Constitutional, Legislative and Other Mandates

CONSTITUTIONAL, LEGISLATIVE AND OTHER MANDATES

TABLE OF CONTENTS

1.CONSTITUTION OF RSA

2.LABOUR RELATION ACT 66 OF 1995

3.BASIC CONDITION OF EMPLOYMENT ACT 75 OF 1997

4.EMPLOYMENT OF EDUCATORS ACT 76 OF 1998

5.FURTHER EDUCATION AND TRAINING COLLEGES ACT 16 OF 2006

6.CHILDREN’S’ BILL OF RIGHTS OF 2007

7.SEXUAL OFFENCES ACT NO 32 OF 2007

8.CHILD CARE ACT NO 74 OF 1983 AMENDED 01-04-2010

9.CRIMINAL PROCEDURE ACT NO 65 OF 2008

SUPPORTING LEGISLATION

1.EMPLOYMENT EQUITY ACT 55 OF 1998

2.SKILLS DEVELOPMENT ACT 97 OF 1998

3.PUBLIC FINANCE MANAGEMENT ACT 1 OF 1999

4.PROMOTION OF ACCESS TO INFORMATION ACT 54 OF 2002

CONSTITUTIONAL, LEGISLATIVE AND OTHER MANDATES

1.CONSTITUTION OF RSA

Section 17: Assembly, demonstration, picket and petition.

Everyone has the right, peacefully and unarmed, to assemble, to demonstrate, to picket and to present petitions.

Section 18: Freedom of association.

Everyone has the right to freedom of association.

Section 23: Labour relations

(l)Everyone has the right to fair labour practices.

(2)Every worker has the right-

(a)to form and join a trade union;

(b)to participate in the activities and programmes of a trade union; and

(c)to strike.

(3)Every employer has the right-

(a)to form and join an employers’ organisation; and

(b)to participate in the activities and programmes of an employers’ organisation.

Section 28: Children

(1)Every child has the right-

(a)to a name and a nationality from birth;

(b)to family care or parental care, or to appropriate alternative care when removed from the family environment ( in loco parentis );

(c)to basic nutrition, shelter, basic health care services and social services;

(d)to be protected from maltreatment, neglect, abuse or degradation;

(e)to be protected from exploitative labour practices;

(f)not to be required or permitted to perform work or provide services that-

(i)are inappropriate for a person of that child’s age; or

(ii)place at risk the child’s well-being, education, physical or mental health or spiritual, moral or social development;

(g)not to be detained except as a measure of last resort, in which case, in addition to the rights a child enjoys under sections 12 and 35, the child may be detained only for the, shortest appropriate period of time, and has the right to be -

(i)kept separately from detained persons over the age of 18 years; and

(ii)treated in a manner, and kept in conditions, that take account of the child’s age;

(h) to have a legal practitioner assigned to the child by the state, and at state expense, in civil proceedings affecting the child, if substantial injustice would otherwise result; and not to be used directly in armed conflict, and to be protected in times of armed conflict.

(2)A child’s best interests are of paramount importance in every matter concerning the child.

(3)In this section “child” means a person under the age of 18 years.

Section 29: Education

(l)Everyone has the right-

(a)to a basic education, including adult basic education; and

(b)to further education, which the state, through reasonable measures, must make progressively available and accessible.

(2) Everyone has the right to receive education the official language or languages of their choice in public educational institutions where that education is reasonably practicable. In order to ensure the effective access to, and implementation of, this right, the state must consider all reasonable educational alternatives, including single medium institutions, taking into account-

(a)equity;

(b)practicability; and

(c)the need to redress the results of past racially discriminatory laws and practices.

(3)Everyone has the right to establish and maintain, at their own expense independent educational institutions that-

(a)do not discriminate on the basis of race;

(b)are registered with the state; and

(c)maintain standards that are not inferior to standards at comparable public educational institutions.

(4)Subsection (3) does not preclude state subsidies for independent educational institutions

Section 39: Interpretation of Bill of Rights

(1) When interpreting the Bill of Rights, a court, tribunal (ELRC) or forum-

(a)must promote the values that underlie an open and democratic society based on human dignity, equality and freedom;

(b)must consider international law; and

(c)may consider foreign law.

(2) When interpreting any legislation, and when developing the common law or customary law, every court, tribunal (ELRC) or forum must promote the spirit, purport and objects of the Bill of Rights.

(3) The Bill of Rights does not deny the existence of any other rights or freedoms that are recognised or conferred by common law, customary law or legislation, to the extent that they are consistent with the Bill.

2.LABOUR RELATION ACT 66 OF 1995

Section 28: Powers and functions of bargaining council (ELRC)

(1) The powers and functions of a bargaining council in relation to its registered scope include the following -

(a) “To conclude collective agreements;

(b) To enforce those collective agreements;

(d) To perform dispute resolution functions referred to in section 51;

(e) To establish and administer a fund to be used for resolving disputes;

(f) To promote and establish training and education schemes;

(g) To establish and administer … training schemes or funds or any similar schemes or funds for the benefit of one or more of the parties to the bargaining council or their members;

(h) To develop proposals for submission to NEDLAC or any other appropriate forum on policy and legislation that may affect the sector and area;

(i) To determine by collective agreement the matters which may not be an issue in dispute for the purposes of a strike or a lock-out at the workplace;

(j) To confer on workplace forums additional matters for consultation;

(k) To provide industrial support services within the sector; and

(l) To extend the services and functions of the bargaining council to workers in the informal sector and home workers.”

Section 51: Dispute resolution function of council

(1) In this section , dispute means any dispute about a matter of mutual interest between-

(a) On the other side-

(i) One or more trade unions

(ii) One or more employees; or

(iii) One or more trade unions and one or more employees; and

(b) On the other side-

(i) One or more employers’ organisations;

(ii) One or more employers; or

(iii) One or more employers’ organisations and one or more employers.

(2) (a) (i) The parties to a council must attempt to resolve any dispute between

themselves in accordance with the constitution of the council.

(ii) For the purposes of subparagraph (i), a party to a council includes the members of any registered trade union or registered employers’ organisation that is a party to the council.

(c) Any party to a dispute who is not a party to a council but who falls within the registered scope of the council may refer the dispute to the council in writing.

(d) The party who refers the dispute to the council must satisfy it that a copy of the referral has been served on all the other parties to the dispute.

(3) If a dispute is referred to a council in terms of this Act and any party to that dispute is not a party to that council, the council must attempt to resolve the dispute-

(a) Through conciliation; and

(b) If the dispute remains unresolved after conciliation, the council must arbitrate the dispute if-

(i) This Act requires arbitration and any party to the dispute has requested that it be resolved through arbitration; or

(ii) All the parties to the dispute consent to arbitration under the auspices of the council.

(4) If one or more of the parties to a dispute that has been referred to the council do not fall within the registered scope of that council, it must refer the dispute to the Commission.

(5) The date on which the referral in terms of subsection (4) was received by a council is, for all purposes, the date on which the council referred the dispute to the Commission.

(6) A council may enter into an agreement with the Commission or an accredited agency is to perform, on behalf of the, its dispute resolution functions in terms of this section.

(7) Subject to this Act, a council may not provide in a collective agreement for the referral of disputes to the Commission, without prior consultation with the director.

(8) Unless otherwise agreed to in a collective agreement, sections 142 A and 143 to 146 apply to any arbitration conducted under the auspices of a bargaining council.

(9) A bargaining council may by collective agreement establish procedures to resolve any dispute contemplated in this section.

Section 64: Right to strike and recourse to lock-out

(1) Every employee has the right to strike and every employer has recourse to lock-out

(2) If the issue in dispute concerns a refusal to bargain, an advisory award must have been made in terms of section 135 (3) (c) before notice is given in terms of subsection (1) (b) or (c).

(3) The requirements of subsection (1) do not apply to a strike or a lock out

(4) Any employee who or any trade union that refers a dispute about a unilateral change to terms and conditions of employment to a council or the Commission in terms of subsection (1a)

(5) The employer must comply with a requirement in terms of subsection (4) within 48 hours of service of the referral of the employer

Section 65: Limitations on right to strike or recourse to lock-out

(1) No person may take part in a strike or a lock-out or in any conduct in contemplation or furtherance of a strike or a lock-out if –

(a) That person is bound by a collective agreement that prohibits a strike or lock-out in respect of the issue in dispute;

(b) The person is bound by an agreement that requires the issue in dispute to be referred to arbitration;

(c) The issue in dispute is one that a party has the right to refer to arbitration or to the Labour Court in terms of this Act;

(d) That person is engaged in –

(i) An essential service or

(ii) A maintenance service

Section 66: Secondary strikes

(1) In this section “secondary strike” means a strike, or conduct in contemplation or furtherance of a strike, that is in support of a strike by other employees against their employer but does not include a strike in pursuit of a demand that has been referred to a council if the striking employees, employed within the registered scope of that council, have a material interest in that demand.

Section 67: Strike or lock-out in compliance with this Act

(1) In this chapter “protected strike” means a strike that complies with the provisions of this chapter and “protected lock-out” means a lock-out that complies with the provisions of this chapter

Section 68: Strike or lock-out not in compliance with this Act

(1) In the case of any strike or lock-out, or any conduct in contemplation or in furtherance of a strike or lock-out, that does not comply with the provisions of this Chapter, the Labour Court has exclusive jurisdiction-

(a) To grant an interdict or order to restrain

(i) Any person from participating in a strike or any conduct in contemplation or in furtherance of a strike or

(ii) Any persons from participating in a lock-out or any conduct in contemplation or in furtherance of a lock-out

Section 69: Picketing

(1) A registered trade union may authorise a picket by its members and supporters for the purpose of peacefully demonstrating

(a) In support of any protected strike; or

(b) In opposition to any lock-out

(2) Despite any law regulating the right of assembly, a picket authorised in terms of subsection (1) may be held –

(a) In any place to which the public has access but outside the premises of an employer; or

(b) With the permission of the employer, inside the employer’s premises

Section 77: Protest action to promote or defend socio-economic interests of workers

(1) Every employee who is not engaged in an essential service or a maintenance service has the right to take part in protest action if –

(a) The protest action has been called by a registered trade union or federation of trade unions;

(b) The registered trade union or federation of trade unions has served a notice on NEDLAC stating –

(i) The reason for the protest action; and

(ii) The nature of the protest action

3.BASIC CONDITION OF EMPLOYMENT ACT 75 OF 1997

Section 49: Variation by agreement

49.(1) A collective agreement concluded in a bargaining council may alter, replace or exclude any basic condition of employment if the collective agreement is consistent with the purpose of this Act and the collective agreement does not—

(a)reduce the protection afforded to employees by sections 7, 9 and any regulation made in terms of section 13;

(b)reduce the protection afforded to employees who perform night work in terms of section 17(3) and (4);

(d) reduce an employee’s entitlement to maternity leave in terms of section 25;

(e) reduce an employee’s entitlement to sick leave in terms of sections 22 to 24;

(f) conflict with the provisions of Chapter Six.

(2) A collective agreement, other than an agreement contemplated in subsection (1), may replace or exclude a basic condition of employment, to the extent permitted by this Act or a sectoral determination.

(3) An employer and an employee may agree to replace or exclude a basic condition of employment to the extent permitted by this Act or a sectoral determination.

(4) No provision in this Act or a sectoral determination may be interpreted as permitting—

(a) a contract of employment or agreement between an employer and an employee contrary to the provisions of a collective agreement;

(b) a collective agreement contrary to the provisions of a collective agreement concluded in a bargaining council.

4.EMPLOYMENT OF EDUCATORS ACT 76 OF 1998

Section 6: Powers of Employers

6. (1) Subject to the provisions of this section, the appointment of any person, or the promotion or transfer of any educator-

(a) In the service of the Department of Education shall be made by the Director-General; or

(b) In the service of the provincial department of education shall be made by the Head of Department.

(2) Subject to the provisions of this Chapter, the Labour Relations Act or any collective agreement concluded by the Education Labour Relations Council, appointments in, and promotions or transfers to, posts on any educator establishment under this Act shall be made in accordance with such procedure and such requirements as the Minister may determine.

(3) (a) Any appointment, promotion or transfer to any post on the educator establishment of a public school or a further education and training institution, may only be made on the recommendation of the governing body of the public school or the council of the further education and training institution, as the case may be, and, if there are educators in the provincial department of education concerned who are in excess of the educator establishment of a public school or further education and training institution due to operational requirements, that recommendation may only be made from candidates identified by the Head of Department, who are so in excess and suitable for the post concerned.

(b) The Head of Department may only decline the recommendation of the governing body of the public school or the council of the further education and training institution, if-

(i) any procedure collectively agreed upon or determined by the Minister for the appointment, promotion or transfer has not been followed;

(ii) the candidate does not comply with any requirement collectively agreed upon or determined by the Minister for the appointment, promotion or transfer;

(iii) the candidate is not registered, or does not qualify for registration, as an educator with the South African Council for Educators;

(iv) sufficient proof exists that the recommendation of the said governing body or council, as the case may be, was based on undue influence; or

(v) the recommendation of the said governing body or council, as the case may be, did not have regard to the democratic values and principles referred to in section 7(1).

(c) If the Head of Department declines a recommendation in terms of paragraph (b), the governing body or council concerned shall make another recommendation in accordance with paragraph (a), for consideration by the Head of Department.

(5) Subject to the provisions of this Chapter, the Labour Relations Act or any collective agreement concluded by the Education Labour Relations Council, appointments in, and promotions or transfers to, posts on any educator establishment under this Act shall be made in accordance with such procedure and such requirements as the Minister may determine.

Section 14: Certain educators deemed to be discharged

14 (1) An educator appointed in a permanent capacity who-

(a) Is absent from work for a period exceeding 14 consecutive days without permission of the employer;

(b) While the educator is absent from work without permission of the employer, assumes employment in another position;

(d) While disciplinary steps taken against the educator have not yet been disposed of, resigns or without permission of the employer assumes employment in another position,

Shall, unless the employer directs otherwise, be deemed to have been discharged from service on account of misconduct, in the circumstances where-

(i) Paragraph (a) or (b) is applicable, with effect from the day following immediately after the last day on which the educator was present at work; or

(ii) Paragraph (c) or (d) is applicable, with effect from the day on which the educator resigns or assumes employment in another position as the case may be

(2) If an educator who is deemed to have been discharged under paragraph (a) or (b) of subsection (1) at any time reports for duty, the employer may, on good cause shown and notwithstanding anything to the contrary contained in this Act. Approve the reinstatement of the educator in the educator’s former post or in any other post on such conditions relating to the period of the educator’s absence from duty or otherwise as the employer may determine.

Section 17: Misconduct

17 (1)An educator shall be guilty of misconduct if the educator

(a) Contravenes or fails to comply with a provision of this Act or any law relating to education;

(b) Performs or causes or permits to be performed, or connives at any act which is prejudicial to the administration, discipline or efficiency of any department of education, departmental office, or educational institution;

(c) Disobeys, disregards or wilfully defaults in carrying out a lawful order given to the educator by a person having the authority to give it or by word or conduct displays insubordination;

(d) Is negligent or indolent in the carrying out of the duties attached to the educator’s post;

(e) Without permission of the employer, undertakes any private agency or private work in relation to a matter connected with the carrying out of the educator’s official duties;

(f) Attempts to secure intervention from any person, other than a person in the employ of the State or a trade union, in connection with the educator’s position or conditions of service, unless such intervention occurs in an endeavour to obtain redress of any grievance in accordance with the Labour Relations Act or through Parliament or the relevant provincial legislature, as the case may be;