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Question:
Family friends of ours have a child who has been kicked out of his private school. As I understand it, the school terminated the contract with the parents based on the unruly behaviour of the child. They are very upset by the school’s action and I was wonderingIs a private school allowed to do that?
Answer:
The South African Schools Act of 1996 recognises two categories of schools, namely public schools and independent schools.
Public schools are run by the national government and are represented by the Minister for Education. Provincially, they are represented by the MEC for Education. The parents of the learners attending the school, as well as members of the community in which the school is located, are represented by the school governing body.
However, independent schools are privately governed.
In an independent school, the parents of learners generally conclude a contract with the school. These contracts govern the relationship between the parents, the learners and the school, including admission and termination.
Importantly though, independent schools may not discriminate, they must be registered with the state, and must maintain standards not inferior to those of public schools.
In a recent Supreme Court of Appeal case of A B v Pridwin Preparatory School, the court had to decide whether a private school had the right to terminate a parental contract the school had entered with the parents, without first affording the parents a hearing. The independent school decided to terminate the contract based on misconduct on the part of the child which occurred over a period of eight months.
Although the school was entitled to invoke the breach clause in terminating the contract, the school elected to invoke the “termination on notice” clause, in the interest of the children so that their parents could make alternative school arrangements.
The parents disputed the right of the independent school to summarily terminate the contract, based on the termination clause, claiming that it breached the constitutional rights of the child – the right to basic education. They also claimed it violated the principles of administrative justice by not affording them a right to be heard.
The Supreme Court of Appeal found that the Constitution does not give rise to an implied right for parents to be heard before a parent contract is terminated, and that the right to be heard cannot be used to limit a party’s right to terminate a contract on notice. The court further held that the right to basic education imposes obligations on the State and not on private institutions, and was not intended to obstruct private autonomy or impose the duties of the state on private parties.
In considering the parents’ contention that administrative justice afforded them a right to be heard, the court held that the independent school, in terminating the contract, was not exercising a public power or performing a public function. Instead, the independent school was exercising a contractual right that did not constitute administrative action.
Accordingly, the court found that there was nothing in the termination clause that offended any constitutional value or that was otherwise contrary to public policy. The court dismissed the appeal.
Parental contracts entered with an independent school can be relied on by the school when considering termination. It does not mean that all termination clauses will necessarily be automatically valid, and each school will have to ensure that the terms and provisions contained in contracts, policies, procedures, rules and regulationswhich governs the relationship between the independent school, the parents and their children are clearly defined and unambiguous to ensure that the contract can be validly enforced and is compliant with our law.
– Marvin Odendaal, senior associate, Phatshoane Henney Attorneys
