| (1) |
Subject to subsection (2), a governing body may not pay or give to a state employee employed in terms of the Employment of Educators Act, 1998 (Act No. 76 of 1998), or the Public Service Act, 1994 (Proclamation No. 103 of 1994), any unauthorised— |
| (2) |
A governing body may apply to the employer for approval to pay a state employee any remuneration, or to give to a state employee any other financial benefit, or benefit in kind. |
[Section 38A(2) substituted by section 29(a) of the Basic Education Laws Amendment Act, 2024 (Act No. 32 of 2024), Notice No 5212, GG51258, dated 16 September 2024 – effective 24 December 2024 per Proclamation Notice 237 of 2024]
| (3) |
Such application must be lodged in writing in the office of the employer and must state— |
| (a) |
full details of the nature and extent of the remuneration, other financial benefit, or benefit in kind; |
| (b) |
the reasons for the remuneration, other financial benefit, or benefit in kind; |
| (c) |
if practicable, the monetary value of the remuneration, other financial benefit, or benefit in kind; |
| (d) |
the process that will be followed and the resources that will be used to compensate or remunerate the state employee; and |
[Section 38A(3) substituted by section 29(b) of the Basic Education Laws Amendment Act, 2024 (Act No. 32 of 2024), Notice No 5212, GG51258, dated 16 September 2024 – effective 24 December 2024 per Proclamation Notice 237 of 2024]
| (4) |
The governing body must make the application contemplated in subsection (2) at least four months prior to the finalisation of the school’s budget. |
| (5) |
Despite subsection (1), a governing body may pay travel and subsistence expenses relating to official school activities but such expenses may not be greater than those that would be payable to a public servant in similar circumstances. |
| (6) |
An employer may not unreasonably refuse an application referred to in subsection (2). |
[Section 38A(6) substituted by section 29(c) of the Basic Education Laws Amendment Act, 2024 (Act No. 32 of 2024), Notice No 5212, GG51258, dated 16 September 2024 – effective 24 December 2024 per Proclamation Notice 237 of 2024]
| (7) |
In considering the application, the employer must take into account— |
| (a) |
the implications for the employer in terms of the employment contract and labour law; |
| (b) |
whether the service concerned in the application will interfere with the normal service delivery of the employee; |
| (c) |
whether the service concerned in the application has already been paid for by the employer; and |
| (d) |
whether the additional remuneration, other benefits or benefits in kind support the core activities and functions of the school. |
| (8) |
The remuneration, other financial benefit, or benefit in kind contemplated in subsection (1) must be reflected in the school’s budget, as presented to the general meeting of parents as contemplated in section 38(2), and in such reflection in the budget, any remuneration, other financial benefit, or benefit in kind must, if practicable, be accorded a monetary value. |
[Section 38A(8) substituted by section 29(d) of the Basic Education Laws Amendment Act, 2024 (Act No. 32 of 2024), Notice No 5212, GG51258, dated 16 September 2024 – effective 24 December 2024 per Proclamation Notice 237 of 2024]
| (9) |
If a governing body pays remuneration or gives any financial benefit or benefit in kind contemplated in subsection (1) to an employee without prior approval of the employer, the amount of money paid or benefit given must be recovered by the employer on behalf of the school from members of the governing body who took that decision, excluding a member of the governing body who is a minor. |
| (10) |
A governing body may appeal to the Member of the Executive Council against— |
| (a) |
the refusal by the employer of an application contemplated in subsection (2); or |
| (b) |
the failure of the employer to provide a decision on an application contemplated in subsection (2) within three months after the lodging of the application in the office of the employer |
Trade Marks Act, 1993
