South Africa

South Africa

Parents battle private school over ‘best interests of the child’

A learner walks past school bags on the first day of school at General Alberts Primary School in New Redruth, Alberton, Wednesday, 9 January 2013. Picture: Werner Beukes/SAPA

The Constitutional Court has been asked to decide how much emphasis should be placed on the best interests of children when private schools are terminating a contract with the children’s parents which ultimately leads to the children being expelled.

On Thursday, the court heard arguments from the parents of two boys who were pupils at Pridwin Preparatory School but who were expelled following repeated incidents of what the school considered bad behaviour on the sports field by the boys’ father.

The parents, whose identity has been withheld in the interest of the children, challenged the school at both the high court and the SCA but lost both times.

Key to the ConCourt arguments is “crisp legal questions concerning the constitutional validity of (the school’s) interpretation and enforcement of clause 9.3 of the Parent Contract in terminating the children’s schooling”.

Clause 9.3 states that “the school has the right to cancel the contract at any time, for any reason provided that it gives you a full notice, in writing, of its decision to terminate the contract”.

In court papers, the parents argued that the clause violates the Constitution in that it fails to consider that a child’s best interests are of paramount importance in every matter concerning the child and that “everyone has the right to basic education…and to further education”.

According to the parents’ court papers, “the SCA and High Court have now endorsed these ‘termination-on-notice clauses’ which will undoubtedly result in even wider distribution and used by independent schools”.

This means that if the SCA and High Court judgment stands, the applicants’ children face the prospect of having their schooling terminated again, on notice, without any hearing, and for any reason, good, bad or indifferent. That risk is shared with all other learners attending independent schools.”

In response, the school contends that because the boys no longer attend Pridwin Preparatory, the case is moot.

It argues that “the applicants’ focus is solely on the interests of their children, to the exclusion of the other children at the school, the school itself, its staff members, its parents and its board”.

Well established principles of contract at common law do not require a hearing as a prerequisite to the termination of an agreement on notice,” its papers read.

The parents submit, however, that although the children’s schooling is no longer at the mercy the Constitutional Court, the relief will still have practical effects on them and their children due to the widespread use of clause 9.3 and its variants.

The boys, then aged seven and 11, were expelled from the school following outbursts by their father from the sidelines of tennis and cricket matches.

According to IOL, the headmaster stated that first incident occurred in October 2015 when the father, during the under-9 tennis trials, obscenely accused an intern in charge of the matches of “incompetence and damaging the children’s enthusiasm” leaving her traumatised and in tears. On a separate occasion, he referred to the school’s cricket coach as “useless”. Several other incidents occurred which ultimately led to the school’s decision to expel the children.

The Independent Schools Association of South Africa (ISASA) who are also cited as respondents stated that Pridwin Prep’s termination of the Parent Contract was justified.

In court papers, ISASA submitted that “in the circumstances of this application, Pridwin is not bound by a negative constitutional obligation not to terminate the Parent Contract. Furthermore, even if it were bound we submit that the obligation would not be relevant to this case because it was established unequivocally in the High Court, and affirmed by the SCA that there are a number of public schools that are prepared to accept the applicants’ children for enrolment at this moment”.

Back in 2016, the parents had approached the South Gauteng High Court to stop the school from expelling their children and to declare the school’s decision to be unconstitutional, unlawful and invalid. The application was dismissed and the parents were ordered to remove their kids from the school at the end of the 2017 academic year “until such time to comply with all of their obligations in terms of the Parent Contract”.

The parents then appealed to the Supreme Court of Appeal (SCA) and the case was again dismissed in a 4-1 majority on grounds that it was “not in the interests of all concerned for this family to remain at the school”.

The Centre for Child Law as friends of the court submitted that “children are intrinsically linked to the provision of private education as they are the recipients of the education. To attempt to separate the nature of the right to education and the best interests of children from the business of the school is unreasonable”.

The CCL further submitted that “in the premises, failing to follow a clear, considered process that involves the determination of a child’s best interests when terminating a contract that not only provides education to a child but also a sense of community and identity is unreasonable”.

Judgement has been reserved. DM


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