Learners can’t be punished because of sins of their fathers, ConCourt finds

First published by GroundUp.

The Constitutional Court has ruled that private (or independent) schools may no longer rely on contracts with parents as the basis for kicking children out of school without a fair hearing.

Read the judgment.

The court said schools have a constitutional obligation to ensure that the best interests of children are paramount, including their right to basic education.

The case of two learners, one in Grade 4 and one in Grade R at Johannesburg’s Pridwin Preparatory school, has progressed through the legal system since 2016. The children were forced to leave the school following repeated incidents of bad behaviour by their parents.

Both the high court and the Supreme Court of Appeal (SCA) found against the parents, saying the cancellation of the contract, which allowed for termination “for any reason”, was legal.

While the Constitutional Court issued four judgments on the matter, all effectively came to the same conclusion. In the majority ruling, Judge Leona Theron said it could have been argued that the matter was “moot” because the children were now enrolled at another school. But, she said, the precedents set by the high court and the SCA had broader implications for the rights of learners at independent schools.

“This is the first time this court has had the opportunity to squarely address this. It is also a rare opportunity because of the difficulties and costs involved in litigating these matters.”

The relationship between the parents and the school soured because of three incidents when the father became aggressive and caused ugly scenes during sporting events.

“The parents, as explained in the high court ruling, showed a disturbing overbearing pattern of persistent and alarming harassment of staff and several incidents that veered dangerously close to outright physical violence.

“Their misdeeds are astonishing and fall to be condemned in the strongest possible terms,” Theron said.

At one stage, the father signed an agreement promising to behave but he soon breached this and a letter terminating the contract was sent to him.

The school did not dispute that it was bound by the Constitution to ensure the best interests of the child were paramount, but said it could not exclude the rights of other children, staff, parents and the school itself.

The other courts had found that Pridwin was not providing “basic education” as defined by the Constitution, because the right to attend was governed by a contract which was likened to an ordinary lease or commercial contract.

“This is unsustainable,” Theron said. “The provision of education is distinctly different from an ordinary commercial transaction.”

“This decision had a profound effect on the children. The boys had to leave school; it was the only school they had known. They had formed strong bonds with their teachers and friends."