Joint media statement: Equal Education and Equal Education Law Centre in court today to challenge the introduction of collaboration schools, donor-funded schools, and intervention facilities by the Western Cape Provincial School Education Amendment Act

#WCSchoolsLaw, #PublicSchoolDemocracy

Today, 2 November, Equal Education (EE), represented by the Equal Education Law Centre (EELC), will be in the Western Cape High Court to challenge potentially dangerous changes made to Western Cape education law.

The Western Cape Provincial School Education Amendment Act of 2018 (the Amendment Act) has changed the Western Cape education law in major ways. It has made it possible for two new types of schools to be established – collaboration and donor-funded schools – where donors and private entities are given significant control of public schools in a way that undermines the principles of democratic governance and accountability. The Amendment Act has also made possible the establishment of intervention facilities for learners found guilty of serious misconduct. Learners sent to intervention facilities can be separated from their family and community for up to a year.

We are challenging the introduction of these three institutions because the law around them is vague, is inconsistent with the Constitution and in conflict with the South African Schools Act (SASA).

While EE is not opposed to testing innovative education models, we recognise that experimentation in education is a very sensitive undertaking – it involves the lives and futures of learners. So it should not be contentious that EE wants  to ensure that these three institutions do not operate in breach of existing education laws.

EE first raised concerns around this in 2016, when the proposed changes were published in the Western Cape Provincial School Education School Amendment Bill. When the Bill was considered by the Western Cape Provincial Parliament, we made written and oral submissions to the Standing Committee on Education and continuously called on the Western Cape Education Department to abandon the draft legislation.

As a last resort, we have now taken legal action against the Western Cape Education MEC, Western Cape Premier, the Minister of Basic Education and the Minister of Justice and Correctional Services.

Collaboration schools and donor-funded schools

According to the WCED, collaboration schools and donor-funded schools are a necessary and innovative way to get private funding into schools that are underperforming or are attended by learners from poor communities.

A collaboration school is a partnership between the WCED, an NGO (referred to as a school operating partner) and a donor. The school operating partners may have voting rights on the school governing body (SGB), and may make up 50% of the SGB.

With donor-funded schools, there is no school operating partner. The donor, who makes a donation to the school, is given voting rights on the SGB. The MEC may give a donor more than 50% – and up to 100% – of the voting positions on an SGB. In these schools, private entities can essentially “buy” decision-making power on school governing bodies, regardless of their education expertise.

The Amendment Act allows for existing schools to be converted into collaboration schools or donor-funded schools, but also for new collaboration schools and donor-funded schools to be created.

We are arguing in court that collaboration and donor-funded schools are in conflict with SASA, because:

  • A school operating partner does not form part of who can be on an SGB, according to SASA; and
  • SASA is clear that parents must have the majority voting representation on an SGB.

We are also arguing that the Amendment Act:

  • Does not allow for enough consultation with the community of the school that is identified for being converted into a collaboration or donor-funded school;
  • Fails to specify the criteria that organisations must meet in order to be appointed as school operating partners or donors. There is a great risk that these private organisations are not from the communities in which these schools are located, and do not have the knowledge and experience of working with children that is necessary to make decisions that uphold the best interests of the child;
  • Fails to say what steps must be followed when an operating partner or donor decides to withdraw their resources from a school. There must be safeguards to protect learners from a withdrawal causing an interruption to their learning; and
  • Does not clarify which schools can be converted into donor-funded schools.

Intervention facilities

The Amendment Act has made it possible for learners found guilty of serious misconduct to be sent to intervention facilities by the WCED’s Head of Department (HOD). These learners may be removed from the formal education system, and from their family and community, and placed in this disciplinary institution where they may live for up to 12 months. There, learners will be given counselling and be subject to so-called “intervention strategies” to deal with their behaviour. This is a very drastic measure that fails to consider the potential range of factors that can contribute to behavioural difficulties. Those factors can include the school environment, as well as home and community circumstances.

Although parents must give permission for learners to be sent to these facilities, learners themselves are not given enough of a say in this decision. There is no court oversight in this process, which is very important because of the serious risk to a learner’s rights.

The WCED should instead focus on strengthening in-school interventions and the access that learners have to psychologists, counsellors and social workers, so that behavioural problems are identified and addressed early on.

Read our court papers (Heads of Argument) here, and the addendum to the Heads of Argument here.

EE is asking the court to:

  1. Declare that the introduction of collaboration schools, donor-funded schools and intervention facilities clashes with the Constitution.
  2. Declare that collaboration schools, donor-funded schools, and intervention facilities clash with the South African Schools Act.
  3. Declare collaboration schools, donor-funded schools, and intervention facilities unlawful.


To arrange an interview, contact: Jay-Dee Cyster (EE Communications Officer) 082 924 1352 or Anele Gcwabe (EELC Communications Coordinator) 071 143 6608