Supreme Court to rule on private donor control in Western Cape schools

On Tuesday, Equal Education (EE), represented by the Equal Education Law Centre (EELC), appealed the Western Cape High Court decision at the Supreme Court of Appeal (SCA), regarding the Western Cape Provincial School Education Amendment Act 4 - challenging the constitutional validity of collaboration schools, donor-funded schools, and intervention facilities.

EE and EELC said in a joint statement that EE first raised concerns in 2016 against the proposed draft legislation but the Amendment Act was passed in 2018.

It said in November 2022, EE challenged the provisions in the High Court, arguing they were vague and violated learners' rights.

After the High Court ruled against EE in July 2023, the decision was appealed.

The reasons for the appeal relate to: Collaboration and donor-funded schools grant private donors/entities significant control (50% or more voting rights) over School Governing Bodies (SGBs), which EE argues undermines democratic governance and accountability. Intervention facilities risk removing learners for "serious misconduct" without addressing root causes or ensuring adequate safeguards.

Four main arguments at the SCA: Parent majority rule: Collaboration and donor-funded schools conflict with the South African Schools Act (SASA) requirement for a parent majority on SGBs of public ordinary schools.

Excessive MEC powers: The Amendment Act grants the Provincial Education Minister (MEC) over-broad and unguided powers, particularly in determining remaining SGB membership categories. Inadequate qualifying criteria: The definitions of "operating partner" and "donor" are weak, failing to ensure these private actors possess necessary educational expertise beyond just providing money.

Foreseeable rights violations: The challenge to intervention facilities is not premature; the law lacks guidance for establishment and operation, fails to protect children's best interests, and omits necessary departmental/judicial oversight. EE advocates for strengthening in-school support instead.

EE told Cape Argus following the matter today, their teams would issue a latest statement on developments.

Provincial MEC for Education, David Maynier said they were disappointed that their model was being challenged.

"It's unfortunate that SADTU/Equal Education have chosen to challenge our collaboration schools model, which makes high quality no-fee education available to learners in poor communities in the Western Cape," he said.

"When the action was instituted, our collaboration schools were just getting off the ground. Since then, the model has produced excellent results, with learners having access to incredible learning opportunities.

"One need only look at collaboration schools like Apex High School and Jakes Gerwel Technical High School to see the benefits that the model offers.

"We have always maintained that the challenge brought by SADTU/Equal Education was without basis, and we will continue to work to deliver quality education for every learner, in every classroom, in every school in the Western Cape."

Relief sought: EE asks the SCA to declare the introduction of collaboration schools, donor-funded schools, and intervention facilities invalid due to inadequate regulation, and to order the Provincial Parliament to correct the legal defects.

EE also seeks an order preventing the establishment of new collaboration or donor-funded schools until the law is corrected.

It said this case is critical as the WCED is allowing private organisations control over public schools without ensuring their educational expertise or commitment to learners' best interests, thereby undermining the democratic foundations of public education.

"A collaboration school is a type of school that allows donors to give money to schools on condition that their representatives (known as school operating partners) are given 50% or more voting rights on the SGB. A donor funded school allows a donor to give money to a school and in exchange are given up to 50% voting rights on the school’s SGB," the parties said.

"Intervention facilities represent an even more drastic measure by potentially removing learners found guilty of “serious misconduct” from the formal education system.

"This approach problematises learners without identifying the root cause of their behaviour and separates them from their families and communities for up to a year. It allows this in a context that the Act does not give. There is also no clarity on what constitutes “serious misconduct”.

"While collaboration schools and donor-funded schools may be presented as innovative education models, our concern is that they allow private organisations significant control of public schools in ways that undermine democratic governance and accountability.

"The Amendment Act gives donors and private entities significant voting power on school governing bodies (SGBs)."

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