“A breach of the 1994 settlement,” an attempt to “hijack” functioning schools, “draconian”. These are just some of the ways groups such as AfriForum, Solidarity and the DA have referred to changes in the powers of school governing bodies (SGBs) contained in the Basic Education Laws Amendment (Bela) Bill being considered by parliament. In contrast, Equal Education (EE) and the Equal Education Law Centre (EELC) welcome these changes.
At the heart of the controversy are changes in the bill that would give provincial education departments greater oversight over language policies, require schools to submit admissions policies for review, and make clear that the final decision about the placement of a learner lies with the provincial department.
SGB powers are controversial — since the promulgation of the South African Schools Act (Sasa) in 1996, a feature of the education landscape has been the numerous court cases around the powers of SGBs. Central to many of these has been the question: where does the final decision-making power lie? Bela is just bringing the law into alignment with what these cases have already confirmed: the role of SGBs is critical, but the state has an important and final responsibility to ensure equity.
To fully understand the debate — and what it has to do with the 1994 negotiated settlement — we must go back to before SA’s democratic transition.
The debate around school governance featured prominently because education was highly important for both the liberation movement and the apartheid government. At the time, both the National Party (Nats) and the liberation movement were in favour of greater involvement of school communities and parents in decisions affecting schools, but their positions were informed by competing political ideals.
In the aftermath of the 1976 Soweto uprising, the liberation movement called for parent and community participation in school governance, as a response to the apartheid government’s autocratic decision-making about schools. However, its proposals also emphasised the importance of structures to upskill SGBs in all schools and a strong central state to ensure redress and equality.
For the Nats, placing as much power as possible — and the ability to raise funds — at the school level would largely isolate former white schools from significant changes after the transition.
In 1992, shortly before the transition to democracy and while negotiations with the ANC were under way, the apartheid government converted most white public schools to what it called Model C schools. Control was handed to SGBs elected by parents, who received a subsidy for staff salaries but had to raise all school capital costs through fundraising. Parents gained control over admission and language policies.
Educationist Pam Christie refers to these shifts as “transition tricks”, a process through which the Nats essentially turned S A’s most privileged schools into semi-independent schools. The interim constitution specifically mentioned SGBs, noting that no changes could be made to their powers and functions “unless an agreement resulting from bona fide negotiation has been reached with such bodies”.
The debate around school governance featured prominently because education was highly important for both the liberation movement and the apartheid government
These arrangements, as well as the pressure to reach a negotiated settlement, shaped negotiations on SGB powers. In the end, the version of SGBs captured in Sasa resembled more closely the Nats’ ideals. Blade Nzimande, who was chair of the education portfolio committee in parliament when the act was drafted, explains: “These were the days of the government of national unity … The situation was explosive and we were on the brink of civil war … Ensuring a smooth transition was as important as developing progressive policies for social transformation.”
The arrangements in the original act therefore came about in a particular time and context. Rather than signifying a betrayal of the 1994 settlement, it is to be expected that in the almost 30 years since then, some rethinking of these arrangements is necessary.
Moreover, the exclusionary practices of some SGBs provide further impetus to do just that. There are numerous examples where language policies have been used as a proxy for racist practices and actions, specifically by Afrikaans single-medium schools.
Exclusionary practices continue. Through its law clinic, the EELC regularly deals with cases where language and admissions policies are being used to unfairly discriminate against learners.
On the other hand, there is a danger in assuming that the state will always act with benevolent intent. Governing parties and officials have their own ambitions and incentives. In a number of cases relating to language and admissions, the actions of provincial education departments were overturned due to unfair administrative practices.
What’s more, SGBs have a crucial role to play and are a key feature of all public schools, not just the wealthy ones. SGBs understand the particular context of a school much better than most government officials, they bring community and parent perspectives into decisions and often have to lead where provincial education departments are absent or lack capacity. A previous version of the Bela Bill, published in 2017, proposed that SGBs only be involved in entry-level teacher appointments, but this has been abandoned in the 2022 version. Our proposal in 2017, that SGBs must be consulted before a learner is placed in a school, and that the SGB must be given the opportunity to appeal, have been included in the 2022 version of the bill.
As our courts have confirmed, schools must serve the public good, not only the interests of the individuals in their school. While SGBs continue to have power — they still formulate admissions and language policies — they must be held to their public duty by the state. And the state must equip SGBs and ensure that resources are equitably distributed. It is in collaboration between SGBs and the state that there seems to be the greatest potential for fairness and justice.
• McFarlane is EE’s senior manager for research and development
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