Right to education in private and independent schools?

The Constitutional Court said yes, in so far as an independent school must not negatively impede the learners right to a basic education and learners attending such schools must be given a fair hearing before an independent school can impede the learners right to a basic education.

The job market is becoming increasingly competitive. The number of individuals needing work is greater than what is available. Parents of learners are therefore eager to provide their children with the best education they can afford. In the hope that equipping their children with the necessary education and skills will help them stand out in the job market.

The public school system has been unfortunately described as “ailing.” This has resulted in independent schools and semi-independent schools thriving. In the constitutional judgement of AB and Another v Pridwin Preparatory School (CCT 294/18), it stated that in “2015, independent schools catered for approximately 566,195 South African learners. This amounted to a 40% increase in relation to the number of learners attending independent schools in the preceding decade. Independent schools no longer only cater to the wealthy. The independent school sector is now dominated by comparatively low-fee independent schools, which educate up to 73% of the learners in this sector.”

Independent schools operate through a contractual agreement with the parent or parents. The rationale for this was that independent schools have no positive obligation to provide children with a basic education.

The authority to terminate the agreement with the parents rested with the independent school. This meant that the learner would have to leave the school, irrespective of whether he or she was at fault.

In the High Court of Grahamstown judgment of Brink v Diocesan School for Girls (DSG), case number 1072/2012, the learner was found guilty of breaching the school’s code of conduct. The parents of the learner wanted to submit new evidence at the appeal hearing, but this was not allowed by the disciplinary committee. The parents applied to the High Court to review the decision of the school's disciplinary committee to expel their child and to have such a decision set aside. The parents argued a fair procedure was not followed as prescribed in the Promotion of Administrative Access to Justice Act of 2000 (PAJA).

The court had to determine whether a power or function exercised by the DSG was of a public nature. In other words, to what extent was the exercise of that power or function ‘governmental.'? This will indicate whether the requirements of a fair process as prescribed by PAJA are applicable or not.

The court decided that the DSG disciplinary committee was not publicly accountable for its decisions in disciplinary matters. The court further stated that the school’s disciplinary code is there for the benefit of the school, the learners, and the parents. Learners are not obliged to enroll at DSG, and if they are expelled, they are not prevented from obtaining further education elsewhere. Therefore, the process of expelling a learner from an independent school is like the termination of a contract.

In the case of Pridwin, the learners were not at fault. In fact, the learners were described as ideal learners. However, there were serious conflicts between the parents of the learners and the school. This eventually led to the Headmaster of Pridwin terminating the Parent Agreement with the parents.

Clause 9 of the contract between the parents and the school provides 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.”

The parents applied to the Gauteng High Court to have clause nine of the contract declared unlawful and unconstitutional because a fair process was not followed. The High Court “upheld the school’s right to cancel the Parent Contract, in terms of clause 9.3, in accordance with the pacta sunt servanda (agreements must be honoured) principle. The High Court held that the right to basic education in Section 29(1) of the Constitution did not include the right on the part of a learner to attend a wholly independent school. To find otherwise would entitle every learner to attend only the best wholly independent schools.” The high court therefore found that the school did not have a duty to act fairly or reasonably.

The parents appealed the High Court decision in the Supreme Court of Appeal. The majority judgment of the Supreme Court of Appeal upheld the High Court judgment, concluding that independent schools have no constitutional duty to afford a hearing in these circumstances.

The parents applied to the Constitutional Court. The question before the constitutional court was, “If a constitutional duty to provide basic education protects also those children who attend an independent school, may the school evade these obligations by attempting to contract out of it?"

The majority of judges stated that although the Constitution does not extend a positive duty to provide education at a private institution. However, once an independent school provides basic education, it is then required to ensure that the right to basic education of children attending the independent school is not negatively infringed. An example of such an impediment to the right to a basic education is when no opportunity to be heard is afforded before a decision is made to discontinue the education of a learner.

The court reasoned that, even though contracts freely and consciously entered into must be honoured, the contractual autonomy of parties is curtailed when dealing with the right to a basic education and the best interests of the child. In these instances, the enforcement of the contract must be subject to the constitutional precepts outlined because of the direct applicability of rights in the Bill of Rights.

The court further reasoned that should it have applied the more general public policy approach, the result would effectively be the same: it is against public policy to enforce a contractual claim that infringes on the constitutional rights of children who are not parties to the contract.

The majority judgement decided that Pridwin had a negative duty not to impair or diminish the boys’ right to a basic education. In addition, there should be no interference with the rights already enjoyed by the learners except where there is proper justification for that interference.

It was further emphasised that Pridwin ought to have afforded an opportunity for representations to be made in the best interests of the children before deciding to terminate the Parent Contract which had the effect that the children were required to leave Pridwin.

The Pridwin judgment illustrates how private power can be subjected to constitutional control. This is the appropriate response, as certain private interactions have the potential to violate human rights and perpetuate inequality and disadvantage.

* Zelna Jansen is an attorney specialising in law reform, opinion writer and thought leader.

** The views expressed here are not necessarily those of Independent Media.