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Chapter 8

IMMOVABLE PROPERTY

8.3 LEASING OF SCHOOL BUILDINGS AND LAND

8.3.1Legislative and Policy Framework

ACTS

  • South African Schools Act84 of 1996 [SASA]

 

REGULATIONS

  • National Norms and Standards for School Funding (1998) (SASA 2B: 80 to 124) [NR NSSF]
  • Amended National Norms and Standards for School Funding (Government Gazette 394 in GN 40818 of 28 April 2017) [NR 40818/2017]

Gauteng

CIRCULARS

  • State Housing [Reference B3 54/2008]

8.3.2Framework for the Development of School Policy on Leasing of School Buildings and Land

  1. Leasing of school property
    • A School may use its Fixed Property, in other words Land and Buildings, to supplement the School’s Income.
    • The Department may also lease private buildings and land for the purpose of operating a public school there. SASA in Section 36(4) and (5) determines as follows:
      “34 (4) (a)   A Governing Body may, with the approval of the Member of the Executive Council:
      lease, burden, convert or alter immovable property of the school to provide for school activities or to supplement the school fund of that school; and
      allow any person to conduct any business on school property to supplement the school
      (b)   A Governing Body may not allow any activity on school property that is hazardous or disruptive to learners or prohibited by this Act.
      36 (5)   For the purposes of Subsection (4), ‘school property’ means immovable property owned by the State, including property contemplated in Sections 13 and 55 and any immovable property bought by a school from the school funds or donations to the school.”
  2. Public Schools on Private Property
    • Signed Agreement
      There are public schools that are situated on property owned by farmers or religious institutions.  These landowners and the Department should each sign a lease agreement.
      The SGB and principal of a public school on private land must have access to a copy of the lease agreement and must be familiar with the conditions of the agreement.  It is the responsibility of the school to be a good tenant and to ensure that the presence of the school adds value to the property so that the landowner will be eager to renew existing lease agreements.
      See Reference List C [LEASE AGREEMENT] , a Pro Forma Agreement as a Guideline to assist the Parties to the Agreement)
    • The Nature and Status of the Agreement
      • In terms of Section 14 (1) of the SASA, a public school may be provided on private property only in terms of an agreement.
      • An agreement between the State and the owner which existed prior to the commencement of the Act remains in force to the extent that it is consistent with the Act, and may be amended by agreement between the Member of the Executive Council and the owner.
      • The Member of the Executive Council must invite the Governing Body to make a written submission on the terms of the proposed agreement, and the Member of the Executive Council and the owner must take the views of the Governing Body into account before concluding the agreement.
      • An agreement must be reached before a new public school is established on private property in which case the provision of Sub-clause (3) will not apply.
      • An agreement and all amendments thereto must be in writing and signed by both the Member of the Executive Council and the owner.
      • An agreement remains valid as long as the public school exists. A school can only be closed in terms of Section 33 of the Act after prior consultation between the owner and the Member of the Executive Council.
      • The Governing Body must make a copy of the agreement available on request, and must inform its members and learners, educators, parents and workers at the school, of the content of the agreement and any amendments thereto.
      • A learner, educator, parent and worker at the school, member of the Governing Body, an official and a member of the public who has an interest in the educational activities of the school must honour the agreement.
    • Provision of Education and Performance of the Normal Functions of a Public School
      • Education must be provided in accordance with the prescribed curriculum for public schools and the applicable administrative directives and as otherwise provided for in the agreement.
      • The owner may not interfere with the normal educational activities of the public school
    • Governance of the Public School
      • A public school situated on the property must be governed in accordance with the Act and any agreement contemplated in Subsection 14 (1) of the Act or these regulations.
      • The Governing Body must enter into an agreement with the owner if, in exercising any of its functions in terms of the Act, a right of the owner regarding the immovable or movable property of the owner or the religious character of the school is affected.
      • If a religious organisation exercises its rights as contemplated in Section 57 of the Act, the agreement between the Member of the Executive Council and the religious organisation must record the recognised distinctive religious character of the school and the manner in which such distinctive character will be maintained. The recognised distinctive religious character of the school and the manner in which it will be maintained must be consistent with the provisions of the Act.
      • Subject to the agreement contemplated in Sub-regulation (3) the Governing Body must enter into an agreement with the religious organisation to ensure the preservation of the distinctive religious character of such a public school.
      • A written record must be kept of all meetings between the Governing Body and the owner, and must be signed by the owner and the authorised signatory of the Governing Body.
    • Access by all interested Parties to the School
      • An accurate description of the property and all access roads to the school must be provided for in the agreement.
      • Clear road signs giving directions to the public school must be erected on access roads to the school where access to the school is by way of private roads.
      • The owner may not limit access to the school by a learner, educator, parent, worker at the school, member of the Governing Body and officer or member of the public who has a reasonable interest in the activities of the school.
      • The owner has the right of access to the property.
    • Security of Occupation and use of the Property by the School
      • The public school may not be deprived of the occupation or use of the property for purposes related to the Act.
      • The property and access roads to the school must be adequately fenced.
    • Maintenance and Improvement of the School Buildings and Property and supply of the Necessary Services
      • Potable water and toilets must be provided and secured.
      • The supply of electricity to the school must comply with national safety standards.
      • The erection of new buildings and improvements to existing buildings may only be undertaken in terms of an agreement between the owner and the Education Department, or the Governing Body, if the Governing Body has been allocated such function in terms of Section 21 (1)(a) of the Act.
      • The agreement must provide for the maintenance of the property.
      • Provision must be made in the agreement for compensation for improvements to the immovable property, if any, when the school is closed.
    • Protection of Owner’s Rights
      • If payment is due to the owner by the Education Department or the Governing Body for the use of the property or services supplied to the school, the agreement must provide for the terms and conditions of such payment.
      • The Governing Body may enter into an agreement with the owner to perform its functions with respect to the Act after consultation with the owner.
    • Breach of Agreement and Dispute Resolution
      • The agreement must provide for the procedure to be followed in the case of a breach of the agreement.
      • The agreement must provide for a mechanism to resolve a dispute arising from a breach of the agreement or from any act or omission by any person who incurs a responsibility or obligation in terms of the agreement.
    • Determination of Responsibilities
      • The agreement must specify which person, body or authority is responsible for any function or obligation as contemplated in these regulations.
  3. Rentals
    According to SASA, the SGB must administer and control the school’s property, grounds and buildings occupied by the school.
    The SGB must also raise funds to supplement the school fees.The SGB can rent out the physical facilities and other equipment to supplement the school fees and strengthen the school fund account.
    A proper contract should be drawn up between the SGB and lessee but the SGB still takes the responsibility for any loss or damage of the school’s property because of renting.

    • Critical aspects to consider in such a contract are:
    • liabilities or responsibilities of all parties;
    • liability towards the safety and security of learners and other people;
    • damage to or loss of school property will be the responsibility of the lessee;
    • The same will apply to the injury of learners and personnel and members of the public.
    • liability in respect of proper care of facilities and equipment;
    • compliance with municipal or local authority by-laws and who will be responsible for contacting and negotiating with the local authorities;
    • financial aspects, i.e. the rental amount and whether a deposit is to be paid in advance;
    • whether temporary structures can be erected and any associated liabilities; and
    • if the rental of physical facilities coincides with normal school hours, the principal must ensure that nothing impacts negatively on the educational programme of the school.