Independent schools must consider rights of pupils before expelling them: ConCourt
The Constitutional Court has declared invalid and unconstitutional a decision by an independent school in Johannesburg to expel two siblings without considering their rights.
On June 30 2016, Pridwin Preparatory School took a decision to terminate the parent contract that allowed the children to attend the school. In making the decision, the school relied on clause 9.3 of the contract.
The children were in grade 4 and grade R respectively at the time. They have since left the school.
The school took the decision to cancel the contract after various incidents allegedly took place involving the children’s father in relation to sporting events at the school‚ and at other schools‚ which caused disruption.
In one incident, the father reportedly insulted an umpire during a cricket game in November 2015 against Crawford College at Trinity House School‚ after his son – playing in the under-9 team - was given out leg before wicket.
The parents went to the high court to challenge the school's decision. The court dismissed the parents’ case in 2017, and the Supreme Court of Appeal (SCA) dismissed their appeal in 2018. The parents then lodged an application for leave to appeal in the Constitutional Court.
A majority judgment at the apex court, which deals exclusively with the constitutional validity of the decision of the school to terminate the parent contract, found that although the matter was moot as the children had left the school, it was in the interest of justice to hear it.
The judgment, penned by justice Leona Theron, noted that the relief sought by the parents had a “broad” practical effect as the clause the school used to terminate the contract applied to independent schools across the country.
“Variants of this clause have been adopted by comparatively low-fee independent schools serving disadvantaged communities,” reads the judgment.
In reaching its decision, the court relied on section 28(2) of the constitution, which in effect states that a child’s best interests are of paramount importance in every matter.
“Pridwin, being bound by section 28(2) of the constitution, was required to accord the best interests of [the two children] paramount importance. Once this was so, it is unclear how Pridwin could justify a decision not to afford the applicants an opportunity to make representations on whether cancellation would be in the best interests of [the children] and how best to safeguard their interests,” contended Theron.
The majority judgment found that the school, prior to terminating the contract, should have given the parents an opportunity to be heard on whether the decision was in the best interest of the children.
“The application of section 28(2) required Pridwin to solicit representations on the best interests of [the children] and to consider these representations before making a final decision to exclude [them].”
The court also found that there was no evidence that the rights of the children were given due consideration. The school should have used other measures to deal with the father’s conduct while respecting the rights of the children, the justices found.
“For example, Pridwin could have issued a final warning, notifying [the parents] that further misconduct would result in termination of the parent contract. Alternatively, it could have continued to ban [the father] from attending sports practices or conversing with staff members involved in the sporting programme at Pridwin.”
Pridwin’s decision to terminate the parent contract was unconstitutional due to the failure to afford the applicants an opportunity to be heard on the best interests of the boys, in breach of sections 28(2) and 29(1)(a) of the constitution.
“In addition, the decision was unconstitutional as, absent a fair process, it was self-evidently and objectively not in the best interests of [the children] and, moreover, in violation of Pridwin’s obligation not to interfere with the boys’ right to a basic education, in the absence of any appropriate justification,” the judgment read.
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