Constitutional, Legislative and Other mandates

CONSTITUTIONAL, LEGISLATIVE AND OTHER MANDATES

TABLE OF CONTENTS

11.CONSTITUTION OF RSA

32.LABOUR RELATION ACT 66 OF 1995

73.BASIC CONDITION OF EMPLOYMENT ACT 75 OF 1997

84.EMPLOYMENT OF EDUCATORS ACT 76 OF 1998

115.FURTHER EDUCATION AND TRAINING COLLEGES ACT 16 OF 2006

126.CHILDREN’S’ BILL OF RIGHTS OF 2007

127.SEXUAL OFFENCES ACT NO 32 OF 2007

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

139.CRIMINAL PROCEDURE ACT NO 65 OF 2008

SUPPORTING LEGISLATION

151.EMPLOYMENT EQUITY ACT 55 OF 1998

152.SKILLS DEVELOPMENT ACT 97 OF 1998

163.PUBLIC FINANCE MANAGEMENT ACT 1 OF 1999

214.PROMOTION OF ACCESS TO INFORMATION ACT 54 OF 2002

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;

(c) To prevent and resolve disputes;

(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);

(c) reduce an employee’s annual leave in terms of section 20 to less than two weeks;

(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;

(c) While suspended from duty, resigns or without permission of the employer assumes employment in another position; or

(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;

(g) Behaves in a disgraceful, improper or unbecoming manner, or, while on duty, is discourteous to any person, or commits sexual or any other form of harassment

Section 18: Preliminary Investigation of Misconduct

18 (1) Whenever an educator is accused of misconduct, the employer may in writing appoint a person as investigating officer-

(a) To investigate the matter;

(b) To obtain evidence in order to determine whether there are grounds for a charge of misconduct against that educator; and

(c) To report to the employer thereon.

(2)An investigating officer shall not question the educator concerned unless the investigating officer informs that educator-

(a) That the educator has the right to be assisted or represented by another person;

(b) That the educator is not obliged to make any statement; and

(c) That any statement so made may be used in evidence against the educator

5.FURTHER EDUCATION AND TRAINING COLLEGES ACT 16 OF 2006

Section 20: Appointment of lecturers and support staff

20.(1) The college is the employer of all lecturers and support staff.

(2)Subject to this Act, the Labour Relations Act, the Basic Conditions of Employment Act, the Employment Equity Act and any other applicable law, the council must establish posts for lecturers and support staff.

(3)The council must appoint and remunerate staff from the funds allocated in accordance with the norms and standards contemplated in section 23 and other income received by the college from other sources.

(4)Despite anything to the contrary in any other law but subject to this section, the Labour Relations Act or any other collective agreement concluded by a bargaining council that has jurisdiction in respect of employees of a public college, the council must determine the functions, conditions of services and privileges of lecturers and support staff.

Section 21: Dispute resolution between college, lecturers and support staff

21.(1) If a dispute arises about the payment or employment conditions of a lecturer or a member of the support staff, any party to the dispute may refer the dispute in writing to –

(a)a bargaining council established in terms of the Labour Relations Act, if the employer or employee parties to the dispute fall within the registered scope of a bargaining council; or

(b)the Commission for Conciliation, Mediation and Arbitration established by section 12 of the Labour Relations Act, if no bargaining council has jurisdiction.

(2)The party referring the dispute must satisfy the bargaining council or the Commission for Conciliation, Mediation and Arbitration that a copy of the referral has been served on the other party.

(3)The bargaining council or the Commission for Conciliation, Mediation and Arbitration must attempt to resolve the dispute through conciliation.

(4) If the bargaining council or the Commission for Conciliation, Mediation and Arbitration is satisfied that the dispute remains unresolved, a party may refer the dispute for adjudication to the Labour Court established in terms of section 151 of the Labour Relations Act

Dealt with in detail in Annexure A (Misconduct: Sexual Harassment and Sexual Abuse Law Applicable in Public Education)

6.CHILDREN’S’ BILL OF RIGHTS OF 2007

Section 28 (1) Every child has the right:

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

h) to have a legal practitioner assigned to the child by the state, and at state expenses in civil proceedings affecting the child, if substantial injustice would otherwise result; and

i)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,

7.SEXUAL OFFENCES ACT NO 32 OF 2007

Section 54 of Act 32 of 2007

(a)A person who has knowledge that a sexual offence has been committed against a child must report such knowledge immediately to a police official.

(b)A person who fails to report such knowledge as contemplated in paragraph (a) is guilty of an offence and is liable on conviction to a fine or to imprisonment for a period not exceeding five years or to both a fine and such imprisonment.

(c)A person who in good faith reports such reasonable belief or suspicion shall not be liable to any civil or criminal proceedings by reason of making such report.

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

Section 42

Notwithstanding the provisions of any other law every dentist, medical practitioner, nurse, social worker or teacher, or any person employed by or managing a children's home, place of care or shelter, who examines, attends or deals with any child in circumstances giving rise to the suspicion that that child has been ill-treated, or suffers from any injury, single or multiple, the cause of which probably might have been deliberate, or suffers from a nutritional deficiency disease, shall immediately notify the Director-General or any officer designated by him or her for the purposes of this section, of those circumstances.

9.CRIMINAL PROCEDURE ACT NO 65 OF 2008

· Section 153(3) & (5) of the Criminal Procedure Act:- makes provision for a child to give evidence in camera; Provides for the adjudicating officer to exercise discretion.

· Section 158(5) – providing for witnesses to give evidence by means of closed circuit television or similar electronic media;

· Section 164(1) of the Criminal Procedure Act:- deals with giving of evidence without taking an oath or making an affirmation

· Section 170A(1) of the Criminal Procedures Act:- makes provision for a child to testify via an intermediary; Provides for the adjudicating officer to exercise discretion.

· Constitutional Court held that the principle concerning the best interests of the child is paramount in all matters concerning the child.

· The CC was of the view that the objective of this subsection is to protect child complainants in sexual offence cases and other child witnesses from undergoing “undue mental stress and suffering”.

· The intention of this section is precisely to reduce to the minimum the degree of stress and to create an atmosphere that allows a child to speak freely about events that happened.

· It is accepted that the giving of evidence in sexual offence cases exposes complainants to further trauma.

· It is this secondary trauma that this section seeks to prevent.

· The Court found that the object of this section is consistent with the principle that the best interests of children are of paramount importance in cases involving child witnesses and therefore consistent with Section 28(2) of Constitution.

SUPPORTING LEGISLATION

1. EMPLOYMENT EQUITY ACT 55 OF 1998

Section 20: Employment Equity Plan

20.(1)A designated employer must prepare and implement an employment equity plan which will achieve reasonable progress towards employment equity in that employer’s workforce.

(2)An employment equity plan prepared in terms of subsection (1) must state-

(a)the objectives to be achieved for each year of the plan:

(b)the affirmative action measures to be implemented as required by section

15(2);

c)where under representation of people from designated groups has been identified by the analysts, the numerical goals to achieve the equitable representation of suitably qualified people from the designated groups within each occupational category and level in the workplace, the timetable within which this is to be achieved, and the strategies intended to achieve those goals;

(d)the timetable for each year of the plan for the achievement of goals and objectives other than numerical goals;

(e)the duration of the plan, which may not be shorter than one year or longer than five years.

(g)the internal procedures to resolve any dispute about the interpretation or implementation of the plan;

(h)the persons in the workforce; including senior managers responsible for monitoring and implementing the plan; and

(i)any other prescribed matter

(3) For the purposes of this Act, a person may be suitably qualified for a job as a result of any one of, or any combination of that person’s-

(a) Formal qualifications;

(b) Prior learning;

(c) Relevant experience; or

(d) Capacity to acquire, within a reasonable time, the ability to do the job.

2. SKILLS DEVELOPMENT ACT 97 OF 1998

Section 30: Budget for training by Public Service Employers

30Each public service employer in the national and provincial spheres of government-

(a) Must budget for at least one per cent of its payroll for the training and education of their employees with effect from 1 April 2000, and

(b) May contribute funds to a SETA

3. PUBLIC FINANCE MANAGEMENT ACT 1 OF 1999

Section 49: Accounting authorities.—

(1) Every public entity must have an authority which must be accountable for the purposes of this Act.

(2) If the public entity—

(a) has a board or other controlling body, that board or controlling body is the accounting authority for that entity; or

(b) does not have a controlling body, the chief executive officer or the other person in charge of the public entity is the accounting authority for that public entity unless specific legislation applicable to that public entity designates another person as the accounting authority.

(3) The relevant treasury, in exceptional circumstances, may approve or instruct that another functionary of a public entity must be the accounting authority for that public entity.

(4) The relevant treasury may at any time withdraw an approval or instruction in terms of subsection (3).

(5) A public entity must inform the Auditor-General promptly and in writing of any approval or instruction in terms of subsection (3) and any withdrawal of an approval or instruction in terms of subsection (4).

Section 50: Fiduciary duties of accounting authorities.—

(1) The accounting authority for a public entity must—

(a) exercise the duty of utmost care to ensure reasonable protection of the assets and records of the public entity;

(b) act with fidelity, honesty, integrity and in the best interests of the public entity in managing the financial affairs of the public entity;

(c) on request, disclose to the executive authority responsible for that public entity or the legislature to which the public entity is accountable, all material facts, including those reasonably discoverable, which in any way may influence the decisions or actions of the executive authority or that legislature; and

(d) seek, within the sphere of influence of that accounting authority, to prevent any prejudice to the financial interests of the state.

(2) A member of an accounting authority or, if the accounting authority is not a board or other body, the individual who is the accounting authority, may not—

(a) act in a way that is inconsistent with the responsibilities assigned to an accounting authority in terms of this Act; or

(b) use the position or privileges of, or confidential information obtained as, accounting authority or a member of an accounting authority, for personal gain or to improperly benefit another person.

(3) A member of an accounting authority must—

(a) disclose to the accounting authority any direct or indirect personal or private business interest that that member or any spouse, partner or close family member may have in any matter before the accounting authority; and

(b) withdraw from the proceedings of the accounting authority when that matter is considered, unless the accounting authority decides that the member’s direct or indirect interest in the matter is trivial or irrelevant.

Section 51: General responsibilities of accounting authorities.—

(1) An accounting authority for a public entity—

(a) must ensure that that public entity has and maintains—

(i) effective, efficient and transparent systems of financial and risk management and internal control;

(ii) a system of internal audit under the control and direction of an audit committee complying with and operating in accordance with regulations and instructions prescribed in terms of sections 76 and 77; and

(iii)an appropriate procurement and provisioning system which is fair, equitable, transparent, competitive and cost-effective;

(iv)a system for properly evaluating all major capital projects prior to a final decision on the project;

(b) must take effective and appropriate steps to—

(i)collect all revenue due to the public entity concerned; and

(ii) prevent irregular expenditure, fruitless and wasteful expenditure, losses resulting from criminal conduct, and expenditure not complying with the operational policies of the public entity; and

(iii) manage available working capital efficiently and economically;

(c) is responsible for the management, including the safe-guarding, of the assets and for the management of the revenue, expenditure and liabilities of the public entity;

(d) must comply with any tax, levy, duty, pension and audit commitments as required by legislation;

(e) must take effective and appropriate disciplinary steps against any employee of the public entity who—

(i) contravenes or fails to comply with a provision of this Act;

(ii) commits an act which undermines the financial management and internal control system of the public entity; or

(iii) makes or permits an irregular expenditure or a fruitless and wasteful expenditure;

(f) is responsible for the submission by the public entity of all reports, returns, notices and other information to Parliament or the relevant provincial legislature and to the relevant executive authority or treasury, as may be required by this Act;

(g) must promptly inform the National Treasury on any new entity which that public entity intends to establish or in the establishment of which it takes the initiative, and allow the National Treasury a reasonable time to submit its decision prior to formal establishment; and

(h) must comply, and ensure compliance by the public entity, with the provisions of this Act and any other legislation applicable to the public entity.

(2) If an accounting authority is unable to comply with any of the responsibilities determined for an accounting authority in this Part, the accounting authority must promptly report the inability, together with reasons, to the relevant executive authority and treasury.

Section 52: Annual budget and corporate plan by Schedule 2 public entities and government business enterprises.—

The accounting authority for a public entity listed in Schedule 2 or a government business enterprise listed in Schedule 3 must submit to the accounting officer for a department designated by the executive authority responsible for that public entity or government business enterprise, and to the relevant treasury, at least one month, or another period agreed with the National Treasury, before the start of its financial year—

(a) a projection of revenue, expenditure and borrowings for that financial year in the prescribed format; and

(b) a corporate plan in the prescribed format covering the affairs of that public entity or business enterprise for the following three financial years, and, if it has subsidiaries, also the affairs of the subsidiaries.

Section 53: Annual budgets by non-business Schedule 3 public entities.—

(1) The accounting authority for a public entity listed in Schedule 3 which is not a government business enterprise must submit to the executive authority responsible for that public entity, at least six months before the start of the financial year of the department designated in terms of subsection (2) or another period agreed to between the executive authority and the public entity, a budget of estimated revenue and expenditure for that financial year, for approval by the executive authority.

(2) The budget must be submitted to the executive authority through the accounting officer for a department designated by the executive authority, who may make recommendations to the executive authority with regard to the approval or amendment of the budget.

(3) A public entity which must submit a budget in terms of subsection (1), may not budget for a deficit and may not accumulate surpluses unless the prior written approval of the National Treasury has been obtained.

(4) The accounting authority for such a public entity is responsible for ensuring that expenditure of that public entity is in accordance with the approved budget.

(5) The National Treasury may regulate the application of this section by regulation or instruction in terms of section 76.

Section 54: Information to be submitted by accounting authorities.—

(1) The accounting authority for a public entity must submit to the relevant treasury or the Auditor-General such information, returns, documents, explanations and motivations as may be prescribed or as the relevant treasury or the Auditor-General may require.[Sub-s. (1) substituted by s. 31 (a) of Act No. 29 of 1999.]

(2) Before a public entity concludes any of the following transactions, the accounting authority for the public entity must promptly and in writing inform the relevant treasury of the transaction and submit relevant particulars of the transaction to its executive authority for approval of the transaction:

(a) establishment or participation in the establishment of a company;

(b) participation in a significant partnership, trust, unincorporated joint venture or similar arrangement;

(c) acquisition or disposal of a significant shareholding in a company;

(d) acquisition or disposal of a significant asset;

(e) commencement or cessation of a significant business activity; and

( f ) a significant change in the nature or extent of its interest in a significant partnership, trust, unincorporated joint venture or similar arrangement.

(f) [Sub-s. (2) amended by s. 31 (b) of Act No. 29 of 1999.]

(3) A public entity may assume that approval has been given if it receives no response from the executive authority on a submission in terms of subsection (2) within 30 days or within a longer period as may be agreed to between itself and the executive authority.

(4) The executive authority may exempt a public entity listed in Schedule 2 or 3 from subsection (2).

55. Annual report and financial statements.—

(1) The accounting authority for a public entity—

(a) must keep full and proper records of the financial affairs of the public entity;

(b) prepare financial statements for each financial year in accordance with generally accepted accounting practice, unless the Accounting Standards Board approves the application of generally recognized accounting practice for that public entity;

(c) must submit those financial statements within two months after the end of the financial year—

(i) to the auditors of the public entity for auditing; and

(ii) if it is a business enterprise or other public entity under the ownership control of the national or a provincial government, to the relevant treasury; and

(d) must submit within five months of the end of a financial year to the relevant treasury, to the executive authority responsible for that public entity and, if the Auditor-General did not perform the audit of the financial statements, to the Auditor-General—

(i) an annual report on the activities of that public entity during that financial year;

(ii) the financial statements for that financial year after the statements have been audited; and

(iii) the report of the auditors on those statements.

(2) The annual report and financial statements referred to in subsection (1) (d) must—

(a) fairly present the state of affairs of the public entity, its business, its financial results, its performance against predetermined objectives and its financial position as at the end of the financial year concerned;

(b) include particulars of—

(i)any material losses through criminal conduct and any irregular expenditure and fruitless and wasteful expenditure that occurred during the financial year:

(ii) any criminal or disciplinary steps taken as a consequence of such losses or irregular expenditure or fruitless and wasteful expenditure;

(iii) any losses recovered or written off;

(iv) any financial assistance received from the state and commitments made by the state on its behalf; and

(iv) any other matters that may be prescribed; and

(c) include the financial statements of any subsidiaries.

(3) An accounting authority must submit the report and statements referred to in subsection for tabling in Parliament or the provincial legislature, to the relevant executive authority through the accounting officer of a department designated by the executive authority.

(4) The relevant treasury may direct that, instead of a separate report, the audited financial statements of a Schedule 3 public entity which is not a government business enterprise must be incorporated in those of a department designated by that treasury.

Section 56: Assignment of powers and duties by accounting authorities.—

(1) The accounting authority for a public entity may—

(a) in writing delegate any of the powers entrusted or delegated to the accounting authority in terms of this Act, to an official in that public entity; or

(b) instruct an official in that public entity to perform any of the duties assigned to the accounting authority in terms of this Act.

(2) A delegation or instruction to an official in terms of subsection (1)—

(a) is subject to any limitations and conditions the accounting authority may impose;

(b) may either be to a specific individual or to the holder of a specific post in the relevant public entity; and

(c) does not divest the accounting authority of the responsibility concerning the exercise of the delegated power or the performance of the assigned duty.

(3) The accounting authority may confirm, vary or revoke any decision taken by an official as a result of a delegation or instruction in terms of subsection (1), subject to any rights that may have become vested as a consequence of the decision.

Section 57: Responsibilities of other officials.—

An official in a public entity—

(a) must ensure that the system of financial management and internal control established or that public entity is carried out within the area of responsibility of that official;

(b) is responsible for the effective, efficient, economical and transparent use of financial and other resources within that official’s area of responsibility;

(c) must take effective and appropriate steps to prevent, within that official’s area of responsibility, any irregular expenditure and fruitless and wasteful expenditure and any under collection of revenue due;

(d) must comply with the provisions of this Act to the extent applicable to that official, including any delegations and instructions in terms of section 56; and

(e) is responsible for the management, including the safe guarding, of the assets and the management of the liabilities within that official’s area of responsibility.

4.PROMOTION OF ACCESS TO INFORMATION ACT 54 OF 2002

Section 2.2.2: Public bodies

All public bodies must have information manuals in terms of section 14 of PAIA, to assist you on how to request access to records of public bodies. The public bodies’ manuals must be published in 3 of the official languages.

The information manuals should contain the following information regarding the public bodies:

• The structure and functions of the public body;

• The postal and street address, phone and fax number and, if available, the electronic mail address of the information officer of the body, as well as of every deputy information officer of the public body;

• A description of this Guide compiled by the South African Human Rights Commission and how to access it;

• Adequate information to assist in facilitating access to a record held by a public body. The public body must therefore describe the subjects on which it holds records, and the categories of records held on each subject;

• Some information is readily available without a person having to request access in terms of PAIA. The manual of the public body must indicate this information which is readily available;

• A description of the services available to members of the public from the public body, and how to gain access to those services;

• A description of any arrangement or provision for a person to either consult, make representations or participate in or influence the formulation of policy; or the exercise of powers or performance of duties by the public body;

• The action you may take if the information officer of the public body refuses to give you access to information.

Where necessary; information manuals must be updated annually.

Section 2.2.2.1: How to obtain access to a manual of a public body

All public bodies are obliged to make the manual available to you in the following manner:

• By making a copy available at every office of that particular public body during office hours;

• By making available the manual on the website, if any, of the public body;

• By making a copy available to the South African Human Rights Commission;

The information officer of a public body may also publish the manual in three official languages in the Government Gazette.

Section 2.3: Notices of Public and Private Bodies

Public bodies must have a list of information that is automatically available without you having to make a formal request. This list is called a section 15 notice or voluntary disclosure notice. The information officer of a public body is required to develop the voluntary disclosure notice for the public body, and make it available at the offices of the public body and also publish it in the Government Gazette. The voluntary disclosure notice is updated every year.

The voluntary disclosure notice assists members of the public to differentiate between records or information that is automatically available, and records that should be requested formally. The notice will also assist both private and public bodies in that members of the public would not serve formal requests for records or information, which would otherwise be automatically available, such as annual reports, publications and any other records or information about the private body which is already in the public domain.

Section 2.3.1: Section 15 notice (voluntary disclosure notice - public body)

The voluntary disclosure notice contains categories of records and description of those records that are automatically available:

• For inspection in terms of any legislation other than PAIA;

• For purchase or copying from the public body; and

• From the public body free of charge.

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