Eastern Cape

NAPTOSA Eastern Cape News Flash 4 of 2014: From the courts

From the courts…


School admissions

In 2010 Rivonia Primary School refused to admit a child to Gr 1 (for 2011) because the SGB regarded the school as full.  The Gauteng Department of Edu-cation (GDE) instructed the school to admit the pupil, contrary to the school’s admission policy, and, when the principal refused to do so, departmental officials physically placed the learner in one of the school’s Grade 1 classrooms and disciplined the principal.  The SGB lost its application for a declaratory order in the South Gauteng High Court, which ruled that the over-all authority to determine school capacity rested with provincial education departments.  In 2012 victory went to the SGB, when a higher authority, the Supreme Court of Appeal, found the GDE’s instruction to the school unlawful.  The GDE then took the matter to the Constitutional Court, which ruled against the school on 3 October 2013.

So who has the final say in school admissions?

Based on Constitutional imperatives, an interpretation of the SA Schools Act and Gauteng provincial legislation, an SGB may determine the admission policy and the capacity of the school, but the department has the final say and may over-ride the school’s policy – “the Department maintains ultimate control over the implementation of admission decisions”.  Equally important, however, is that “a decision to overturn an admission decision of a prin-cipal, or depart from a school admission policy, must be exercised reasonably and in a procedurally fair manner”, which the ConCourt said the GDE didn’t do.

The need for co-operation

Although the ConCourt ruled in favour of the department, it was critical of the GDE and the school.  The judgment says both parties could, and should, have

done more to prevent the need for litigation –“cooperation is the required norm”.  NAPTOSAsupports this.  It is difficult, however, to foster co-operation when departmental officials are aggressive and heavy-handed and threaten school principals with disciplinary action should they disagree with them.  The ConCourt observed that the behaviour of the department’s officials “created antagonism and mis-trust, causing the Rivonia Governing Body to recoil”.

One journalist remarked that this is the first landmark ruling to deal with the balance between the right to education and the quality of teaching and learning.  Schools are advised to review their admission policies, to develop and implement those policies flexibly and to co-operate with Education authorities in good faith before resorting to litigation.  All parties should act in the best interests of the learners.

Matric marking tariffs

ELRC Collective Agreement 1/2011 provided for a 100% increase in the fees paid to matric markers.  The State, however, declared that to have been a mistake and in March 2013 the Minister terminated the agree-ment.  The unions took the matter to the Labour Court on 12/13 August.  Judgement was reserved – a ruling may be available towards the end of this month.  The unions have, however, conceded that the Minister has the legal power to terminate a collective agreement, so the court’s decision will affect the tariffs due between the signing of the agreement on 7 April 2011 and the termination thereof on 14 March 2013.  With the agreement now no longer in force, 2013 markers will be paid the tariffs published by the Minister in March 2011 (plus a cost-of-living adjustment).  Once the judgement has been delivered, parties will consider the way forward, which might include an appeal.
Government Employees Pension Fund

Members are referred to in earlier News Flash in which the Union alerts its members to rumours about the Pension Fund.  Specifically the totally erroneous rumour that after 2015 members will not receive their gratuities on retirement.  A statement which appeared on the GEPF website is reproduced to put aside any fears.

“It has come to our attention that an unfounded rumour is spreading regarding GEPF pension payments, that is, that there will be no lump sum benefits payable from the GEPF with effect from 2015. Please note that GEPF will continue to pay all benefits due to members leaving the Fund going forward, according to the Fund's rules. This means that those who are entitled to a once-off lump sum payment will receive this payment, while those entitled to a monthly pension over and above the once-off lump sum payment will receive this money.

The GEPF is not certain as to where the rumours around the removal of lump sum payments (or gratuity) at retirement originate from. However, the GEPF can assure members that no changes in Fund’s benefits take effect unless the Board of Trustees of the GEPF has approved them and thereafter the necessary consultation processes with the Minister of Finance and the employee organisations admitted to the Public Service Co-ordinating Bargaining Council (PSCBC) have been fulfilled.

You will be glad to know that there are very strict rules about the kind of benefits that must be paid by GEPF and how money must be invested and safeguarded. These rules are spelled out in a special law called the Government Employees Pension (GEP) Law 21 of 1996, as amended; the GEPF Rules, the GEPF’s internal policies, some of which take effect after consultation with the Minister of Finance and employee organisations. The aim of this law and the rules that guide the Fund is to ensure that GEPF puts the interests of its members first.


National Treasury’s Retirement Reform proposals

The retirement reform process being driven by the National Treasury is still at the industry consultation stage. Any changes following this process are expected to apply to the entire retirement industry and are aimed at improving retirement savings without prejudice to vested rights (or accrued benefits) of any members of any retirement fund. Some of the proposed changes are aimed at harmonizing the retirement fund industry, for example, making provident funds structurally similar to pension funds like the GEPF by allowing provident fund members to take only a portion of their retirement proceeds as a lump sum and the rest as an annuity. This will be a change from the current situation where provident fund members can take their entire retirement proceeds as a lump sum. The GEPF will not be impacted by this change as it is a pension fund rather than a provident fund. It is important to note that a key objective of proposed retirement reforms is to protect the vested rights of current members of retirement funds. This means that any changes put forward from a future effective date will only apply to new contributions from that effective date. Current rules will still apply to accrued benefits up to that effective date. In the provident fund example above, accrued benefits up to the effective date will still be taken as a lump sum whereas accrued benefits relating to new contributions after the effective date will at retirement be required to be split up to one-third as a lump sum and the rest as an annuity. The GEPF is keeping a very close eye on any developments relating to the retirement reform process and will communicate any changes by National Treasury and their impact on members once the National Treasury has completed the consultation process with the industry.”



NB! NB! NB!  This should be done even if there are no changes.