Employment Equity Act Act No by qQ6ww95

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									                             UMnyango WezeMfundo                          Lefapha la Thuto
                             Department of Education             Departement van Onderwys



                                                                Circular 34/2007
                                                                       Date: 25 April 2007




                               Application of the Education Laws
Topic                          Amendment Act (Act No. 24 of 2005)




                               None
Enclosures




                                     Chief Directors and Directors at Head and
Distribution                          District Offices
                                     Principals of all Public Schools
                                     Members of School Governing Bodies
                                     Relevant Unions and Organisations




                                                  Relevant District Office
Enquiries



  On request, this circular will be made available in Afrikaans, isiZulu or Sepedi within 21 days
               Also available on the GDE website at: www.education.gpg.gov.za



                        Office of the Head of Department
                      Room 1009, 111 Commissioner Street, Johannesburg, 2001
                                  PO Box 7710, Johannesburg, 2000
Tel: (011) 355 1511    Fax: (011) 333 5546      E-mail: ceogde@gpg.gov.za OR mallelep@gpg.gov.za
APPLICATION OF THE EDUCATION LAWS AMENDMENT
ACT (ACT NO. 24 OF 2005)

1.      INTRODUCTION

This circular replaces Circular 5/1999 in respect of the procedures relating to the
recommendation of candidates nominated for appointment in the advertised
institution-based vacancies. In this circular, reference to the Head of Department
means the District Director in respect of public schools and Director FET/ABET in
respect of further education and training (FET) colleges.


2.      PURPOSE

To explain and clarify the application of Act No. 24 of 2005 regarding the
appointment of educators in institution-based vacancies.


3.      POLICY AND LEGISLATIVE FRAMEWORK

3.1     Employment of Educators Act (Act No. 76 of 1998) as amended.

3.2     South African Schools Act (Act No. 84 of 1996).

3.3     Personnel Administration Measures.

3.4     Employment Equity Act (Act No. 55 of 1998) as amended.

3.5     PELRC Collective Agreement 2/2005.


4.      BACKGROUND

4.1     The Education Laws Amendment Act (Act No. 24 of 2005) came into force
        in January 2006 and was published under Government Gazette Vol. 487
        No. 28426.

4.2     The purpose of the above Act is to provide for the refinement of the
        process of appointment of educators as contemplated in the principal Act.

4.3     Prior to the enactment of Act No. 24 of 2005, Section 6(b) of the
        Employment of Educators Act (Act No. 76 of 1998) as amended by
        Education Laws Amendment Act (Act No. 53 of 2000), gave discretionary
        powers to the Head of Department to decline the recommendation of the
        governing body of a public school or council of the further education and
        training (FET) institution on the basis of circumstances prescribed therein.

4.4     The currently amended version of the Employment of Educators Act,
        places an obligation on the Head of Department to ensure that the



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      recommendation of the governing body or council complies with the
      principles of equity, redress and representivity before making an
      appointment.


5.    PROCEDURE

5.1   At the end of the interview process, and once the school governing body
      or the council of a further education and training institution has accepted
      the recommendation of the interview panel, the said body or council must
      submit their recommendation in their order of preference to the Head of
      Department.

5.2   The above preference list must contain at least three names of
      recommended candidates. A list with names fewer than the required three
      can only be submitted and accepted after consultation with the Head of
      Department.

5.3   Despite the order of preference submitted by the SGB or council and
      sugject to the principles contained in paragraph 5.5 below, the Head of
      Department has the authority to appoint any suitable candidate whose
      name appears on the above list.

5.4   The governing body or council has two months from the date on which it
      received   applications,  to   finalise the    process    of   making
      recommendation(s) to the Head of Department failing which, the Head of
      Department may make an appointment without such recommendation.

5.5   Governing bodies and councils of further education and training
      institutions are obliged to ensure that in making a recommendation for an
      appointment, the principles of equity, redress and representivity are
      complied with and that there is adherence to:

      5.5.1   The democratic values and principles referred to in Section 7(1) of
              the principal Act.

      5.5.2   Any procedure collectively agreed upon or determined by the
              Minister for the appointment, promotion or transfer of educators.

      5.5.3   Any requirement collectively agreed upon or determined by the
              Minister for the appointment, promotion or transfer of educators,
              which the candidate must meet.

      5.5.4   A procedure whereby it is established that the candidate is
              registered or qualifies for registration as an educator with SACE.

      5.5.5   Procedures that would ensure that the recommendation is not
              obtained through undue influence on the members of the
              governing body or council.




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5.6    The current procedure shifts the function of making an offer of
       appointment of a candidate from the governing body or council to the
       Head of Department.

5.7    Non-adherence to the principles stipulated in paragraph 5.5 above will
       result in the Head of Department declining the recommendation of the
       governing body or council.

5.8    In the event that the recommendation of the governing body or council is
       declined for reasons stipulated under paragraph 5.5, the Head of
       Department can exercise the following option:

       5.8.1   Consider all applications received in respect of the post in
               question.
       5.8.2   Apply the requirements listed under paragraph 5.5.
       5.8.3   Appoint a suitable candidate in a temporary capacity or re-
               advertise the post.

5.9    In the event of the circumstances contemplated under paragraphs 5.4 or
       5.7 occurring, the procedure in subparagraphs 5.8.1 – 5.8.3 may be
       applied.

5.10   The governing body or council may only appeal against the decision taken
       in accordance with paragraph 5.8 above if such a decision involves the
       appointment of an educator in a temporary capacity.

5.11   The appeal must be lodged with the office of the Member of the Executive
       Council within 14 days of the governing body or council receiving the
       notice of temporary appointment.

5.12   If no appeal is lodged within the prescribed period, the Head of
       Department may convert the temporary appointment into a permanent
       appointment.

5.13   In converting the nature of appointment made in accordance with sub-
       paragraph 5.8.3 or 5.12, the governing body or council must be consulted.
       The anticipated consultation needs not translate into an agreement.


6.     INTERPRETATION

6.1    This circular must be interpreted in accordance with the spirit of the
       Education Laws Amendment Act (Act No. 24 of 2005).

6.2    Should a provision of this circular not be able to stand side by side without
       contradiction with a provision of the above Act, the provision of the Act
       must take precedence over the provision of the circular.




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6.3    Should a provision of this circular not be able to stand side by side without
       contradiction with a provision of Circular 5/1999, the provision of this
       circular must take precedence over the provision of Circular 5/1999.


Thank you for your co-operation.




______________________
MALLELE PETJE
HEAD OF DEPARTMENT




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