In what could prove to be a landmark case, the Constitutional Court is being asked to rule on how private schools run their business.
This comes after two pupils at the Pridwin Preparatory School in Melrose, Johannesburg, were expelled because of their father’s alleged misbehaviour during school sports events.
Last year, the parents approached the high court in Johannesburg to challenge the expulsion – in effect, the termination of their contract with the school. Last month, acting Judge Clare Hartford ruled in favour of the school.
The parents have now gone to the Constitutional Court to appeal the judgment and have also approached the Supreme Court of Appeal.
Hartford ruled that the children, DB and EB, who are in grades five and one respectively, can stay at the school until the end of the 2017 academic year.
In court, their parents AB (the father) and CB (the mother) argued that the decision by principal Selwyn Marx to cancel their contract was unconstitutional, unlawful and invalid. The contract was cancelled on June 30 last year following various incidents between October 2015 and June 2016 during which the children’s father was apparently unruly and created disruptions at sports events.
The parents said they had approached the Constitutional Court directly because the matter might drag on at the appeal court and because the matter raised important constitutional matters.
CB says the judgment “raises fundamental issues” about how private schools deal with the right to basic education and the best interest of the child as set out in the Constitution.
“The notion that education, particularly primary school education, can be privatised to the extent that it is effectively beyond the reach of section 29 of the Constitution is not consistent with our constitutional scheme or with the wording of sections 29(1)(a) of the Constitution,” according to the papers filed by the parents for the appeal.
CB believes that clause 9.3 of the school’s contract is “unconstitutional” in that it states that it is the school’s prerogative to cancel the contract.
She said the high court judgment has established a precedent that will affect a number of independent schools.
“In doing so, it effectively gives those independent schools, at least those that are not subsidised, the right to cancel parent contracts as and when they choose – without any form of fair procedure and without even a duty to act reasonably,” the parents’ court papers read.
Following the judgment, the Independent Schools Association of Southern Africa sent out a communiqué to its members about the implications of the judgment.
“The right to cancel parent contracts is the school’s prerogative,” reads the statement, which also stressed that independent schools do not have a duty to provide a basic education as provided for in the Constitution.
But CB argues that this is “wrong” under the “constitutional scheme”.
The parents want the Constitutional Court to rule that the cancellation of the contract was procedurally and substantively unconstitutional, and that the clause that it is the prerogative of the school to cancel the contract is also unconstitutional.
“In the present matter, the entire basis for the cancellation is the conduct of my husband and he alone. Yet it is DB and EB who suffer the effects of that cancellation. It is a classic illustration of the sins of the father being visited on the sons,” the papers read.
CB said the consequences of cancelling the contract are “grave” and that the children’s world revolves around Pridwin because they had developed emotional attachments with teachers, pupils and coaches.