The article examines the unintended class differentiated and inequality reproducing effects of post-apartheid educational legislation. It does so through an analysis of government policies informing school governance and key policy makers in the education sector. It argues that such policies have had the unintended consequence of creating an unequal two-tier education structure in South Africa. While formally de-racialising schooling and aiming to make it more equitable the policies have not fundamentally eradicated the class and race bifurcation of the education system. As such a relatively well functioning, well-resourced semi-private education for the middle class, stands in stark contrast to a largely dysfunctional poorly resourced system for the disadvantaged poorer majority. Policy has thus permitted the middle class to secure control of the historically white school sector, facilitating a ‘new deracialised middle class’ who have ‘opted out’ of the public system of schooling in favour of semi-privatised schooling. The introduction of ‘no fee’ schools to address concerns of educational affordability and access in poor communities also fails to address the underlying structural issue of inequality. The paper concludes by examining re-distributive policy alternatives based on social justice, which can realise a far more fundamental re-distribution of educational resources and reclaim education as a public good.