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Public response to the perceived intent of the Education Laws Amendment Bill
A comparison of the previously mentioned pieces of legislation relevant to my study indicates that all of the pieces of legislation discussed claim to have the transformation of South African society as primary purpose, with specific reference to the elimination of racial segregation and other forms of unfair discrimination. The strategies proposed for achieving this purpose are not, while similar, exactly the same, hence the specific intent of each Act is somewhat different.
· The National Education Policy Act focuses on the powers vested in the Minister of Education, giving him/her the right to override provincial legislation where it conflicts with national legislation [Section 3(3)]. In this regard it allows the Minister to take whatever measures necessary to address ‘past discriminatory practices’ [Section 3(4r)], to protect educators against ‘unfair discrimination’ {Section 4a(i)], and/or to redress past inequalities, including gender discrimination [Section 4c] in education provision.
· The South African Schools Act (Act 84 of 1996), while affirming the need for redress and the elimination of discrimination in educational provision, emphasizes ‘construction’ rather than ‘deconstruction’ in the eradication of past inequalities. The primary means of doing so, in terms of this Act, lies in the devolution of power to school governing bodies {Section 16(1)]
· The Labour Relations Act, focusing primarily on the advancement of ‘economic development, social justice…and the democratisation of the workplace’ [Section 1] encourages the protection of worker rights in the workplace as the key means of ensuring the achievement of such advancement.
· The Employment Equity Act, the first piece of legislation that explicitly uses the terms ‘representivity’ and ‘diverse workforce’ [Section 13(1)] is based on the premise that legislation alone is not enough to effect transformation. Informed by this premise the Act proposes that measures should be taken to enforce affirmative action in the workplace. Its primary means would be to compel employers to create work environments that reflect the diversity of the South African population by forcing them to consider equity and representivity in their employment practices. To ensure employer adherence, the Act [Section 5], prohibits unfair discrimination in any employment policy or practice unless this is done in the interests of affirmative action [Section 6(2)].
· The Employment of Educators Act, taking its cue from the Schools Act, regards the devolution of power to provinces and schools as the primary means of effecting transformation. While taking cognisance of the Labour Relations Act and the Employment Equity Act, the Employment of Educators Act makes the provincial Heads of Department and school governing bodies jointly responsible for the transformation of the school environment, with specific reference to the composition of teaching staff.
· The original Education Laws Amendment Bill (2005) and, the eventual Education Laws Amendment Act (Act 24 of 2005) effectively gives the State – in the person of the Head of Department – permission to ignore the recommendations of the school governing body regarding the teacher/s most suitable for the advertised post and to unilaterally decide on subsequent action. It would seem, therefore, as if the Education Laws Amendment Act subscribes to a key premise of the Employment Equity Act, namely that legislation in itself is not sufficient to effect transformation; that the State of necessity has to use other, more aggressive, measures to do so. The amendments to criteria and procedures for the selection and appointment of teachers in the Education Laws Amendment Act, according to a Memorandum accompanying the original Bill, are administrative and procedural in nature and are aimed at enhancing the efficacy of educator deployment. The relevant clause in the Employment of Educators Act [Section 6(3)(c)] required the Head of Department to refer the whole matter back to the school governing body should s/he decline its appointment recommendations. This, according to the Memorandum, is unnecessarily time-consuming. By according the HoD the right to either consider all the applications for the post concerned so as to make a temporary appointment or to re-advertise the post as proposed, would, according to this explanation, streamline the process.
This is not, however, the way in which stakeholders interpreted the amendment. Responding to the original Bill, they argued that, in the first place, the amendment made race rather than ‘competence, quality or ability’ the most important consideration in the appointment of teachers (News 24, 2005). In this sense the amendment could well be regarded as unfair discrimination.
According to Abelman, Elmore, Kenyon and Marshall (1999), the State could, in forcing school governing bodies to appoint teachers on the basis of race, be undermining citizens’ constitutional right to ‘freedom of association’. Following this argument, education stakeholders, especially those representing formerly white (HoA) school communities, argued that, in forcing school governing bodies to prioritise race over ability the State was making a political rather than an educational statement (DoE, 2006). Moreover, by giving the Head of Department the right to ignore the recommendation of school governing bodies, the State was undermining their authority and decision making power (Naidoo, 2004). In this sense, the right and the power to maintain control over decisionmaking in their schools given to them in terms of the Schools Act (Beckmann, 2002), was being removed.
Relevant Court Cases
It is not only school governing bodies and political leaders who interpret legislation in different ways. Courts do too. This is evident from the Snayer Case, in which the governing body of a rural black school in Mpumalanga recommended a son of the soil4, who was not the best candidate, for appointment as the new principal of the school (Mpande, 2005). The HoD of the province rejected the recommendation on the grounds that the governing body had acted ‘un-procedurally’ (Esbend, 2005). The governing body of the school lost the case.
Yet another case illustrating the possibility that the same law could be differently interpreted is the 2003 court case between Kimberley Girls’ High School and another versus the Northern Cape Head of Department of Education. In this case the HoD rejected the recommendation of the governing body regarding the appointment of a Post level 1 English educator in 2002 on the grounds that it had not adhered to a process collectively agreed upon, namely to give preference to candidates disadvantaged by the injustices of the past. As justification the HoD argued that suitably qualified candidates from previously disadvantaged backgrounds were overlooked and not even short listed for interviews. They were therefore not afforded an equal opportunity to demonstrate their proficiency in English and their competency as educators.
According to the HoD, the governing body of Kimberley Girls’ High School had violated the administrative process that should be followed in the selection and recommendation of teachers for appointment to public schools, the Employment Equity Act (Act 55 of 1998), the Schools Act (Act 84 of 1996), the Employment of Educators Act (Act 76 of 1998) and the Constitution (1996). In doing so, the HoD argued, the governing body of this school showed a disregard for the democratic values and principles that underpin the Constitution and should, therefore, underpin their selection processes. The governing body argued that it had followed the prescribed statutory procedures and that its recommendation should therefore be accepted. The governing body’s application was dismissed with costs.
A third case, heard in the Constitutional Court of South Africa, was the 2003 case between the HoD of the Limpopo Department of Education and governing body of Settlers Agricultural High School. Following the HoD’s rejection of the SGB recommendation, the court ruled against the HoD because the SGB had followed the correct procedure and the Act. At that stage, that is, prior to January 2006, the HoD was obliged to accept the recommendation of the governing body provided that it was made in good faith and without undue influence. In lodging an appeal against the High Court decision, the HoD, in referring to the afore-mentioned Northern Cape case, contested the SGB’s interpretation of Sections 6 and 7 (1) of the Employment of Educators Act (Act 76 of 1998) and the provisions of Section 195(1) of the Constitution 1996 (Act 108 of 1996), both of which refer to the ability of the candidate and the need to redress the imbalances of the past in order to achieve broad representation. The Constitutional Court refused the HoD’s application for leave to appeal with costs because it was lodged nine months after the High Court had made its decision and the HoD had ignored the order for costs made against him in the High Court case. According to the Constitutional Court, overturning the appointment at that stage would not have been in the interest of justice.
1. RESEARCH PURPOSE AND PARAMETERS
1.1 Background to the study
1.2 Problem Statement
1.3 Research purpose and aims
1.4 Research questions
1.5 Rationale
1.6 Conceptual framework
1.7 Theoretical framework
1.8 Research paradigm and design
1.9 Reliability and validity
1.10 Concept clarification
1.11 Significance of the study
1.12 Limitations
1.13 Research programme and chapter outline
1.14 Summative conclusion
2. RESEARCH METHODOLOGY
2.1 Introduction and purpose
2.2 Research purpose and aims
2.3 Philosophical foundations of the study
2.4 Conceptual framework
2.5 Research Design
2.6 Sampling – research sites and participants
2.7 Gaining access to research sites (Schools)
2.8 Data collection strategies
2.9 Data analysis
2.10 Research report
2.11 Trustworthiness
2.12 Summative conclusion
3. SCHOOL GOVERNANCE, TEACHER APPOINTMENT AND SOUTH AFRICAN LAW
3.1 Introduction and Purpose
3.2 Conceptualizing School Governance
3.3 School governance in South Africa
3.4 Legislation on the selection and appointment of teachers
3.5 Public response to the perceived intent of the Education Laws Amendment Bill
3.6 Relevant Court Cases
3.7 Summative conclusion
4. EQUITY, REDRESS AND REPRESENTIVITY
4.1 Introduction and Purpose
4.2 Concept Clarification
4.3 Equity and education in South African schools
4.4 International Equity Initiatives
4.5 Lessons for South Africa
4.6 Summative conclusion
5. PRESENTATION OF DATA
5.1 Introduction and purpose
5.2 Data collection, analysis and presentation
5.3 School context
5.4 Comparison of parent data
5.5 Comparison of teacher responses
5.6 Comparison of data on principals
5.7 Discussion of data
5.8 Summative conclusion
6. CONCLUSIONS AND RECOMMENDATIONS
6.1 Introduction and purpose
6.2 Research problem and purpose
6.3 Research questions and objectives
6.4 Research Findings
6.5 Conclusions
6.6 Suggestions for the way forward
6.7 Recommendations for further research
BIBLIOGRAPHY
