South African Schools Act, 1996 (Act No. 84 of 1996)Chapter 4 : Funding of Public Schools38A. Prohibition of payment of unauthorised remuneration, or giving of financial benefit or benefit in kind to certain employees |
| 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- |
| a) | remuneration; |
| b) | other financial benefit; or |
| c) | benefit in kind. |
| 2) | A governing body may apply to the employer for approval to pay a state employee any payment contemplated in subsection (1). |
| 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 payment; |
| b) | the process and resources that will be used to compensate or remunerate the state employee; and |
| c) | the extent of compliance with section 20(5) to (9). |
| 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 must not unreasonably refuse an application contemplated in subsection (2). |
| 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 payment 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). |
| 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 |