Can a child be expelled from a private school as a result of a disagreement between the parents and the school?
24 August 2020 | Andri de Jager
“Education is central to every child’s development. It is the key to a better life”
These were the words of Judge Nicholls in the recent Judgment of AB & Another vs. Pridwin Preparatory School and Others [2020] ZACC 12 inthe Constitutional Court, where the court ruled that the decision by Pridwin Preparatory School (“Pridwin”) to cancel the Parent Contract (“the contract”) that regulated the relevant scholars’ rights in this private school, was invalid and therefor was set aside.
The applicants in the in the Constitutional Court Appeal were the parents of two boys who were both scholars of the Pridwin Preparatory School in Johannesburg. Several disputes arose between personnel of the school and the parents of the children which consequently lead to the cancellation of the contract by the School headmaster. In terms of contract either party was entitled to cancel the contract on proper notice given for any reason and immediate cancellation by the School was allowed on grounds of material breach.
The Applicants initially brought an application in the High Court to set aside the decision of the School to cancel the Contract. This application was dismissed. Thereafter the Supreme Court of Appeal also ruled in favor of Pridwin by dismissing the parents’ Appeal.
At the heart of this matter was the determination of the constitutional rights of children in the private education system and the constitutional obligations of independent schools towards those children.
The following approach was adopted by the judges in determining the relevance of children’s constitutional rights to basic education, on the validity and enforcement of a private contract between the child’s parents and the school as well as the consideration of the best interest of the children:
1. Best interest of a child (section 28 of the Constitution)
Judge Nicholls opined that the problem does not lie with the terms of the contract, but more so on the effects of its enforcement – not on the parties of the contract, but their children. Judge Theron ruled that independent schools are bound by section 28(2) of the Constitution, which states that a child’s best interests are of paramount importance in every matter concerning that child and that Pridwin had failed to explain the process it undertook to determine what was in the best interest of the children.
2. A child’s right to basic education (section 29 of the Constitution)
According to Judge Nicholls independent schools do not have a positive duty to provide basic education, as the right to basic education in section 29(1) of the constitution does not include the right on the part of the learner to attend a wholly independent school. Judge Theron however pointed out that independent schools indeed provide basic education despite the fact that they do not bear a positive obligation to do so. All the Judges concurred that private schools without a doubt have a negative duty not to unreasonably diminish a learner’s access to an existing education.
The constitutional court ultimately found in the majority judgment that the clause in the Contract which entitles either party to cancel the contract is unconstitutional on the basis that it is contrary to public policy and unenforceable without following a fair procedure. The procedure that was followed to cancel the Contract in this particular instance was found unconstitutional as it failed to afford the children an opportunity to express their views and therefor the best interest of the children was not taken into consideration. Children have a right to participate in matters directly affecting them. The effect of this ruling is that a child’s right to basic education must take precedence over any matter when dealing with termination of contracts in private schools.
The impact of this Judgment has a far-reaching effect on all independent schools and also on the children attending those schools. As was stated by Judge Khampepe in her concurring judgment, “removing a child from their school is undoubtedly a life-changing experience event which greatly affects a child”.