The facts upon which the four judgments comprising the Pridwin case were based are straightforward. In 2012 and 2016, the parents of two children concluded two identical written agreements with Pridwin Preparatory School, a private school not funded by the state, under which their two children were enrolled as learners at Pridwin. The agreements expressly permitted the school to terminate the agreements at any time, for any reason, on three months’ written notice.

After their enrolment, Pridwin went about educating the children while, it seems from the judgments, the two guardians behaved at first rather badly, then somewhat worse than rather badly, then terribly. The father screamed abuse at sports coaches and interfered aggressively and inappropriately in his son’s sporting fixtures. The mother wrote insultingly to the headmaster. Both parents required the school to treat the children preferentially. The father undertook a physical inspection of one child’s classroom to ensure that its temperature was satisfactory. Etcetera.  

After repeated instances of this sort of unacceptable behaviour (by the father in particular), many of which involved hostility which took place in full view of the children as well as other Pridwin learners and parents, the school, at its wit’s end, invoked the clause in the agreements it had concluded with the parents and gave them notice that the school was cancelling the agreements and the children were to leave the school at the end of the school year. This was followed by court proceedings brought by the parents in the High Court (to declare the termination of the agreements unconstitutional and invalid, which failed) and the Supreme Court of Appeal (which also found for the school, holding that the agreements had been validly terminated).

Interestingly, before approaching the Supreme Court of Appeal, the parents first approached the Constitutional Court for direct access to appeal against the High Court judgment, but the Constitutional Court declined to entertain the matter at that stage, presumably because it was not in the interests of justice for it to be heard and decided by the Constitutional Court.

Read together, the four judgments found that the school’s attempt to enforce its contractual rights was unlawful because doing so infringed the children’s constitutional rights to have their best interests treated with paramount importance in every matter concerning them, and their right to a basic education. 

By the time the matter came before the Constitutional Court again, Pridwin was a distant memory for the children, whose parents had become the problem of the head of another private school, and thus the fight between Pridwin and the parents had become moot. The Constitutional Court nevertheless decided to entertain the matter this time, because of the important public policy and constitutional issues it raised. 

The matter was heard in May 2019. On 17 June 2020, finding that the interests of justice now required a moot issue to be determined (even though when the matter was not moot, the interests of justice apparently did not require this), the Constitutional Court handed down its judgment in the matter.

The four judgments were unanimous that Pridwin was wrong to invoke the cancellation clause of the two contracts with the parents and that its cancellation was invalid. The majority judgment held that the school’s decision to terminate the contract was constitutionally invalid because it breached the children’s constitutional rights. 

Another of the judgments found that the clause which allowed the school to cancel the contract was unconstitutional and unenforceable to the extent that it allowed the school to cancel the contracts without following a “fair procedure” (whatever that might have been given the facts of the case, particularly that the parents had, by their own misconduct, alienated themselves from the figures of authority at the school, making the question of what a “fair procedure” would have been difficult to answer).

Read together, the four judgments found that the school’s attempt to enforce its contractual rights was unlawful because doing so infringed the children’s constitutional rights to have their best interests treated with paramount importance in every matter concerning them, and their right to a basic education. 

Constitutional experts will tell us that the case casts the horizontal application of the Bill of Rights rather widely, meaning that the case increases the extent to which constitutional rights are enforceable between private bodies (a school and parents in this case but, one infers, a variety of other private bodies who are not organs of state). They will also note a contradictory approach to the constitutional right to basic education. On the one hand, the court said, private schools (being private bodies) do not have a positive duty to provide basic education (because this is the state’s obligation), but a constitutional duty is simultaneously imposed on private schools to ensure that, should they offer basic education, they maintain specific content of a basic education which, the same court has just told us, they have no obligation to provide. It also seems odd to suggest that, in circumstances where the relationship between the school on the one hand and the parents and learners on the other arose out of the contract, the limitations specifically agreed in such contract should be disregarded in the implementation of the relationship.

Another striking aspect of the case is the court’s treatment of the children’s constitutional right to have their best interests given paramount importance in the matter. It is difficult to understand how the children’s best interests could have been served by requiring them to remain enrolled at Pridwin. The court mentions in one of its judgments that there was no suggestion that the children were “anything but model learners”, but just imagine the difficulties and repeated embarrassment the children experienced as a direct result of their parents’ behaviour, and the impact on their day-to-day lives as learners at a school where the relationship between the parents and the headmaster had become, in the court’s description, “toxic” to the extent that the school’s only avenue was to terminate the agreements.

A further important aspect of the case is its likely effect on private contracts and, in particular, the lawfulness of any provision in an agreement, between private bodies, the enforcement of which might give rise to an infringement of another person’s constitutional rights (in Pridwin, it was the rights of the children of the parents involved in the case). 

The facts set out in the judgments show that it was, in fact, the children’s parents who behaved in a manner detrimental to the children’s best interests by behaving outrageously and making a spectacle of themselves in front of their children’s friends and peers and their parents, to the point where the continued enrolment of the children became impossible for the school to tolerate solely because of the parents’ disruptive behaviour, the effect of which, on the children, the court itself characterised as “unrelenting parental pressure” and “abhorrent”.

Rather than interrogating what the best interests of the children might (hypothetically) have been in the matter as a whole, the court limited its interrogation of the infringement of the children’s constitutional rights to the school’s termination of the contract. The result was that the parents, flagrantly in violation of their own constitutional and statutory duties to act in their children’s interests, succeeding in having the school’s termination declared invalid because doing so infringed the children’s constitutional rights. Although the court was clearly displeased with the parents’ conduct, its finding belies this, turning a blind eye to the egregious violation of parental responsibilities at the heart of the matter.

A further important aspect of the case is its likely effect on private contracts and, in particular, the lawfulness of any provision in an agreement, between private bodies, the enforcement of which might give rise to an infringement of another person’s constitutional rights (in Pridwin, it was the rights of the children of the parents involved in the case). 

As noted above, the application of the Bill of Rights between private bodies has been significantly extended by this case (representing a more robust and interventionist approach to previous Constitutional Court cases such as Napier v Barkhuizen and on overturning of previous Supreme Court of Appeal cases dealing with similar claims (for example, Breedenkamp v Standard Bank), and this is certain to have an impact on the interpretation of contracts and the validity of various otherwise enforceable provisions which may impact on constitutional rights, even if they are those of third parties, as in Pridwin.

A party wishing to enforce an agreement is, following this case, more likely to be met with a defence that the enforcement of the contract would infringe the other party’s or someone else’s constitutional rights. This is likely to result in more litigation to determine the extent to which contractual parties’ stated intention in contracts they conclude will be tempered or adjusted by constitutional considerations. DM