Should Teachers have the Right to Strike? The Expedience of Declaring the Education Sector an Essential Service

• Jurisdiction: South Africa
• Published date: 16 August 2019
• Pages: 124-145
• Citation: (2013) 24 Stell LR 124
• Author: Karin Calitz
• Date: 16 August 2019

124

SHOULD TEACHERS HAVE THE RIGHT TO

STRIkE? THE EXPEDIENCE OF DECLARING

THE EDUCATION SECTOR AN ESSENTIAL

SERVICE

Karin Calitz

BA LLB LLM LLD

Associate Professor, Stellenbosch University

Riana Conradie

BAcc LLB LLM

Research Assistant, Stellenbosch University*

1 Introduction

In August 2010 South African teachers who pa rticipated in a st rike by

public servants caused schools ac ross South Africa to close a few weeks

before year-end exams. Matric pupils were the ha rdest hit and did not receive

tuition for a period of thre e weeks before the most importa nt examination

of their twelve years at school. Unions representi ng about 1.3 million public

workers, including teachers, e mbarked on a strike that lasted for 20 days. The

conduct of some teachers who intim idated and assaulted thos e who did not

strike and who car ried on teaching was severely criticised.1

The 2010 strike, called a tragedy by some,2 was by no mean s an isolated

incident. Many school days are lost every year a s a result of strikes by teachers.

The Tokiso Review found that South African De mocratic Teachers Union

(“SADTU”), the biggest trade u nion in the education sector, was resp onsible

for 42% of all working days lost as a result of strikes du ring the period 1995-

20 09.3 Accord ing to the 2010 Household Survey of Statistics South Africa,

strikes by teacher s was singled out as the biggest problem that they experience

at school by more than a quart er of lear ners in South Africa.4

In t he Eastern Cape teachers went on a go-slow on the rst school day of

2012, when a number of temporary teacher s were not re-appointed by the

* We would like to than k the two anonymou s referees for their helpf ul comments and s uggestions

1 E Ramasehl a “Naptosa Reject s the Employer’s Offer and Co ntinues with St rike Action” (19-08 -2010)

NAPTOSA <http://www naptosa org za/users/pageUsers php?plugin=publication_detail_user&pubID=630>

(accessed 10-07-2012); SAPA “Report s of Assault in Teacher St rike” (19-08-2010) News24

news24 com/SouthAfrica/ News/Reports-of-assault-in-tea cher-strike-20100819> (accessed 10-07-2010)

2 SAPA “Teachers’ Strike a Trage dy – Parents” (02-0 9-2010) News24

Sout hAfr ica/ News /Teach ers-s tri ke-a- trag edy-p arent s-20100 902> (a cces sed 10- 07-2010)

3 Equal Educa tion “EE’s Statement on Tokiso Revi ew and SADTU” (23- 02-2012) Equal Education tp://

www equaleducationorg za/ee-tr-sadtu> (accessed 12-07-2012)

4 Depart ment of Basic Education G eneral Househo ld Survey 2010: Focus on Sc hooling (2010) 24 available

at (accessed 24-02-2013)

(2013) 24 Stell LR 124

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Departme nt of Education.5 The strike ended on ly on 8 February 2012, more

than three week s after the school term had star ted.

Concerns about the poor s tandard of education in South A frica are

exacerbated by the possible impact of st rikes on pupils. The Annual National

Assessment of 2011 indicated that the national average performa nce in

literacy among Gra de 3 pupils was 35%, while the numeracy perfor mance

was 28%. In Grade 6 the nat ional average performance i n languages was

28% and in mathematics 30%.6 The se gures are even more a larming when

South Africa is compar ed to countries in t he region with the same or even

lower income levels and a smaller education budget.7

Even if South African pupils do pass Mat ric, they often do not have the

necessary skills to nd employment. They join the gr owing pool of unemployed

people in South Africa , and currently close to 50% of unemployed people are

between the ages of  fteen and 24.8 Low qualit y education in South Afr ica

has rightly been identie d as a pover ty trap.9

Although there are ma ny factors contributi ng to poor performance by

South African pupils, t he absence of teachers from class du ring stri kes must

surely be a contributi ng factor. Because of concerns about the imp act of

strikes on the educ ation of children, the Democratic Allianc e and the National

Association of Parents in School Governanc e have called on government to

declare teaching an es sential service.10 The most recent pr oposal for such a

step was tabled in the National A ssembly on 6 June 2012 by a Ministerial

Review Committee appoi nted by the Minister of Science and Technology.11

The designation of teaching a s an essential serv ice will have the effect

that teachers are proh ibited from participat ing in strikes, t hat their disputes

will be referred to a rbit ration, and that they could be dismissed on account of

misconduct if they do par ticipate in a stri ke.12 It should be kept in mind that

all propose d legislation and changes to existi ng labour legislation must rst

go through a consens us-seeking process at the Labour Ma rket Chamber of the

National Economic Development and Labour Counci l (“NEDLAC”) before

any piece of draft legislation is brought before Parlia ment.13 One of the social

partners , the inuential t rade union federation, Congress of South Afr ican

5 SAPA “Eastern Ca pe Teachers End Go-slow ” (08-02-2012) News24 com/

SouthAfrica/ News/Eastern-Cape-t eachers-end-go-slow-20120208> (accessed 10-07-2010)

6 Depart ment of Basic Educat ion Report on the Ann ual National As sessment of 2011 (2011)

www education govza/ LinkClick aspx?fileticket=1U5igeVjiqg%3d&tabid=358&mid=1325> (acce ssed

10-0 7-2012)

7 N Spaull Prelimi nary Analysi s of SACMEQ III Sout h Africa Stellen bosch Economic Work ing Papers

11/11 (March 2011) 24

8 D Worrall “Youth Unemploy ment: Have You got any Ideas?” (29-05-2012) Polity

za/article /youth-unemployme nt-have-you-got-any-ideas -2012-05-29> (accessed 12-07-2012)

9 Stellenbosch Un iversity Depar tment of Econom ics Social Policy Resea rch Group Low Qua lity Educati on

as a Poverty Trap (M arch 2011) <http://us-cdn creame rmedia co za/assets/articles/attachment s/32695_

low-quality-educ-as-poverty-trap-report pdf > (accessed 23-07-2012)

10 SABC “NAPSG Want s Teaching declared a s Essential Ser vice” (21-12-2011) SA BC News

www sabc co za/news/a/6aeae880498073cbadc8adc80a9ef884/NAPSG -wants-teaching-declared-a s-

essential-service-20111221> (accessed 10-07-2012)

11 M O’Connor “Nuwe Verso ek Teen Stakings in Ond erwys” Die Burger (07-06 -2012) 7

12 S 65(2)(d)(i), s 74 and item 6 of the Code of Good P ractice: Dismiss al of the LRA

13 S 5(1)(c) of the NEDLAC Act 34 of 1994

SHOULD TEACHERS HAVE THE RIGHT TO STRIKE? 125

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