- The SCA ruled that the Western Cape can continue allowing private organisations and donors to partner with public schools.
- Equal Education and SADTU argued the model unlawfully changes school governance and conflicts with national legislation.
- The court found no constitutional conflict and dismissed both appeals.
Private organisations and donors can continue playing a formal role in some Western Cape public schools after the Supreme Court of Appeal dismissed a constitutional challenge to the province’s education reforms.
The appeals were brought by Equal Education and the South African Democratic Teachers’ Union (SADTU). Both argued that key provisions of the Western Cape Provincial School Education Amendment Act undermine democratic school governance and conflict with the South African Schools Act.
The unanimous judgment was delivered by Acting Judge D Mbha, with Acting Judge M Petse and Acting Judge J Dlodlo concurring. The court dismissed both appeals and made no order as to costs.
What was being challenged?
The legislation introduced a new model that allows underperforming public schools to enter long-term partnerships with non-profit organisations and private donors. The schools remain public schools, while operating partners provide additional expertise, management support and funding aimed at improving learner outcomes.
Equal Education argued the model creates a governance gap by weakening the role of parents and learners on school governing bodies. SADTU contended that the provincial law unlawfully departs from national legislation, which sets out how governing bodies of ordinary public schools must be constituted.
The Western Cape Government defended the reforms as a practical response to weak school governance, declining resources and persistent inequality in education.
Court finds no real conflict
Judge Mbha said the constitutional right to education lay at the centre of the dispute, writing that “the constitutional right to basic education of children and the paramountcy of the best interests of a child are at the core of both appeals.”
The court rejected SADTU’s argument that the provincial law conflicts with the South African Schools Act, finding that the two legislative schemes regulate different governance models and are capable of operating alongside one another.
Judge Mbha held, “The conflict-resolving provisions are only triggered when there is ‘real conflict’,” concluding that no such conflict exists in this case. The judgment also found that parents, educators, staff and learners continue to serve on governing bodies of partnership and donor-funded schools, with donor or operating partner representatives added rather than replacing existing members.
Intervention facilities challenge fails
Equal Education also challenged provisions establishing residential intervention facilities for learners found guilty of serious misconduct, arguing they grant officials overly broad powers, lack judicial oversight and could infringe children’s constitutional rights.
The SCA declined to strike down those provisions, ruling that the challenge was premature because no intervention facility has yet been established. The court held that it is constitutionally permissible for legislation to create the framework while leaving operational details to future regulations.
Schools evaluation authority upheld
SADTU’s separate challenge to the Western Cape Schools Evaluation Authority was also dismissed. The union argued that the independent evaluation body infringes teachers’ collective bargaining rights and effectively alters conditions of employment.
The court disagreed, finding that collective bargaining does not extend to bargaining over the content of legislation enacted by a legislature.
In closing, Judge Mbha emphasised that while children’s interests are paramount, “this does not mean that they are the sole consideration,” adding that decisions must remain “just, equitable, and reflective of the broader legal and social context.”
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