Private schools in
South Africa are essentially autonomous in how they govern and operate. But does this entitle private schools to
operate to such an extent that they regard themselves above the law? A father in Durban sued a private school for victimising
his son as he was in arrears with his school fees. This groundbreaking judgment
recently handed down, gives private schools “food for thought” as to how they
operate.
The background of this
case: A minor child attended a private school in Durban. In and during the
first few months of 2016, the parents of the minor child fell into arrears with
the school fees. Between January 2016 and February 2016, there were letters and
telephone calls from the school, demanding payment from the parents. The
parents pleaded to the school for leniency and to afford them time to pay their
arrears, as they were experiencing financial setbacks. The school did not accept this excuse and confirmed that they will not
accept repayment terms and requested the full settlement of the arrear amount,
failing which, the minor child would not be able to write the upcoming exams in
May 2016. Although the parents pleaded with the school to allow their child to
write the exams and that they will settle the fees by end of May 2016, the
principal refused to negotiate any repayment terms. Subsequently the minor
child, in terms of the school’s exclusion policy, was asked to sit in the art
room while the rest of the children wrote the exams.
The father brought the
application in the Kwa-Zulu Natal High Court citing the school and the
principal as first and second respondent respectively. In his application, the
applicant requested the Court to declare the exclusion policy, practised by the
school, as unconstitutional.
The father
was of the opinion, that in terms of the exclusion policy, whereby the second
respondent instructed his son to sit in the art room, whilst the other children
wrote the exam, his child’s interests were violated, in terms of S28(2) of the
Constitution, which states, “a child’s best interest is of paramount importance
in every matter concerning the child”. A further violation was in terms of S29
of the Constitution which states that everyone has a right to basic education.
The first
and second respondent argued that it had no option but to implement the exclusion
policy, as the applicant was not paying the school fees, which was required for
the school to operate. The respondents further argued that the applicant did
not need to enrol his child in a private school if he could not afford the
fees, as there is the option of the public schools. It was further argued by
the respondents that they exercised the exclusion policy rather than institute
legal action, in order not to incur legal costs.
Should the
second respondent have applied the contractual obligations that existed between
the parents and first respondent, to enforce payment of the school fees, rather
than subject the minor to the exclusion policy, which victimised, degraded and
humiliated the child? But the biggest question is, aren’t private
schools independent, which then consequentially are above the operations of the
South African Schools Act or the Constitution?
After
considering both the applicant and respondents’ arguments, the Court concluded
that there was a valid contract between the applicant and the respondents. In
terms of the signed contract, the first respondent had the necessary right to
proceed with legal action against the applicant for non-payment of fees, which it
should have exhausted first before taking any other steps!
The Court
went on to say that a fair procedure must be followed. While it is
understandable that schools, be it private or public may be allowed to exclude
students, a correct and fair procedure must be followed. When making the
decision to exclude a child, the schools’ representatives must bear in mind the
best interest of the child, regardless if it is the child’s conduct or the
parents’ conduct. It is not a necessity
that parents must enrol their children in private schools and there
are no rules and policies that restrain parents from doing so. One would assume
that the parents consider the financial aspect first before enrolling their
child in a private school. But parents’ financial circumstances can change, and
private schools should be reasonable and have empathy to these changes and
guide parents through this difficult time without victimising the child, as it
is not the child’s fault as to the parents’ change in financial position. Time
should be given to the parents to seek alternative solutions to the problem, e.g.
change schools, make arrangements for a payment plan etc.
The Constitution is the sovereign law of our country
and any conduct that goes against the spirit of the Constitution will be
declared invalid by the courts, which the courts have the power to do so.
Hence, implementing the exclusion policy for non-payment of school fees by the
school was found invalid by the courts and unconstitutional.
Thus, private schools and even public schools must
always remember, that they are there to protect our children and not cause them
harm or humiliate them. Our children are the future leaders of our country and
should be led by example.
Should the Constitutional Court ratify this ruling, approximately
760 private schools around the country will be impacted. We wait to hear.