The DG Murray Trust (DGMT) welcomes a recent Supreme Court of Appeal (SCA) ruling upholding the right of provincial education departments to legislate for new forms of public schools, beyond those specifically mentioned in the South African Schools Act (SASA).
The judgment handed down last Thursday clearly states that public schools do not need to be managed in exactly the same way across the country and that each province can, in the best interests of learners, choose to include non-state actors in both the governance and management of public schools.
This decision enables the Western Cape Education Department (WCED) to continue implementing Collaboration Schools in partnership with non-profit school operating partners and donors. This model gives non-profit school operating partners 50% representation on school governing bodies (SGBs), increases flexibility in staffing arrangements, and allows access to classrooms by authorised quality assurers for the purpose of monitoring curriculum delivery.
“The SCA has made space for innovation in public education and this ruling will hopefully give other provinces the confidence to explore other models of public schooling,” says David Harrison, Chief Executive Officer of DGMT.
The SCA’s ruling follows an appeal by Equal Education and SADTU against a judgment in the Western Cape High Court in July 2023 which affirmed the legality of provisions of the Western Cape School Education Amendment Act of 2018. These included the establishment of Collaboration and Donor-funded Schools and allowed for deviation from the SASA-prescribed composition of SGBs in ordinary public schools.
The appellants argued that these variations violated SASA and undermined parents’ democratic participation, despite SGBs having to agree to become a Collaboration School and the entire parent body retaining the ultimate say in cases of voting deadlock. Although the SCA noted that education was a concurrent competence of national and provincial government, Schedule 4 of the Constitution expects provinces to play an active and important role in legislating for the right to education. This means that provinces could legislate for different forms of public schools that furthered the objective of better education for all children, including those that harnessed the expertise and resources of role-players outside of the government system.
The SCA further noted that apart from a few Collaboration Schools which foundered in the start-up phase, most had shown accelerated improvements in learner outcomes. “The ruling accepts that school improvement must go beyond tinkering-while-spinning on the hamster wheel and incorporate new ideas that propel the system forward,” says Harrison.
“This decision is not an indictment of the efforts of government, but rather a recognition that it must mobilise all available resources within and outside of government to give our poorest children a real chance in life,” Harrison concludes.
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