Joint statement: Equal Education and the Equal Education Law Centre in the Supreme Court of Appeal to challenge the introduction of collaboration schools, donor-funded schools, and intervention facilities by the Western Cape Provincial School Education Amendment Act
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8 December 2025

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

 #PublicSchoolDemocracy 

On 9 December 2025, Equal Education (EE), represented by the Equal Education Law Centre (EELC), will be at the Supreme Court of Appeal (SCA) to challenge the Western Cape High Court’s decision regarding collaboration schools, donor-funded schools, and intervention facilities introduced under the Western Cape Provincial School Education Amendment Act 4 of 2018 (the Amendment Act).

The journey so far

EE first raised concerns about collaboration schools, donor-funded schools, and intervention facilities in 2016, when the proposed changes were published in draft legislation. Both EE and the EELC made written and oral submissions to the Western Cape Provincial Parliament, urging the Western Cape Education Department (WCED) to abandon the draft law. Despite our efforts, the Amendment Act was passed in November 2018.

In November 2022, as a last resort, we took the matter to the Western Cape High Court, challenging the constitutional validity of collaboration schools, donor-funded schools, and intervention facilities. We argued that these provisions were vague and violated learners’ constitutional rights.

In July 2023, the High Court ruled against us. We were deeply concerned by this outcome and believe there are significant issues with the court’s reasoning in the judgment. After careful analysis and consultation with EE membership, we decided to appeal to the SCA.

Why are we appealing

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. 

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).

Our four main arguments at the Supreme Court of Appeal

  1. Parent majority rule

The South African Schools Act (SASA) requires that parents must have the majority vote on SGBs of public ordinary schools. Collaboration schools and donor-funded schools, however, are not public ordinary schools. Despite this, the High Court said that the law applicable to public ordinary schools is still applicable to collaboration and donor-funded schools. Yet, SASA does not allow operating partners or donors to be SGB members. If the parent majority rule applies, then the SGB composition of these schools directly conflicts with SASA. The High Court further disregarded the significance of the term “majority” in SASA, incorrectly suggesting that SASA does not require any specific proportion of parent representation. This ignores the clear legislative intention that parents must hold the majority of voting positions.

  1. Excessive and unguided powers given to the MEC

The High Court suggested that, because the Amendment Act does not specify who should fill the remaining SGB membership categories in cases where the donor or operating partner does not hold 100% of the voting rights, the Provincial Education Minister (MEC) could make regulations to determine this. This grants the MEC dangerously wide, uncontrolled, and unguided powers, which is unlawful. The law requires that powers given to government officials must be appropriately limited and guided. Moreover, the power to decide SGB membership categories rests with Parliament as the lawmaker, and not with the MEC.

  1. Inadequate qualifying criteria for donors and operating partners

The High Court found that the definitions of “operating partner” and “donor” in the provincial law were sufficient to determine who qualifies for these roles. We strongly disagree. These definitions are weak and fail to specify what skills, expertise, or educational experience these private actors must possess. The ability to bring money to a school should not be the sole criterion for granting significant decision-making authority over public education institutions.

  1. Foreseeable rights violations with intervention facilities

The High Court dismissed our challenge to intervention facilities as premature, stating we could not show that anyone had been harmed. This approach is fundamentally flawed. We should not have to wait for a learner to be harmed before challenging an obvious and foreseeable rights violation. The provincial law provides inadequate guidance for how intervention facilities should be established and run and it fails to protect the best interests of children. The Amendment Act does not require involvement from the departments of Social Development and Health, or oversight by the courts, nor does it ensure that children have a meaningful say in decisions about being sent to these facilities.

Instead of establishing intervention facilities that separate children from their families and communities, the WCED should prioritise strengthening in-school support by providing better access to psychologists, counsellors, and social workers so that behavioural problems are identified early and addressed constructively.

What we are asking the Supreme Court of Appeal to do

We are asking the SCA to declare:

  • That the introduction of collaboration schools, donor-funded schools, and intervention facilities by the Amendment Act is invalid to the extent that these models are inappropriately and inadequately regulated.
  • That the Provincial Parliament of the Western Cape must be given an opportunity to correct the legal defects in the Amendment Act.
  • That no new collaboration schools or donor-funded schools may be established until the law is corrected.

Why is this important?

The WCED is allowing private organisations to assume significant control over public schools without clear criteria to ensure they have the necessary education expertise or a genuine commitment to learners’ best interests. There are effective means to encourage private sector funding and expertise-sharing without undermining the democratic foundations of public schools. 

EE has consistently advocated for regulatory frameworks that protect learners’ rights and ensure that any experimentation in education which involves the lives and futures of children does not violate existing education laws. Safeguarding constitutional principles and ensuring that changes to education policy uphold learners’ rights remain central to our work.

[END] 

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