Redirecting...

Chapter 1

ACTS, REGULATIONS, POLICIES, GUIDELINES AND RESOLUTIONS

1.1 UNDERSTANDING THE LEGISLATIVE FRAMEWORK FOR SCHOOL MANAGEMENT

1.1.1THE PUBLIC SCHOOL AS AN ORGAN OF STATE

A public school is established with public funds by the state to perform a public function. It is therefore an organ of state and needs to be governed and managed in terms of legislation. This means that the school may only perform functions as determined by law when managing teachers, learners, parents, finances and facilities.

1.1.2THE SCHOOL AS JURISTIC PERSON

An entity other than a natural person (human being) established by law and recognized as a legal entity having distinct identity, legal personality, and duties and rights, is a juristic person. This actually means that one or more natural persons act as a single entity for legal purposes. An entity with juristic person status may safeguard its members from personal liability.

A school is a juristic person and is allowed by law to elect an SGB which then legally represents the school whenever it is required to do so.

1.1.3SCHOOL POLICY AS AN INSTRUMENT TO ENSURE ITS FUNCTIONING AS AN ORGAN OF STATE

Being an organ of state, a school has to formulate its own policy to ensure that it functions within the applicable legislative framework. School policy is therefore of extreme importance and needs to be formulated in terms of all the relevant laws, regulations and policies.

1.1.4THE LEGISLATIVE FRAMEWORK AND RELATING PROCEDURES

  1. Green Paper and White Paper
    A Green Paper is published by Government to stimulate discussion on proposals concerning the way forward with a particular matter.
    A White Paper is less open ended than a Green Paper and is published by Government to inform the public on its intentions concerning a specific matter.
    Green and White Papers are not prescriptive. However, a White Paper is normally supposed to be operationalised by means of a law, regulations and policy. In exceptional cases a White Paper can be proclaimed as policy without an act being promulgated.
  2. Bill and Act
    A Bill is a draft of a proposed Act (Law) presented to parliament and the public for discussion. Once accepted, the Bill is promulgated as an Act.
  3. Regulations and Policy
    Once an Act has been promulgated, the relevant Minister issues regulations and/or policies to govern the implementation of the Act. Regulations have more legislative power than policy. For example, while national policy is binding on public schools as organs of state, it is not necessarily binding on independent schools, whereas regulations are.
  4. Guidelines
    Guidelines are issued to assist with the interpretation and implementation of regulations and policy. They are not binding on schools, except if prescribed by regulations or policy.
  5. Resolutions
    Resolutions are decisions taken by legally constituted structures such as the ELRC and school governing bodies. Resolutions have to comply with government legislation and are therefore legally binding on the parties concerned.

1.1.5LEVELS OF LEGISLATIVE COMPETENCE IN THE SOUTH AFRICAN DISPENSATION

Laws, regulations and policies are passed at national and provincial level. Those passed at provincial level have to comply with those at national level.

Legislation and policy at provincial level differs from that at national level in that it is aimed mainly at the operationalisation of such national legislation and policy.

It is important to note that, apart from the Provincial Legislature, only the Head of Education in a province has the competence to determine policy that is binding on schools. Heads of divisions within a provincial department, e.g. chief directors and directors, including those of district offices, have the delegated competence to issue directives aimed at the execution of policy determined at a higher level.