Supreme Court of Appeal strikes a blow for radical change in SA public schooling

An irony of public schooling in many parts of the world is that this potential wellspring of imagination and creativity is smothered by myriad bureaucratic constraints. For example, ordinary public schools in South Africa all follow the same composition of school governing bodies (SGBs), the same staff complement financed from the national purse and the same part of the curriculum to be covered each day. Principals and teachers are managed by a slew of “personnel administrative measures” and monitored by onerous compliance processes that take up a lot of time.

It could be argued that such uniformity is necessary to supervise more than 20,000 separate facilities and is even desirable to ensure every child is treated equally. But, of course, they are not. Behind the outward conformity of most wealthy public schools is a smorgasbord of opportunities for pupils to flourish. Generally, it is in the poorest schools where the bureaucratic burden stifles imaginative leadership and creative teaching, where centralised micromanagement destroys agency. 

In some provinces, principals still spend many hours a month travelling to district and regional offices to receive new directives or submit reports. Teachers doggedly convey each day’s required curricular content even if it goes way over the heads of children who lag years behind the expectations of their grade. With some inspiring exceptions, even the most enthusiastic teachers eventually succumb to the safety of sameness. 

These observations are not new and indeed motivated the introduction of outcomes-based education (OBE) just three years into democracy. OBE was intended to break away from the rote learning that had characterised Bantu education. However, it soon floundered and was replaced by the more prescriptive Curriculum and Assessment Policy Statement in 2012. Its failure had been predicted by commentators including Jonathan Jansen, who noted that protagonists clearly hadn’t spent enough time in the average public school, where underprepared teachers were required to facilitate the integration of concepts that they themselves could not fully grasp. 

But neither the tightening of pedagogical screws nor the ratcheting of administrative processes has substantially changed the educational trajectory of the poorer half of South Africa’s pupils. Teachers are now clearer about what they must say and do, but that confidence hasn’t changed the fact that children in township or rural schools generally still do far worse than those in the suburbs. Large-scale educational support programmes like Funda Wande show modest improvement in intervention schools, but their impact is constrained by the difficult contexts in which they work. 

Much like the street-by-street mobilisation against apartheid, South Africa’s basic education canvas now needs to be redesigned school by school, each one a fine brushstroke within a bigger picture of systems-wide change. This picture will emerge not from the Jackson Pollock abstraction of OBE, nor the paint-by-numbers conformity of the current system. Rather, it will come from the patient and deliberative style of Vincent van Gogh, stippling each school with its own vibrancy. After all, the graphic harmony of The Starry Night or Wheatfields with Crows emerges from their granularity, not uniformity. 

The courts weight in 

National legislation frames the big picture. Provincial legislation enhances it. Individual schools animate it. This is the essence of a recent ruling of the Supreme Court of Appeal (SCA) reconciling the concurrent competencies of national and provincial education departments. It dismissed an appeal by Equal Education and the South African Democratic Teachers Union against a high court ruling affirming the right of the Western Cape Education Department to permit greater management flexibility in two new types of public schools. These new categories – collaboration and donor-funded schools – were legislated for in the Western Cape Provincial Schools Education Amendment Act of 2018.

The appellants maintained that the amendments violated the South African Schools Act (SASA) and undermined democratic participation on SGBs. They objected to the introduction of nonprofit operating partners in Collaboration Schools (who hold 50% of seats on the SGB and are contracted to improve academic performance) and the right of external investors to negotiate a similar level of control in donor-funded schools. They argued that SASA only allowed for three types of public schools – ordinary public schools, schools for pupils with special needs and those with a specialised technical focus – and that the national law prescribed the composition of SGBs to ensure majority parental control.

The SCA agreed that this requirement applied to SGBs in ordinary public schools but concluded that provinces were entitled to establish other types of public schools, with their own unique governance arrangements – provided they were consistent with the objectives and democratic principles of SASA. It noted that schedule 4 of the Constitution, which specifies concurrent functions of national and provincial government, expects provinces to play an active and important role in legislating for the right to education. In other words, except where expressly proscribed, SASA was not intended to straitjacket but to enable provincial innovation in pursuit of better education for all children. 

In the end, the minutiae that really matter are less the bureaucratic processes of compliance and more the micro-dynamics of each school which impede or improve pupil achievement. Whether there are two parents on an SGB or four is less important than whether there is true oversight by the parent body. Similarly, the head of department may hold a school principal to account either by proxy through a circuit manager or directly via a contractual agreement with the school; whatever best improves pupil outcomes. 

The next phase of educational reform in South Africa must be generative and not prescriptive, distributing greater agency to individual public schools through internal upgrading and external support. As the Collaboration Schools pilot has shown, this involves a process of incremental empowerment, where schools are given greater flexibility as they are capacitated, and held primarily to account for pupil outcomes and not adherence to process.  

The SCA ruling should give confidence to provinces seeking to test new ways of working. It should also invigorate disillusioned donors who have tried to fund improvements in dysfunctional public schools without being able to influence the way the system works. As a result, some have redirected their investments to low-fee independent schools with greater management autonomy, where gains seem faster and state funding is constitutionally permitted though not guaranteed. 

We cannot forget that the poorest children must be served by the public system, and this ruling opens the possibility of redrawing the line between public and independent schools, bringing publicly financed, independently run schools into the public education system – as one contribution to that aim.

The justices of the SCA have made it clear that there is the space for, and expectation of radical change within the public education system; radical both in the sense of bottom-up revitalisation and in the prospect of reshaping its borders. 

This ruling should not be interpreted as an indictment of the efforts of the thousands of committed managers and teachers in the public service who enable pupils to achieve even in the most difficult of circumstances. However, we must work for the day when there is no need to celebrate the few teachers and children who shine despite the conditions of their school, but the majority who excel because of them. DM