Child rights advocacy groups yesterday applauded a watershed Constitutional Court ruling that independent schools are required to afford parents and pupils a fair opportunity to be heard on whether a decision to terminate a contract with the school is in the best interests of the children concerned.
Picture: Pixabay
Child rights advocacy groups yesterday applauded a watershed Constitutional Court ruling that independent schools are required to afford parents and pupils a fair opportunity to be heard on whether a decision to terminate a contract with the school is in the best interests of the children concerned. Picture: Pixabay

Landmark ruling on parent and pupil rights in termination of school contracts

By Lyse Comins Time of article published Jun 18, 2020

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Durban - Child rights advocacy groups yesterday applauded a watershed Constitutional Court ruling that independent schools are required to afford parents and pupils a fair opportunity to be heard on whether a decision to terminate a contract with the school is in the best interests of the children concerned.

The court invalidated as “unconstitutional” a clause in a private school’s contract that allowed it to expel children following its unhappiness with their father’s behaviour.

The Centre for Child Law (CCL) applauded the 95-page judgment as “groundbreaking”, saying that it affirmed children’s rights to a fair process or hearing in matters concerning the cancellation of school contracts between their parents and independent schools.

Independent schools also welcomed the judgment, saying that they would now seek to amend their contracts to ensure they upheld the Constitution.

The parents took up the Constitutional Court challenge after their appeal to the Supreme Court of Appeal against a decision of the Gauteng High Court, which found against them, was dismissed. The parents had concluded identical contracts with the school, a prerequisite for the admission of their children to Pridwin Preparatory School in Johannesburg. Clause 9.3 of the parent contract provided that the school was entitled to cancel the contract at any time, for any reason, on a full school term’s written notice.

As a result of the children’s father’s alleged verbal conduct at school football matches, the school cancelled the contract with the parents.

The parents then instituted urgent proceedings in the High Court against Pridwin, its headmaster, its board and the member of the Executive Council for Education, seeking an interim order entitling the applicants’ two children to remain at the school pending the outcome of the main application to declare the termination of the parent contract by the headmaster unconstitutional and have it set side. They argued that the decision to terminate the contract was “unreasonable, procedurally unfair”, that it did not have regard to the children’s best interests and impaired their right to basic education.

The High Court dismissed the main application and ordered the applicants to remove their two children from Pridwin by the end of the 2017 academic year. The parents took the matter on appeal and when that bid failed, they appealed to the Constitutional Court.

The Constitutional Court penned four judgments, with the majority judgment, written by Theron J, finding that the school’s termination of the contract breached the children’s constitutional rights that arise from section 28(2) and section 29(1)(a) of the Constitution. Section 28(2) of the Constitution required Pridwin Preparatory School to take into account the best interests of the two children and follow a fair process before deciding to exclude them. This included providing the children with an opportunity to make representations on the effect the termination of the contract would have on them. The judgment also found that Pridwin held a duty to not impair their rights to basic education.

Khampepe J, supporting the majority, wrote a judgment affirming the fact that section 28(2) protects children’s right to be heard and to participate in decisions affecting their lives. The children should have been given the opportunity to have their views heard, either in person or through a representative, that judgment said.

CCL director Karabo Ozah said the judgment was important for children’s rights. “We are pleased that the Constitutional Court has affirmed that children are individual rights bearers and that processes towards decisions that have an impact on them need to include them,” Ozah said.

“It is even more important where the decision to be made is not because of any fault of the children. The guarantee of a procedural right for children to be heard is the appropriate way to ensure that the decision made is indeed in the best interests of the child,” Ozah said.

Pridwin Preparatory’s new headmaster, Patrick Leef, who joined the school a month ago, said: “We have only just received it and are familiarising ourselves with the judgment. We can’t respond right now, but will certainly do so in due course.”

Independent Schools Association of South Africa executive director Lebogang Montjane said independent schools and parents accepted the implications of the judgment, although they were still studying it carefully and would be seeking legal advice.

“We accept the judgment, but we need to study it more closely to see how we have to amend the contract. The purpose of clause 9.3 is to say from an educational perspective if a relationship between a parent and school has broken down, it is very difficult for a school to perform its duties acting in the best interest of the child,” he said.

He said the implication of the judgment was that where the relationship between a parent and a child broke down in future, schools would need to conduct a hearing with the parent and a representative of the child to deal with the issue of cancellation of the contract.

He said a representative would have to be chosen when a child was admitted to a school. “Like in a marriage, we will have to negotiate when things are going well and not when they’re going badly. Our schools have to understand that parents can possibly be litigious and they need to designate a representative for that child now,” he said.

The Mercury

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