Independent schools and the Constitution: A delicate balance

Provision of a basic education in terms of s29(1)(a) of the Constitution is an obligation placed on the State which doesn’t extend to an independent school. Exceptions to this might exist but are so unlikely that they can be disregarded in any general discussion.

Although s28(2) of the Constitution recognises the paramount importance of the child’s best interests in every matter concerning the child, that cannot be an absolute position and each matter must be dealt with on its merits. This is so particularly in a school where the situation that presents is unlikely to affect only one child but may in fact to some degree affect every child in the school. In just such a matter, the Supreme Court of Appeal recently remarked in A B and Another v Pridwin Preparatory School and Others (1134/2017) [2018] ZASCA 150 (1 November 2018) that “[i]n each case what is required, therefore, is for a court to weigh the interests protected by the right [in Section 28(2)] against any countervailing interests protected by other rights to produce a legally sensible outcome”.

In that matter the headmaster had decided to terminate the parent contract and exclude those children from the school. On the facts of the case and in terms of the contract the headmaster was entitled summarily to terminate the contract for cause but instead he followed the procedure in the contract for termination without cause, gave a full term’s notice and before doing so made several unsuccessful attempts to resolve the issues between the school and the parents. Because of the route taken by the headmaster – termination without cause - the court found that the reasons for the termination were irrelevant but remarked that the approach of the school was exemplary. It does seem that had the headmaster opted for summary termination, which was also provided for in the contract, that too would have been upheld but that is mere speculation. Regarding the term’s notice given, the parents argued that they ought to have been given a hearing before their contract could be terminated and they relied on s29(1)(a) and s28(2) of the Constitution. The Court dismissed those arguments for the reasons set out in the paragraphs above.

The parents then argued that the Promotion of Administrative Justice Act, No 3 of 2000 applied. That argument was also rejected on the basis that the school was not exercising a public power or performing a public function. Instead “it was exercising a contractual right that did not constitute administrative action”. Importantly, the court found nothing in the wording or in the implementation of the contractual right of the school to terminate the contract “that offends any constitutional value or principle or is otherwise contrary to public policy”. The court also remarked that on the facts there was nothing objectionable in the cancellation of the contract as the children were allowed to remain until the end of the academic year and there were several other public schools in the area that could accommodate them.

Until the issue is revisited by the Supreme Court of Appeals or the Constitutional Court, independent schools can accept:

• that there is nothing unconstitutional in the general principle that their relationship with parents and children is governed by contract;
• that they are generally entitled to follow the steps agreed with the parents regarding termination of the contract.

The latter point is subject to the caveat, however that there are no absolutes and that was underlined in the remarks of the Supreme Court of Appeals quoted above. When contemplating termination of a parent contract, whether summarily or on a period of notice, an independent school should be conservative in its approach, considering all of the relevant factors and how its actions will play in a court where a judge might be required to consider all the relevant facts “to achieve a legally sensible outcome”.

Decisions made in haste, anger or under pressure from the school’s car park are the ones less likely to withstand later scrutiny and more likely to be regretted.