Education Law and Policies Benchmarking the Application and - PowerPoint PPT Presentation

Education Law and Policies Benchmarking the Application and Implications to Practice. FACILITATOR : DR SIBUSISO D BAYENI

Introduction There is a thin line between policy and law. Policy is a broader term including law. Sometimes, policy is a guide allowing some discretion and interpretation at the implementation level. Law is more strict and prescriptive. It does not allow any discretion and exception

Introd (cont) Disregarding the law and policy has serious implication and ramification like: 1. Imprisonment in Criminal case (incarceration) 2. Liabilities and damages in Civil case. *There is a tendency among some teachers to: * Question the legitimacy of policy *Reject it or change it *Pay a lip service to policy implementation

Introd (cont) Teachers as implementers are required to observe and carry out the prescripts of the policy and law. If you are in position of leadership representing the government, one of the core function is to empower and reskill staff , enforce the law, persuade those who are reluctant. Keep records of every thing that happens in the school.

(Draft document) Parliament approves draft doc for public comments President’s SONA Political slogans Bill in Parliament Minister’s initiative gets debated President signs it into law 5

Policy Review Policy making is not linear and straightforward process. Policy is a product of dispute and conflict It is imbedded within the contexts. Policy is not a neutral text to implement only but has feeling, political and emotion aspects 6

Policy Review (contd) In policy there are issues of • Micropolitics, • Confrontations • Contestations • Negotiations • Compromises • Interpretation • Blaming • Complexity 7

Some terms in policy analysis CONSTITUTION: 1. Is the supreme law of the country and any law or other legislation or conduct of any person or body which is inconsistent with it, is invalid. The constitutional law may in terms of the constitution test the validity of any other South African law. It is the highest law in South Africa to which all other laws and institutions are subject. . 2.GREEN PAPER Government document in which a proposal or idea is put for discussion. 4. WHITE PAPER A fixed policy. Official report produced by a government on a particular subject 5. BLACK PAPER Authoritative document that criticises or censures an existing policy, practice or institution 8

Some terms in policy analysis 6. BILL: A suggested or proposed law which has not been passed in parliament. It is a debated law in the parliament. 7. ACT A law or decree passed by a parliament at national level or provincial level, for example, the South African Schools Act. 8. LAW A body of official rules of a country which must be obeyed. Any of these rules. Any collection of these rules dealing with a particular subject. A binding rule that must be obeyed or taken into account by all people who are subject to it. 9 REGULATIONS A law or rule designed to control behaviour or actions. For example, office regulation, notices are published. It is the law made by cabinet minister(s) or MECs in terms of an Act 9

Some terms in policy analysis 10.GAZETTE : A government newspaper in which Acts, Regulations, Notices are published. 11. LEGISLATION An Act of Parliament or a provincial legislature. It is a regulation. 12. LEGISLATURE Parliament which makes laws for the whole country and a provincial legislature making laws for that particular province. 10

Who makes government policies and laws Parliaments : National and Provincial Legislatures 2. Judiciary (using court pronouncements) 11

Parliament has 2 houses National Council of provinces (NCOP) 90: ten from each province. National Assembly (NA) NCOP sits in Pretoria 350-400 members. NA sits in Cape Town Select Committees (SCs) For each department Monitor and make Portfolio recommendations: budget Committees(PCs) structure, functioning 12

Portfolio Committees (PCs) NA has portfolio committees for each depart PC works on bills Votes on bills and sends to NA to be debated Political parties may support or oppose bills After voting for/ against, bills are send to NCOP 13

NCOP Each province appoints 6 permanent and 4 members =10 members NCOP takes interest of provinces NCOP has Select committes 14

Select committees Passed bills are submitted to SC for changes If there are disagreements Approved bills by SC are sent to President to sign them as laws 15

PORTFOLIO 1. CABINET COMMITTES PARLIAMENT 2. NCOP 1.NA PC SC 16

What is policy Policy statements Policy is whatever governments choose to do (action), or not to do (inaction). Non-action= failure of the government to take action on a problem or condition or even to consider it (Dye, 2005) ‘Authoritative Allocation of values’ ‘Policy is the legitimation of values’ (Prunty, 1985) 1. Whose values are these? Whose values are not? Values do not float free of their social context. Allocation introduces the centrality of power, control in the formulation of policy 17

Policies confer advantages and disadvantages, cause pleasure, irritation and pain. Policy describes the rules, statements of intent and specified strategies that are formally adopted by legitimated individuals or agencies to guide collective action (Hamley, 1991) Polic y is ‘paths’ by which particular principles and objectives are to be realised. Policy specifies the means to effect the transition from what exists to what is desired. (Badat, 1989). Policies are operational statements of values, statements of prescriptive intent. They are contested in between and between areas of interests . Policy involves, on the one hand, analysis of problems and identification of remedies and goals and, on the other hand, specification of methods for achieving goals. P olicies are designed to accomplish specific goals or produced definite results though these are not always achieved . 18

TYPES OF POLICIES (Anderson, ) 1. Substantive policy What government should do 2. Procedural Policy Who is going to take action and what mechanism in place. 3. Material policy Provides real resources to interest group 4. Symbolic policy Is rhetorical about a need change. 5. Regulation policy Limits the behaviour and actions of groups and individuals 6. Distributive Policy Shifts the allocation of resources and rights among social groups 19

Exploring law concepts relevant to Education • Policy has some features of prescription but characterised by some flexibility • Law is more prescriptive • Statute: a written law passed by a legislature • Civil Law: It is a law that helps deal with disputes; Propodence • Criminal Law: is punitive in nature; Proof beyond reasonable doubt

Concepts contd • Precedents: are prior decisions that function as models for later decisions; stere decision by court (a rule of decision) • Due process: fair treatment through the normal judicial system.The legal requirement that the state must respect all legal rights that are owed to a person • Procedural due process: "[procedural due process has to do with the manner of the trial [and] dictates that in the conduct of judicial inquiry certain fundamental rules of fairness be observed’ . Substantive due process: There are substantive (fundamental) rights found in Bill of Rights. Govt may not interfere with these rights. If gvt interfere there ought be compelling reasons

Concepts contd • Source of law: origin of law. If a law making body enacted a law, that law is a source of law • Tort: a wrongful act that results into injury to other person’s dignity, property which may result to liability • Litigation: a process of taking legal action

Concepts contd • Liability (i)Vicarious liability: Tort law that imposes liability on employers for the wrongful doing of their employee. The employer is held liable for wrongdoing while the employee is conducting their duries (ii)Direct Liability: the employee is held liable for wrongful act • Filing a lawsuit/pursue a lawsuit • Plaintiff v defendant

Concepts contd • Unfair labour practice • “In breach of law” • “act in disregard of the law of prescripts” • “In the course of employment” • “reasonably practicable” • Compelling evidence” • Professional Ethics

Steps to follow in case of wrongful act 1. Gather evidence. 2. Coordinate end evaluate 3. Summoning to appear in hearing 3. Attend hearing 4. Negotiate settlements 5. initiate court proceedings

Cival Case Statutory Common Law Contracts Tort 26

Tort 1. Who are the parties ( plaintiff and defendant) -- not a prosecutor 2. What are possible outcomes (liable) -- not guilty 3. Applicable standard of proof ( preponderance of evidence) –not proof beyond reasonable doubt 4. Consequence for the defendant ( civil damages ) –not criminal penalties 5. Procedural rules that apply ( civil procedures) —not criminal procedures