Constitutional Court warning for private schools in South Africa
Private schools in South Africa cannot assume that their children can never be excluded because of unpaid school fees.
This is because the legal position differs significantly between public and independent schools, with private schools operating under contractual agreements with parents.
However, private schools also cannot simply terminate a learner’s enrolment without due consideration of constitutional rights.
This is the feedback from law firm Wright Rose-Innes, which said the right to basic education and the best interests of the child remain important considerations when a private school seeks to terminate a learner’s enrolment.
Section 29(1)(a) of the Constitution provides everyone with the right to a basic education. The Constitutional Court has repeatedly recognised the importance of this right.
For public schools, the position is more straightforward. Parents remain responsible for school fees where applicable, but learners cannot be suspended, expelled, or otherwise prejudiced because their parents have failed to pay.
The South African Schools Act provides mechanisms for schools to determine and recover fees. Parents who cannot afford fees can apply for total, partial, or conditional exemptions.
Where fees remain unpaid, a public school can pursue the parent for the outstanding debt through legal proceedings. It cannot punish the learner for the parent’s failure to pay.
The Schools Act also expressly prohibits public schools from withholding a learner’s school report or transfer certificate due to unpaid fees.
Private schools operate differently because the relationship between the school and parents is generally governed by an enrolment agreement.
This contract sets out the parties’ obligations, including the payment of school fees and the circumstances in which enrolment can be terminated.
However, the Constitutional Court has made it clear that contractual rights do not operate separately from constitutional obligations.
For example, the Constitutional Court considered a case involving the termination of the enrolment of two learners after their parents failed to pay school fees.
The court recognised that independent schools are entitled to enforce valid contracts and cannot necessarily be required to educate learners indefinitely where parents fail to meet their contractual obligations.
What private schools should do
At the same time, it found that independent schools perform an important public function by providing education and are therefore subject to constitutional obligations.
“Contractual rights cannot be exercised in isolation from the Constitution,” Wright Rose-Innes said in outlining the legal position.
This means a private school may have a contractual right to terminate enrolment, but it must exercise that right fairly and avoid unjustifiably interfering with the learner’s right to education.
Schools should therefore follow the procedures set out in the enrolment agreement and provide parents with appropriate notice of the breach and the proposed action.
Parents should have a reasonable opportunity to address the arrears, whether through payment or a negotiated arrangement.
The circumstances surrounding the non-payment and the potential effect on the learner should also be considered before exclusion takes place.
Previous High Court judgments have also recognised the contractual relationship between private schools and parents, and stressed that contractual rights remain subject to constitutional principles.
For parents, the key point is that private-school enrolment creates legally enforceable financial obligations.
Financial difficulties should be raised with the school as early as possible rather than allowing arrears to build up.
For schools, unpaid fees do not automatically make exclusion the only available response. “The balancing of contractual rights with constitutional obligations remains essential in every case,” Wright Rose-Innes said.
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