| (1) | Subject to the provisions of this section, the appointment of any person, or the promotion or transfer of any educator— |
| (2) | Subject to the provisions of this Chapter, the Labour Relations Act or any collective agreement concluded by the Education Labour Relations Council, appointments in, and promotions or transfers to, posts on any educator establishment under this Act shall be made in accordance with such procedure and such requirements as the Minister may determine. |
| (a) | Subject to paragraph (m), and appointment, promotion or transfer to any post on the educator establishment of a public school may only be made on the recommendation of the governing body of the public school and, if there are educators in the provincial Department of Basic Education concerned who are in excess of the educator establishment of a public school due to operational requirements, that recommendation may only be made from candidates identified by the Head of Department, who are in excess and suitable for the post concerned. |
[Subsection (3)(a) substituted by section 58(3) of Act No. 16 of 2006]
| (b) | In considering the applications, the governing body of the council, as the case may be, must ensure that the principles of equity, redress and representivity are complied with and the governing body or council, as the case may be, must adhere to— |
| (i) | the democratic values and principles referred to in section 7(1); |
| (ii) | any procedure collectively agreed upon or determined by the Minister for the appointment, promotion or transfer of educators; |
| (iii) | any requirement collectively agreed upon or determined by the Minister for the appointment, promotion of transfer of educators which the candidate must meet; |
| (iv) | a procedure whereby it is established that the candidate is registered or qualifies for registration as an educator with the South African Council for Educators; and |
| (v) | procedures that would ensure that the recommendation is not obtained through undue influence on the members of the governing body. |
[Subsection (3)(b)(v) substituted by section 58(3) of Act No. 16 of 2006]
| (c) | The governing body must submit, in order of preference to the Head of Department, a list of— |
| (i) | at least three names of recommended candidates; or |
| (ii) | fewer than three candidates in consultation with the Head of Department. |
[Subsection (3)(c) substituted by section 58(3) of Act No. 16 of 2006]
| (d) | When the Head of Department considers the recommendation contemplated in paragraph (c), he or she must, before making an appointment, ensure that the governing body has me the requirements in paragraph (b). |
[Subsection 3(d) substituted by section 58(3) of Act No. 16 of 2006]
| (e) | If the governing body has not met the requirements in paragraph (b), the Head of Department must decline the recommendation. |
[Subsection 3(e) substituted by section 58(3) of Act No. 16 of 2006]
| (f) | Despite the order of preference in paragraph (c) and subject to paragraph (d), the Head of Department may appoint any suitable candidate on the list. |
| (g) | If the Head of Department declines a recommendation, he or she must— |
| (i) | consider all the applications submitted for that post; |
| (ii) | apply the requirements in paragraph (b) (i) to (iv); and |
| (iii) | despite paragraph (a), appoint a suitable candidate temporarily or re-advertise the post. |
| (h) | The governing body may appeal to the Member of the Executive Council against the decision of the Head of Department regarding the temporary appointment contemplated in paragraph (g). |
[Subsection 3(h) substituted by section 58(3) of Act No. 16 of 2006]
| (i) | The appeal contemplated in paragraph (h) must be lodged within 14 days of receiving the notice of appointment. |
| (j) | The appeal must be finalised by the Member of the Executive Council within 30 days. |
| (k) | If no appeal is lodged within 14 days, the Head of Department may convert the temporary appointment into a permanent appointment as contemplated in section 6B. |
| (l) | A recommendation contemplated in paragraph (a) shall be made within two months from the date on which a governing body was requested to make a recommendation, failing which the Head of Department may, subject to paragraph (g), make an appointment without such recommendation. |
[Subsection (3)(l) substituted by section 58(3) of Act No. 16 of 2006]
| (m) | Until the relevant governing body is established, the appointment, promotion or transfer in a temporary capacity to any post on the educator establishment must be made by the Head of Department where a— |
| (i) | new public school is established in terms of the South African Schools Act, 1996, and any applicable provincial law; |
| (ii) | [Subsection (3)(m)(ii) repealed by sectin 58(3) of Act No. 16 of 2006] |
| (iii) | new public adult learning centre is established in terms of the Adult Basic Education and Training Act, 2000, and any applicable provincial law. |
[Subsection (3)(m) substituted by section 58(3) of Act No. 16 of 2006]
