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Foundational Legislation for Independent Schools in South Africa: A Legal Perspective

"Legally Speaking" by Graham Yoko explores the foundational legislation affecting independent schools in South Africa. It offers an in-depth analysis of the South African Constitution, the Bill of Rights, and the South African Schools Act (Act 84 of 1996). By unpacking these legal frameworks, the book provides educators, administrators, and policymakers with essential knowledge to navigate the operational landscape of independent schools. Understanding these laws is crucial for compliance, governance, and fostering educational equity.

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Foundational Legislation for Independent Schools in South Africa: A Legal Perspective

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  1. Legally Speaking Graham Yoko
  2. FoundationalLegislation Legislation with specific reference to the operation of and independent school in South Africa The South African Constitution The Bill of Rights South African Schools Act (Act 84 of 1996) Basic Conditions of Employment Act (Act 75 of 1997) South African Council for Educators Act (2000) Companies Act (Act 71 of 2008) Prevention of Administrative Justice Act (Act 3 of 2000) Consumer Protection Act (Act 68 of 2008)
  3. The Constitution The Constitution prohibits unfair discrimination. In clause 29(3) of the Constitution, it is clear that the only limitation on an independent school’s admissions policy is that no racial discrimination is allowed. This would also include admissions policies that may be judged to be a ‘cover-up’ for racial exclusion. This is drawn from section 9 (3) and (4) of the Bill of Rights on Equality, which states that neither the state nor any person may:  unfairly discriminate directly or indirectly against anyone on one or more grounds, including race, gender, sex, pregnancy, marital status, ethnic or  social origin, colour, sexual orientation, age, disability, religion, conscience, belief, culture, language and birth.
  4. Bill of Rights Bill of Rights in the South African ConstitutionParagraph 29(3) 29(3) Everyone has the right to establish and maintain, at their own expense, independent educational institutions that: a. do not discriminate on the basis of race; b. are registered with the state; and c. maintain standards that are not inferior to standards at comparable public educational institutions.
  5. South African School Act (No 84 of 1996) Chapter 5 Independent Schools Establishment of an Independent School 45. Subject to this Act and any applicable provincial law, any person may, at his or her own cost, establish and maintain and independent school
  6. Promotion of Administrative Justice Act The Promotion of Administrative Justice Act (PAJA) aims to make the administration effective and accountable to people for its actions. The PAJA Act promotes South African citizens' right to just administration. Section 33 of the Constitution guarantees that administrative action will be reasonable, lawful and procedurally fair, and it makes sure that people have the right to ask for written reasons when administrative action has a negative impact on them.
  7. Promotion of Administrative Justice Act PAJA does the following: It ensures that administrative procedures are fair. It gives people the right to ask for reasons. It gives citizens the right to have administrative action reviewed by the courts
  8. RIGHTS AND RESPONSIBILITIES OF INDEPENDENT SCHOOLS NAISA + Department of Basic Education October 2010
  9. FoundationalLegislation Associated Legislation Basic Conditions of Employment Act (Act 75 of 1997) South African Council for Educators Act (2000) Companies Act (Act 71 of 2008) Consumer Protection Act (Act 68 of 2008)
  10. Current Action NAISA - Submission to the Minister of Basic Education regarding the implementation of the National Curriculum Statement and CAPS in independent schools by end of July 2013 ACE challenge of Umalusi’s non-recognition of the SAQA registered A.C.E. College Entrance Certificate (NQF 4) on the National Qualifications Framework
  11. Current Action The current status of Umalusi’s position to not provide for the accreditation and monitoring of any school that does not offer the National Senior Certificate (NSC) as the exit examination. Linking of registration of a school with accreditation by Umalusi.
  12. Current Action Application has been made to the South African Qualifications Authority (SAQA) for the recognition of the International Certificate of Christian Education (ICCE) as a foreign qualification Specific Enquiry has been launched into Umalusi’s unwillingness to quality assure the College Entrance Certificate (CEC) Registration Number 17209 currently registered on the National Qualifications Framework (NQF)
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