The question of whether a learner may be suspended, excluded, or have their enrolment terminated for unpaid school fees remains a contentious issue. Parents often assume that schools may never exclude a learner for non-payment of fees, while schools sometimes believe that a contractual right to terminate enrolment automatically entitles them to do so. The legal position is, however, more nuanced.

The answer depends largely on whether the learner attends a public or an independent (private) school. Public schools are governed primarily by the South African Schools Act 84 of 1996 ("the Schools Act"), while independent schools operate largely within a contractual relationship between the school and the parents. However, this distinction does not mean that independent schools may act without regard to constitutional principles.

Legal framework
Section 29(1)(a) of the Constitution guarantees everyone the right to a basic education. Unlike many other socio-economic rights, this right is immediately realisable and does not depend on the availability of resources. South African courts have repeatedly emphasised the fundamental nature of this right and the need for careful consideration whenever a learner's access to education is affected.

The Constitutional Court confirmed this principle in Governing Body of the Juma Musjid Primary School and Others v Essay NO and Others [CCT 29/10] [2011] ZACC 13 (11 April 2011) . The Court found that the right to basic education is of fundamental importance and that any conduct which limits or interferes with that right requires careful consideration. Although the case concerned a public school operating on privately owned property, the Court recognised that private parties may, in certain circumstances, bear negative constitutional obligations where their conduct affects learners' access to education.

Another important constitutional consideration is section 28(2) of the Constitution, which provides that a child's best interests are of paramount importance in every matter concerning the child. This principle extends beyond family law and applies equally to decisions taken by educational institutions. Accordingly, when a school considers excluding a learner for unpaid school fees, it must carefully assess the impact of such a decision on the learner.

Public schools
The legal position regarding public schools is relatively straightforward. Although parents remain responsible for paying school fees where applicable, learners may not be suspended, expelled, or otherwise prejudiced because of their parents' failure to pay those fees.

Sections 39 to 41 of the Schools Act regulate the determination, collection, and enforcement of school fees at public schools. Schools are required to adopt procedures allowing parents who cannot afford school fees to apply for a total, partial, or conditional exemption. Furthermore, the Act provides that parents remain liable for payment unless they qualify for such an exemption.

Where fees remain unpaid, section 41 provides the appropriate remedy. Rather than taking action against the learner, the school may institute legal proceedings against the parent to recover the outstanding debt.

Importantly, the Act expressly prohibits a public school from withholding a learner's school report or transfer certificate because of unpaid school fees.

The legislation therefore draws a clear distinction between enforcing a debt against a parent and prejudicing a learner because of that parent's financial circumstances. The school's remedy lies in debt recovery, not in restricting the learner's access to education.

Independent (Private) schools
Unlike public schools, independent schools operate within a contractual framework. When parents enrol their child, they conclude an enrolment agreement with the school. That agreement generally governs the payment of school fees, the parties' obligations, and the circumstances under which the school may terminate the learner's enrolment.

Historically, it was often argued that the contractual nature of the relationship entitled an independent school to enforce its contractual rights where parents failed to pay school fees. However, constitutional jurisprudence has demonstrated that the position is considerably more complex.

Although an independent school may be entitled to terminate an enrolment agreement where the contract permits such action, the exercise of that right remains subject to constitutional scrutiny. The Constitutional Court's decision in AB and Another v Pridwin Preparatory School and Others (CCT294/18) [2020] ZACC 12 (17 June 2020) confirms that contractual rights cannot be exercised in isolation from constitutional values.

In that matter, the school sought to terminate the enrolment of two learners after their parents failed to pay school fees in accordance with the enrolment agreement. The parents argued that the school's decision infringed the learners' constitutional right to basic education.

The Court recognised that independent schools are entitled to enforce valid contractual agreements and cannot be compelled to provide education indefinitely where parents fail to honour their contractual obligations. However, the Court also held that independent schools perform an important public function by providing education and therefore remain subject to constitutional obligations.

The Court explained that contractual rights cannot be exercised in isolation from the Constitution. Although a school may terminate an enrolment agreement, it must do so fairly and in a manner that does not unjustifiably impair the learner's right to basic education.

The judgment confirms that independent schools enjoy greater contractual freedom than public schools, but that freedom is not unlimited. Every decision to terminate a learner's enrolment must be measured against constitutional principles, particularly the learner's right to education and the best interests of the child.

Procedural fairness and why it is important
An independent school should not regard exclusion as an automatic consequence of unpaid school fees. Before terminating an enrolment agreement, the school should strictly comply with the procedures set out in the agreement and ensure that the parents receive adequate notice of both the breach and the school's intended course of action.

Parents should be afforded a reasonable opportunity to remedy the breach, settle the outstanding fees, or negotiate viable payment arrangements. The school should also consider the reasons for the default, the availability of alternative solutions, and the practical consequences that exclusion may have for the learner's education and wellbeing.

Although these requirements are not expressly prescribed by the Schools Act in respect of independent schools, they arise from broader constitutional principles of fairness, legality, and the protection of children's rights.

This approach was reinforced in N.F.M v John Wesley School and Another (4594/2016) [2018] ZAKZDHC 64 (19 December 2018), where the High Court stressed that independent schools should exercise their contractual rights in a manner that minimises interference with a learner's right to education.

Similarly, in St Charles College v Du Hecquet De Rauville and Others (14307/15) [2017] ZAKZPHC 12 (12 April 2017), the Court recognised the contractual nature of the relationship between independent schools and parents while confirming that contractual provisions remain subject to constitutional values and principles of fairness.

Practical implications
From a practical perspective, schools should avoid viewing exclusion as the first or only solution to unpaid school fees. Litigation and exclusion often damage the relationship between the school and the family and may ultimately prejudice the learner more than anyone else.

Where possible, schools should engage constructively with parents, enquire into the reasons for the default, and explore whether workable payment arrangements can be established before taking steps to terminate enrolment.

Parents, on the other hand, should understand that enrolling a child at an independent school creates legally enforceable contractual obligations. Financial difficulties should be communicated to the school as early as possible so that an appropriate solution can be explored before the relationship deteriorates.

Whether a learner may be excluded for unpaid school fees depends on the type of school involved.

Public schools may not suspend or expel learners because of their parents' failure to pay school fees. Their remedy is to recover the debt from the parents through the mechanisms provided in the Schools Act.

Independent schools may, in certain circumstances, terminate a learner's enrolment for non-payment of fees where the enrolment agreement permits it. However, this right must be exercised fairly and with due regard to the learner's constitutional right to basic education and the child's best interests. Balancing contractual rights with constitutional obligations remains essential in every case.


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