All independent schools have their right of establishment enshrined in the Constitution of the Republic of South Africa, Section 29(3), which states that:

Everyone has the right to establish and maintain at their own expense, independent educational institutions that:

a) do not discriminate on the basis of race;
b) are registered with the state;
c) maintain standards that are not inferior to standards at comparable public educational institutions.

Provincial education departments (PEDs) are responsible for registering independent schools in their province. PEDs also have the responsibility to monitor independent schools to ensure effective implementation of teaching and learning programmes and the achievement of outcomes and standards of the National Curriculum Statement

Independent schools have to operate within the confines of the Constitution and national and provincial legislation. However, critical to their independence is the freedom of a school to use its professional judgement to make decisions without undue state interference.