Behaviour and legal development do not necessarily always coincide in sequence. In the delicious expression of Justice Leona Theron, “So transfixing is the unpleasant montage of parental impropriety that the best interests of DB and EB – which the parents claim they seek to vindicate – are momentarily overshadowed.”

In this case, the applicants were the parents of two children who commenced their schooling at Pridwin Preparatory School in Johannesburg in 2012 and 2016 respectively. The applicants concluded identical contracts with the school, a prerequisite for the admission of the applicants’ children to Pridwin. Clause 9.3 of the Parent Contract provided that the school was entitled to cancel the Parent Contract at any time, for any reason, on a full school term’s written notice.

As a result of a series of unfortunate incidents of misconduct by the applicants – the first applicant, AB, in particular – the relationship between Pridwin and the applicants soured. The incidents were often in full view of the young children participating in sporting events. In June 2016, the headmaster of Pridwin terminated the Parent Contract on notice in writing to the applicants, in terms of clause 9.3 of the Parent Contract. This triggered a flurry of litigation.

Before the high court, the parents sought an interim order entitling their two children to remain at Pridwin pending the outcome of the main application to declare the termination of the Parent Contract by the headmaster unconstitutional and have it set aside. They argued that the decision to terminate the Parent Contract was unreasonable, procedurally unfair, did not have regard to the children’s best interests and impermissibly impaired the children’s rights to basic education. The high court dismissed the main application and ordered the applicants to remove their two children from Pridwin by the end of the 2017 academic year.

The court found that the headmaster had had due consideration to the best interests of the children, as required by section 28(2) of the Constitution, when terminating the Parent Contract. Moreover, it held that Pridwin was not providing a basic education and that section 29(1)(a) of the Constitution was therefore not implicated.

Off went the parents to the Supreme Court of Appeal, where they met with the same result. The applicants then proceeded to the Constitutional Court. which took some 13 months to deliver a judgment. When judgment day did finally arrive, what was handed down were two voluminous, and important judgments.

The judgment, of Acting Justice Caroline Nicholls, and concurred in by three other justices, held that the matter is moot, as the children had left Pridwin and were attending a new school; however, it found that the adjudication of this matter would be in the interests of justice. In reaching this conclusion, Justice Nicholls noted that, given the number of independent schools in South Africa, there is widespread use of clauses similar to clause 9.3. As educational rights of children at independent schools and the consequent constitutional obligations of these schools went far beyond the confines of the Pridwin dispute, it would be in the interests of justice that the court decides upon the constitutionality of clause 9.3 of the Parent Contract and its enforceability without following fair procedure.

Justice Nicholls held that there was nothing unconstitutional about the text of clause 9.3 of the Parent Contract. However, these schools assume constitutional duties and obligations that inhibit the free exercise of its contractual rights. In this matter, these are the best interests of the child as entrenched in section 28(2) of the Constitution and the right to basic education as protected in section 29(1)(a). This means that once an independent school provides basic education, it is then required to ensure that the right to basic education of children attending the independent school is not negatively infringed. That will occur, for instance, where no independent opportunity to be heard is afforded before a decision is made to discontinue that education

It, therefore, followed that Pridwin had a negative duty not to impair and diminish the children’s rights to a basic education. In addition, there should be no interference with the rights already enjoyed by the children, except where there is proper justification for that interference. Therefore, there exists a constitutional requirement that there should be both substantive and procedural fairness before any child is excluded from a school, and this would, in certain instances, encompass the right to a hearing in relation to the best interests of the child.

Although the dispute was moot, clause 9.3 of the Parent Contract between the applicants and Pridwin was unconstitutional, contrary to public policy and unenforceable to the extent that allowed Pridwin to cancel the Parent Contract without following a fair procedure.

Justice Leona Theron wrote the second judgment which was concurred in by five other justices. She held that a decision to terminate the parent contract was constitutionally invalid, in that it breached the constitutional rights of the children. These rights do not arise from the contract, but from the Constitution itself. Adjudication of the matter on this basis rendered it unnecessary to engage with the approach adopted by Justice Nichols.

Justice Theron found that section 28(2) of the Constitution required Pridwin to accord the best interests of the applicants’ children paramount importance and to follow a fair and determinable process. Although this may not, in every instance, require the provision of an oral hearing, it required Pridwin to provide an opportunity to make representations on the effects of the termination of the parent contract on the children.

What to make of these two judgments? The majority judgment, in particular, is a curate’s egg of a judicial production. It represents, as does the judgment of Justice Nicholls, an important affirmation that the Bill of Rights applies to the exercise of private power.

Pridwin also bore a negative obligation, in terms of section 29(1)(a) of the Constitution, not to impair the rights to a basic education that the applicants’ children enjoyed pursuant to their enrolment at Pridwin. Although the state bears the duty of providing a basic education, the education offered by independent schools also constitutes basic education. Pridwin, as an independent school, was required to provide its learners with a basic education that is not inferior to that offered at comparable public schools and not to diminish any child’s enjoyment of their right to a basic education, as provided by Pridwin, absent appropriate justification. In the circumstances, Pridwin had not demonstrated that there was appropriate justification for summarily limiting the rights to a basic education enjoyed by the applicants’ children; hence the decision to terminate was constitutionally invalid.

What to make of these two judgments? The majority judgment, in particular, is a curate’s egg of a judicial production. It represents, as does the judgment of Justice Nicholls, an important affirmation that the Bill of Rights applies to the exercise of private power. Invoking s8(2) of the Constitution, Justice Theron said the following:

“Section 8(2) makes it expressly clear that the rights contained in the Bill of Rights can, depending on the nature of the rights and the duties imposed by it, be applied horizontally to bind private parties. Thus, section 8(2) imposes constitutional obligations on private entities, such as Pridwin.”

So far: bravo to the Court. But the problem is that s8(2) of the Constitution has to be read with s8(3). And s8(3) states clearly that once a right in the Bill of Rights is found to apply to private bodies (the so-called horizontal application) then a court, having so decided, is obliged to give effect to this conclusion by developing the common law. Expressed in the terms of this case, Pridwin sought to exercise its contractual rights to terminate the learners’ education at Pridwin. What the Constitution thus required of the court was a finding (as it made) that both s28 (childrens’ rights) and s29 (right to education) applied to a private school. Then the court should have found that the law of contract upon which Pridwin had acted, needed development to ensure that the cancellation of this kind of contract implicating constitutional rights could only be exercised for good reason and after a fair process.

This is not an academic squabble. The Constitution demands the renovation of the common law; hence the inextricable link between s8(2) and (3). The way the law has been developed by the majority in Pridwin will result in future incoherence, with all sorts of cases raising the direct application of a right in the manner of the famous Australian film The Castle by invoking the vibe of the Constitution.

The very point of ss8(2) and (3) was to ensure that in a subsequent case, the dispute would be fought out on the basis of a new rule of common law. This makes adjudication both simpler and more coherent. By contrast, this judgment will make it difficult for the courts of this country to develop a coherent jurisprudence, aside, that is, as to how the justification of any infringement of a constitutional right is to be found unless there is a law of general application against which to test the limitation. That, on this argument would be the rule of contract law invoked to cancel the educational contract.

It took some 13 months to deliver these judgments. More’s the pity that a clear precedent for the future did not emerge from the majority judgment, its commendable extension of the Constitution to private schools notwithstanding. DM