Yes, your children can be expelled because of your bad behaviour

2019-02-20 06:00

SECTION 28(2) of the Constitution declares that a child’s best interests are of paramount importance in every matter concerning the child. Section 29 of the Constitution provides for the right to basic education.

Our Courts recently looked into the issue of the private contractual rights of Independent (private) schools to terminate contracts between themselves and the parents of children enrolled in such schools on the basis of a breach of contract by the parents.

In November 2018, the Supreme Court of Appeal dismissed an appeal from the High Court by parents of two children who claimed that the termination of the contracts by the school resulting in the children having to leave the school without following a fair procedure affording them a right to a hearing contravened the Constitution.

The parents further challenged the Constitutional validity of the termination clause relied upon by the school.

The reason for the schools termination of the contract related to events of misconduct on the part of the parents which, according to the school, had created a toxic and intolerable atmosphere between the parents of the children and the staff; including unwelcome and persistent harassment of the staff members; unpleasant comments about coaches in school matches; and disparaging remarks about other boys in the team; this having become a pattern of behaviour at the matches.

The Court held that the Constitutional right to a basic education cannot be used to impose a duty not provided for in the parent contract, to grant a hearing before it terminates a contract on notice.

The court went further to explain that even if the duty to act fairly and reasonably were to be imported into contracts, that the school had acted reasonably as it allowed the children to remain longer than even the terms notice, namely until the end of the year, to allow the parents sufficient opportunity to enrol the children in another school.

The Court illustrated that the termination clause is a common feature of commercial contracts and that such clauses may affect children, such as in the case of a lease, but to find that such clauses are invalid because of some indirect effect it may have on children would produce far reaching unjust results.

The contracts were concluded by the parents “freely, as autonomous individuals, alive to the consequences of what they were signing”.


“the Constitutional right to a basic education cannot be used to impose a duty not provided for in the parent contract”


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