22 June 2020

On 17 June 2020, the South African Constitutional Court ruled that independent (private) schools are required to afford parents and learners a fair opportunity to be heard on whether a decision to terminate a contract with the school is in the best interests of the children concerned. Section 27 notes that this is significant in that it ensures that independent schools may not assert cancellation clauses in contracts with parents without following due process. The Constitutional Court also ruled that independent schools do provide basic education (as set out in the Constitution) and have an obligation not to impair this right. Moreover, independent schools assume a positive obligation to maintain standards not inferior to that of public schools.

Equal Education intervened as a friend of the Court (amicus curiae) in the case. Represented by the Equal Education Law Centre (EELC), EE’s submissions highlighted the context and implications of increased privatisation of education in South Africa, and in particular the rise of low-fee independent schools.  The submissions referred explicitly to the Abidjan Principles (Guiding Principle 55) stating: ‘the recently developed Abidjan Principles include a very expansive list of issues that States must address when dealing with minimum standards. This expansive list includes the governance of private educational institutions which includes requirement for the full and effective participation of children and learners amongst other stakeholders; protection of the rights of learners to freedom of association and speech, suspension and expulsion of learners requiring “due process and that any such suspension or expulsion be reasonable and proportionate.”’ Though the judgement of the Constitutional Court does not mention explicitly the Abidjan Principles, it reflects them, particularly Guiding Principle 55.

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