Daily Dispatch


- Shaun Mathie Shaun Mathie is an attorney with Drake Flemmer & Orsmond Attorneys. He can be contacted on 043-722-4210.

Under what conditions is a private school permitted to expel a pupil?

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 represente­d by the minister for education, provincial government represente­d by the MEC for education and the parents of the learners attending the school, as well as members of the community in which the school is located through the school governing body. Independen­t schools are privately governed and include private schools.

In an independen­t school the parents of learners generally conclude a contract with the school and 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 comparable public schools.

In a recent Supreme Court of Appeal case of AB v Pridwin Preparator­y School, the court had to decide whether a private school had the right to terminate the parental contract the school had entered into 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 placement 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 and the right to basic education, as well as violating the principles of administra­tive justice by not affording the parents 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, but that the independen­t school was exercising a contractua­l right that did not constitute administra­tive action.

Accordingl­y, the court found that that there was nothing on the face of the terminatio­n clause that offended any constituti­onal value or principle, or that was otherwise contrary to public policy.

The court accordingl­y dismissed the appeal.

What can be taken from this is that parental contracts entered into with an independen­t school can be relied on by the school when considerin­g terminatio­n. It does not mean that all terminatio­ns 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 regulation­s which govern the relationsh­ip between the independen­t school, the parents and their children are clearly and succinctly defined and unambiguou­s enough to ensure that the contract can be validly enforced and is compliant with our law.

“Family friends of ours have a child who has been kicked out of the private school he was attending. As I understand it, the school just 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 wondering whether a private school is allowed to just do that?”

 ??  ??

Newspapers in English

Newspapers from South Africa