Constitutional & Legal Foundations
South Africa is a parliamentary democracy with a strong presidency, established in its most recent form by the new constitution adopted by the South African parliament in May 1996, certified by the Constitutional Court on 4 December 1996, and signed by President Nelson Mandela six days later, coming into effect on 3 February 1997. South Africa has a legal system based on Roman-Dutch law and the British common law system. All citizens of South Africa 18 years and older are eligible to vote; men are also eligible for military service at age 18. According to the Bill of Rights contained in the new South African constitution, everyone has a right to basic education, including adult basic education, which the state, through reasonable measures, must make progressively available and accessible to all citizens through a single, unified, national education system.
At the national level, the president is both head of the government and chief of state, democratically elected by the National Assembly to a five year term of office. On 16 June 1999, Thabo Mbeki became the second president under the new constitution, chosen by unanimous acclamation of the National Assembly. The executive branch of the national government also includes an executive deputy president, who since 17 June 1999 has been Jacob Zuma, and a cabinet appointed by the president.
The national legislative branch is a bicameral parliament composed of the National Assembly and the National Council of Provinces. The National Assembly consists of 400 members elected through proportional representation by popular vote to 5 year terms in office; the National Council of Provinces has 90 seats filled by 10 members elected from each of the 9 provinces, also to 5 year terms. This second house of the national legislature replaced the previous Senate, when the new constitution came into effect, with the same representatives and party affiliations but a new responsibility: to look after the interests of the regions and the cultural and linguistic traditions of the ethnic minorities residing in each of the provinces. The third branch of the national government, the judicial branch, consists of a Supreme Court of Appeals, a Constitutional Court, High Courts, and Magistrate Courts. Sub-national affairs are administered through a system of nine provinces—Eastern Cape, Free State, Gauteng, KwaZulu-Natal, Mpumalanga, North-West, Northern Cape, Northern Province, and Western Cape—whose peoples, levels of economic development, and characteristics differ widely.
Concerning interethnic and international relations, South Africa today is working actively to create a society built on mutual respect and cooperation. The country now enjoys very good relations with the international community, in contrast to the negative consequences of its poor reputation internationally during the Apartheid years. Belonging to numerous international organizations and conferences and working collaboratively with governmental actors and nongovernmental organizations from around the world, South Africa is finally beginning to reap the benefits of the many years of sacrifice and struggle by which indigenous South Africans threw off the bonds of social segregation and racist policies. Many international relationships grew out of efforts made during the Apartheid era to support South Africans working to break the Apartheid system and to realize social justice for the peoples of this southernmost African country. Banned for years from participating in international events, organizations, and conferences, due to the racist politics of the National Party, South Africa now participates in many regional and international organizations, including the African Development Bank, the World Bank, United Nations agencies, the Group of 77, and countless other bodies too numerous to name. Receiving international support in the form of technical and financial assistance to assist the country's democratic transformation and socioeconomic development, the South African government and people and a panoply of civil society organizations have drawn widespread support from abroad, especially in the area of education and in other social welfare domains.
With the start of the new era in South African governance and development in 1994 and the new South African constitution, the educational system of South Africa began a transformation of monumental proportions. Significant reforms have been required particularly because of the previously destructive policies, legislation, and practices implemented under Apartheid that kept black students and other ethnic and racial minorities apart from whites and at a severe educational, social, and economic disadvantage. Complete government control over African education had started with the passage in 1953 of the Bantu Education Act. One of Apartheid's chief architects, Dr. Verwoerd as Minister of Bantu Administration and Education, declared in the debate on the bill that Africans should be taught there was no place for them "above certain forms of labor" in areas of South Africa taken by European settlers for themselves. Verwoerd intended to devise an educational system for Africans that would ensure their perpetually remaining "hewers of wood and drawers of water." There was no point, others in the House said, in teaching African children mathematics or science for they had no need of such expertise. This Act formed the basis for the acute technical skills shortage post-Apartheid South Africa is experiencing. The Act did not propose free and compulsory education for African children such as that available to white children. Despite the appalling levels of poverty among Africans, education for indigenous Africans never was made free, and the state spent on African education only a small proportion of the money it lavished on the education of white children. Nonetheless, the 1953 Bantu Education Act was passed over the objections of Africans and began eroding even the small gains Africans had made through the education they had received from the missionaries, whose schools were taken over by the new Ministry of Bantu Education. Efforts by leaders of the African National Congress to open independent schools were frustrated through legislation that forbade such schools and prescribed severe punitive measures for flouting the law.
A series of South African government laws followed over the next two decades that placed indigenous Africans at a substantial disadvantage compared with whites in the area of education. By 1979 only 29 percent of black pupils were completing their primary and secondary schooling, compared with 81 percent of white pupils. A number of these legislative acts established separate universities for blacks, coloureds, and Asians and put higher education increasingly under the long arm of the state. The National Educational Policy and the Act on Educational Services passed in 1967, and the 1969 Act on the Training of Teachers established a new Department of National Education that retained control of all tertiary educational institutions: universities, colleges of advanced technology, technical colleges and institutes, and other colleges offering postsecondary certificates. This completed government encroachment on university autonomy especially on such matters as admission of people from other racially defined groups.
The Constitution of 1996 and a comprehensive, integrated series of education laws enacted under the administrations of Presidents Mandela and Mbeki have been transforming the South African educational system at all levels. For example, the South African Schools Act 84 of 1996 provides for a uniform system for the organization, governance, and funding of schools. The Act is intended to "redress past injustices in educational provision, provide an education of progressively high quality. . ., advance the democratic transformation of society, combat racism and sexism and all other forms of unfair discrimination and intolerance, contribute to the eradication of poverty and the economic well-being of society, [and] protect and advance [South Africa's] diverse cultures and languages." The 1996 South African Schools Act also spells out the new democratic government's plans for educational reform. The Act provides for: 1) compulsory education for learners between the ages of 7 and 15 or learners reaching grade 9, whichever occurs first; 2) two categories of schools, namely public and independent schools, as well as the establishment and maintenance of public schools on private property; 3) criteria for the admission of learners to public schools; 4) governance and management of public schools, 5) the election of governing bodies and their functions; and 6) funding of public schools.
A new Higher Education Act passed in 1997 (Act 101) provides a policy and legislative framework for higher education. The Act established a Council of Higher Education (CHE) to advise the minister on the structure, planning, and governance of higher education; funding formulae; financial aid and student support services; quality control and assurance; and language policy. The Act requires the minister to provide reasons in writing for turning down the recommendations of the CHE on any of these matters. There are 21 universities and 15 technikons in South Africa—relatively few for a population of 43 million people, although intense debate is underway over the "shape and size" of the higher education sector. Universities and technikons are autonomous and answerable to their councils. Private Acts of Parliament establish each university, and there is minimum interference from the government. The Higher Education Act also legislates the establishment of private technikons and universities, which must register, however, with the Ministry of Education. An earlier Technikons Act (Act 125 of 1993) had enabled technikons to offer degrees as well as their previous three year diplomas.
South African language policy as it applies to education is still evolving and the subject of intense debate. Under the Apartheid system South Africa had two official languages, English and Afrikaans, which were used as the languages of commerce, science, and higher learning. Indigenous languages were elevated to official status only after South Africa's first truly democratically elected government came to power in 1994. In July 1997, a new language policy was released that accords with the language clauses of the 1996 Constitution. The new language policy stipulates that students have a right to be taught in the language of their choice. When applying for admission to a school, a student may stipulate in which of South Africa's official languages the student wishes to be taught. Schools are expected to take the language preferences of students into account and, "within reasonable measures," respond to the language choice of the students they admit. According to the policy, only official languages may be used for instruction; from grade 3 onwards, learners have to study the language they are taught in, as well as at least one other approved language; language may not be used as a barrier to admission; governing bodies must stipulate how their schools will promote multilingualism; and failing a language will result in failing the grade one is in.
Concerning the new language policy in schools, under the new South African Constitution of 1996, all children and youth are allowed instruction in the language of their choice, as selected from among the 11 official languages of the country. It is left to the individual school districts and institutions to manage the practical accomplishment of this task—one of the great challenges yet to be adequately addressed by the school reform measures underway in the early twenty-first century. The new language policy nonetheless lays the groundwork for some of the potentially most empowering legislation the new government will pass to strengthen the previously marginalized African language communities.
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