The Role of Co-operative Government in the South African Education System
1. Introduction
The South African constitutional order is founded on the principle that the three spheres
of government — national, provincial, and local — are “distinctive, interdependent and
interrelated” (Constitution of the Republic of South Africa, 1996, s 40(1)). Chapter 3 of
the Constitution establishes the framework for co-operative government and
intergovernmental relations, requiring all spheres and organs of state to work together in
mutual trust and good faith to secure the well-being of the people (s 41(1)). Education,
as both a fundamental right and a concurrent functional area between the national and
provincial spheres, provides a practical context in which these principles must operate.
This essay discusses the constitutional and legislative framework of co-operative
government in South African education, examines relevant case law, and considers the
practical challenges and opportunities in implementing these principles.
2. Constitutional Framework for Co-operative Government in Education
The Constitution entrenches the right to basic education in section 29(1)(a) and assigns
legislative and executive competencies in Schedule 4, Part A, which lists “education at
all levels, excluding tertiary education” as a functional area of concurrent national and
provincial competence. This means that the national government is responsible for
setting policy and norms and standards, while provincial governments implement and
manage schools within their jurisdictions.
Section 41(1) of the Constitution prescribes that all spheres of government must “secure
the well-being of the people,” “provide effective, transparent, accountable and coherent
government,” and “co-operate with one another in mutual trust and good faith”
(Constitution, 1996). These provisions apply directly to education policy-making,
administration, and delivery.
, The Intergovernmental Relations Framework Act 13 of 2005 (IGRFA) gives effect to
section 41(2) by establishing mechanisms and procedures to facilitate co-ordination in
the implementation of policy and legislation. In education, these structures include the
Council of Education Ministers (CEM) and the Heads of Education Departments
Committee (HEDCOM), which ensure policy alignment between the national
Department of Basic Education (DBE) and provincial departments.
3. Legislative Framework Governing Co-operation in Education
Several statutes operationalise the constitutional allocation of powers in education.
3.1 South African Schools Act 84 of 1996 (SASA)
SASA seeks to provide a uniform system for the organisation, governance, and funding
of schools. Section 3 places a duty on provincial MECs for education to ensure that
every learner of compulsory school-going age attends school, while section 5 outlines
admission policies determined by school governing bodies (SGBs) but subject to
provincial oversight.
3.2 National Education Policy Act 27 of 1996 (NEPA)
NEPA empowers the Minister of Basic Education to determine national education policy
and requires provinces to implement it within their areas of competence (s 3). It thus
reinforces the co-operative model by linking national policy formulation to provincial
execution.
3.3 Employment of Educators Act 76 of 1998
This Act regulates the conditions of employment for educators, with the national minister
setting policy on employment matters and provincial heads of department responsible
for appointments and discipline.
1. Introduction
The South African constitutional order is founded on the principle that the three spheres
of government — national, provincial, and local — are “distinctive, interdependent and
interrelated” (Constitution of the Republic of South Africa, 1996, s 40(1)). Chapter 3 of
the Constitution establishes the framework for co-operative government and
intergovernmental relations, requiring all spheres and organs of state to work together in
mutual trust and good faith to secure the well-being of the people (s 41(1)). Education,
as both a fundamental right and a concurrent functional area between the national and
provincial spheres, provides a practical context in which these principles must operate.
This essay discusses the constitutional and legislative framework of co-operative
government in South African education, examines relevant case law, and considers the
practical challenges and opportunities in implementing these principles.
2. Constitutional Framework for Co-operative Government in Education
The Constitution entrenches the right to basic education in section 29(1)(a) and assigns
legislative and executive competencies in Schedule 4, Part A, which lists “education at
all levels, excluding tertiary education” as a functional area of concurrent national and
provincial competence. This means that the national government is responsible for
setting policy and norms and standards, while provincial governments implement and
manage schools within their jurisdictions.
Section 41(1) of the Constitution prescribes that all spheres of government must “secure
the well-being of the people,” “provide effective, transparent, accountable and coherent
government,” and “co-operate with one another in mutual trust and good faith”
(Constitution, 1996). These provisions apply directly to education policy-making,
administration, and delivery.
, The Intergovernmental Relations Framework Act 13 of 2005 (IGRFA) gives effect to
section 41(2) by establishing mechanisms and procedures to facilitate co-ordination in
the implementation of policy and legislation. In education, these structures include the
Council of Education Ministers (CEM) and the Heads of Education Departments
Committee (HEDCOM), which ensure policy alignment between the national
Department of Basic Education (DBE) and provincial departments.
3. Legislative Framework Governing Co-operation in Education
Several statutes operationalise the constitutional allocation of powers in education.
3.1 South African Schools Act 84 of 1996 (SASA)
SASA seeks to provide a uniform system for the organisation, governance, and funding
of schools. Section 3 places a duty on provincial MECs for education to ensure that
every learner of compulsory school-going age attends school, while section 5 outlines
admission policies determined by school governing bodies (SGBs) but subject to
provincial oversight.
3.2 National Education Policy Act 27 of 1996 (NEPA)
NEPA empowers the Minister of Basic Education to determine national education policy
and requires provinces to implement it within their areas of competence (s 3). It thus
reinforces the co-operative model by linking national policy formulation to provincial
execution.
3.3 Employment of Educators Act 76 of 1998
This Act regulates the conditions of employment for educators, with the national minister
setting policy on employment matters and provincial heads of department responsible
for appointments and discipline.
