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IV. Current legal status of farm schools

The Schools Act makes provision for two types of schools—public (state-run) and independent (private).  Farm schools have a hybrid status, being deemed to be public schools on private property.¹⁰⁹ 

Section 14(1) of the Schools Act states that “a public school may be provided on private property only in terms of an agreement between the member of the executive council (the provincial education minister) and the owner of the private property.” According to section 14(5) of the Schools Act, such an agreement must provide for:

- The provision of education and the performance of the normal functions of a public school;

- Governance of the school, including the relationship between the governing body of the school and the owner;

- Access by all interested parties to the property by the school;

- Maintenance and improvement of the school buildings and the property on which the school stands and the supply of necessary services; and

- Protection of the owner’s rights in respect of the property occupied, affected or used by the school.¹¹⁰

In addition, section 56 of the Schools Act states that:

If an agreement contemplated in section 14 (above) does not exist at the commencement of this Act, in respect of a school, standing on private property and which is deemed to be a public school in terms of section 52(1), the Member of the Executive Council must take reasonable measures to conclude such an agreement within six months of the commencement of this Act [emphasis added].

The Schools Act provides for the title deeds of the affected lands to be endorsed with a note that the land is subject to an agreement with the provincial department of education.¹¹¹  However, nothing is stated as to what the consequences are if no such agreement is concluded within the envisioned timeframe.

Regulations relating to the minimum requirements of an agreement between the member of the executive council and the owner of a private property on which a public school is provided were published in 1997.¹¹² Included in the regulations is a pro forma or standard agreement to be used as a guideline by provincial departments of education (see appendix).  Options are put forward for ownership rights of the school.  The farm owner can give the right of the use of the land to the school either free of charge or for rent.  On closure of the school, all improvements to the school buildings will either become the property of the farm owner free of charge or in exchange for agreed payment by the farm owner to the provincial department of education.  Provision is made for a pre-existing agreement between the state and a farm owner to remain valid as long as it is consistent with the Schools Act and the regulations.

Some of the provisions that should be contained in the agreements are the following: 

Services:

- Potable water and toilets must be provided and secured.

- Electricity should be provided and this should be in compliance with national safety standards.

Access to school:

- Access to schools must not be limited to learners, teachers, but also granted to parents, workers at the school and members of the public who have a reasonable interest in the activities of the school.

- The property and access roads to the school must be adequately fenced.

The agreement must determine whether payment will be made to the farm owner for the use of the property by the provincial department of education and any services or management undertaken by the farm owner.  Responsibility for maintenance of the school and payment for water and electricity consumption must be clearly defined in the agreement.  

Where either party falls short of its obligations, the other must notify the defaulter in writing within fourteen days of breach of the nature of the complaint.  Provision is made for mediation between the parties.

If the landowner sells the property where the school is located, the provincial department of education must be informed of the change of ownership, and the new owner must be notified of the existence of the school.  However, it is not clear whether the new owner is bound by a pre-existing agreement or would have to negotiate a new agreement. 

Section 58 of the Schools Act empowers the state to expropriate land “for any purpose relating to school education in a province.” The section details the procedures that need to be followed to ensure that the expropriation is lawful.

Although the six-month period following the enactment of the Schools Act has long since elapsed, agreements have not been signed in relation to most schools in the provinces.  In some cases, farm owners have failed to sign contracts while in others the provincial education department has not committed to the agreements.  Whatever the reason, the current status of these schools remains unclear.  A further complication is that there is no sanction should the landowner fail to sign the new contract.  No guarantee has been placed within the Schools Act or the regulations on ensuring access to education and non-interference pending the signing of the contracts.

The role of provincial governments

The provincial departments of education are responsible for implementing national education policy.  In the context of farm schools, their role in ensuring the conclusion of contractual agreements with landowners is critical in order to secure children’s access to education.  In the words of a Free State Province department of education official, “[the conclusion of these agreements ensures] the rights of learners, the right of the private owner and the right of parental involvement.  The bottom line is that the farm owner [cannot] interfere with the rights of children to go to school.”¹¹³

The provinces have been given some scope to decide on the options available to landowners as outlined in the generic pro forma agreement suggested by the national Department of Education.  The provincial governments at the outset met with the farm owners’ representative bodies to negotiate agreements.  The initial deadline - within six months from the commencement of the Schools Act - lapsed with only approximately 10 percent of the schools having new contracts.¹¹⁴ A further deadline was set for December 2000 following a national conference on the future of farm schools where it emerged that in five of the nine provinces no farm schools were bound by the new contractual agreements.¹¹⁵ 

In June 2003, Human Rights Watch researchers found that, in many provinces, the majority of farm schools were operating without contractual agreements.  Out of 494 farm schools in Mpumalanga Province, approximately 135 were bound by contractual agreements.¹¹⁶  Limpopo Province had 317 farm schools for which between fifteen and twenty contracts had been signed.¹¹⁷  Three hundred and sixteen farm schools existed in the North West Province; approximately fifty of these schools had contractual agreements.  In the Eastern Cape Province 146 contracts had been concluded out of approximately 400 schools.  In the Free State Province, which has the largest number of farm schools in South Africa, 643 new contracts existed for 1,206 farm schools.¹¹⁸ At the time of writing, the national Department of Education was unable to inform Human Rights Watch of the national total of contractual agreements concluded by farm owners and provincial departments of education.¹¹⁹ Furthermore, Human Rights Watch researchers found that some farm schools visited did not appear on provincial lists of farm schools.  It is also not apparent if data on farm schools also includes those schools located in former homelands.  This lack of clarity and the disparity in the availability of accessible information on farm schools within the provincial departments of education affected research on these schools, and underlines the need for the government to collect and maintain a register, including statistical information, on the status of schools on commercial farms. 

School inspectors, who are also referred to as a school management directors in some provinces, monitor and evaluate school performance.  They are responsible for a number of schools within a designated area in a province.  In addition to assessing the physical and educational needs of a school with a view to improving them, they intervene between the farm owner and school in ensuring that education is accessible to learners on farms.  The inspector also has an oversight function on management issues at a school.  

Some officials interviewed argued that the absence of a national strategy on farm schools affected access to education in the farm dweller communities.  Others called for a dedicated program for farm schools, as provincial departments were not devoting the necessary time and resources to farm schools.¹²⁰  One official went so far as to say that, “I wish President Mbeki [would] come up and say provinces must provide a budget for farm schools to uplift the standard of education.”¹²¹ In the meantime several provinces are discussing alternative strategies for the provision of education in commercial farming communities, such as the establishment of boarding schools where children of farm dwellers would able to learn with a larger number of fellow learners and presumably with adequate teachers and better facilities. 

Eastern Cape Province

The education department has given landowners two options; either the farm owner can allow the land where the school is situated to be used for educational purposes free of charge in which case the department takes responsibility for maintenance and renovations or, rent is paid to the farm owner who then takes responsibility for maintenance.¹²² At present, the nominal rent is calculated at between R2.50 (U.S. $0.36) and R3.50 (U.S. $0.50) per square meter per month.  In the case where a former agreement (where a farm owner received a subsidy from government) exists and a contractual agreement has not been concluded, the department will consider rent payment.  The situation is less clear where a lease does not exist.  According to a department official, the province is not contemplating the establishment of boarding schools.¹²³ The department official stated that the provincial department would not shut schools in remote areas that are providing an education for farm children and are difficult to amalgamate with others.

Free State Province

The provincial department of education began its meetings with the Free State Agricultural Union, an affiliate of Agriculture South Africa (Agri-SA) the largest national body representing farm owners, to negotiate a draft agreement in 1997.¹²⁴  The agreement negotiated in the Free State Province differs from that in Mpumalanga Province [see below] in that it obliges farm owners to make land available for educational purposes for no rent, and in turn the provincial department of education is responsible for maintaining the school buildings and facilities.  Department officials acknowledged, “[s]ome farmers have refused to sign the agreements” as they believe that “[g]overnment is going to try to take their land.”¹²⁵  The department believes that if there is no contractual agreement, a farm school should not exist.   The Free State Department of Education is converting disused boarding schools into schools for children from farming communities.  At the time of writing, four boarding schools were operating.  The provincial government is to pay boarding school fees for learners from commercial farms.  

Limpopo Province

In terms of the negotiated agreement for Limpopo Province, the department is responsible for construction of the buildings, supplying teaching materials, and paying teachers’ salaries.  The state pays for water and electricity consumption and attends to the maintenance of these services.¹²⁶  The provincial department pays a nominal rent of approximately R300 (U.S. $43) each year for schools that have less than one hundred learners to farm owners.  Schools with an enrollment exceeding one hundred learners attract a rental on a sliding scale to a maximum of R600 (U.S. $86) per year.¹²⁷ It would appear from Human Rights Watch’s research that a majority of contractual agreements in the province have not been finalized.   Some of the concerns put forward are the landowner’s resistance to government’s apparent encroachment on their property rights and the fear of expropriation.  In addition, according to the provincial department of education, some farm owners believe that the rent being offered to retain these schools is too low.¹²⁸ Officials have also admitted that failure by government to pay rent has discouraged other farm owners from committing themselves to these agreements.¹²⁹

Mpumalanga Province

The Mpumalanga Department of Education met with the Mpumalanga Agricultural Union, also an affiliate of Agri-SA, at the end of 1999 to discuss the generic pro forma agreement in the regulations published by the national Department of Education.¹³⁰  Following this meeting the provincial department sent a draft agreement to landowners in 2000 and 2001.  Three options were given to farm owners.  The farm owner can agree to retain the school to be used for educational purposes free of charge.  Alternatively, the owner may opt to be paid nominal rent, which covers out of pocket expenses such as pumping water to the school.  In both these cases, the provincial department of education is responsible for maintaining the school.  The third option is that the farm owner is paid market-related rent.  According to the provincial government, those owners who entered into agreements have preferred the option by which government pays rent and the farm owner shoulders the responsibility for maintaining the school.  The school size and the facilities provided are some of the considerations taken into account when computing rent.  Some farm owners receive rent of R3, 600 (U.S. $514) per annum.¹³¹  In the absence of an agreement, no payment is made to farm owners.¹³² As noted above, less than one-third of farm owners in Mpumalanga Province have signed these contracts.  The owner of Friedenheim Farm reportedly shut two primary schools in January 2000 due to the provincial department’s delay in committing to an offer of land for the relocation of the farm schools.¹³³  

The provincial department of education is considering shutting down one-teacher schools where “[n]o teaching is going on.”¹³⁴ Five farm schools were recently shut down outside Nelspruit on the way to Malelane and a new school was built in Louieville, in the former KaNgwane self-governing territory to accommodate the children.  Transport is provided for learners to and from school.  Clustering schools is a further option.  This would allow for “[m]ore teachers, better control.”¹³⁵

North West Province

In the North West Province, landowners have to agree, in terms of the draft contract, to offer the land for the purpose of education free of charge.  In return, the provincial department of education is responsible for maintenance, improvements, and services.  However, according to a department official, there were insufficient funds to adequately address maintenance needs at farm schools.¹³⁶ The North West Province is also looking at closing some schools and establishing boarding schools for children living on farms.¹³⁷ A former military base, Klippan, has been identified as a location for a boarding school, which will accommodate children from approximately thirty farm schools in Zeerust, Mafikeng and Lichtenberg.¹³⁸

The role of non-state institutions

Farm owners’ representative bodies

The Transvaal Agricultural Union - representing approximately 6,000 farm owners mainly in the Limpopo, Mpumalanga and North West Provinces¹³⁹ - has raised a number of concerns relating to the management and governance of farm schools, the dilapidated state of schools, and the general standard of education on farm schools.¹⁴⁰  In the view of the organization, it is prepared to assist its members in the conclusion of agreements provided that the obligations are “fair and not an additional burden on the owner.”¹⁴¹  In terms of the contractual agreements, the organization proposes that the school be made available for educational purposes.  The provincial department of education should be responsible for maintaining the school premises.  Thus, for example, the farm owner will make water available to the fence of the school, but it will be the responsibility of the provincial department of education to get that water to the learners and teachers.  In return, the provincial department should pay nominal rent of R1 (U.S. $0.14) per learner per year.  Should the school shut down, the buildings and any improvements made will be the property of the farm owner.  This is because, “[in the experience of farm owners], the school functions for a couple of years, it falls apart, learners leave, and the facilities remain [disused].”¹⁴²  It is on these terms that the organization has supported its members in the signing the contractual agreements.  According to the organization, the provincial departments of education have yet to countersign these contracts.  A national Department of Education official confirmed that a number of contracts had been signed by farm owners in 2000/01, and sent to the provincial departments of education for countersigning.¹⁴³ A concern raised by an official in one of the districts in Limpopo Province is the failure by the provincial department of education to implement the contractual agreements.¹⁴⁴  

Agriculture South Africa (Agri-SA), which represents approximately 62,000 commercial and emerging farmers, has indicated that it is committed to the conclusion of the agreements in order to “[p]romote and support the education and development of learners in farm schools.”¹⁴⁵ The Free State Agriculture Union, an affiliate of Agri-SA, however confirmed, that landowners who have schools with fewer than ten children did not sign the contracts as they believed that it was not in their interests to retain the schools.¹⁴⁶ 

Professional organizations

The South African Democratic Teachers Union acknowledged that farm schools are neglected, and that as an organization it needs to address the plight of learners and teachers at farms schools.¹⁴⁷ The lack of transportation and insufficient resources are some of the concerns raised by the organization.  In essence, the organization believes that clarity on the legal status of farm schools is important for the transformation of these schools.