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Chapter 8

IMMOVABLE PROPERTY

8.7 PROVISION OF PUBLIC SCHOOLS

8.7.1Legislative and Policy Framework

ACTS

  • South African Schools Act 84 of 1996 [SASA]

 

POLICIES

  • The National Policy for an Equitable Provision of an enabling School Physical Teaching and Learning Environment 33283, 2010¬†[NP 33283/2010]

FreeState

ACTS

  • Free State School Education Act 2 of 2000 [Reference B2 FS EDACT]

8.7.2Framework for the Development of School Policy on Provision of Public Schools

(All references to Sections or Subsections in the text below, refer to SASA)

  1. Provision of Public Schools
      • The Member of the Executive Council must provide public schools for the education of learners out of funds appropriated for this purpose by the provincial legislature.
      • The provision of public schools referred to above¬†may include the provision of hostels for the residential accommodation of learners.
      • A public school may be an ordinary public school or a public school for learners with special education needs.
      • The Member of the Executive Council must, where reasonably practical, provide education for learners with special education needs at ordinary public schools and provide relevant educational support services for such learners.
      • The Member of the Executive Council must take all reasonable measures to ensure that the physical facilities at public schools are accessible to disabled persons.
      • Nothing in this Act prohibits the provision of gender-specific public schools.
    FREE STATE

    • The responsible MEC may, by notice in the Provincial Gazette, reclassify existing categories or phases of public schools, or register new categories of public schools, if he or she deems it necessary for education in the province.
  2. Status of Public Schools
    Every public school is a juristic person, with legal capacity to perform its functions in terms of this Act.

    FREE STATE

    • A public school may not, without the concurrence of the responsible MEC, dispose of or alienate in any manner, any immovable property acquired with the financial assistance of the State or grant to any person any real right therein or servitude thereon.
  3. Merger of Public Schools
    (SASA Section 12A)

    • The Member of the Executive Council may, by notice in the Provincial Gazette, merge two or more public schools into a single school.
    • Before merging two or more public schools the Member of the Executive Council must:
      • give written notice to the schools in question of the intention to merge them;
      • publish a notice giving the reasons for the proposed merger in one or more newspapers circulating in the area where the schools in question are situated;
      • give the Governing Bodies of the schools in question and any other interested persons an opportunity to make representations within a period of not less than 90 days from the date of the notice referred to in the previous paragraph;
      • consider such representations; and
      • be satisfied that the employers of staff at the public schools have complied with their obligations in terms of the applicable labour law.
    • If one or more of the schools that are to be merged in terms of the above are public schools on private property, the Member of the Executive Council must also:
      • notify the owner of the private property of his or her intention to merge the schools in question;
      • consider his or her contractual obligations in terms of the agreement;
      • renegotiate his or her obligations in terms of the existing agreement, if necessary; and
      • negotiate a new agreement in terms of Section 14 if the single school is to be situated on private property.
    • The single merged school must be regarded as a public school.
    • All assets, liabilities, rights and obligations of the schools that are merged must, subject to the conditions of any donation, bequest or trust, vest in the single school.
      • The Governing Bodies of the schools that are merged must have a meeting before the merger to constitute a single interim Governing Body comprising of all the members of the Governing Bodies concerned.
      • The interim Governing Body must decide on the budget and differences in codes of conduct and school fees, as well as any issue that is relevant to the merger or which is prescribed, until a new Governing Body is constituted in terms of Sections 23 and 28.
    • The Governing Body of a public school to be merged, may appeal to the Minister against the decision.
  4. Closure of Public Schools
    • The Member of the Executive Council may, by notice in the Provincial Gazette, close a public school.
    • The Member of the Executive Council may not close a public school unless he or she has:
    • informed the Governing Body of the school of his or her intention so to act and his or her reasons therefore;
    • granted the Governing Body of the school a reasonable opportunity to make representations to him or her in relation to such action;
    • conducted a public hearing on reasonable notice, to enable the community to make representations to him or her in relation to such actions; and
    • FREE STATE

      • Suspension of classes and temporary closure of public schools.
        The MEC may suspend the tuition of certain classes of a public school or close a public school temporarily. The MEC may only act if he or she is of the opinion that:

        • the safety of the learners or members of staff of such classes or school is in jeopardy;
        • vandalism of property may occur; or
        • the situation is no longer conducive to teaching.
  5. Public Schools on State Property
    • In this Section, immovable property owned by the State includes immovable property held in trust on behalf of a tribe by a trust created by statute.
    • Subject to Section 20 (1) (k), a public school which occupies immovable property owned by the State has the right, for the duration of the school’s existence, to occupy and use the immovable property for the benefit of the school for educational purposes at or in connection with the school.
    • This right may only be restricted:
      • by the Member of the Executive Council; and
      • if the immovable property is not utilised by the school in the interests of education.
    • The Member of the Executive Council may not restrict or remove these rights unless he or she has:
      • informed the Governing Body of the school of his or her intention so to act and the reasons therefore;
      • granted the Governing Body of the school a reasonable opportunity to make representations to him or her in relation to such action; and
      • duly considered any such representations received.
    • The right to occupy and use the immovable property is enforceable against any successor in title to the owner of the immovable property in question.
    • No immovable property owned by the State and occupied by a public school may be alienated unless an agreement contemplated in Section 14 has been concluded between the Member of the Executive Council and the prospective owner of the immovable property.
    • The Registrar of Deeds may not execute, attest to or register a transfer deed in respect of the immovable property in question unless the owner has provided the Registrar of Deeds with proof of the agreement.
    • The provisions of the Deeds Registries Act 47 of 1937 do not apply to this right.
    • On application by the owner and on production of the owner’s copy of the title deed, the Registrar of Deeds must endorse on the title deed and in his or her records the fact that a public school has been established on the land in terms of this Act.
  6. Public Schools on Private Property
    • Subject to the Constitution and an expropriation in terms of Section 58 of land or a real right to use the property on which the public school is situated, a public school may be provided on private property only in terms of an agreement between the Member of the Executive Council and the owner of the private property.
    • An agreement, thus, contemplated must be consistent with this Act and in particular must provide for:
      • the provision of education and the performance of the normal functions of a public school;
      • governance of the school, including the relationship between the Governing Body of the school and the owner;
      • access by all interested parties to the property on which the school stands;
      • security of occupation and use of the property by the school;
      • maintenance and improvement of the school buildings and the property on which the school stands and the supply of necessary services; and
      • protection of the owner’s rights in respect of the property occupied, affected or used by the school.
    • The provisions of the Deeds Registries Act 47 of 1937 do not apply to a real right, excluding ownership, acquired by the State, a public school or another party in terms of an agreement contemplated in this section.
    • This right is enforceable against any successor in title to the owner of the immovable property in question.
    • Despite these provisions of the Deeds Register Act, a Registrar of Deeds must endorse on the title deed of the affected property that the property is subject to an agreement contemplated in this Section, if the Registrar of Deeds receives:
      • an application for such endorsement by the owner of the property, or the Member of the Executive Council or any other holder of a right contemplated in in the Deeds Registries Act, together with the title deed of the property; and
      • affidavits by the owner of the property and the Member of the Executive Council stating that an agreement contemplated in this Section has been concluded.
    • The Minister must, after consultation with the Council of Education Ministers, make regulations regarding the minimum requirements of an agreement contemplated in this Section.
    • The Registrar of Deeds may cancel any endorsement if the owner of the property submits an affidavit from the Member of the Executive Council of the province in which the public school is situated to the effect that such public school has been closed in terms of Section 33.
    • Any transfer duty, stamp duty, fees or costs payable in respect of the registration of a right to conduct public schools on private property may be paid in full or in part from funds appropriated by the provincial legislature for that purpose, but the said public school contemplated is not responsible for such duties, fees or costs.