White Paper on Education and Training

Part 3 - The Constitutional and Organisational Basis of The New System

Chapter Six

Education and Training In The 1993 Constitution

The present Constitution, agreed to in multi-party negotiations, is the legal vehicle by which all South Africans achieved equal citizenship and voted a democratic Parliament into being. Parliament, sitting as the Constitutional Assembly, is required to adopt a new and permanent Constitution within two years, although provision is made to vary this period under certain conditions. The new Constitution will come into effect when it is assented to and promulgated by the President.
The elected government decides policy. Government policy is implemented in terms of laws passed by Parliament, from which government departments draw their authority to act. The Constitution is the supreme law, and no law passed by Parliament may be inconsistent with it. Thus all executive acts of government in pursuance of its policy are required to observe the provisions of the Constitution. Moreover, the Constitution binds all legislative, executive and judicial organs of state at all levels of government.
Several sections of the Constitution deal specifically with education, and others do so by implication. Taken together, these provisions of the Constitution guarantee a number of individual and collective educational rights, and prescribe or entail a completely new legislative, bureaucratic, and value framework within which the national and provincial governments are required to act in education matters.
However, the meaning and the implications of each of the provisions of the Constitution which relate to education are not straightforward. The Ministry of Education takes the view that the Constitution is a living instrument of justice in our society, whose meaning, however complex, needs to be established by government for purposes of policy and executive action. It is therefore the responsibility of the government, acting on the best advice it can get, to determine its policies in accordance with a conscientious interpretation of the meaning of the Constitution.
The government is bound to interpret the meaning of individual sections of the Constitution in a manner which
- is balanced and reasonable
- takes into account other relevant provisions of the Constitution
- affirms the constitutional goal of a new order in our society
- is consistent with the spirit of an open society based on democracy and equality
- protects the fundamental rights, freedoms and civil liberties of all persons
- upholds the collective rights of persons to language, culture, and religion based on non-discrimination and free association.
The Ministry of Education recognises that the constitutionality of any law or executive act of the government, and the meaning of any constitutional provisions, may be tested in a competent court and ultimately determined by the Constitutional Court. Nevertheless, the Ministry is of the view that it is the responsibility of national and provincial governments to take a lead in interpreting constitutional provisions, including those which appear unclear, ambiguous or contentious, rather than waiting for court decisions to clarify the position. The Ministry of Education will strive in good faith to create policies which interpret the provisions of the Constitution in a balanced manner, and promote its broad intentions and values. In doing so, it will seek legal advice, commission research and investigations, promote open debate, undertake consultations and, if necessary and within reasonable limits, enter negotiations with interested parties, and thereafter seek Cabinet and Parliamentary approval for its proposals. In interpreting its obligations under the Constitution, the Ministry therefore undertakes to consult as widely as possible and establish the broadest level of social consensus consistent with the criteria in the previous paragraph.
Deciding education policy in line with the Constitution may pose problems of interpretation for the national and provincial governments in respect of the allocation of legislative competence between the two levels. If interpretations differ, the government believes strongly that every effort should be made by the parties concerned to find agreement rather than resort to litigation. The Ministry of Education will make continuing and determined efforts to find common ground between its own views and the views of all the provincial governments, especially with respect to the division of responsibility for education functions between the two levels of government. The Council of Education Ministers is an appropriate forum for such consultations and agreements.
The following chapters summarise important provisions of the 1993 Constitution which have a bearing on education and training matters. Where appropriate, an indication is given of how the Ministry of Education interprets both the meaning of constitutional provisions and its own responsibilities under the Constitution. These views represent the Ministry's best current understanding of the constitutional position. In some cases, the precise nature of the obligation imposed by the Constitution must be investigated and debated further.
The Ministry of Education will encourage a thorough public discussion on how education should be provided for in the new Constitution, and will do its best to ensure that the Constitutional Assembly gives the matter the attention it deserves.

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Chapter Seven

Fundamental Rights To Education and Training, and Within Education and Training

Introduction

The Preamble to the 1993 Constitution declares the:

"need to create a new order in which all South Africans shall be entitled to a common South African citizenship in a sovereign and democratic constitutional state in which there is equality between men and women and people of all races so that all citizens shall be able to exercise their fundamental rights and freedoms."
Chapter 3 of the Constitution affirms and specifies the fundamental rights and freedoms of all persons. It binds legislatures and government organs at all levels, and it applies to all laws and administrative decisions and acts performed during the life of the Constitution. (section 7) In interpreting any law, a court is required to pay "due regard to the spirit, purport and objects" of chapter 3, and in interpreting chapter 3 itself, a court is obliged to "promote the values which underlie an open and democratic society based on freedom and equality". A court must also have regard to applicable public international human rights law, and may take into account foreign human rights case law. (section 35)
The government is in the process of examining all relevant international human rights conventions with a view to signing them and, where necessary, amending South African laws which contravene them. These international instruments include a number of conventions which deal partly or wholly with rights to education and the rights of the child, including the Convention Against Discrimination in Education (Unesco, 1960), the Intemational Covenant on Economic, Social and Cultural Rights (UN, 1966), and the Convention on the Rights of the Child (UN, 1989). When ratified by Parliament, they will become part of South African law.
The Department of Education will commission a thorough examination of these instruments and their implications for South African education. It will examine also the implications of other important international documents such as the World Declaration on Education for All (World Conference on Education for All, 1990), the Charter on the Rights and Welfare of the African Child (OAU, 1992), and the Report of the Intemational Conference on Population and Development (1994). Though not an international document, the South African Children's Charter (1992) falls in the same category for analytical purposes and deserves special attention. The government has decided, in conjunction with the United Nations Children's Fund (Unicef), to draw up a National Programme of Action for Children in South Africa, and the Department of Education will participate actively in this process.
The fundamental rights guaranteed in chapter 3 may be limited by laws of general application only to the extent that they are reasonable, justifiable in an open and democratic society based on freedom and equality, and do not negate the essential content of the right in question. (section 33)
Chapter 3 provides that alleged infringements or threats of infringement to any constitutionally entrenched human right may be brought to court for appropriate relief, which may include a declaration of rights, by any person acting on his or her own behalf, on behalf of others, or in the public interest. (section 7)
The provisions of chapter 3 protect individual, group and institutional rights and freedoms which bear directly and indirectly on education. Every law, regulation, administrative decision or action for which any ministry, department or educational institution is responsible, must conform to these provisions. They should also satisfy the international conventions which South Africa in due course ratifies, and be informed by the relevant international human rights law.
The issues of interpretation which relate to the provisions affecting education are complex and difficult, and most are novel in South African law and administrative practice. The international law dimensions are little known to South Africans. In these circumstances, the possibility that educational authorities may unintentionally infringe persons' rights must be taken seriously. The Ministry of Education is obliged to ensure that its own house is in order. It also has a duty to stimulate specialist examination of the issues and implications, and take steps to open up the field to serious public discussion.
The right to education
Section 32 expresses the right to education in these terms:
"Every person shall have the right -
1. to basic education and to equal access to educational institutions
2. to instruction in the language of his or her choice where this is reasonably practicable
3. to establish, where practicable, educational institutions based on a common culture, language or religion, provided that there shall be no discrimination on the ground of race."
Four distinct educational rights are established here: the right to basic education, to equal access to educational institutions, to choice of the language of instruction, and to establish educational institutions of a certain character. Each right applies to "every person" without distinction. The ordinary meaning of each provision appears to be clear. However, the strict interpretation of each provision separately, and the relationships between them, is less so, as will be discussed below.
The right to basic education. The right to basic education accorded in section 32(a) applies to all persons, that is to all children, youth and adults. Basic education is thus a legal entitlement to which every person has a claim. For children, the right would be satisfied by the availability of schooling facilities sufficient to enable every child to begin and complete a basic education programme of acceptable quality. For youth and adults, the availability of basic education would not necessarily be in the form of schools but in the form of education and training programmes appropriate to their age and personal circumstances. Attaining this level of availability of opportunity for basic education will be an immense achievement in the reconstruction and development of the country.
Since the term "basic education" is not defined in the Constitution, it must be settled by policy in such a way that the intention of the Constitution is affirmed. An important question is whether basic education should be defined in terms of learning needs and outcomes, or qualification levels, or school grades, and whether the content of basic education needs to be the same for children, youth and adults.
The World Conference on Education for All, sponsored by the United Nations in 1990, addressed such questions in its authoritative World Declaration on Education for All. Article 1 of the Declaration makes the following statement on "basic learning needs":

"Every person - child, youth and adult - shall be able to benefit from educational opportunities designed to meet their basic learning needs. These needs comprise both essential learning tools (such as literacy, oral expression, numeracy and problem solving) and the basic learning content (such as knowledge, skills, values, and attitudes) required by human beings to be able to survive, to develop their full capacities, to live and work in dignity, to participate fully in development, to improve the quality of their lives, to make informed decisions, and to continue learning. The scope of basic learning needs and how they should continue to be met varies with individual countries and cultures, and inevitably, changes with the passage of time."
The Ministry of Education associates itself with this statement. Basic education must be defined in terms of learning needs appropriate to the age and experience of the learner, whether child, youth or adult, men or women, workers, work seekers or self-employed. Basic education programmes should therefore be flexible, developmental, and targeted at the specific requirements of particular learning audiences or groups, and should provide access to a nationally recognised qualification or qualifications.
The Ministry's position is that appropriately designed education programmes to the level of the proposed General Education Certificate (GEC), whether offered in school to children, or through other forms of delivery to young people and adults, would adequately define basic education for purposes of the constitutional requirement.
The Ministry of Education accepts that state authorities have a continuing obligation under the Constitution to take purposeful and effective action which would enable all persons to achieve the satisfaction of this right. Responsibility for the provision of education (other than technikons and universities) rests with the provincial governments. In meeting the constitutional obligation, which will be a formidable task, the national Ministry of Education intends to work closely in support of the provincial Ministries, on whom the main onus for planning and coordinating execution will fall, with the National Youth Development Commission, and with the proposed National Council on Adult Basic Education and Training.
The cost of the provision of schooling for all children to the GEC level, at an acceptable level of quality, must be borne from public funds. The cost of the provision of basic education programmes for all young people and adults who require them cannot be borne by public funds alone, but must be shared among a variety of funding partners.
The right to equalaccess to educationalinstitutions. Section 32(a) confers on all persons the right of equal access to educational institutions. The precise intention of this provision must be to establish a condition of equality and non-discrimination with respect to access to educational institutions. It is a provision which can only be satisfied by the exercise of equal and non-discriminatory admissions policies on the part of educational institutions. It is therefore reasonable to read this provision with section 8 of the Constitution, the right to equality, which provides that:

"(1) Every person shall have the right to equality before the law and to equal protection of the law.
"(2) No person shall be unfairly discriminated against, directly or indirectly....
"(3) This section shall not preclude measures designed to achieve the adequate protection and advancement of persons or groups or categories of persons disadvantaged by unfair discrimination, in order to enable their full and equal enjoyment of all rights and freedoms."
However, the exercise of equal and non-discriminatory admissions policies cannot be interpreted to mean that any educational institution is obliged to admit every person who applies to enter. Regulation of admissions to educational institutions must be permissible in terms of the limitation provision of the Constitution (section 33), which was reproduced at paragraph 5 above.
This document is not the place to specify constitutionally permissible exceptions to the right of equal access. These will need to be defined by legislation. However, limiting factors would include the physical capacity of the institution in terms of the applicable norms, the appropriateness of the educational programme forthe applicant's needs, the applicant's gender in the case of single-sex schools, and the right to retain the specific character of an institution based on common language, culture or religion (which is discussed in paragraph 29 below).
The Ministry of Education understands the Constitution to require that the authority responsible for determining conditions for admission to an educational institution must apply those conditions equally to all applicants, without unfair discrimination on any grounds, direct or indirect. Moreover, section 8(3) specifically permits the application of measures, which would include special admissions regulations, which are designed to remedy the effects of past discrimination. The Ministry is of the view that the equality and anti-discrimination provisions of the Constitution should be observed and resolutely applied when an application is considered.
In the case of people with disabilities, the rights of access and protection from unfair discrimination have profound implications for the education system, and these merit urgent investigation. The Ministry of Education proposes to appoint a National Commission on Special Needs in Education and Training to address these and other important issues of policy in this field (see chapter 5, paragraph 35 above).
The Constitution makes special provision for the rights of children, including the right

"not to be subject to exploitative labour practices nor to be required or permitted to perform work which is hazardous to or harmful to his or her education, health or well-being." (section 30)
Exploitative child labour practices are symptoms both of extreme poverty, which often compels parents to put young children to work, or forces children to become homeless and vulnerable to abuse, and of the inadequate democratisation of labour relations and labour conditions in some sectors of the economy, particularly but not exclusively in rural areas. The symptoms are unlikely to disappear before the causes are overcome. However, many abuses have been the result of ignorance, inadequate public awareness, an ineffective regulatory environment, and a lack of urgency by state authorities. The abolition of exploitative child labour practices, and the monitoring and safeguarding of children's rights to education, health and well-being, will require research, advocacy and action on many fronts by many government departments and agencies, working with community organisations and NGOs, labour unions and employers' organisations.
The Ministry of Education will strongly support all such cooperative action. The national and provincial Ministries of Education are in a position to address the issue through the Council of Education Ministers. Legitimate governance structures at school and district level will provide the best mechanism through which action in the community can be coordinated, including monitoring and public education campaigns.
The situation of farm workers' children may be a special case, since a farmer may be at one and the same time the owner and the governing body of a farm school, the employer of workers whose children attend the school, and the source of instructions for child labour. The Review Committee on School Organisation, Governance and Funding (see chapter 12, paragraph 30 below) will be in a position to consider any relevant submissions on this issue, in particular from organisations representing farmers, farm workers, and farm school teachers and students.
The right to instruction in the language of choice. Section 32(b), provides for the right to instruction in the language of the applicant's choice, "where this is reasonably practicable". This is an extension of the general right accorded to every person "to use the language. . . of his or her choice" (section 31). The right to instruction in the language of choice would clearly, in the case of young children at least, be exercised on the child's behalf by the parents or guardian. This section protects the choice of mother tongue instruction, or of any other preferred language of instruction, provided the choice is reasonably practicable for the educational institution concerned.
This section has a direct bearing on the exercise of the right of equal access to educational institutions, and thus the admissions policy and practice of all competent education authorities and educational institutions. The right of equal access, and the constitutional prohibition of unfair discrimination on any ground, specifically including language, appear to ensure that preference for a particular language medium of instruction cannot be a reason to refuse admission, provided the condition of "reasonable practicability" can be met. However, where an alternative institution is available to the applicant without undue hardship, offering tuition in the preferred medium, such refusal cannot be deemed to be unfair.
The right to establish educational institutions based on a common culture, language or religion. Section 32(c) provides for the right of every person (which in this case includes a juristic person)

"to establish, where practicable, educational institutions based on a common culture, language or religion, provided that there shall be no discrimination on the ground of race."
This would also seem to be a specific extension of the general rights protecting religious belief (section 14), and language use and cultural participation (section 31).
The use of the phrase "based on a common culture, language or religion" implies that the culture, language or religion is the defining characteristic of the educational institution and its prospective clientele. Again, the interpretation of the right of equal access to educational institutions is affected by the right to establish institutions of this type.
The owner's competence to set admission policy cannot be disputed. Where a reasonable alternative exists, refusal to admit an applicant who rejects the defining characteristic of the institution cannot be deemed unfair, so long as the refusal is not made on grounds of race. However, an admission policy that is calculated to operate in a manner which, directly or indirectly, discriminates unfairly against an applicant or class of applicants cannot be permissible. It seems unlikely, therefore, that an otherwise qualified, bona fide applicant, knowing and accepting the nature of the institution, could be refused solely on the grounds that the applicant did not, at the time of application, share the cultural, linguistic or religious identity of the institution in question. An applicant's choice of language medium of instruction, on the other hand, would have to meet the test of "reasonable practicability".
Language and culture in education
Section 31, which provides for the right to use the language and participate in the cultural life of one's choice, and sections 32(b) and (c) which respectively provide forthe right of language choice in educational institutions, and the right to establish educational institutions based on a common culture, religion or language, have already been referred to.
In addition to these fundamental rights to language and culture, language and culture matters are dealt with elsewhere in the Constitution: in chapter 1, section 3 (official languages), chapter 9, section 126 and Schedule 6 (provincial government competences), and Schedule 4 (Constitutional Principles). Chapter 1 includes a lengthy section on languages, the most important part of which provides a set of principles which must be observed in any legislation, policy and practice at any level of government, including:
(a) The creation of conditions for the development and for the promotion of the equal use of all official South African languages; ...
(c) the prevention of the use of any language for the purposes of exploitation, domination or division;
(d) the promotion of multilingualism and the provision of translation facilities; ...
(f) the non-diminution of rights relating to language and the status of languages existing at the commencement of this Constitution. (section 3(9))
Afrikaans, English, isiNdebele, Sesotho sa Leboa, Sesotho, siSwati, Xitsonga, Setswana, Tshivenda, isiXhosa and isiZulu are declared the official South African languages at national level and "conditions shall be created for their development and the promotion of their equal use and enjoyment". (section 3(l))
Provincial legislatures are competent to pass legislation on language policy and the declaration of any national official language as an official language within a province, subject to relevant national legislation (section 3(5), and Schedule 6)
36 The underlying intention of the foregoing provisions is summarised in Constitutional Principle XI, which binds the Constitutional Assembly in its preparation of the final Constitution: "The diversity of language and culture is acknowledged and protected, and conditions for their promotion shall be encouraged."
Taken together, these provisions do not in themselves define a policy on language in education, but they provide entrenched language and cultural rights and state explicit language policy principles which bind national and provincial governments and must therefore underpin such a policy.
National policies which establish norms and standards for language use and language teaching in educational institutions will be required to aim positively at the promotion and development of all official languages, the non-diminution of language rights existing when the Constitution came into effect, equal respect for official languages, and multilingualism.
Language in education policy must accommodate the right to be instructed in a language chosen by the learner, where this is reasonably practicable. (section 32(b)) This right includes a parent's or guardian's choice of the mother tongue (or another language) as the language medium for a child's education. However, if it is not reasonably practicable for a school to offer a particular language medium chosen by a learner, it can have no obligation to do so, especially if the school is based on a common language in terms of section 32(c). The onus would be on the applicant to change his or her language preference, or to apply to another school in the vicinity where the original language preference could be accommodated. The Ministry of Education encourages schools, which are willing and able to offer more than one language medium in order to accommodate parental or learners' preferences, to do so, in order to provide for the learner's right of choice of language medium.
Distinct provincial language policies are specifically protected, so long as they observe the language policy principles and language rights declared in the Constitution, and subject to the national government's legislative override on matters relating to norms and standards.
The development of national policy on norms and standards for language in education, including the language of learning (or medium of instruction) is a matter which is receiving urgent attention by the Coordinating Committee for the School Curriculum (see chapter 5, paragraph 18). The independent Pan South African Language Board will need to be consulted when it is established. (section 3(10))
Freedoms of religion, belief, opinion and expression in education
Every person is guaranteed the right

"to freedom of conscience, religion, thought, belief and opinion, which shall include academic freedom in institutions of higher learning." (section 14(1))
This individual right does not negate the right of a person, including a legal person, to establish an educational institution based on a common religion, in accordance with section 32(c). Such an institution may not demand religious observances from students who wish to exercise their freedom of conscience.
Every person is guaranteed the right

"to freedom of speech and expression, which shall include freedom of the press and other media, and the freedom of artistic creativity and scientific research." (section 15(1))
In addition,

"All media financed by or under the control of the state shall be regulated in a manner which ensures impartiality and the expression of a diversity of opinion." (15(2))
The letter and spirit of these rights and freedoms should inform the intellectual culture in all schools and educational institutions, and professional services in departments of education. This has unavoidable implications for curricula, textbooks, other educational materials and media programmes, teaching methods, teacher education, professional supervision and management culture.
The constitutional guarantees of freedom of conscience, religion and belief, which bind all acts and administrative actions of government departments, including education, have particularly important consequences for a school and college system which has been dominated in the past by a state-supported national-religious educational philosophy. A substantial exercise may be required in order for the implications of the constitutional requirements to be analysed, debated, and translated into new guidelines. This matter should engage the relevant professionals in the national and provincial education departments, and teacher education establishments.
The Constitution affords protection to education institutions based on a common culture, language or religion, as has been discussed above. The circumstances under which religious observances may be conducted in state and state-aided educational institutions are covered by section 14(2):

"Without derogating from the generality of the right of freedom of conscience etc. religious observances may be conducted at state or state-aided institutions under rules established by an appropriate authority for that purpose, provided that such religious observances are conducted on an equitable basis and attendance at them is free and voluntary."
Special provisions regarding educational institutions
The Constitution includes, at section 247, special provisions which are designed to prevent national or provincial governments from making summary changes in the rights, powers and functions of the governing bodies of state or state-aided schools, technikons and universities, and which require governments to make equitable financial provision for state and state-aided schools in order to ensure an acceptable quality of education.
Section 247 is not part of Chapter 3, but like all other constitutional provisions, it is subject to the fundamental rights provided in chapter 3. The implications of chapter 3 rights for the governing bodies of schools covered by section 247 have become a matter of considerable public concern which needs thorough and dispassionate investigation.
This matter, and others connected with the pattern of organisation, governance and funding of schools, is discussed in more detail in chapter 12 below. The Minister of Education, with the agreement of the Council of Education Ministers, is establishing a special committee to review and advise on these questions and report in mid- 1 995.
Meanwhile, without prejudice to the findings and recommendations of the Review Committee, the Ministry of Education wishes to make clear its view that educational institutions in receipt of public funds, in particular state and state-aided schools of whatever type, have an obligation to observe scrupulously the provisions of the Constitution with respect to rights such as non-discrimination and equal access to educational institutions (sections 8 and 32). The duty of public educational institutions is to facilitate the access to education of all eligible members of the public, not to frustrate such access.
The right of all persons to basic education and to equal access to educational institutions must be upheld within the terms of chapter 3 of the Constitution. As the preceding discussion has made clear, the interpretation of these rights in particular cases may need to be balanced against the right of a learner to choose the language of instruction where this is reasonably practicable, or the right to establish an educational institution based on a common language, culture or religion, where this is practicable. In the case of public schools, whether state or state-aided, eligibility for admission should be defined principally in terms of the educational need of the applicant and the capacity of the school to meet that need, on the grounds that it is the duty of schools to educate. However, a school cannot be obliged to admit an applicant if, when all circumstances of the case are taken into account, a school in the vicinity which would more suitably meet the applicant's needs is able to do so.
The Ministry of Education is mindful of the need for each school to maintain the highest possible standard of education of which it is capable under the circumstances in which it finds itself. However, the maintenance of standards cannot under any circumstances justify admissions policies which are designed, directly or indirectly, to exclude applicants from the basic education to which they are entitled by right.
Other rights of the person
The rights of all persons to equality, human dignity, freedom and security of the person, privacy, assembly, demonstration and petition, association, political activity and choice, access to information and administrative justice, and the rights of children (sections 8, 10, 11, 13, 16, 17, 21, 23 and 24) have a direct or indirect bearing on the administrative and professional conduct of the education system.
Management practices, relations between school principals and their staffs, between teachers and students, between schools and parents, campus rules, disciplinary culture and procedures, student organisation, and much else, must come under the microscope in order to ensure compliance with the nation's new constitutionally-protected human rights culture.
Labour relations
Section 27 guarantees every person rights to fair labour practices, workers' rights to form and join trade unions, employers' rights to form and join employers' organisations, workers' and employers' rights to organise and bargain collectively, workers' right to strike for the purpose of collective bargaining, and employers' recourse to the lock-out for the purpose of collective bargaining.
The Education Labour Relations Act (1993) has established the Education Labour Relations Council as a collective bargaining and consultative forum for teachers and their employers in the state and state-aided sectors. Like all new legislation, this Act needs scrutiny in the light of practice, especially in regard to the constitutional, governmental and organisational changes which have come about since the measure was negotiated and enacted. The implications of the new Labour Relations Bill, published by the Minister of Labour for consultation, are being carefully considered. The Department of Education will consult the provincial Departments of Education and other employers of educators on this matter and looks forward to a full and open examination of the issues with the organisations of the teaching profession. The Ministry of Education is of course committed and also legally bound to uphold the rights guaranteed in section 27 of the Constitution and all other constitutional provisions relating to employment.
These provisions, while vital in the sphere of collective bargaining, do not exhaust the relations between educators and the Ministry of Education. In their professional capacity, individual educators, and, where appropriate, the organisations which represent them, have indispensable roles to play in many specific fields such as curriculum renewal and school governance, as well as in the broader arena of policy advice.
An Action Plan for Human Rights in Education
The 1993 Constitution is the nation's school of democratic practice. The implications of the fundamental rights provisions forthe conduct of the education and training system are not yet generally well understood, yet the rights and freedoms belong to all citizens and bind all government departments and educational institutions operating under law. The Ministry of Education would like to see the full resources of the nation's education system mobilised in support of the practice of fundamental rights, freedoms and responsibilities which the Constitution promotes and protects.
It would be appropriate to begin with a frank and searching self- examination, within every department and institution of the education system, of its own practice, tested against the Constitution's fundamental rights requirements. Information packs and checklists would need to be prepared in advance, and workshopped at all levels of the system. The self-examination should result in action plans within each school and educational institution, and within each branch and section of the education services at national and provincial levels. Implementation, reporting and evaluation should follow in a regular sequence, so that there is a purposeful, incremental improvement in human rights practice throughout the system.
It needs to be emphasised that the two objectives of the exercise are extremely serious. They are: to enable the charter of fundamental rights to become a vital element in the lives of every student, educator, manager and support worker in the education system; and to ensure that no education department or institution impairs or denies the rights of any person through ignorance of its responsibilities. There is absolutely no desire or intention on the part of the Ministry of Education to conduct or inspire witch-hunts, or to create a mentality of surveillance. Such actions would be a denial of fundamental rights and the precise opposite of what is needed.
The Ministry will consult the Council of Education Ministers, the technikons and universities, the National Education and Training Forum, and national teachers', students', and parents' organisations, and seek their views, advice and cooperation in implementing this Action Plan on Human Rights in Education in a way which offers the best prospect of success.
The objectives of this proposal are fully consistent with the terms of reference of the Human Rights Commission which will be established under the Constitution. The Ministry of Education will seek the advice and support of the Commission for its proposal, and explore with the Commission other ways in which the national education system might become associated with its work.
A Gender Equity Unit
The Constitution recognises the specific nature of gender inequality by establishing a Commission on Gender Equality. The national education system represents the single largest organisation in the nation. By virtue of its educational function, it has great potential influence on gender relations and on the respective career paths of men and women. However, within the education system there are worrying disparities between girls and boys, and many girls and women suffer unfair discrimination and ill-treatment.
Boys and young men drop out of school at a far higher rate than girls and young women. Girls and young women exhibit significantly narrower subject and career choices than boys and young men. Women are overwhelmingly represented in the teaching service, but are poorly represented among the ranks of school principals, and are barely visible in middle and senior management positions in education departments. Such phenomena have long histories and complex causes. The reasons for the poor representation of women in educational management are probably to be found as much in the values and gender role patterns of South African families and communities, as in the patriarchal culture of the South African bureaucracy.
At another level of gender relations, in many schools and other education institutions, including the most senior, social relations among students, and between staff and students, exhibit sexism and male chauvinism. Sexual harassment of girl and women students and women teachers, as well as acts of violence against women, are common in many parts of the education system, both on and off campus.
This entire situation must change. While appreciating that the problems are deep-seated within the society at large, the Ministry of Education believes that educators must show leadership in tackling them, and that the place to begin is within the education system itself. The Ministry is confident of forging a strong partnership between itself and the provincial Ministries of Education on this issue, and will seek collaboration also from the technikons and universities. The understanding and support of organisations of the teaching profession and student organisations will be greatly welcomed.
As a first step, the Ministry of Education proposes to appoint a Gender Equity Task Team led by a full-time Gender Equity Commissioner who shall report to the Director-General. The terms of reference of the Task Team will be to investigate and advise the Department of Education on the establishment of a permanent Gender Equity Unit in the Department of Education, initially with seconded or attached staff. In cooperation with provincial Departments of Education, through the Heads of Education Departments Committee, the Gender Equity Unit will study and advise the Director-General on all aspects of gender equity in the education system, and in particular:
1. identify means of correcting gender imbalances in enrolment, dropout, subject choice, career paths, and performance
2. advise on the educational and social desirability and legal implications of single-sex schools
3. propose guidelines to address sexism in curricula, textbooks, teaching, and guidance
4. propose affirmative action strategies for increasing the representation of women in professional leadership and management positions, and for increasing the influence and authority of women teachers
5. propose a complete strategy, including legislation, to counter and eliminate sexism, sexual harassment and violence throughout the education system
6. develop close relations with the organised teaching profession, organised student bodies, the Education Labour Relations Council, national women's organisations, and other organisations whose cooperation would be essential in pursuing the aims of the unit.
The Gender Equity Commissioner will be expected to establish close working relations with the national Commission on Gender Equality.
These proposals have been strongly supported by the public in their submissions on the draft of this document. The Ministry of Education intends to put them formally to the Council of Education Ministers without delay, to request their support for cooperative action on gender equity, and their consideration for a similar line of action within the provincial ministries. Similar requests will be made to the representative bodies of technikons and universities, and to the organisations representing teachers and students.

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1 The new system of education will be a single national system which is largely organised and managed on the basis of nine provincial sub-systems. The Constitution has vested substantial powers in the provincial legislatures and governments to run educational affairs (other than universities and technikons) subject to a national policy framework. The essence of the relationship between the national and provincial governments is co-operative.

2 That being so, the Ministry of Education is acutely sensitive to the need for the closest possible co-operation between the national Department of Education and each of the provincial education departments on matters relating to the formulation of national education policy and the effective management of the system.

3 This chapter describes how the co-operation between national and provincial governments in the field of education will be managed. It then explains how the Constitution assigns legislative responsibility for education and training matters between the national and provincial levels. The chapter concludes with an account of the national Department of Education's role in shaping the new system.

The Council of Education Ministers and the Heads of Education Departments Committee

4 Two bodies have been created to enable the ministries and departments to share information and advice, and to collaborate on plans for the transition to provincialisation and the future direction of the national system.

5 The first of these is a Council of Education Ministers (CEM), which comprises the national Minister of Education, the national Deputy Minister of Education, and the nine provincial Ministers of Education. It has met monthly since May 1994, and will continue to meet regularly to ensure an optimum level of dialogue between the persons who have responsibility for the education portfolio throughout the country. The CEM will be an important forum for clarifying the constitutional division of responsibility for education between the national and provincial legislatures. It will also provide a unique and invaluable inter-provincial perspective on the development of national education and training policy.

6 The second structure is a Heads of Education Departments Committee (HEDCOM), which from January 1995 consists of the heads of the national and the nine provincial Departments of Education. This body will advise the national Minister of Education and the Council of Education Ministers, and will provide a regular forum for the administrative heads of education departments to consult and collaborate in the interests of the system as a whole. Significant investigative work will also be undertaken on policy matters referred to HEDCOM by the national Minister of Education and the CEM.

7 The new HEDCOM replaces the Committee of Heads of Education Departments (CHED) which, in the past, brought together the heads of the ethnically-based executive departments and the former Department of National Education. To provide a bridge to the new HEDCOM, to enable essential planning to be done for the establishment of provincial departments, and to prepare for the 1995 school year, the old body was expanded with representation from the national Minister's and nine provincial Ministers' offices.

8 The Ministry of Education intends to table legislation during the 1995 Parliamentary Session which will provide a statutory basis for the Council of Education Ministers and the new Heads of Education Departments Committee, and the small secretariat they will require. These structures are important vehicles of cooperation between the national and provincial levels of government. The conceptualisation and drafting of the legislation will need to be done collaboratively, and must express without ambiguity the respective competences and functions of the national and provincial authorities, and the terms of their co-operation.

Legislative powers in education

9 Education at all levels, excluding university and technikon education, is listed in Schedule 6 to the Constitution as one of the "functional areas" in which provincial legislatures are competent to make laws, subject to a rather complex set of rules. (section 126) There is no doubt that the intention of the Constitution is to empower provincial governments with executive responsibility for education within their provinces (other than universities and technikons), subject to the national government's responsibility to protect essential national interests.

10 The following propositions attempt to interpret the effect of the constitutional provisions concerning legislative competence and executive authority as they apply to the field of education. (sections 37, 126 and 144)

(1)Provincial legislatures may make laws on any aspect of education except universities and technikons, in accordance with the Constitution. A provincial law may apply only in that province, unless an Act of Parliament determines otherwise.

(2)The national Parliament may make laws on any aspect of education, in accordance with the Constitution. Its laws apply throughout the country. Only the national Parliament is competent to legislate on universities and technikons.

(3)Where both a provincial law and a national law deal with education other than universities and technikons, the provincial law will prevail except in so far as the national law

(a)applies uniformly throughout the Republic

(b)deals with a matter which cannot be regulated effectively by provincial legislation

(c)deals with a matter which requires uniform national norms or standards in order to be performed effectively

(d)is necessary to set minimum national standards for rendering public services

(e)is necessary for the maintenance of economic unity, the protection of the environment, and the protection of the common market between provinces in respect of the mobility of goods, services, capital or labour.

(4)A national law on education, other than universities and technikons, will prevail over a provincial law to the extent that the latter materially prejudices the economic, health or security interests of another province or the country as a whole, or impedes the implementation of national economic policies.

(5)A provincial and a national law dealing with education other than universities and technikons will be construed as being consistent with one another except in so far as part or all of one law is "expressly or by necessary implication" inconsistent with the other.

(6)A provincial legislature may recommend to Parliament the passing of a law on a matter

(a) in which it has no competence, such as universities or technikons, or

(b) in respect of which a national law prevails over a provincial law in terms of the circumstances outlined at (3) and (4) above.

Parliament need not comply with the recommendation.

(7)Training is not referred to as such in the body of the Constitution or listed in Schedule 6. (The national Ministries of Education and of Labour are consulting each other over the identification and location of training functions.)

(8)The national Parliament may make laws which delegate certain education or training responsibilities to provincial governments.

(9)In the event of a dispute of a constitutional nature between organs of state at any level, including a dispute between the national Parliament and a provincial legislature concerning the exercise of legislative competence, the Constitutional Court has jurisdiction to determine the matter.

11 The Ministry of Education is determined to help make these provisions work effectively, for the benefit of the entire national system of education. The Council of Education Ministers is the forum which will permit regular reviews of the common interests of the national and provincial Ministers. Any difference of interpretation with respect to their respective powers and responsibilities can be examined and, in principle, resolved by that body.

12 There is an obvious advantage in reconciling both the views and the proposed legislation of the national and provincial Ministers of Education. All draft legislation prepared by the national Department of Education which bears on the competence of provincial Ministers will be submitted to the Council of Education Ministers for advice. The Ministry of Education would welcome a reciprocal arrangement by the provincial Ministries of Education.

13 Close co-ordination will be required in another sphere: between the Department of Labour on the one hand, and the national and provincial education departments on the other, with respect to their common interests in the training function. A permanent inter-Ministerial Working Group has been proposed, to manage all aspects of the relations between the two sectors.

14 The overall management of training policy is of the greatest strategic importance for the human resource development programme of the RDP. The Ministry of Education looks forward to concluding its discussions with the Ministry of Labour and key stakeholders (organised business, organised labour and the National Training Board) on the National Qualification Framework Bill, and the practical implications of the constitutional assignment of functions for the implementation of an integrated approach to education and training.

15 There is urgent need for both Ministries to clarify the practical implications of the constitutional assignment of functions for the implementation of an integrated approach to education and training. In particular, all parties concerned need to decide how education and training programmes falling under provincial education departments (in particular, secondary, adult, technical, community and teacher education) will engage with the labour-market related training services for which the national Department of Labour has portfolio responsibility.

Role and functions of the national Department of Education

16 Since legislative competence in education (other than technikons and universities) has been assigned to provincial legislatures, the Ministry of Education wishes to state its views on the education functions which must be undertaken at the national level.

17 The Minister will uphold the Constitutional Principle which requires that the allocation of powers to the national and provincial governments in the new Constitution be made on a basis

"which is conducive to financial viability at each level of government and to effective public administration, and which recognises the need for and promotes national unity and legitimate provincial autonomy and acknowledges cultural diversity."

In particular, the Minister is sensitive to the criterion that decision-making and rendering of services should be assigned to the level of government where they can be undertaken most effectively. (Schedule 4, XX)

18 The national functions described below, therefore, do not impair or infringe upon the legislative or executive competence conferred on the provinces by the Constitution. One of the main duties of the national Department of Education is to facilitate and support the work of the provinces.

19 Education matters at national level are dealt with by the Minister of Education and his Deputy Minister, assisted by the Department of Education.

20 A national Department of Education has the responsibility to make a definite impact on education in the country as a whole. It does so in part by preparing the general policy of the government on education. Policy must underlie the preparation of the norms and standards in education for which the department is responsible, and the department's advice on budget allocations for all education services, national and provincial. Relations with provincial departments of education must be guided by the national policy on education within which the provincial departments develop their own policies, set their priorities and implementation programmes. The department's interaction with the Reconstruction and Development Programme is undertaken in terms of its general policy on an integrated approach to education and training.

21 With these considerations in mind, the role of the Department of Education, in terms of the functions assigned to it, will be:

To promote the translation of the education and training policies of the Government of National Unity (including the Reconstruction and Development Programme), and the provisions of the Constitution, into a national framework within which higher education institutions and provincial education departments can make the most effective contribution to the development of the nation's human resources.

22 In undertaking its role, the Department of Education is empowered by the Constitution, either specifically or by inference, to:

(1)Promote compliance with the constitutional guarantees relating to education: basic education for all persons; equal access to educational institutions; non-discrimination in the system; protection of linguistic, cultural and religious diversity; protection of academic freedom; equitable funding;

(2)Establish and maintain a national Education Management Information System (EMIS), collaborate with the Department of Labour and other departments in extending the system to cover information on training provision and performance, and manage an appropriate research and development programme, in order to determine national needs, encourage and evaluate innovation, and monitor delivery and performance;

(3)Establish norms and standards with respect to curriculum frameworks, standards, examinations and certification;

(4)Establish a National Qualification Framework to ensure uniformity of standards and compliance with minimum standards across all fields of learning, and to promote access and mobility of learners within the education and training system;

(5)Establish norms and standards for equitable funding of educational provision, and for the employment and deployment of educators;

(6)Advise the Financial and Fiscal Commission, in consultation with the provincial governments, on the requirements for equitable financing of education in the provinces and among provinces, including the resource implications of the maintenance of national norms and standards, and the provision of conditional or unconditional financial allocations to the provinces from national revenue, in line with national and provincial needs and priorities;

(7) Provide assistance to the provincial governments, where required, for the maintenance of minimum standards of public service in education;

(8) Establish co-operative relationships with other departments with which the Department of Education shares common interests, particularly the RDP Office, the Department of Labour (in respect of training, career guidance and the NQF), the Departments of Health, and Welfare and Population Development (in respect of school nutrition, early childhood development, education support services, AIDS education, population education), the Department of Arts, Culture, Science and Technology (in respect of Library and Information Services, the educational role of museums, school art and culture programmes, language development, the promotion of science and technology, and research funding policy), the Department of Environmental Affairs and Tourism (in respect of environmental education), the Department of Sport and Recreation (in respect of sport development in educational institutions);

(9)Conduct international relations in the education field, in cooperation with the Departments of Foreign Affairs, the RDP Office and the Department of Finance in the case of external financial assistance, and other departments in the case of shared international professional interests;

(10)Maintain co-operative relations with provincial Departments of Education with respect to all of the above functions;

(11) Maintain close co-operation with the university and technikon sectors, for which the Department of Education has direct responsibility.

23 The process, specified in the Constitution, by which the new national and provincial departments of education are being constructed from the former structures, is described in the following chapters.

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Chapter Nine

The Transition To New National and Provincial Departments

Introduction

1 The public management of education in South Africa is in the throes of massive change. This chapter describes the process of provincialisation of the system, which is taking place alongside the creation of a new national Department of Education. The establishment of new provincial departments means assembling nine different jigsaw puzzles from the pieces of ethnic administration located in those provinces, and connecting different personnel and other vital systems together so that single coherent provincial education departments can function.

2 This chapter describes how this process is being managed, identifies the risks and the opportunities involved, and sets out how the Ministry of Education believes these can be responded to. The chapter concludes with an account of what is being done to prevent serious disruption of the delivery of educational services while the new national and provincial departments are being established.

3 Budgetary and financial matters are reserved for discussion in Part 4.

The rationalisation process

4 The government is committed to the establishment of a lean yet effective system of educational administration. In terms of the 1993 Constitution, the ethnically-based education departments or services responsible for providing education under the previous Constitution are being dissolved and their functions and personnel rationalised into nine new non-racial provincial education departments. Once the provincial departments have been consolidated and their staff establishments rationalised in line with the government's policies, the new structure of organisation will be considerably less complicated and should be more cost-effective than the one it replaces.

5 At the national level, the education functions of the former Department of National Education, which had been responsible for education policy (including norms and standards), information and budgets, have been absorbed into the new national Department of Education. The new department has taken over the functions of the Education Co-ordination Service, whose mandate was to make technical preparations for the provincialisation of education services. The new single Department of Education has been redesigned, in consultation with the Public Service Commission, to make it more suited to meeting the national need for a reconstructed education system.

6 The process of amalgamating existing ethnically-based departments into new provincial education departments is extremely complex. It is perhaps one of the larger and more difficult exercises in organisational change to have been attempted anywhere in so short a time. Structural disparities and inequities between the existing departmental organisations have to be eliminated in the new provincial departments. Uniform payroll, personnel, accounting, logistical and information systems must replace the variety of management systems which the present departments employ.

7 While the unification process is proceeding in each province, the management and staffing of the education system must continue to function, and schools and colleges must do their work, with as little interruption as possible.

8 The Ministry of Education is convinced that until structural amalgamation has taken place it will be impossible to ensure the development of an equitable, accessible and effective education system. The creation and smooth operation of a new national Department and nine new provincial Departments of Education, working in close liaison with each other, is therefore a fundamental policy objective of the Ministry.

9 Provincial Ministers of Education, with political accountability for education other than university and technikon education in their provinces, have been in post since May 1994. In the absence of single provincial Departments of Education, each minister has been obliged to work with the inherited ethnically-based education departments or part-departments operating within their provinces, and have set up suitable transitional structures and strategic management teams to handle liaison and forward planning.

10 The Ministry of Education, in cooperation with the Public Service Commission, has facilitated the assignment of political responsibility for existing education laws to political office-bearers in the provinces. The appointment of permanent provincial heads of education departments, together with key financial, administrative and personnel staff, is now extremely urgent, both to provide advice to provincial ministers and to assume responsibility for the creation and management of provincial departments. Such appointments are a prerequisite for the development of an education system which is free from discrimination on any grounds whatsoever, which is fully accountable and efficiently organised, and which is recognised as legitimate by the public it serves.

Creating a new national education department

11 The legislative basis of a national Department of Education has been laid by Presidential Proclamation, and a Director-General has been appointed. The education functions of the former Department of National Education (which has ceased to exist) have been phased into the new department. National-level functions (notably accountability for university and technikon matters) previously held by other education departments have been transferred to the Department of Education.

12 The Department of Education will have the necessary infrastructure to enable it to play its essential role in the reconstruction of the education system in South Africa. The Ministry is committed to the finalisation of the process of restructuring and rationalising the new department in the shortest possible time. Affirmative action principles are being applied in making appointments and promotions in the new department, in accordance with the policy of the Public Service Commission for the rationalisation of the public service and the improvement of representivity. Employees' constitutional and statutory rights will be fully upheld.

13 These measures comply with the constitutional requirements to

"promote an efficient public administration broadly representative of the South African community (section 212 (2) (b)),

and to take into account

"the qualifications, level of training, merit, eff iciency and suitability of the persons who qualify for the appointment, promotion or transfer concerned. . . ." (section 212(4))

14 The organisational structure of the new department was proposed to the Public Service Commission and agreed. It reflects its responsibilities under the 1993 Constitution and accommodates many of the Ministry of Education's policy imperatives, but not all. The structure is not final. It marks a stage in a developmental process.

15 The new department will soon reflect a wider range of perspectives as it becomes more representative of the broad population. New needs will become apparent as it responds to the challenges of educational reconstruction. The department's responsibilities in the field of training will be re-assessed once the agreement between the Ministers of Education and Labour on this matter has been approved by the Cabinet. Adjustments may be needed when the rationalisation process ends and the new provincial departments become fully operational. The structure of the department will therefore be kept under review, and changes will be made when necessary in the interests of better policy development and implementation.

16 For the time being, the new Department of Education will be organised in three branches: Education and Training Systems and Resources, Education and Training Programmes, and Education and Training Support, which will work in close cooperation with each other.

17 Education and Training Systems and Resources. This branch will be responsible for researching, planning and evaluating the overall design, coordination and performance of the education and training system, and providing leadership in the policy applications of innovative solutions to national learning needs, such as open learning. This branch will service the Council of Education Ministers, the Heads of Education Departments Committee and other consultative bodies established by statute or otherwise. It will co-ordinate the relations of the national and provincial departments with the Reconstruction and Development Programme. It will manage international co-operation in education and training within the Department's competence, including development co-operation, and relations with international organi- sations in education and training. It will develop and maintain the Education Management Information System in collaboration with provincial departments of education, undertake human resource develop- ment planning to assess demand for education and training services, and will be responsible for national financial planning and budget development.

18 Education and Training Programmes. This branch will be responsible for coordinating preparatory work on the draft legislation for the National Qualification Framework (in collaboration with the Inter-Ministerial Working Group and with the Ministry of Labour). It will be responsible for the research and development of national norms and standards for educational programmes across the spectrum at all levels. The co-ordination of new developmental initiatives will be done in this branch, in areas like Early Childhood Development, Adult Basic Education and Training, Vocational and Community Education and Training, Distance Education, and the educational applications of Electronic Media and Telecommunications. The feasibility study for a National Institute for Curriculum Development, and preparations for the National Open Learning Agency will be launched here. With regard to universities and technikons, the branch will deal with programme policy and provide management support services, including with respect to the execution of financial policy. It is also the responsibility of the branch to develop standards for educator programmes.

19 Education and Training Support. This branch will be responsible for all service matters affecting educators, and for managing labour relations, including the department's dealings with the Education Labour Relations Council. The branch will also be equipped to deal with the department's internal and external communication needs, and its administrative, legislative and financial requirements.

20 The modus operandi of the relationship between the national and provincial education departments is of vital importance. Since all of these structures will be new, it is to be expected that management and communication systems will evolve over time with a certain amount of trial and error. However, the working relationship between the two levels will need to be as thoroughly planned as possible. The Heads of Education Departments Committee will provide the appropriate forum for this to be arranged.

Creating new provincial education departments

21 Planning for the establishment of new provincial education departments is being undertaken by the provincial Ministries of Education in close liaison with the national Ministry and Department and heads of the former executive departments, both by direct consultation and through the Council of Education Ministers and the Heads of Education Departments Committee.

22 Since the creation of provincial education departments is part of the even broader process of establishing provincial administrations and rationalising the public service, the Public Service Commission, the offices of the Provincial Premiers, Provincial Service Commissions (where these are in place), and the Commission on Provincial Government, are important partners in the process.

23 Each provincial department will be a completely new structure. In principle, none of the formerdepartments operating in a province should dominate or absorb the others. Bringing the new provincial education departments into being will require:

The amalgamation of all the existing education departments or part- departments, operating within the boundaries of a province, into a single provincial departmental structure.
The disestablishment of the head off ices of the former Department of Education and Training (DET) and the three Education and Culture Services (ex Assembly, Delegates and Representatives), and the assignment of relevant posts to the nine provincial education departments.
The combination of the head offices of the education departments in the former SGTs and TBVC territories with part-departments operating within a province.
The disestablishment of the head offices and regional offices of departments which formerly operated across the borders of new provinces (Bophuthatswana, Transvaal Education Department, Cape Education Department, and the DET Regional Offices) and the assignment of the relevant posts to the new provincial education departments.
Once the process of assigning posts to the new departments has been completed, the rationalisation of posts will be undertaken by the provincial authorities concerned, in consultation with the Commission on Provincial Government and Provincial Service Commissions, where these are already in place.
The reorganisation, over a period of time, of all education structures within a province at the regional and sub-regional level into a new system of sub-provincial management.

24 The Ministry of Education is aware that the 1993 Constitution gives national departments no locus standi with respect to the process of departmentalisation at provincial level. These matters are the responsibility of provincial governments, the Provincial Service Commissions where they exist, the Public Service Commission and the Commission on Provincial Government. However, the Ministry of Education has a clear interest in the departmentalisation process, and has established a provincialisation task team to work in collaboration with the new provincial departments in order to facilitate the winding up of the old ethnic departments, the efficient transfer of functions, staff and assets, and the establishment of effective administrative systems. Agreements already concluded between the national and provincial Ministers of Education will enable agency services to be provided on request should these be needed.

25 In undertaking this process of amalgamation and rationalisation, the constitutional requirement, to promote a non-partisan, efficient, and broadly representative public service, will be upheld. The Ministry of Education appreciates that the process of creating new departments will affect very large numbers of staff members. Their rights in law, subject to the provisions of the Constitution, will be fully recognised.

Staffing the new departments

26 The reallocation of education functions between the national and provincial levels of government will require that personnel establishments and organisational structures of education departments be totally revised.

27 Past discrimination has led to serious inequities in the distribution of education managerial capacity both within and between provinces. In the process of disestablishing former central departments of education, it is important to ensure that as far as possible the available managerial capacity is equitably distributed.

28 The administrative structures of the previous departments will not apply. At every level beyond the school-whether in circuits, districts or areas-new structures will be needed, including new head offices.

29 The Ministry recognises that the location of provincial capitals could in certain instances place the personnel of some former education departments at an advantage when new head offices are established. The structuring of new head offices and the staffing of sub-structures in the province should as far as possible draw personnel from all previous departments within the province.

30 While the processes of creating provincial education departments are a primary responsibility of the provincial governments, the Ministry of Education believes that the new single provincial education departments (like the new single national department) will fail the test of public acceptability if there is not a demonstrable equity in the recruitment and placing of personnel.

31 The staffing of the new education bureaucracy must be guided by the constitutional principles of representivity, non-partisanship, and expertise. With sensitivity to previous discrimination, qualified people who were previously unable to gain access to the education public service must be recruited. The representation of Black people and women, especially in senior and middle management echelons, must be improved by a deliberate programme of staff development, affirmative action and the encouragement of lateral entry.

32 The Ministry of Education is convinced that re-training of present education off icials will be necessary once they have been placed in new national and provincial departments, and attaches a high priority to initiatives which will develop unified management teams at various levels within the new education bureaucracy as soon as possible.

33 The establishment of new education departments will not affect the position of educator personnel in broad terms. The Ministry of Education is highly sensitive to the need for as many well-qualified teachers as possible.

Replacing old legislation with new

34 Education legislation in South Africa has been essentially of two kinds-that which has regulated education policy formulation at the central level, and that which has regulated the provision of education in schools or other institutions. The former did not apply to all the education systems operating in South Africa prior to the elections, while the latter reflected the fragmented nature of South Africa's education system.

35 Existing education legislation is therefore wholly inappropriate to the new national and provincial systems, and must be replaced with new or revised legislation as a matter of urgency.

36 The Ministry of Education will introduce legislation in 1995 for the efficient management of the new system and the declaration of new policy. Among other matters such legislation will deal with the establishment of coordinating bodies such as the Council of Education Ministers and the new Heads of Education Departments Committee, new statutory consultative bodies, curriculum policy, the establishment of a National Qualification Framework, and educator personnel.

Consultative bodies

37 The Ministry of Education is committed to openness and consultation in the management of education. However, it has inherited in existing laws a fragmented system of education consultation which reflects the racially- divided nature of the former South Africa. These must be replaced by a representative body or bodies which can provide effective channels for debate on and communication of public concerns on education and training policy and its implementation, which will provide advice to the Minister and be available for consultation by the Minister on matters within his or her competence. (The Ministrywill support similar legislative steps at provincial level.) In preparation for setting up the new structures, the Ministry will seek the advice of a wide range of stakeholders in education and training, including especially the organised teaching profession, organised students, parent organisations, and the National Education and Training Forum.

Maintaining delivery of educational services during the transition

38 The provincial education departments are new structures on which exceptional demands are being placed, especially since the start of the new school year in January 1995. Political responsibility for the provision and maintenance of services, other than technikons and universities, now rests with the provincial governments, but the national Ministry of Education will give whatever support it can to the provincial ministries, including (on request, and by agreement) the provision of services on an agency basis, in order to ensure that educational services are as well maintained as possible during the period of transition. The rapid-response mechanism established by the Department (see paragraph 24) will keep channels of communication open between the relinquishing departments and the new provincial departments, and provide immediate technical assistance to the latter on request. These measures are in addition to the planning undertaken by the Heads of Education Departments Committee at the request of the Council of Education Ministers.

39 For a short period an increase in the number of persons employed in the education administration sector will be unavoidable, since new management systems must be put in place while existing services are maintained. The number of education administration personnel can be reduced as soon as the full rationalisation of provincial education departments has taken place.

40 The Ministry of Education is committed to fostering additional managerial capacity in the education system so that the quality of educational services can be enhanced, even if additional financial resources may not be available as rapidly as government would wish.

41 While the transition to single national and provincial departments of education is in process, it will be difficult to improve the quality of educational services quickly, especially as departments are coping simulta- neously with reorganisation and a rapid increase in school enrolments. However, provincial Ministries of Education are planning priority projects under the Reconstruction and Development Programme which will target those communities whose basic educational services are critically lacking or totally inadequate.

42 The understanding and co-operation of the people served by our schools and other educational institutions will be a major asset in assisting the education system to come successfully through the process of transition. The government accepts the obligation to keep the public, especially parents, fully informed of what is happening.

43 The establishment of active Provincial Education and Training Forums, and similar forums at local levels, provide a vital channel of communication and advice between provincial education departments and the people they serve. In the same vein, well-informed, representative school governing bodies are an essential asset in helping schools to manage the changes which provincialisation and new policies have brought. They are able to prepare both the school communities and the wider communities they serve to take advantage of the opportunities and challenges which the new, non-racial provincial education system offers.

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Part 3 - The Constitutional and Organisational Basis of The New System

Chapter Six

Education and Training In The 1993 Constitution

Chapter Seven

Fundamental Rights To Education and Training, and Within Education and Training

Chapter Eight

National and Provincial Powers In Education and Training

Chapter Nine

The Transition To New National and Provincial Departments