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Chapter 8

IMMOVABLE PROPERTY

8.1 MAINTENANCE

8.1.1Legislative and Policy Framework

ACTS

  • The South African Schools Act 84 of 1996 [SASA]
  • Employment of Educators Act 76 of 1998 [EEA]

 

REGULATIONS

  • National Norms and Standards for School Funding, Government Gazette Vol. 400, No. 19347, 12 October 1998 [NR NSSF]
  • Amended National Norms and Standards for School Funding (Government Gazette 394 in GN 40818 of 28 April 2017) [NR 40818/2017]

 

GUIDELINES

  • Personnel Administrative Measures [PAM]

 

8.1.2Framework for the Development of School Policy on Maintenance

  1. Responsibility for Maintenance
    • The State
      The State must fund public schools from public revenue on an equitable basis in order to ensure the proper exercise of the rights of learners to education and the redress of past inequalities in education provision on an annual basis.  Further the State must provide sufficient information to public schools regarding the funding to enable public schools to prepare their budgets for the next financial year.
    • The School Governing Body (SGB)
      The SGB of self-managing schools (i.e. schools with Section 21 rights), in collaboration with the principal, must maintain and improve the school’s property, buildings, grounds, and hostel. The SGB should create a sub-committee to take the responsibility for maintaining the buildings and grounds. The chairperson of this sub-committee must be a member of the SGB and a knowledgeable person on the processes of calling for tenders, as well as quality assurance of materials and workmanship.
    • The Principal
      It is the responsibility of the principal to manage the facilities in such a way that they become and remain an environment conducive for learning. She/He must make regular inspections of the school to ensure that the school premises and equipment are being used properly and that good discipline is being maintained.  She/He is also responsible for the hostel and all related activities including the staff and learners, if one is attached to the school.
      The principal must appoint a staff member to take responsibility for maintaining the school buildings and grounds.  She/He should also be a member of the relevant sub-committee and report on a regular basis to the principal on maintenance matters. The SGB member reports to the SGB.
  2. Types of Maintenance
    The major types of maintenance fall into four categories:

    • Preventative maintenance
      Preventative maintenance is the programme for servicing machines, systems and structures that is devised to prevent a breakdown of the total system or any one of its components. The purpose of preventative maintenance schedules is to maximise the useful life of a piece of equipment, a structure or an operating system and, therefore, preclude or at least delay a breakdown. A good preventative maintenance system should have effects such as:

      • producing a complete and accurate inventory of building components and equipment;
      • reducing the frequency and number of emergency repair responses;
      • providing cost collection and analysis tools to assist in budget preparation;
      • increasing the effectiveness of facility maintenance; and
      • implementing a flexible and easily operated system.
    • Periodic maintenance
      Periodic maintenance is scheduled on a recurring or contractual basis for equipment and facilities at predetermined times.  Periodic maintenance schedules are set up to be accomplished on specific days or at specific times.  Performance of periodic maintenance is often associated with equipment in school offices or in teaching areas such as computer labs.
    • Recurring maintenance
      Recurring or day-to-day maintenance is more related to the daily operation of facilities and use of equipment.  Where the need to have repairs made in a short period of time is important, a recurring maintenance plan is needed.
    • Emergency maintenance
      Emergency maintenance means the immediate fixing or repairing of equipment that has ceased to function.  The basic differences between recurring and emergency maintenance are the time frames in which they occur and the cost factors.
  3. The Maintenance Programme
    The maintenance programme of the school is often a neglected item on the school’s budget.  The SGB, in collaboration with the principal, should draw up an annual maintenance programme which should also reflect in the school’s budget.
    While acknowledging that every school is unique with reference to the state of their facilities, the table below can be used as a template for an annual maintenance programme:

 

Maintenance aspects Frequency Remarks
Daily Weekly Monthly Annually
Appliances
Ceilings
Doors and locks
Electrical installations
Equipment (duplicators, computers)
Fencing and gates
Fire (emergency) drill plans
Fire-fighting equipment
Floor surfaces
Gardening equipment
Gas installations
Kitchen areas
Laboratories
Lighting
Machinery
Pavilions
Pedestrian areas
Playing fields
Roofs, gutters and downpipes
Security aspects
Sewerage disposal
Sporting equipment
Storerooms
Storm and rainwater drainage
Toilets and plumbing
Wall surfaces
Water meter readings
Windows
Workshops
Etc

 

8.2 CAPITAL WORKS

8.2.1Legislative and Policy Framework

ACTS

  • South African Schools Act 84 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]

8.2.2Framework for the Development of School Policy on Capital Works and Maintenance

Capital works refers to the construction of any new building or the extension to existing buildings and can include maintenance and renovations and general repairs to buildings that fall outside the parameters of day-to-day maintenance.

  1. Application Procedures
    • The principal completes the official application form for capital works and renovations and submits it to the District Office.
    • The Provincial Office will do the required technical assessment, administrative viability study and needs verification of the application.
    • Schools will be notified through the District Office of the outcome of the applications.
  2. Capital Cost Applications
    According to National Norms and Standards for School Funding in SASA, there are four categories of capital cost allocations.

    • New classrooms and other construction allocations
      • “New classroom and other construction allocations” include provision for water, electricity, sewage and telephone services on site, and connections to mains services where these are provided to the school site.
        Provincial education departments must budget for this category in terms of their overall budget for education and for schools, and the relative flexibility or rigidity of other budget items.
        The MEC for Education of each province must ensure that there are enough school places to enable each child living in the province to attend school during the compulsory phase.The construction of new schools or additional classrooms and learning facilities should be targeted to the neediest population.  In this expenditure category, “need” is defined in terms of lack of current schools, or overcrowding of existing ones.
      • New hostel facilities may be built if the following criteria are satisfied:
        • the crowding criteria in paragraphs 91–93 of this Act for construction of new schools or extensions; and
        • the transport time and poverty criteria in paragraph 122: “The PED must, in turn, set aside a budget item for hostel subsidies.  Schools with hostels will be paid pro-rata out of this budget for each of their learners:
          (a) whose transport time to the school is greater than 1.5 hours;
          (b)    if there are no available school places near the learner’s parents’ place of residence; and
          (c)     whose parents cannot afford the per-child hostel cost”.
    • Schools will be identified on the basis of need.
      In principle, it would be desirable for all recurrent funding of ordinary public schools, including personnel allocations, to be driven by a simple per-learner-formula that favours the poor. This would be consistent with equity, efficiency, and the vision of schooling implicit in the SASA and Education White Papers 1 and 2. However, another approach is necessary because social conditions and school conditions are massively unequal, provincial administrations and School Governing Bodies have widely varying capacities, and provincial governments have different fiscal competencies.
      Allocations for recurrent cost items must be funded as far as possible on the basis of need, determined according to the condition of the school and the relative poverty of the school community, using the “Resource Targeting Table” (See table below).
      Each PED is required to produce a “Resource Targeting List” of all schools in its province, sorted on the conditions at the school and the poverty of the community served by the school, so as to produce five groups of schools. These will correspond to the “school quintiles, from poorest to least poor” in Column 1 of the Table. Resource allocation will be based on this list.
      The resource targeting list will comprise all ordinary public schools in the province sorted by “need” or “poverty”. Two equally weighted factors will be used to rank the schools:

      • the physical condition, facilities and crowding of the school; and
        Using the School Register of Needs data, Provincial Education Departments may create indices based on the range of physical facilities at the school, learner : classroom ratio, the overall condition and need for repairs, availability of basic services.  This factor is weighted 50%.
      • the relative poverty of the community around the school. Using Census, household survey or other data, Provincial Education Departments may create indices based on, for example, the proportion of households with electricity and piped water in the community served by the school, the level of education of the parents served by the school, and other similar criteria.  This factor is weighted 50%.

        SCHEDULE
        In terms of Paragraph 110 of the NNSSF, the National targets Table published in Government Notice No. 394, Government Gazette No. 40818 of 28 April 2017 is hereby updated to include 2019 target amounts. The no fee threshold will be R1,243 in 2017:

        National table of targets for the school allocation (2017 – 2019)

        2017 2018* 2019*
        NQ1 R1,243 R1,316 R1,394
        NQ2 R1,243 R1,316 R1,394
        NQ3 R1,243 R1,316 R1,316
        NQ4 R623 R660 R699
        NQ5 R215 R228 R241
        No fee threshold R1,243 R1,316 R1,394
        Small schools:
        National fixes
        amount
        R28,791 R30,490 R32,289
        *2018 and 2019 figures inflation adjusted – CPI projected inflation rate adjusted
    • Immovable capital improvement and repair costs
      Allocation of this category of costs must be made according to the Resource Targeting Table and the Section 21 list, where applicable.  The following exceptions to the general allocation rules apply:

      • Emergency repairs
        Emergency repairs which endanger the health or safety of persons at or associated with the school, or which might imply large future expenditures if not corrected immediately, must be prioritised in terms of their relative danger or future cost. The Resource Targeting Table will not apply. In general, the Section 21 list will not apply.
      • Routine maintenance and cleanliness
        Functions such as cleaning, removal of litter, maintenance of grounds, minor painting and repairs, and replacement of light-bulbs, will be the responsibility of the school community, regardless of the level of poverty of the community.
      • Thus, non-routine and non-emergency capital improvements and repairs will be allocated according to the Section 21 list and the Resource Targeting Table.  These will probably constitute the majority of the allocations in this category.
    • Easily separable recurrent costs
      • Allocation of these items must be made according to the Resource Targeting Table and the Section 21 list, where applicable.
    • Other recurrent and small capital equipment costs
      The purpose of this allocation is to provide all learners with a minimum package of learning materials (books and stationery). However, if the total provincial budgetary allocation for this item is insufficient, the PED must ensure that priority is given to poorer learners according to the Resource Targeting Table. In this case, the funding per learner remains as per the cost of the basic package, but priority is given to schools highest in the poverty rank order.

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]

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.

8.4 DONATION OF BUILDINGS AND BUILDING SERVICES TO SCHOOLS

8.4.1Legislative and Policy Framework

ACTS

  • South African Schools Act 84 of 1996 [SASA]

 

REGULATIONS

  • National Norms and Standards for School Funding of 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]

8.4.2Framework for the Development of School Policy on Donation of Buildings and Building Services to Schools

  1. A School Governing Body may accept the Donation of Buildings, Building Materials and Structures, or Building Services.
    These can also include contributions such as repairs to the school’s electrical system, roof, plumbing system, etc.
  2. Criteria when accepting Donations
    • When accepting donations of buildings, building materials and structures or building services, the SGB should check the quality of such donations, without offending the donor, for the safety of anyone who is going to occupy or use the facility. All building services, structures or materials should comply with Departmental standards and building regulations.
    • The conditions imposed by the donor should be negotiable and should always be reconcilable with the school’s educational objectives.
    • The SGB and the donor should agree in writing on the conditions which apply to the use of the donated facilities. A donor may require the use of the school’s sport facilities in return for erecting a building.  A time frame should be connected to such an agreement.
    • Donations with a political motive are unacceptable.
    • A school may not canvass a donor under the pretext that the donor will enjoy preference when service contracts for the school are procured.
    • Building plans should always be approved by the Department of Basic Education’s building administration directorate before building work starts at any school.
    • On completion of the building work, the Department’s building inspectors must inspect it and give formal approval for its use.

8.5 BUILDING OF FACILITIES AT OWN COST

8.5.1Legislative and Policy Framework

ACTS

  • South African Schools Act 84 of 1996 [SASA]

8.5.2Framework for the Development of School Policy on Building of Facilities at Own Cost

  1. Considerations when building at own Cost
    • Once a building has been built or erected on departmental land, the buildings or structures will belong to the relevant Provincial Education Department (PED).
    • When adding permanent structures to the current school buildings, the new additions should preferably, where viable, complement the architectural style of the existing buildings.
    • The SGB must draw up building plans in the case of new structures and even alterations, and submit them to the District Office.
    • After the PED has approved the plans, the SGB should also have the plans approved by the local authority before construction work begins.
    • On completion, the Department’s building inspectors must be informed and asked to inspect and formally approve the buildings or structures.

8.6 NORMS AND STANDARDS FOR BASIC INFRASTRUCTURE

8.6.1Legislative 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]

GUIDELINES

  • School Infrastructure Safety and Security Guidelines – First version (DBE, 25 March 2017) [NG SAFETY]

REGULATIONS

  • Regulations relating to minimum uniform Norms and Standards for public school infrastructure (Published under Government Notice R920 in Government Gazette 37081 of 29 November 2013) [NR 37081/2013]

 

Hs Overvaal Judgement

WesternCape

CIRCULAR

  • WCED Specialised Education Support Minute 0010/2009: School Sanitation [Refererence B9 0010/2009]

8.6.2Framework for the Development of School Policy on Norms and Standards for Basic Infrastructure and Capacity in Public Schools

  1. The National Policy for an Equitable Provision of Enabling School Physical Teaching and Learning Environment identified 6 Principal Areas required for a Clear National Strategic Policy Direction and a further 2 Principal Areas for a Clear National Operational Policy Direction.  They are as follows:
    • Areas for a Clear National Strategic Policy Direction on Equitable Provisioning of the Physical Teaching and Learning Environment which consists of:
      • the authority for setting norms and standards that should guide the adequacy, equity and fitness-for-purpose of the physical teaching and learning environment;
      • a system for setting priorities for provision, and in a manner that facilitates the actualisation of key sector policies which are quality, equity, relevance, efficiency, and values;
      • a system of planning to address identified priorities;
      • a contextually adaptable system for standardising architectural designs that responds to core sector policies, teaching and learning requirements, set priorities for provision, and that ensures effective cost management and cost control;
      • a system for timely and cost-effective management and maintenance of assets created as part of an enabling physical teaching and learning environment that optimises usage and longevity; and
      • diversification of funding sources that is financially feasible, sustainable, and that eases the burden of provision on the government.
    • Areas for a Clear National Operational Policy Direction which consists of a system for:
      • ensuring the adequacy of capacity to deliver the required elements of the environment; and
      • effective management of procurement procedures required to assure time and resource efficiency, transparency, cost management, and quality of services and outputs.
  2. Norms and Standards for Basic Infrastructure and Capacity in Public Schools
    • Section 5A (1) in SASA states the following:
      • 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:
        • school infrastructure;
        • capacity of a school in respect of the number of learners a school can admit; and
        • the provision of learning and teaching support material.
    • The norms and standards must provide for, but not be limited to, the following:
      • in respect of school infrastructure, the availability of:
        • classrooms;
        • electricity;
        • water;
        • sanitation;
        • a library;
        • laboratories for Science, Technology, Mathematics and Life Sciences;
        • sport and recreational facilities;
        • electronic connectivity at a school; and
        • perimeter security.
      • in respect of the capacity of a school:
        • the number of teachers and the class size;
        • quality of performance of a school;
        • curriculum and extra-curricular choices;
        • classroom size; and
        • utilisation of available classrooms of a school.
      • in respect of provision of learning and teaching support material, the availability of:
        • stationery and supplies;
        • learning material;
        • teaching material and equipment;
        • Science, Technology, Mathematics and Life Sciences apparatus;
        • electronic equipment; and
        • school furniture and other school equipment.
    • When determining policy in terms of Sections 5 (5) and 6 (2) of SASA, a Governing Body must comply with the norms and standards contemplated in Subsection 5A (1).
    • A Governing Body must, within a period of 12 months after the Minister has prescribed the norms and standards contemplated in Subsection (1), review any policy that it has determined in terms of Sections 5 (5) (admission policy of the school) and 6 (2) (language policy of the school) to ensure that such policy complies with the norms and standards.
      • Also see

SAOU National Newsletter 51 of 2015

    •  for more information on class size

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.

8.8 COMPLIANCE WITH NORMS AND STANDARDS

8.8.1Legislative and Policy Framework

ACTS

  • South African Schools Act 84 of 1996 [SASA]

8.8.2Framework for the Development of School Policy on Compliance with Norms and Standards

  1. Compliance with Norms and Standards
    1. The Member of the Executive Council must, in accordance with an implementation protocol contemplated in Section 35 of the Intergovernmental Relations Framework Act 13 of 2005, ensure compliance with:
      1. norms and standards determined in terms of Sections 5A, 6 (1), 20 (11), 35 and 48 (1);
      2. minimum outcomes and standards set in terms of Section 6A; and
      3. performance standards contemplated in Item 2 (2) of Schedule 1 to the Employment of Educators Act 7 of 1998. (In this Section jointly referred to as ‘norms and standards’.)
    2. The Member of the Executive Council must ensure that the policy determined by a Governing Body in terms of Sections 5 (5) and 6 (2) complies with the norms and standards.
    3. The Member of the Executive Council must annually report to the Minister the extent to which the norms and standards have been complied with or, if they have not been complied with, indicate the measures that will be taken to comply.
    4. Any dispute between the Minister and a Member of the Executive Council in respect of non-compliance with these norms and standards must:
      1. be dealt with in accordance with the principles of co-operative governance referred to inSection 41 (1) of the Constitution and the provisions of the Intergovernmental Relations Framework Act 13 of 2005; and
      2. whenever necessary, be settled in accordance with Chapter 4 of the Intergovernmental Relations Framework Act of 2005.
    5. The Head of Department must comply with all these norms and standards within a specific public school year by:
      1. identifying resources with which to comply with such norms and standards;
      2. identifying the risk areas for compliance;
      3. developing a compliance plan for the province, in which all norms and standards and the extent of compliance must be reflected;
      4. developing protocols with the schools on how to comply with norms and standards and manage the risk areas; and
      5. reporting to the Member of the Executive Council on the state of compliance and on the measures contemplated in this section before 30 September of each year.
    6. The Head of Department must:
      1. in accordance with the norms and standards contemplated in Section 5A determine the minimum and maximum capacity of a public school in relation to the availability of classrooms and educators, as well as the curriculum programme of such school; and
      2. in respect of each public school in the province, communicate such determination to the chairperson of the Governing Body and the principal, in writing, by not later than 30 September of each year.

8.9 LIABILITY OF STATE FOR ANY DAMAGE OR LOSS AS A RESULT OF ANY SCHOOL ACTIVITY

8.9.1Legislative and Policy Framework

ACTS

  • South African Schools Act 84 of 1996 [SASA]
  • State Liability Amendment Act 20 of 1957 as amended in Government Gazette No 34545 of 12 August 2011 [SLA]
  • The State Liability Bill of 2009 [SLB]
  • State Liability Amendment Bill of 2018 [SLAB]
  • Occupational Health and Safety Act 85 of 1993, as amended [OHSA]
  • Safety at Sports and Recreational Events Act No 2 of 2010 [SSRE]

8.9.2Framework for the Development of School Policy on Liability of State for any Damage or Loss with any School Activity

Liability of State

  • The State is liable for any damage or loss caused as a result of any act or omission in connection with any school activity conducted by a public school and for which such public school would have been liable but for the provisions of this section.
  • Where a public school has taken out insurance and the school activity is an eventuality covered by the insurance policy, the liability of the State is limited to the extent that the damage or loss has not been compensated in terms of the policy.
  • The provisions of the State Liability Act 20 of 1957 apply to any such claim.
  • Any claim for damage or loss contemplated must be instituted against the Member of the Executive Council concerned.
  • The State is not liable for any damage or loss caused as a result of any act or omission in connection with any enterprise or business operated under the authority of a public school for purposes of supplementing the resources of the school as contemplated in Section 36, including the offering of practical educational activities relating to that enterprise or business.
  • Any legal proceedings against a public school for any damage or loss contemplated above, or in respect of any act or omission relating to its contractual responsibility as employer as contemplated in Section 20 (10), may only be instituted after written notice of the intention to institute proceedings against the school has been given to the Head of Department for his or her information.

8.9.3Guidelines for the Development of School Policy to Prevent any Damage or Loss with Any School Activity

  • As a first priority, the School Governing Body should take out insurance to cover all possible risks of injury or loss to learners, educators, workers, parents and visitors.
  • Constant supervision of learners during breaks and after-school activities is very important and there should be proof of that in the event of any incident.
  • In the case of events, each of the parties concerned in an event at a public school is responsible for ensuring that they comply with the Occupational Health and Safety Act (OHS Act), Public Open Spaces By-laws and any other relevant Council and City by-laws where it is applicable to them.
  • The OHS Act that governs workplaces, requires of employers and employees that they shall:
    • provide and maintain, as far as is reasonably practicable, a working environment that is safe and without risk to the employees;
    • take steps as may be reasonably practicable to eliminate or mitigate any hazard or potential hazard to the safety or health of employees;
    • establish, as far as is reasonably practicable, what hazards to the health or safety of persons are attached to any work which is performed, and the employer shall, as far as is reasonably practicable, further establish what precautionary measures should be taken with respect to such work in order to protect the health and safety of persons, and shall provide the necessary means to apply such precautionary measures;
    • provide such information, instructions, training and supervision as may be necessary to ensure, as far as is reasonably practicable, the health and safety at work of his employees;
    • take all necessary measures to ensure that the requirements of the OHS Act are complied with by every person in his employment or on premises under his control; and
    • enforce such measures as may be necessary in the interests of health and safety.
  • Principals, educators and Governing Bodies must familiarise themselves with the contents of the Safety at Sports and Recreational Events Act 2 of 2010 which provides measures to safeguard the physical well-being and safety of persons and property at sports, recreational, religious, cultural, exhibitional, organisational or similar events held at stadiums or venues.
    • The SMT must draw up a School Emergency Plan and see to it that every person or learner knows what to do in cases of emergency, also in the case of events organised by the school.

8.10 HOSTELS

8.10.1Legislative And Policy Framework

ACTS

  • South African Schools Act 84 of 1996 [SASA]
  • Employment of Educators Act 76 of 1998 [EEA]

EasternCape

POLICY

  • Eastern Cape Hostel Policy for Public Ordinary Schools [Reference B1 ECHP]

Limpopo

CIRCULAR

  • Appointment of Educators to perform Supervisory Duties in Hostels Circular 63/2012 [Reference B5 63/2012]

NorthWest

ACTS

  • North West Schools Education Act 3 of 1998 [Reference B8 NW EDACT 3/1998]

 

REGULATIONS

  • Regulations relating to the Administration of Public School Hostels – (Provincial Gazette 7031 of 2012) [Reference B8 7031/2012]

WesternCape

ACTS

  • Western Cape Provincial School Education Act [Reference B9 WCPS ED ACT]

GUIDELINES

  • WCED Circular 0047/2012: Regulations relating to the Management and Control of Hostels at Public Schools and the Control over the Immovable Property and Equipment of Hostels under the Western Cape Education Department [Reference B9 0047/2012]

8.10.2Framework For The Development Of School Policy On Hostels

(See REFERENCE C [SHP] for a template for a school hostel policy)

(North West ProvinceSome Extracts from Regulations relating to the Administration of Public School Hostels (Provincial Gazette 7031 of 2012) [Reference B8 7031/2012]

  1. Provision of Public Schools and Hostels
    • 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 may include the provision of hostels for the residential accommodation of learners.
    • Schools with hostels may reserve a number of preferential places for the enrolment of learners who will be in the hostel provided that preference for hostel enrolment should be given to those learners who do not live in close proximity to any suitable school.
  2. Hostel Costs
    • Records
      Schools with hostels must keep a separate account for all recurrent costs associated with hostels, and a record of the number of learners staying at each hostel.  Such accounts and records will be subject to unannounced audits by officials of the PED.
    • Hostel fee
      The school must charge each learner staying in the hostel a hostel fee equal to the average running cost per learner in the hostel.  No blanket cross-subsidisation of hostel costs from fee income is permitted.  However, if the SGB wishes to exempt particular learners from hostel fees, it may do so by recording the necessary book-keeping transfer.
    • Hostel subsidy
      The PED must, in turn, set aside a budget item for hostel subsidies.  Schools with hostels will be paid pro rata out of this budget for each of their learners:

      • whose transport time to the school is greater than 1.5 hours;
      • if there are no available school places near the learner’s parents’ place of residence; and
      • whose parents cannot afford the per-child hostel cost.
    • The PED may adjust these criteria in order to ensure that the subsidy per learner is meaningful, while recognising that this may decrease the number of learners, thus, covered, requiring a tightening of the targeting criteria.
    • Subsidies for hostel costs incurred by learners with special education needs enrolled in ordinary public schools will be provided by the Provincial Education Department in accordance with the overall funding approach used for such learners.
  3. Remunerative Payments over and above Salaries
    • Allowance to educators who perform supervisory duties at hostels
      If an educator performs control or supervisory duties and functions at a hostel attached to a state educational institution such educator shall receive, subject to such conditions as the Minister may determine, a non-pensionable allowance, which allowance shall be based on the control or supervisory duties and functions of such educator, as well as the number of pupils accommodated at the hostel concerned.
    • The level of supervisory duties at hostels
      There are, at most, three levels of work but it is not essential that all three levels have to be utilised everywhere.  The levels and the functions attached to them are as follows:

      • LEVEL I
        Normally the head of the educational institution (e.g. Principal of the school) is classified under Level I and he / she is in overall control of all the hostels and:

        • is responsible for every aspect of the hostel’s activities in accordance with the relevant department’s policy;
        • determines policy in respect of the educational, economic and administrative matters within the framework as prescribed by the department concerned; and
        • exercises the necessary control to ensure that the policy is implemented.
        • Educational
        • Exercises overall control in respect of the discipline and spirit in the hostel, including the welfare, study and recreation of boarders.
        • Economic
        • Controls the economic function in accordance with the policy of the Department and bears the final responsibility for the compilation of the budget, the obtaining of certain tenders and the control and management of all supplies to ensure the most efficient and economic utilisation thereof.
        • Administrative
        • He/She is responsible for all administrative duties that are necessary for the efficient running of a hostel.
          This includes, inter alia, and where applicable, the following:

          • recommendations in respect of the appointment of staff;
          • periodic reports and recommendations in respect of buildings, equipment, etc;
          • general management of staff;
          • handling of applications for admission of boarders;
          • collection of boarding fees; and
          • compilation of duty sheets for staff.
      • LEVEL II
        Normally every hostel has a supervisor on Level II who is responsible for the following:

        • Educational
          the spirit and discipline in the hostel in respect of the welfare, study and recreation of boarders;
        • Economic
          the controlling of supplies, accounts, bookkeeping, registers, the obtaining of tenders and all other duties connected with the post; and
        • Administrative
          all administrative duties necessary for the efficient running of a hostel.
          This includes, inter alia, the following:

          • recommendations in respect of the appointment of staff;
          • periodic reports and recommendations in respect of buildings, equipment, grounds, etc;
          • management of staff;
          • handling of applications for admission of boarders; and
          • collection of boarding fees.
      • LEVEL III
        The number of persons that are utilised at this level is directly related to the number of hostel enrolments.
        These persons perform educational and other duties such as:

        • carrying out the educational programme; and
        • maintenance of general discipline in the hostel, neatness of boarders, their rooms, the buildings and grounds.
  4. Grading Scales
    • Hostels are distinguished according to the following numbers of hostel enrolments:
      0–60;
      61–120;
      121–300; and
      301 and more.
    • Where, in terms of approved educational policy in respect of post provision scales, weighting on the actual pupil numbers occurs at specific institutions in order to determine the number of posts, a corresponding weighting of the actual hostel enrolment is made with a view to determining the number of hostel enrolments for the purposes of the above.
  5. Basis for Remuneration
    • Payment is in the form of a non-pensionable allowance based on a specific percentage of the basic payment (salary position plus any pensionable allowance) of the educator concerned. The percentage paid is as follows:
      Hostel enrolments
      Level
      0 – 60 61 – 120 121 – 300 301 and more
      I 12,5% 13,5% 15,5%
      II 12,5% 14,5% 15,5%
      III 12,5% 12,5% 12,5%
    • The basic remuneration in respect of Levels I and II must be reduced by the following percentages in those cases where not all the functions mentioned in Sub-paragraph (1) above are performed:
      Function Percentage reduction
      Educational 50%
      Administrative 25%
      Economist 25%
    • Rounding off of non-pensionable allowances
      The amount determined for the allowance must be rounded off to the nearest higher five cents per month.
    • An educator who performs supervisory duties at a hostel may be remunerated for duties performed at only one of the above-mentioned three levels of work.