18 July 2023
Equal Education and the SA Democratic Teachers’ Union have failed in a court bid to overturn parts of the Western Cape Provincial School Education Amendment Act. Illustration: Lisa Nelson
Equal Education (EE) and the South African Democratic Teachers Union (SADTU), have failed in their bid to overturn sections of the Western Cape Provincial School Education Amendment Act.
Western Cape High Court Judge Andre Le Grange has ruled that the Act, which provides for collaboration schools, donor schools and intervention facilities, is in line with the Constitution and the South African Schools Act (SASA).
EE and SADTU launched separate challenges against the Act, but they were heard together by Judge Le Grange because there were common issues.
The Act provides for:
Judge Le Grange, in his ruling, said the Act was introduced to address inadequate public funding, which hindered the provincial department’s ability to deliver on its mandate, left learners ill-equipped, teachers unsuitably skilled, and school leadership and management functioning badly.
The aim was to overhaul the governance model for ordinary public schools, prescribed under SASA. He said a collaboration school pilot project had had significant success.
But EE and SADTU said the Act suffered from constitutional defects, though the national Minister of Education had given it the thumbs up and, accordingly, had not participated in the litigation.
Both EE and SADTU had expressed concerns about the composition of school governing bodies (SGBs) , with the “operating partner” or donors being given 50% of the seats, leaving parents and learners disenfranchised.
But Judge Le Grange said this was not so. The MEC did not have unfettered power in this regard, but was bound by the SGB membership categories in SASA.
Also, the Act did not give the MEC unfettered power to convert a public school into a collaboration or donor funded school, and an SGB could veto conversion at the initial stage of the process.
More importantly, the judge said, the MEC also had to call for public comment and the views of the public would inform the intended declaration.
“On a contextual reading of the Act, the identification for a collaboration school or a donor funded school can only take place if it will advance the interests of education, including the best interests of the minor child,” the judge said.
“The steps required for conversion have been fully set out by the MEC.”
Turning to the challenge against intervention facilities, Judge Le Grange said both EE and SADTU had submitted that these were “regressive and too drastic” and outdated, likening them to reform schools, schools of industries, and places of safety.
EE and SADTU raised issues such as stigmatisation, and said referring a child to such a facility was a form of detention – a punitive measure, which required court oversight.
The MEC, however, had described the facilities as being part of an existing system in the Western Cape, the Behaviour Support Pathway, which provides for escalation to higher levels of authority, if interventions at lower levels do not resolve the problem.
The option, introduced by the Act, for the head of department with the support of the SGB and parents, to refer learners to an intervention facility, with the parents’ consent, was just another way for learners to receive the behavioural support they need, the MEC had said.
Judge Le Grange said a constitutional challenge on a limitation of rights issue was premature because the MEC had still to enact norms and standards.
He said as it stood, the Act, read with the Constitution and the Children’s Act created sufficient guidance and there was no reasonable risk that a decision to refer a child to an intervention facility would limit a constitutional right.
“It can only be taken if it is in the best interests of the child,” he said.
On the issue of stigmatisation, the Judge said the purpose of intervention facilities was to avoid expulsion, resolve behavioural problems, and successfully reintegrate children into their school.
“The alternative is expulsion which comes with its own risk of stigmatisation and ostracisation and, more importantly, will not resolve the underlying behavioural problems.
“It is difficult to understand why EE complains about intervention facilities while accepting expulsion as a valid form of sanction.”
The Judge said a referral to a residential facility could not be seen as detention.
Learners would not be “confined”; they would be able to leave whenever their parents chose, just like a boarding school. They could not be arrested for leaving.
On SADTU’s challenge to the Western Cape School Evaluation Authority (WCSEA), an independent entity with the sole focus of evaluating school performance in the province to improve quality and practices, Judge Le Grange noted that the national minister had described its efforts as “sterling”.
The union, he said, objected to it because it did not comply with the collective agreement it and other unions concluded with the Department of Basic Education in 2003.
“In short, SADTU seeks to place its own interests and the interests of its members at the forefront of its challenge … it seeks to make the democratically elected provincial legislature subservient to the economic agreements of employers and trade unions.
“SADTU’s real gripe is that the WCSEA will evaluate performance in classrooms on two days’ notice. The education department has a right to monitor how its employees perform. It has a duty to evaluate how educators are teaching learners and to seek to improve the quality of teaching where it can,” the judge said.
“The establishment of the WCSEA is entirely consistent with the Constitution and the challenge to the Provincial Act relating to it falls to be dismissed.”
Judge Le Grange dismissed all the challenges, and ordered the parties to pay their own costs.