But what about the right to a basic education? In the recent case of AB and Another v Pridwin Preparatory School, the High Court answered this question.
The parents of two primary school boys ran to court to challenge the termination of their contract by the school and the consequent expulsion of their boys, which they said was unconstitutional. After all, so they said, their children have a right to basic education and the school must act in the best interests of the children.
After a series of school sporting events where the children’s father behaved improperly the school terminated both contracts in respect of both children. The school cited several examples of this behaviour, one was of the father approaching the umpire at his son’s cricket match, swearing at him and saying that he would wait for the umpire after the game and kill him because he did not show respect - all this while apparently holding a cricket bat in his hand in a threatening manner. When the principal of the school approached the father about his behaviour the father said that where he came from if an umpire made a bad decision “they would take a cricket stump out of the ground and stab him”. This at a primary school game!
The relationship between the family and the school was governed by a contract, which included a clause allowing the school to cancel the contract for any reason. The cancellation of the contract meant that there was no longer a relationship between the family and the school, and the children were effectively expelled. The school said that the decision to terminate was due to the father’s conduct and had nothing to do with the children who were model pupils.
And so the parents went to court brandishing the constitution. At the heart of the dispute lies the conflict between the right to education, the rights of children and the contractual principle that parties should be bound to agreements freely concluded.
Section 29 of the South African Constitution guarantees “the right … to a basic education”. Section 28(2) of the Constitution cautions that “a child’s best interests are of paramount importance in every matter concerning the child”.
Judge Hartford found that the duty to provide a basic education lies with the state. Accordingly that right does not include the right to be educated at an “independent” or private school. In regard to the children’s best interests she said that the school also had to take into account the rights of the many other children attending the school, who were adversely affected by the father’s conduct. She found that the best interests of all the children had been properly considered before a decision was made to cancel the contract.
Interestingly, the court left open the question as to whether the same position would apply to “low fee” private schools, where pupils might come from lower income families and the private school is subsidised by the state. Those were not the facts in this matter.
What does this all mean? Can private schools ignore the constitution? Are the sins of the father visited upon the children? How far can a disruptive parent go?
The court’s express message is that the right to a basic education does not apply if the school is not state funded, but private schools do have a constitutional duty to act in the best interests of all the children. The lesson for parents is that the best interests of your own children will not be served by loutish antisocial behaviour.
Threatening to kill the U9 umpire because he said your son was out LBW? What’s next? News of some father running to court because his son wasn’t made captain of the first cricket side? Oh yes, that already happened- and the Pietermaritzburg High Court sent him packing also.