The Supreme Court of Appeal has dismissed appeals by Equal Education and the South African Democratic Teachers’ Union (SADTU) against the Western Cape’s Collaboration Schools, clearing the way for the province to continue the model.

The judgment was handed down on Thursday 3 September, confirming that provinces can create new forms of public schools beyond those listed in the national South African Schools Act.

Equal Education, a non-profit organisation, and SADTU challenged provisions of the Western Cape School Education Amendment Act of 2018. The Act introduced Collaboration Schools, donor-funded schools, intervention facilities for learners found guilty of serious misconduct, and a provincial body to evaluate school quality.

The court heard the appeals in December 2025 and dismissed both, with no order as to costs.

How the new school models work

Under the Collaboration Schools model, non-profit organisations partner with public schools and get 50% of the seats on school governing bodies (SGBs). The arrangement also allows more flexibility in staffing and lets authorised quality checkers into classrooms to monitor how the curriculum is taught.

Donor-funded schools work similarly, but donors are given up to 50% of the voting rights on the SGB in exchange for their financial support.

Intervention facilities are centres where learners found guilty of serious misconduct can be sent instead of being expelled. They are aimed at supporting learners, addressing behavioural challenges and helping them return to their schools.

A school’s governing body must agree to become a Collaboration School, and the full parent body keeps the final say in cases of a voting deadlock.

Background to the case

Equal Education first raised concerns about the new school models in 2016, when the proposed changes were published as draft legislation. Equal Education and the Equal Education Law Centre, which provides legal representation to the organisation, made written and oral submissions to the Western Cape Provincial Parliament, urging the department to abandon the draft law. Despite these efforts, the Amendment Act was passed in November 2018.

In November 2022, Equal Education took the matter to the Western Cape High Court, arguing that the provisions were vague and violated learners’ constitutional rights. In July 2023, the High Court ruled against them. After consultation with their membership, they appealed to the Supreme Court of Appeal.

Equal Education’s case

Equal Education presented four main arguments to the appeal court.

First, they argued that the national Schools Act requires parents to hold the majority vote on school governing bodies of public schools. Allowing donors or operating partners 50% or more of the voting rights on SGBs, they said, directly conflicts with this requirement.

Second, they argued that the Amendment Act gives the provincial education MEC excessive and unguided powers to decide who fills the remaining seats on SGBs, which they said was unlawful.

Third, they argued that the definitions of “operating partner” and “donor” in the provincial law are too weak, failing to specify what skills or educational experience these private actors must have. The ability to bring money to a school should not be the sole criterion for granting decision-making authority, they said.

Fourth, they argued that intervention facilities could result in foreseeable rights violations by removing learners from the formal education system for up to a year without clear guidance on what constitutes “serious misconduct”. They said the law does not require involvement from the departments of Social Development or Health, or oversight by the courts, and does not ensure children have a meaningful say in decisions about being sent to these facilities.

Instead of establishing intervention facilities, Equal Education said the department 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.

Equal Education asked the court to declare the models invalid to the extent that they were inadequately regulated, to give the Western Cape Provincial Parliament an opportunity to correct the law, and to prevent any new Collaboration or donor-funded schools from being established until the law was fixed.

A victory for learners

The Western Cape Education Department welcomed the ruling. MEC Jaco Londt said said: “This judgment is a victory for the learners of the Western Cape. The Supreme Court of Appeal has confirmed that our education reforms are lawful, constitutional and firmly rooted in the best interests of children. We can now continue our work of expanding opportunities, improving outcomes and ensuring every learner has access to a quality education.”

Space for innovation

The DG Murray Trust (DGMT), which supports the Collaboration Schools model, also welcomed the judgment.

“The Supreme Court of Appeal 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,” said DGMT chief executive David Harrison.

“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,” Harrison said.

“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,” he said.

Provinces’ role in education

The court noted that education is a shared responsibility of national and provincial government, and that the Constitution expects provinces to play an active role in legislating for the right to education.

This means provinces can pass laws for different forms of public schools that advance the goal of better education for all children, including those that draw on the expertise and resources of organisations outside the government system.

The court found no real conflict between the provincial law and the national Schools Act. It also noted that apart from a few Collaboration Schools that struggled in the start-up phase, most had shown accelerated improvements in learner outcomes.

A pilot for intervention facilities, which began in July 2018, involved 37 learners in two phases, with about 50% successfully reintegrated into their schools. Regulations for intervention facilities had not yet been finalised at the time of the judgment.

Reaction to the ruling

Equal Education’s Mahfouz Raffee said the organisation was still examining the judgment, while SADTU’s Sibongile Kwazi expressed disappointment and said they had sent the judgment to their legal team for advice.

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