Equal Education v Provincial Minister for Education Western Cape Province and Others (12880/2019; 4566/2019) [2023] ZAWCHC 166

21st July 2023

Equal Education v Provincial Minister for Education Western Cape Province and Others (12880/2019; 4566/2019) [2023] ZAWCHC 166

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[1]     The right to education[1] and the best interest of the minor child[2] are at the heart of both matters, which at the best of times are both mutually important and weighty considerations. These matters are no different. The genesis of the dispute between the parties in these two separate applications revolves around certain provisions in the Western Cape Provincial Schools Education Act, No 12 of 1977 (“the Provincial Act”) which were brought about by the Western Cape Provincial School Education Amendment Act No 4 of 2018 (“the Amendment Act”).  The commonality of the parties and the issues made it convenient to hear both applications together.

[2]      The challenge by EE and SADTU is to declare the establishment of Collaboration Schools (s 12C) including the definitions of ‘operating partner’ and ‘donor’ in section 1 and 9A, Donor Funded Public Schools, (s 12D) and Intervention facility (s 12 E), including the definition of an intervention facility in s 1 and s 45, invalid and to make a just and equitable order under s 172(1)(b) of the Constitution (the Validity Challenge). Secondly, that the provisions of the Provincial Act dealing with Collaboration Schools, Donor Funded Schools, and Intervention facilities are in conflict with SASA, which is national legislation, and such conflict must be resolved in favour of SASA. (EE did not persist with this ground during argument.)

[3]      The challenge by SADTU is also to declare the following provisions invalid and inconsistent with the Constitution, the Monitoring and support of curriculum delivery     (s 9 A); the Establishment of Schools Evaluation Authority (s 11A); the Eligibility for appointment as Chief Evaluator, Lead Evaluator or Evaluator (s 11 B); Removal from office (s 11 C); Functions of School Evaluation Authority (s 11 D); Remuneration and allowance (s 11E); Functions of Head of Department regarding Schools Evaluation Authority ( s 11 F ); Dissolution ( 11 G); Offences relating to functions of particular persons (s 58 (aA); the establishment of the Intervention Facilities (s 12 C) and Donor Funded Public Schools (s 12 D);  Intervention facility (s 12 E); (viii) Code of Conduct, suspension and expulsion at public schools (sections 45(5)(b)(i), 45(6)(a), 45(14A), 45(14B); and (ix) the exception to prohibition of alcoholic liquor on school premises or during school activities.