present an official birth certificate of the learner to the principal of the public school. If the parent is unable to submit the birth certificate, the learner may be admitted conditionally until a copy of the birth certificate is obtained from the regional office of the Department of Home Affairs. The principal must advise parents that it is an offence to make a false statement about the age of a child. (See Births and Deaths Registration Act, 1992 (No. 51 of 1992).) The parent must ensure that the admission of the learner is finalised within three months of conditional admission.”  National Admission Policy for Ordinary Public Schools  Section 21: “Persons classified as illegal aliens must, when they apply for admission for their children or for themselves, show evidence that they have applied to the Department of Home Affairs to legalise their stay in the country in terms of the Aliens Control Act, 1991 (No. 96 of 1991).”  Phakamisa High School case – undocumented learners  Another EDoE circular published in 2016 stated that the EDoE would not fund undocumented learners at schools  Drastic implications - school would not receive funding to pay for teachers, textbooks, school nutrition, school furniture, or any other funding in respect of undocumented learners. Schools were either under-resourced or showing undocumented learners away.  Phakamisa High School case – undocumented learners  In 2019, the Legal Resources Centre, representing Centre for Child Law, the governing body of Phakamisa High School and 37 children challenged both the DBE and the Department of Home Affairs in the Eastern Cape.  Argued that it violated undocumented learners right to a basic education, equality and dignity.  High court confirmed that the right to an education in our Constitution extends to “everyone” within South Africa, and that their nationality or immigration status is immaterial.  Found clauses 15 and 21 of the National Admissions Policy inconsistent with the Constitution and invalid.  Phakamisa High School case - undocumented learners  Eastern Cape Circular that stopped funding of undocumented learners was declared invalid,  Minister, Eastern Cape MEC and Superintendent - General of Eastern Cape were directed to admit all children not in possession of a birth certificate in EC schools, and where learners cannot provide this, indicated that the principal must accept alternative proof of identity, such as a sworn affidavit by the parent, care giver, or guardian.  In addition, schools cannot remove or exclude learners already admitted just because they have no ID document, permit, or passport.  Phakamisa High School case - undocumented learners  But Circular 1 of 2020 also has national application!  Clause 15 & 21 are merely provisions from a policy, and are not law, and cannot limit the right to a basic education.  National Admission policy is going to be amended in light of the court order; and  All schools are advised to follow this.  Norms & Standards for Basic School Infrastructure - Section 5A  (1) The Minister may, after consultation with the Minister of Finance and the Council of Education Ministers, by regulation prescribe minimum uniform norms and standards for - (a) School infrastructure (b) Capacity of a school in respect of the number of learners a school can admit; and (c) The provision of learning and teaching support material.  19 Language policy of public schools - Section 6 (1) Subject to the Constitution and this Act, the Minister may, by notice in the Government Gazette, after consultation with the Council of Education Ministers, determine norms and standards for language policy in public schools. (2) The governing body of a public school may determine the language policy of the school subject to the Constitution, this Act and any applicable provincial law. 3) No form of racial discrimination may be practiced in implementing policy determined under this section. 4) A recognised Sign Language has the status of an official language for purposes of learning at a public school.  20 Curriculum and Assessment - Section 6A (1) The Minister must, by notice in the Government Gazette, determine - a) a national curriculum statement indicating the minimum outcomes or standards; and b) a national process and procedures for the assessment of learner achievement. (2)The curriculum and the process for the assessment of learner achievement contemplated in subsection (1) must be applicable to public and independent schools.  Freedom of Conscience and religion at public schools – Section 7 Subject to the Constitution and any applicable provincial law, religious observances may be conducted at a public school under rules issued by the governing body if such observances are conducted on an equitable basis and attendance at them by learners and members of staff is free and voluntary.  22 Code of Conduct - Section 8 (1)Subject to 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. (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.  23 Code of conduct - Section 8 (6) A learner must be accompanied by his or her parent or a person designated by the parent at disciplinary proceedings, unless good cause is shown by the governing body for the continuation of the proceedings in the absence of the parent or the person designated by the parent.  24 Random search and seizure and drug testing at schools - Section 8A 2) Subject to subsection (3), the principal or his or her delegate may, at random, search any group of learners, or the property of a group of learners, for any dangerous object or illegal drug, if a fair and reasonable suspicion has been established- a) that a dangerous object or an illegal drug may be found on school premises or during a school activity; or b) that one or more learners on school premises or during a school activity are in possession of dangerous objects or illegal drugs. Random search and seizure and drug testing at schools - Section 8A(3)  (3)(a) - A search contemplated in subsection 2 may only be conducted after taking into account all relevant factors, including:  The best interest of the learners in question or of any other learner at school;  The safety and health of the learners in question or of any other learner at the school;  Reasonable evidence of illegal activity; and  All relevant evidence received. (3)(b) When conducting a search contemplated in subsection 2, the principal or his or her delegate must do so in a manner that is reasonable and proportionate to the suspected illegal activity.  Suspension & Expulsion from Public School - section 9 (1) The governing body may, on reasonable grounds and as a precautionary measure, suspend a learner who is suspected of serious misconduct from attending the school, but may only enforce such suspension after the learner has been granted a reasonable opportunity to make representations to it in relation to such suspension. 2) A learner at a public school may be expelled only-  a) by the Head of Department; and  b) found guilty of serious misconduct after disciplinary proceedings contemplated in section 8 were conducted.  Prohibition of Corporal punishment – Section 10 (1) No person may administer corporal punishment at a school to a learner. (2) Any person who contravenes subsection (1) is guilty of an offence and liable on conviction to a sentence, which could be imposed for assault.  Parental Consent to inflict corporal punishment is irrelevant!  Corporal punishment - bodily harm: hitting (by hand or with an object), kicking, grabbing, scratching, pinching, pulling hair, flicking ears, forcing learners to sit/ stand in an uncomfortable position, throwing objects at, burning with hot water or cigarettes (not an exhaustive list)  Prohibition of Initiation Practices – Section 10A  (1) A person may not conduct or participate in any initiation practices against a learner at a school or in a hostel accommodating learners of a school.  (2)(a) Any person who contravenes subsection (1) is guilty of misconduct and disciplinary action must be instituted against such a person in accordance with the applicable code of conduct …  2(b) In addition to paragraph (a), a learner may institute civil action against a person or a group who manipulated and forced that learner to conduct or participate in any initiation practices.  See section 10A(3) for the meaning of “initiation practices”. Representative Council of Learners – Section 11  A representative council of learners at the school must be established at every public school enrolling learners in the eighth grade or higher, and such council is the only recognised and legitimate representative learner body at the school. Thank you