“Education is essential, but it is not an essential Service!”
There is a recurring debate on whether teaching should be declared an essential service in South Africa. The Democratic Alliance (DA) has emphatically taken this position, and ANC politicians have recently raised the subject publicly. In new research published today as a position paper [LINK] Equal Education (EE) sets out the legal position. The focus of this position paper is legal and therefore fairly narrow, but it makes clear that education cannot legally be declared an essential service in South Africa.
Political Uncertainty
In early February 2013, the ANC Secretary-General, Gwede Mantashe, reported back after an ANC lekgotla that education would be declared an “essential service” [LINK]. Several weeks later, in his State of the Nation Address on 15 February 2013, President Zuma said:
“By saying education is an essential service we are not taking away the Constitutional rights of teachers as workers such as the right to strike.” [LINK]
However, speaking to journalists on 26 February 2013, following a post-State of the Nation debate at Parliament, Minister of Basic Education Angie Motshekga did not rule out the possibility that government may officially declare education an essential service in future.
“We may need to look at making education an essential service [in future]. For now we must cease hostilities and make it a priority. So I don’t know what will happen in the future, for now we are using the word ‘essential’ to show it is critical and must be worked on accordingly.” [LINK]
Legal Certainty
An essential service refers, in law, to an economic activity in regard to which it is permissible for a government to prohibit strikes totally. In the strict sense of the term, “essential services” refers only to services that, if withheld, would endanger the life, personal safety or health of the whole or part of the population.
Section 65 of the Labour Relations Act (LRA) states that: “No person may take part in a strike or lock-out or in any conduct in contemplation or furtherance of a strike or a lock-out if – … that person is engaged in an essential service…” It is therefore very important to know which services may be declared essential, and which may not.
South Africa is again a member of the International Labour Organisation (ILO), after having been excluded from membership during the apartheid years. Many decisions of the Freedom of Association Committee of the Governing Body of the ILO repeatedly confirm that education cannot be considered an essential service whatever the circumstances. EE’s position paper on this issue examines cases from Colombia, Argentina, Bulgaria, Peru, Korea and, importantly, Canada, the country whose Bill of Rights is perhaps most similar to South Africa’s.
Accountability and Standards in the Teaching Profession
There is indeed cause for serious concern that teacher absenteeism and a lack of professionalism are a part of the challenge facing South African education. Equal Education shares with all reasonable South Africans a concern that teachers should conduct themselves professionally and diligently, and that teaching should be to a high standard. A great deal of discussion and hard work, both within and without the teaching profession, is needed in order to ensure that this happens in our country. EE is actively engaged in this work. To take just one example, on 18 June 2013 EE will be in the Bhisho High Court to hold a school principal and teachers accountable for absenteeism and neglect of their duties. EE’s youth and parent membership are daily engaged in improving the functionality of schools – this is in fact EE’s primary work, albeit out of the media spotlight. EE will continue to ensure that all role-players, including teachers, fulfil their legal and moral responsibilities. Making education an “essential service” does not appear to be a viable way forward.
For comment please contact
Yoliswa Dwane (EE Chairperson) on 072 342 7747/ 021 387 0022
Doron Isaacs (EE Deputy General Secretary) on 082 850 2111
Kate Wilkinson (Media Officer) on 082 326 5353
