Equal Education and the South African Democratic Teachers Union have again failed to overturn sections of the Western Cape Provincial School Education Amendment Act. Illustration: Lisa Nelson
Equal Education (EE) and the South African Democratic Teachers’ Union (SADTU) have again failed to overturn sections of the Western Cape Provincial School Education Amendment Act.
The changes to the act provide for: collaboration schools – public schools where non-profit organisations collaborate with the education department to provide additional skills and resources; donor-funded schools, which are funded by for-profit entities; and intervention facilities, which aim to provide rehabilitation for learners found guilty of serious misconduct.
Both EE and the union complained that this would jeopardise learner and parent representation on school governing bodies (SGBs). They said the Act gave no limit to the number of donor representatives who could be on the SGB. There was also no criteria on the suitability of a donor to be a member.
Regarding the intervention facilities, EE argued that the Act gave officials unguided discretion to refer a learner to such a facility without court oversight. SADTU said the removal of a learner from a school as a disciplinary measure for up to 12 months was in conflict with the South African Schools Act (SASA).
In 2023, Judge Andre Le Grange in the Western Cape High Court ruled that the Act was constitutional and in line with SASA.
EE and SADTU took the matter on appeal to the Supreme Court of Appeal (SCA). In a ruling handed down on Thursday, the SCA dismissed their appeals, essentially agreeing with the findings of Le Grange.
SCA acting appeal judge Boissie Mbha, who penned the ruling on behalf of the three-judge panel, said the high court had rightly noted that the quality of education in public schools remained weak and that school leadership and management did not function properly.
The MEC argued that significant and substantial resources were required, particularly for schools in poorer communities, while funding was decreasing.
One solution was to forge long-term partnerships with entities that possessed skill, experience and knowledge in the field of education.
The primary goal would be to better the lives of children through improving management, governance, teaching and learning.
The MEC said by August 2020, a pilot project, established in 2016, was running at seven primary and six high schools across the province with significant success. It had attracted an additional R342-million for the participating schools
Dealing with SADTU’s submissions, Judge Mbha said the high court’s finding that the provincial government may provide for additional types of public schools over and above those contemplated by SASA could not be faulted. The national minister’s stance, that the provisions did not offend against SASA, “was equally spot on”, the judge said.
SADTU had also argued that allowing donors and operating partners to act on the SGB did not have a legitimate government purpose. Mbha disagreed, saying that the legitimate purpose was to improve the quality of education in the Western Cape.
“How SADTU can even attempt to complain about any infringement of the right to dignity and that all of this is not in the best interests of learners, is plainly unsustainable.”
Turning to EE’s challenges, Mbha said the provisions did not compromise parent and learner representation on the SGBs, as it had contended.
“Nowhere does the Act make it compulsory that the membership of the SGB should or must include the donor’s representatives.
“The MEC has explained … that in exercising the discretion to include donor representatives, she will have regard to the skills and expertise of such representatives. Clearly, what is of foremost importance here is what is in the interests of the child and the child’s right to education.”
Regarding the intervention facilities, Judge Mbha said the MEC had explained that no such facility has been established and that she would not do so until the norms and standards, currently in draft form, were promulgated. EE’s challenge in this respect was thus “premature”.
The MEC had also explained that some learners had successfully completed a pilot programme and had been reintegrated into their schools.
Without this intervention, many would have been expelled, said Judge Mbha.
“Referral to a residential facility is in no way equivalent to imprisonment … A learner can only be sent to an intervention facility with the consent of their parents who are at liberty to withdraw their consent at any time and then have the child removed from the facility and brought back home. Clearly, this is the antithesis of detention.”
The judge said there was no need for court oversight in this process, because it was similar to electing to send a child to boarding school or to stay with a relative.
On SADTU’s stance that these learners would be “stigmatised”, Mbha said, “On the contrary, having regard to the patently and undisputed positive outcomes of the pilot project, a fair amount of learners … were successfully reintegrated [back] into their home schools. In any event, referral to an intervention facility must always be contrasted with the alternative of expulsion which in my view will inevitably cause harmful stigmatisation.”
SADTU also challenged the establishment of the Western Cape Schools Evaluation Authority, arguing that it breached its members’ right to collective bargaining. Mbha rejected this, holding that collective bargaining cannot extend to bargaining with a legislature over the content of law.
Both appeals were dismissed. No order was made as to costs.
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