Independent Schools and Their Power To Cancel Contracts
It may be a daunting task to take on a private institution that has been operating for a hundred years, but that is exactly what parents did in the case of AB v Pridwin Preparatory School (1134/2017) [2018] ZASCA 150. The parents of two boys enrolled at Pridwin elected to go to court after the school terminated the contract between themselves and the parents in 2016.
The school had terminated the contract after the father of the two boys repeatedly, and over a span of many years, caused disruptions at the children’s sporting events and in some cases, threatened school staff. The school relied on clause 9.3 of their contract which stated that;
“The School also has the right to cancel this contract at any time, for any reason, provided that it gives you a full term’s notice, in writing, of its decision to terminate this contract. At the end of the term in question, you will be required to withdraw the Child from the School, and the School will refund to you the amount of any fees pre-paid for a period after the end of the term less anything owing to the School by you.”
The parents countered by relying on section 29(1)(a) and section 28(2) of the Constitution and the Promotion of Administrative Justice Act (PAJA) in that they believe the school was performing a public function. Section 29(1)(a) states that ‘Everyone has the right to a basic education, including adult basic education’ and section 28(2) states that ‘a child’s best interests are of paramount importance in every matter concerning the child’. The Court was quick to reject the reliance on section 29 in this instance, as it held that a fully privatised educational institution cannot be seen as providing a Constitutional right. If this were the case, then every child in the country would be extended the right to attend the best private institution under the guise of it being ‘basic education’. The duty to provide basic education falls only on the State at subsidised government schools. A point of interest however, that arose out of this judgment is that low fee subsidised independent schools may have the same Constitutional duty as the State to provide basic education under section 29(1)(a) of the Constitution, as they are funded by the State.
In terms of the section 28(2) reliance, the Court found that the school need not only take the best interest of the parents children into account but also the interests of the 445 other boys that were enrolled at the school. Thus, the school was not acting against the best interests of the children as they had to contemplate the equally important rights of all the other boys enrolled at the school in order to decide whether to terminate the contract in question.
In terms of the argument relating to the Promotion of Access to Justice Act, the Court held that the school was not performing a public function in cancelling the contracts but was rather exercising a contractual right that did not constitute administrative action.
The School also relied on the principle of Pacta Sunt Servanda which states that ‘agreements that are solemnly made should be honoured and enforced’. In this regard, the Court held that the parents had freely entered into the contract with the school to have the children educated there. Consequently, the parents had agreed to all the terms and conditions of the contract and the school had been correct in giving the parents a terms notice and thus had complied with the procedural steps on their end to ensure that they did not unfairly terminate the contract. The Court ruled in favour of the school in that they were not wrong in unilaterally terminating the contract between themselves and the parents.
The ultimate takeaway from this case, is the consequences it has on independent schools when terminating contracts. In terms of non-subsidised independent schools, the right to cancel parent contracts is the school’s prerogative and the schools should importantly not deviate from giving a terms notice when cancelling the contract. An important note in this regard is that, should the matter end up in court, then the Court will look at the conduct of both parties as well as the impact on the child’s education should he/she be excluded. In this case, there were a number of Public schools in the area and therefore, the parents could not raise the objection that the children will be unfairly prevented from accessing education should they be excluded from the school. Finally, the Court confirmed that non-subsidised independent schools do not have a duty to provide a basic education as stipulated by s29(1)(a) of the Constitution. Effectively, parents agree to the terms and conditions of the contract that they sign with the school and should take full cognisance of the provisions thereof.
Written by Jabu Price Moor
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