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THE PRINCIPAL AND THE RULE OF LAW Johan Beckmann, University of Pretoria

THE PRINCIPAL AND THE RULE OF LAW Johan Beckmann, University of Pretoria. Principals’ Conference Bojanalo District, NW 1-2 September 2010. INTRODUCTION.

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THE PRINCIPAL AND THE RULE OF LAW Johan Beckmann, University of Pretoria

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  1. THE PRINCIPAL AND THE RULE OF LAWJohan Beckmann, University of Pretoria Principals’ Conference Bojanalo District, NW 1-2 September 2010

  2. INTRODUCTION

  3. We live in and by the law. It makes us what we are: citizens and employees and doctors and spouses and people who own things. It is sword, shield, and menace: we insist on our wage, or refuse to pay our rent, or are forced to forfeit penalties, or are closed up in jail, all in the name of what our abstract and ethereal [unearthly, ghostly] sovereign [ruler], the law, has decreed [commanded]. And we argue about what it has decreed, even when the books that are supposed to record its commands and directions are silent; we act then as if law had muttered its doom, too low to be heard distinctly. We are subjects of law's empire, liegemen [loyal servants] to its methods and ideals, bound in spirit while we debate what we must therefore do (Dworkin 1986).

  4. DWORKIN • The law is our ruler (king) • We are its subjects • Makes us what we are • He commands, we do • Rules sometimes unclear – then we debate what to do • NB • (LAW MORE THAN LEGISLATION: ALSO CASE LAW AND COMMON LAW)

  5. SOUTH AFRICAN CONSTITUTION OF 1996 The supremacy of the Constitution and the rule of law (RoL) part of the values on which the Republic is founded (Section 1(d)) Section 1 may only be amended by a Bill passed by the National Assembly, with a supporting vote of at least 75 per cent of its members; and the National Council of Provinces, with a supporting vote of at least six provinces Section 7(2) :The state must respect, protect, promote and fulfill the rights in the Bill of Rights. Carrying out the provisions of the Constitution part of the rule of law RULE OF LAW ∆ AN IMPORTANT VALUE

  6. ORIGIN (Currie & De Waal 2006) • 100 years ago Eng Const lawyer AC DICEY • Purpose of RoL: protect basic individual rights by requiring government to act in accordance with pre-announced, clear and general rules enforced by impartial courts in accordance with fair procedures • State institutions must act in accordance with law • Organs of state and everybody else must obey the law • State [or a state representative / delegate] cannot exercise power over anyone unless the law permits it to do so (in a school?)

  7. RoL HAS PROCEDURAL AND SUBSTANTIVE COMPONENTS • Procedural: Forbids arbitrary or capricious decision making or action by Parliament and the executive • Substantive: • Government and its delegates must respect individual persons’ basic rights • rules must be fair and reasonable and lawful • SO • No administrative action (exercising powers and carrying out responsibilities) may be arbitrary • Arbitrary action is invalid and will not pass legal muster

  8. SECTIONS OF PAPER Practical implications Principals specific duties Importance of certain legislation Conclusion

  9. 1 PRACTICAL IMPLICATIONS A Double-edged sword B Processes Choice on Termination of Pregnancy Amendment Act was found to be unconstitutional - S9 of the Constitution – Nat Assembly must facilitate public involvement, meetings / business conducted in open manner, may not exclude public unjustifiably

  10. 1 PRACTICAL IMPLICATIONS C S v De Blom Ignorance of the law? Law conscious element of decision-making Finding rules, keeping abreast of, finding clarity

  11. 1 PRACTICAL IMPLICATIONS D No arbitrary / frivolous / impulsive action / decisions No arbitrary, frivolous action without legal authority based on imagined power will be upheld /permitted by the law Right to just administrative action (S33 of Constitution ) must be respected: lawful, reasonable, procedurally fair Heed principles of natural justice and ensure due process

  12. 1 PRACTICAL IMPLICATIONS E Binding not guidelines PAM, ELRC resolutions Common law principles Have the force of law Heed and implement them, abreast of them

  13. 1 PRACTICAL IMPLICATIONS F Respect human rights Everyone has them Part of educational principles Easily violated Do Not Disturb

  14. 1 PRACTICAL IMPLICATIONS G Predictable action Because it is always in line with the law

  15. 1 PRACTICAL IMPLICATIONS H Explicit and implicit powers Principals have both Implicit by necessary Impli- cation to carry out powers Both important

  16. 1 PRACTICAL IMPLICATIONS I No usurping / taking over of power Mikro Minister of Education v Harris

  17. 1 PRACTICAL IMPLICATIONS What does case law tell us? Not only principals that violate the rule of law People throughout the system guilty Systemic problem

  18. 2 WHY MUST PRINCIPAL FOLLOW RoL? • A Government functionary • Appointed to perform duties as set out in PAM and other law • Represents HOD in SGB – ex officio S16/SASA • Does not take over SGB – Schoonbee – sitting on SGB does not make you the SGB • SGB and angry letter

  19. 2 WHY MUST PRINCIPAL FOLLOW RoL? • B S v De Blom 1977 SA 513 (A) • Ignorance of the law may be an excuse • Not just / fair in many cases to expect everybody to know all law • HOWEVERA principal can never use ignorance as an excuse regarding his / her knowledge of education law • All professionals must know the law that applies to the practice of their profession

  20. 2 WHY MUST PRINCIPAL FOLLOW RoL? • C No area free of the law • Identify legal principles and rules that apply in a situation • Find them and apply them • Apply mind to application of legal rules in all decisions or actions

  21. 2 WHY MUST PRINCIPAL FOLLOW RoL? • D Protection against unlawful action • SA Democratic Teachers Union v Minister of Education & Others • Minister published rules about role of mangers before strike action without negotiation and consultation • SADTU saw it as unilateral amendment of terms and conditions of employment – Court agreed with them and called Minister’s action ultra vires • HOWEVER • Stepfather caning boy in principal’ office • Requirement that parents must give permission for corporal punishment before admission • Schools that still apply corporal punishment

  22. 3 ROLE OF PRINCIPAL RE RoL? • 1) INTRODUCTION • Implement law and • See that law is implemented in school • Protect human and other rights of educators, learners and parents • Assist the SGB in carrying out duties – S19 / SASA • Assist = guide but not = decide for • Assistance regarding: admission, language policy, code of conduct, finance

  23. 3 ROLE OF PRINCIPAL RE RoL? • PERSONNEL ADMINISTRATION MEASURES • AIM OF PRINCIPAL’S JOB: • Manage school satisfactorily and in compliance with applicable legislation, regulations and personnel administration measures • And ensure education is provided properly and in accordance with approved policies • REST OF DUTIES: • General administrative duties (bring circulars to attention of staff) • Personnel matters – equitable workloads (in addition to hours at school in consultation with educators and not arbitrarily)

  24. 3 ROLE OF PRINCIPAL RE RoL? • 3) SASA and Basic Ed Laws Amendment Bill 2009 • THE PRINCIPAL, THE DEPARTMENT AND THE SGB • Section 16 • 16(1) Governance vested in SGB – functions as in SASA • 16(3) Professionalmanagement : principal // HOD • 23(1)(b) Ex officio member of SGB – separation of powers • 16A(1) Represents HOD in SGB • Does not become SGB • Decision making still SGB power / function • If principal helps SGB chair with a letter?? • Assistancenot n conflict with Hid instructions – legislation or policy – obligation toward HOD / MEC/Minister ∆ assistance // RoL

  25. 3 ROLE OF PRINCIPAL RE RoL? • 3) SASA and Basic Ed Laws Amendment Bill 2009 • BASIC ED LAWS AMENDMENT BILL 2009 • Not law yet • Assist the SGB with management of school funds • Advise on legality of financial decisions or otherwise • Take reasonable measures to prevent financial maladministration by staff or SGB member • Report mismanagement or maladministration of financial matters to SGB AND HOD

  26. Training and experience to give legal advice • Impossible – not // just admin action • Illegal to enforce before promulgation • Whistle blowing? What can HOD do – except S 25 of SASA? • Power relations not supportive of task

  27. 3 ROLE OF PRINCIPAL RE RoL? • (3) SASA and Basic Ed Laws Amendment Bill 2009 • SASA S19 • Assist the SGB with functions in terms of SASA • To benefit education • Principal able to advise • Principal’s experience of working with governors • Financial and human resources available

  28. 3 ROLE OF PRINCIPAL RE RoL? 3) SASA and Basic Ed Laws Amendment Bill 2009 Finances Principal SGB

  29. 3 ROLE OF PRINCIPAL RE RoL? • 3) SASA and Basic Ed Laws Amendment Bill 2009 • FINANCES: SGB / DEPT / PRINCIPAL • Clarity per Moseneke J in Schoonbee and Others v MEC for Education, Mpumalanga and Another • 1) In SASA no specific duties vested in principal regarding • Assets • Liabilities • Property • Financial management

  30. Principal’s duty: facilitate, support, assist SGB to execute its statutory functions regarding: • assets, liabilities, property and financial management • Can be delegated specified parts of SGB’s duties • PRINCIPAL ACCOUNTABLE TO SGB NOT HOD

  31. 3 ROLE OF PRINCIPAL RE RoL? • 3) SASA and Basic Ed Laws Amendment Bill 2009 • FINANCES: SGB / DEPT / PRINCIPAL • Clarity per Moseneke J (continued) • Principal accountable to SGB not HOD – not accounting officer in terms of PFMA • Illegal to hold principal liable for functions of SGB • Sitting on SGB does not make principal the SGB • HOD should ask SGB t account for / explain issues regarding school finances • MEC and HOD can hold principal accountable for professional management • Unlawful for HOD to suspend principal because of auditor-general’s report on financial matters

  32. 3 ROLE OF PRINCIPAL RE RoL? • 3) SASA and Basic Ed Laws Amendment Bill 2009 • FINANCES: SGB / DEPT / PRINCIPAL • Clarity per Moseneke J (continued) • WHAT DOES RoL / JUST ADMINISTRATIVE ACTION REQUIRE FROM PEOPLE EXERCISING POWER? • Not taken on account of bias / prejudice or suspicion thereof/ no ulterior motives • Must be within in parameters of law – in line with procedures or conditions prescribed • Procedurally fair • Not flawed by an error of law or an error of understanding or applying the law • Action must be honest – not arbitrary or capricious • Action rational and reasonable

  33. 3 ROLE OF PRINCIPAL RE RoL? • 3) SASA and Basic Ed Laws Amendment Bill 2009 • SCHOOL MONEY • Money paid into school fund is school money while it is there - even NSSF funds • Additional proof that principal is not accounting officer • EMPLOYMENT O F EDUCATORS ACT, 1998 (EEA) • S18(1)(a) provides: • It is misconduct if an educator does not comply with or contravenes a the EEA or b any other law or regulation or c legal obligation relating to education and the employment relationship • An educator (also a principal) may be dismissed for misconduct – violating the RoL

  34. C CONCLUSION • RoL requires: • Knowledge of RoL – what is allowed or forbidden in terms of action or decisions • Lawful, procedurally fair and reasonable action and decisions (just administrative action) • Due process • Respect for, and fulfilment of human and other rights • Action not ultra vires • Absence of errors in law or understanding and application of the law • Action based in law and which is not capricious

  35. C CONCLUSION • The law protects principals against other role players’ ultra vires actions AND • Protects others against principals’ ultra vires actions • Problems are systemic • Ignorance of education law can never be an excuse for principals • The law does not tolerate disregard, short cuts or postponements • HOPE • Stimulated interest in education law • No principal present will ever have to face the law for ignorance of or non-adherence to the law • Coherent, systematised, comprehensive, complete accessible manual for principals

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