School Governing Bodies and independent school boards are juristic persons with real legal obligations — as governance structures, as employers, and as disciplinary bodies. RFH Inc advises from the inside: Raymond is both an admitted attorney and a SACE-certified educator with experience in public and independent schools.
Most attorneys who advise schools understand the law. Raymond understands the school. Having taught in both public and independent schools and holding SACE registration, he knows how SGBs operate in practice, how governance decisions are made, where the pressure points between principals and governing bodies arise, and what the day-to-day realities of school administration look like.
That combination matters when an SGB needs advice that is legally sound and practically workable — advice that accounts for the unique environment of a school, the relationships between the governing body, the principal, the Department, and the staff, and the governance framework within which all of these relationships must operate.
"An SGB or board that does not understand its legal status — as a juristic person, as an employer, and as a disciplinary authority — operates at significant risk. The law does not make allowances for inexperience."
Public and independent schools operate under different legal frameworks, but both create real governance responsibilities — and real legal risk when those responsibilities are not properly understood or discharged.
A public school SGB is a juristic person established under the South African Schools Act 84 of 1996. It must act within the Act, within any applicable provincial regulations, and within its own constitution. It has powers and functions delegated to it by law — and exercising those powers outside what the Act permits creates legal exposure for the SGB and potentially for individual members.
Independent schools are registered under SASA but governed primarily by their own constitutions, trust deeds, or memoranda of incorporation. The board — whether a board of trustees, board of directors, or governing body — must act within that founding document and in accordance with the legal obligations it creates. Many independent school boards do not fully appreciate the extent of their legal obligations as employers and governance structures.
One of the most significant — and most commonly misunderstood — aspects of SGB governance is the SGB's role as employer. Public school SGBs are the employer of non-educator staff employed on SGB posts. Independent school boards are the employer of all staff. In both cases, the employer obligations under the Labour Relations Act, the Basic Conditions of Employment Act, and the Employment Equity Act apply in full.
This means the SGB or board must comply with dismissal procedures, conduct disciplinary hearings properly, ensure contracts of employment are in place, comply with working hour and leave requirements, and — where applicable — develop and implement employment equity plans. A failure to understand and discharge these obligations creates exactly the same CCMA and Labour Court exposure as any other employer.
For public schools, educator discipline is handled differently — through the Education Labour Relations Council (ELRC) and subject to the Employment of Educators Act 76 of 1998. This is a specialist process distinct from general labour law, and RFH Inc advises on both.
All staff must have written contracts of employment compliant with the BCEA. SGB posts require clarity on whether the post is an SGB post or a Departmental post — the distinction determines who the employer is.
The SGB must conduct procedurally and substantively fair disciplinary hearings for SGB-employed staff. Poor process leads to unfair dismissal findings at the CCMA. RFH Inc chairs hearings and advises on correct procedure.
Where dismissal or unfair labour practice disputes are referred, the SGB or board is the respondent. RFH Inc represents schools at the CCMA and in the Labour Court — the same process as any other employer dispute.
SGB members should be aware: where the SGB acts outside its legal authority, incurs liabilities it was not empowered to incur, or fails to comply with its legal obligations, individual members may face personal liability. The fact that a member serves voluntarily does not eliminate this risk — it makes proper legal advice more important, not less.
Education law spans governance, employment, discipline, and constitutional rights. RFH Inc advises across all of these — with the benefit of having operated inside the school environment.
Acting within the authority granted by SASA and the SGB constitution. Avoiding ultra vires decisions. Understanding the boundary between SGB functions and principal functions. Governance disputes between SGB members.
Acting within the school's constitution, trust deed, or MOI. Board composition and quorum requirements. Fiduciary duties of board members. Conflicts of interest. Accreditation compliance obligations.
Contracts of employment for SGB-employed and board-employed staff. Fixed-term vs permanent employment. BCEA compliance — hours, leave, remuneration. Correctly distinguishing SGB posts from Departmental posts.
Chairing and advising on disciplinary hearings for support staff and, in independent schools, educators. Drafting charges. Ensuring procedural and substantive fairness. Drafting outcome letters that can withstand scrutiny.
For public schools, educator dismissal and unfair labour practice disputes are resolved through the Education Labour Relations Council. RFH Inc advises SGBs on the ELRC process and represents at arbitration where appropriate.
Codes of conduct, admissions policies, language policies, school fees policies, and HR policies — drafted to be legally compliant, practically workable, and consistent with the school's legal obligations and values.
Advising SGBs and boards on fair learner disciplinary procedures — suspension, expulsion, and appeals. Ensuring the hearing process complies with SASA, the code of conduct, and procedural fairness requirements.
Admissions policy compliance, disputes about placement decisions, and school fees — including the legal requirements around exemptions and the enforcement of outstanding fees.
Where the Department of Education takes action against a school or SGB — including intervention in terms of section 22 of SASA — RFH Inc advises on the school's rights and represents in review proceedings where appropriate.
Most governance problems in schools arise not from bad intentions, but from a poor understanding of the legal framework within which the SGB or board must operate. The risks are real — and they fall on the institution and sometimes on individual members.
Decisions taken outside the SGB's legal authority are ultra vires and can be set aside. Where an SGB incurs financial obligations it was not empowered to incur, or takes disciplinary action outside its prescribed mandate, the consequences can include personal liability for members and Departmental intervention.
The most common and costly risk. An SGB that dismisses a support staff member without following proper procedure faces an unfair dismissal referral at the CCMA. The potential outcomes — reinstatement with backpay or up to 12 months' compensation — are the same as any other employer. Good intentions are not a defence against procedural unfairness.
An expulsion that was not procedurally fair can be overturned on review, resulting in the learner's reinstatement and potential constitutional damages. Schools that do not follow their own code of conduct correctly, or that deny parents and learners a proper hearing, expose the institution to court challenges and reputational damage.
The value of proper legal advice: SGBs and boards are made up of committed volunteers — parents, community members, and educators who give their time in good faith. Legal advice is not about distrust — it is about ensuring that good intentions translate into decisions that are legally sound, that the institution is protected, and that individual members are not exposed to personal risk for decisions made on behalf of the school. A governing body that understands its legal framework operates with confidence. One that does not, operates with risk.
Yes. Under section 16 of the South African Schools Act, a public school is a juristic person, and the school governing body is the body that governs the public school. The SGB has legal capacity to enter into contracts, own property, and be sued in its own name. This means that legal obligations entered into by the SGB bind the SGB — and where those obligations are entered into without proper authority, or where the SGB acts outside its constitution or the Act, individual members may be exposed to personal liability. Understanding the SGB's legal status is fundamental to proper governance.
At a public school, the answer depends on the post. Educators employed on Departmental posts are employed by the Head of Department — the Department of Education is the employer, and educator disputes are handled through the Education Labour Relations Council (ELRC). Support staff employed on SGB posts are employed by the SGB — the SGB is the employer, and disputes go to the CCMA. Some schools also employ additional educators on SGB posts, in which case the SGB is the employer for those posts as well. The distinction matters enormously — getting it wrong affects who is responsible for the employment relationship, who must comply with the disciplinary procedure, and who faces the CCMA claim if things go wrong.
The Education Labour Relations Council (ELRC) is a bargaining council established specifically for the public education sector. Disputes involving educators employed by the Department of Education — including unfair dismissal, unfair labour practices, and interpretation of collective agreements — are referred to the ELRC rather than the CCMA. The ELRC has its own collective agreements (including the Employment of Educators Act 76 of 1998 and ELRC resolutions) which govern educator employment conditions and discipline. Independent schools are not part of the ELRC — their staff disputes go to the CCMA. This distinction significantly affects the process, timelines, and applicable law.
The position is not straightforward. As a juristic person, the SGB generally bears liability for decisions made within its authority. However, where a member acts outside the authority granted to them, acts fraudulently, or incurs an obligation the SGB was not legally empowered to incur, personal liability becomes a real risk. Courts have also found SGB members personally liable where they acted in bad faith or in a manner clearly outside their mandate. The fact that SGB members serve voluntarily and without remuneration does not eliminate this risk. Members should ensure that significant decisions are properly authorised, minuted, and within the bounds of the SGB's constitution and the Act.
The South African Schools Act and the Promotion of Administrative Justice Act require that learner disciplinary proceedings be procedurally fair. This means: the learner and parents must receive written notice of the allegations and the hearing date with sufficient time to prepare; the learner must have an opportunity to be heard and to present their side; the decision-maker must be impartial and must not have pre-determined the outcome; and the learner must have the opportunity to be assisted (by a parent, guardian, or other support person). For serious matters — particularly expulsion — courts have held that the stakes are high enough to require careful adherence to fair procedure. A procedurally flawed expulsion can be reviewed and set aside, requiring the learner's readmission.
Yes — and many schools operate without adequate policies in key areas. SASA requires public schools to have a code of conduct for learners, a language policy, and an admissions policy. Beyond these statutory requirements, proper school governance requires HR policies covering staff discipline, grievance procedures, and leave management; a financial policy governing school funds; a procurement policy; and, where applicable, an employment equity plan. Independent schools have additional obligations under their founding documents and accreditation requirements. Policies are only useful if they are legally compliant, consistently applied, and regularly reviewed. A policy that is ignored, or that is applied inconsistently, is often worse than having no policy — it creates an expectation that is then not met.