28 July 2020 by , and Dispute Resolution Alert

Nothing quite so strange as the truth

Once upon a time in Johannesburg, two boys were enrolled at Pridwin Preparatory school – a fancy all-boys private junior school. Their parents behaved badly, and the boys were expelled. Everyone ended up in the Constitutional Court where the horizontal application of the Bill of Rights to agreements between private parties was confirmed. Sounds like a fairy tale but it’s not.

The parents signed contracts with the school; so far so good. But over eight months, the parents - mainly the father – commenced a “persistent and alarming harassment of Pridwin’s staff” (AB and Another v Pridwin Preparatory School and Others (CCT294/18) [2020] ZACC 12 (17 June 2020)) and there were several incidents that came “dangerously close to outright physical violence”. Most of the incidents related to sport and many took place publicly at school sporting fixtures. One of the more bizarre incidents saw the father engage the services of an accountant to audit the recording of his son’s runs at a school cricket match.

Despite the father agreeing with the school’s principal that he would refrain from coaching, offering advice to boys, stop publicly criticising umpires and abide by all refereeing and selection decisions, he didn’t and the problems got worse. So, the principal decided to cancel the Parent Contract, effectively expelling the boys, under a clause permitting cancellation at any time and for any reason, provided that the school gave a full term’s notice.

The parents went to court to challenge the validity of that clause in the parent contract. In the meantime, the boys had moved on to another fancy all-boys private school. The parents lost in the High Court and the Supreme Court of Appeal and brought their final appeal to the Constitutional Court where the principal issues were the right of a child to be heard and the right of a child to a basic education. On the first point, the majority of the Constitutional Court found that Pridwin did not sufficiently ponder the best interests of the boys when it decided to terminate the parent contract and exclude the boys from the school. Pridwin did not give the boys an opportunity to be heard, a right that must be explicitly observed, nor did it allow representations concerning their best interests.

On the right to a basic education, both the High Court and the Supreme Court of Appeal had found that Pridwin and similar independent educational institutions don’t provide basic education and therefore the obligations that flow from section 29(1) of the Constitution don’t apply. The Constitutional Court disagreed, finding that the term “basic education” refers to the content of the right to education. Neither the nature of the entity providing the education nor how that entity acquires its obligation to provide education is relevant in determining if what is offered is “basic education”. They found accordingly that independent schools do provide basic education.

Following the same line of reasoning, the Court was also of the opinion that the right to basic education is independent of the parent contract and arises from the fact that the children receive a basic education. Pridwin did not have an obligation to provide basic education, but when providing such an education, the school acquired the constitutional duties resting on any other educational institution, whether public or private.

By acknowledging the positive constitutional obligations between private parties, specifically that the best interests of the child should take a central role in decisions made by private educational entities providing basic education, the Constitutional Court reinforced and expanded the horizontal application of the rights in the Bill of Rights. Pridwin and other independent schools, many of which include a right to terminate without cause in their parent contract, will have to draw a line through that section of the contract and take some time to consider the best interests of the child, including all of the other children in the school, before cancelling any parent contract. Not a bad outcome for independent schools and their flock, all things considered.

But we are left with a whole lot of questions. Why did the Supreme Court of Appeals prefer a strict contractual approach to the horizontal application of constitutional principles? Is there a growing division between that court and the Constitutional Court? Why is the Constitutional Court hearing disputes that are moot? How broadly will we see the horizontal application of the Constitution extend in the future? Fraught questions that will no doubt provide welcome entertainment to legal propeller heads during the lockdown.

The rest of us are grappling with the irony of these parents emerging as champions of the rights of children and wondering how all this hullabaloo can be in the best interests of their kids.

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