Abstract:
World-wide, the nature, purpose and existence of private education has evoked
intense interest and controversial debate. For many, private education presents a legal-moral
dilemma. On the one hand, it is recognised as a fundamental right in terms of freedom of
association, religion and culture. On the other, it raises perplexing moral and philosophical
issues about social exclusivity, selectivity and elitism. Notwithstanding the equally compelling
legal, social, economic, educational and political arguments for and against private education,
private schools in South Africa, which are increasing in number, continue to form an essential and
permanent part of the education system.
Private education is a complex subject which can be researched from a myriad of perspectives. This
study is essentially a legal enquiry into the legal status of private schools in South Africa
within the new democratic constitutional dispensation and how the law affects the organisation,
governance and management of private schools. To this end, the study is confined to a
discussion on legal aspects relating to private school governance, public funding of private
schools, teachers' appointments and discipline, student admission and discipline and religious
freedom. In discussing the legal context of such topics, a number of issues emerged concerning
the complex nature and diversity of private schools, the relationship between the State and
the private school sector, the right of private schools to exist and the implications of the bill
of rights for private schools. Furthermore, the study raises challenging questions about the issues
of choice, autonomy, religious freedom and diversity, which lie at the heart of the establishment
and maintenance of private schools in a democratic society.
Finally, one of the difficulties of conducting such a study is that South African law is complex
and changing, and it is still in a state of evolution, given the recentness of the
Constitution and the bill of rights. This means that while some legal issues pertaining to private
schools are fairly well settled, for the most part it is not possible to provide a comprehensive or
definitive statement about complex and often highly sensitive issues but merely to pose various
legal-education questions and problems for consideration. In time, many of the issues raised will
no doubt be settled by the courts
