South African court holds that private schools must consider the best interests of the child when collecting tuition fees

The importance and value of an education and its status as a fundamental human right is universally recognised. Sadly, for many learners in South Africa’s public education system, the enjoyment of this right is constantly being threatened by an array of historical and administrative challenges. Under apartheid, historically ‘black’ schools were cruelly underfunded and under-resourced and this legacy has led to many public schools facing systemic problems that still persist to this day. These include unsafe and dangerous school infrastructure that has resulted in injury and even death to learners; inadequate learner-teacher ratios; and insufficient textbooks to name a few. Many parents, in an attempt to provide a better quality of education are therefore increasingly seeking refuge in the private education system for their children. 

While private education, which caters for middle-income families, in general, does not face the same resourcing challenges experienced within the public education system, private schools tend to have more regulatory autonomy in terms of the policies that they implement when giving effect to their self-governance. One such policy recently came under constitutional scrutiny in the Durban High Court in the case of Mhlongo v John Wesley School. 

In this case, the parents of a learner enrolled at John Wesley School experienced financial difficulties that prevented them from being able to honour their commitment to settle their child’s school fees on a monthly basis. Following the parents’ default, the school sought to enforce its strict deregistration policy. The school’s deregistration policy stipulated that learners whose fee accounts were in arrears by two months would be deregistered from the school. The effect of this would be to exclude the child from taking mid-year examinations. Despite the parents’ plea for leeway over the payment of the outstanding fees, the school denied the request and unequivocally stated that the payment terms cannot be renegotiated. The school proceeded to confine the learner to the schools’ art room while the rest of his classmates were writing examinations in a separate venue, effectively excluding him from taking his exams.

Following this, the parents went to court to seek effective relief from the school’s exclusion policy. The court was confronted with the legal question as to whether the exclusion policy as practiced by the school constitutes law and conduct that is lawful and consistent with the South African Constitution.

In order to answer the legal question before the court, the court had to methodically address the lawfulness and constitutionality of the exclusion policy as it was practiced by the school. 

The court found that the school could not rely on any contractual agreement between themselves and the parents as the exclusion provision was not contained in the contract which was in operation.  The school however derived the right to exclude/suspend students for non-payment of school fees from the policy documents of the Independent Schools Association of Southern Africa (ISASA), of which John Wesley School was a member of.

The Court first discussed section 28(2) of the Constitution which states that the best interests of the child are of paramount importance in all matters concerning the child. The court also emphasised that section 28(2) applies equally to independent schools as it does to public schools. The significance of this is that independent schools equally have a duty to not interfere with a child’s right to education and so the exclusion policy ought to be practiced in such a manner that takes into consideration the best interests of the child. Thus, the court acknowledged that private schools are entitled to exclude learners but this must be done in a manner that will least disrupt the learners continued education.

The court therefore held that in the event that an independent institution decides to suspend or expel a learner, this decision must accord with due process principles. The court very usefully went on to give a guideline of what due process ought to include. It noted that the independent school must give adequate warning prior to suspension/exclusion. The school must also give a reasonable opportunity to the parents to either make arrangements to settle outstanding fees or to enrol the child at an alternate school. 

Moreover, the court remarked that the best practise in respect of independent schools and the non-payment of school fees would be to ‘[a] engage in collection methods that do not impact on the child’s best interest and [b] where it becomes necessary to secure school fees after exhausting these collection mechanisms, the school should ensure that that this is done in a way that does not victimise or humiliate the learner’.

Also very significant is that the court found that the school’s conduct ‘in isolating the learner and placing him in the art room while other learners wrote examinations was degrading, humiliating and inhumane’. Furthermore, the court held that the school’s robust approach and refusal to negotiate a reasonable payment plan given the circumstances of the case was unreasonable.

Finally, the court then went on to discuss the meaning of section 29(3)(c) of the Constitution that states: ‘Everyone has the right to establish and maintain, at their own expense, independent educational institutions that–maintain standards that are not inferior to standards at comparable public educational institutions.’ The court held that this provision must not operate at an inferior standard to public schools.

In this case the court found that the exclusion policy insofar as it was applied by the school was of a standard inferior to that which is applicable in public education. The South African Schools Act has clearly defined due process provisions in respect of the discipline, suspension and expulsion of learners. It also has specific provisions that provide for due process where parents have not paid school fees in public schools.

Ultimately the court held that John Wesley School’s conduct was unjustifiable and infringed on the rights in both sections 28(2) and 29(3)(c) of the Bill of Rights and further held that their conduct was consequently unconstitutional and invalid. 

Such a child-centric approach is a progressive outcome. It is hoped that the court’s decision in this case will provide a clear guideline to private schools when seeking to recover overdue school fees.

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Vuyisile and Motheo are Legal Researchers at Section 27 focusing on basic education rights.