PRESENTATION TO PORTFOLIO COMMITTEE: BASIC EDUCATION

1. PRESENTATION TO PORTFOLIO COMMITTEE: BASIC EDUCATION CHIEF DIRECTORATE: LEGAL AND LEGISLATIVE SERVICES 06 September 2011 Cape Town

2. INTRODUCTION The Legal and Legislative Services Chief Directorate is in terms of the new organogram of the Department constituted of a legal services and legislative services unit The structure of the unit could be represented by the following diagram: Chief Director (secretary ) Director(secretary) (language practitioner) Deputy Director Deputy Director SAO Assistant Director Assistant Director

3. STRATEGIC OBJECTIVES The strategic objectives for these two separate functions are: 1. Legislative Services • Mainly responsible for the development, processing and implementation of legislation and impact of the Constitution and international instruments on education. • Provide advice to the Ministry, DG and other units in the department. • Also focuses on human rights in education and advice parents, learners and the general public on education matters. • Legal Services • Mainly responsible for the management of litigation against the department and PEDs. • Management of contracts, memoranda of understanding and other legal instruments.

4. Legislative Services • The Directorate has the following strategic objectives: • (a) To draft legislation and regulations and to assist in their processing • Research the existing legislation and regulations to that it caters for the needs of education across the nation and remain consistent with the international trends • Consultation on the development of the Bills (new or amendments to existing Acts) • Obtaining HEDCOM, CEM, Clusters and Cabinet approval • Get Bill certified by Chief Legal Advisor • Ensure the Bill is tabled in the Parliament • Assist the Committees of Parliament to deliberate, amend and approve the Bill • Assist with the promulgation of the Act. • Provide support (workshops to provinces) for the proper implementation of the Act • NOTE: • (i) Currently the sub -Directorate is busy with the processing of the Basic Education Laws Amendment Act (Bill). The Bill was considered by the Portfolio Committee on Education and the Select Committee on Education and Recreation. This will be finalised before the end of this calendar year.

5. The directorate has initiated the National Education Evaluation and Development Unit Bill (NEEDU Bill). The Bill is still consultation level with the HEDCOM, CEM and would probably be advertised for comment before it could serve before the Cabinet Committee. • (b) Draft Regulations authorised by the Acts and assist in developing of regulations by other departments. • The draft Regulations must be duly consulted before they are promulgated into law by the Minister. • The comments received by role-players are evaluated and presented to the Minister to approve before the Regulations are promulgated. • Currently, the following Regulations are being developed • Section 38A Regulations- Regulations Relating to the Prohibition of the Payment of Unauthorised remuneration or the Giving of Financial Benefit or Benefit to Certain State Employees • Amendment of the Safety Regulations in Public School • Regulations for the Prevention, Support and Counselling of Pregnant learners and Pregnant learners with HIV and AIDS in public schools • Regulations for the Educational Assistance of Victims Identified by TRC

6. (c) To manage the administration and secretarial services of HEDCOM Legal subcommittee • Prepare invitations, the agenda and information pack for the provinces and other participants. • Keep records of all the meeting and resolutions thereof and circulate to all participants • (d) Manage human rights issues, International Conventions on children’s rights and support provinces • Support provinces in all matters brought to the meeting for discussion • Use the structure as a monitoring tool to evaluate implementation of legislation and compliance in the provinces • Visit PEDs and monitoring implementation of legislation and regulations. For this year, all provinces have been visited and reports for the visits are being finalised • Conducting workshops on Legislation and Regulations. • Provide regular advice to PEDs and responding to their queries.

7. LITIGATION • ART v MINISTER – EQUALITY COURT APPLICATION BACKGROUND Equality court action brought against the department on grounds of language discrimination; • the criteria applied in awarding the Funza Lushaka bursary is in conflict with section 9(3) of the Constitution; Afrikaans speaking students who choose Afrikaans as a subject for teacher training do not qualify for the bursary; LEGAL ISSUE: Is the criteria applied in awarding the Funza Lushaka Bursary discriminatory against Afrikaans speaking students? STATUS: The criteria used to award the bursaries have a rational justification i.e. Scarcity of skills and expertise in the field; Statistics show that Afrikaans speaking students receive a generous portion of bursaries The matter is being defended and prospects of success are favourable. DBE’s POSITION

8. WELKOM AND HARMONY HIGH v FREE STATE EDUCATION DEPARTMENT BACKGROUND • The Applicant sought an order to overturn the FSED directive in terms of not to effect the SGB Pregnancy Policy. The FSED intervened by directing the schools to admit learners to school after the school implemented the Pregnancy Policy provisions which stipulated that a learner will not be permitted into school within the same year that she absented herself due to pregnancy, she may only return the following year. LEGAL ISSUE: • Did the FSED have the authority to override a decision made by the school in terms of a Policy determined by the SGB? STATUS: • The Policy discriminates against learners and prevents them from access to education. It is prejudicial as it increases the time in which a learner will complete their schooling. Currently the matter is being taken on Appeal.

9. SR KHUBEKA v MEC: KZN & OTHERS BACKGROUND: • Labour court application brought by SEM employees seeking an order that the consent agreement entered into between the KZN department and fellow DCES officials be reviewed and set aside. This was as a result of and upgrade of salaries in respect of DCES/SEM office based educators from a grade 10 to 11 and the KZN department reversing the decision by consent as DCES/SEM school based educators did not receive the upgrade. LEGAL ISSUE: • Did the MEC and HOD have the power to upgrade the DCES/SEM post from grade 10 to 11? • STATUS : • Legal opinion was sought and HEDCOM passed a directive that all provinces who upgrades DCES/SEM officials did so ultra vires as the Minister has the power to determine salaries and conditions of service. Currently KZN.DOE is defending the matter.

10. PJ OLIVIER & OTHERS v MINISTER BACKGROUND: • application brought against the ECED to direct that the ECED decision, not to fill all vacant substantive posts at the abovementioned public schools in the Eastern Cape in accordance with their 2010 post establishments, be judicially reviewed and set aside. The post establishment for 2011 was unlawful as it was not determined by 30 September as envisaged in SASA. LEGAL ISSUE: Was the HOD’s decision ; • not to fill vacant posts in terms of the 2010 Post Establishment • and thereafter determining the Post Establishment for 2011 after the 30 September unlawful and therefore unjust administrative action? STATUS: The matter was settled, however now the settlement order is being challenged on the grounds that the parties did not have authority to enter into such settlement agreement.

11. INTERNATIONAL AGREEMENTS

12. DOMESTIC AGREEMENTS