LAW CORNER

2019-03-20 06:00

IN December 2018, the Durban High Court considered private schools and the non-payment of school fees in respect of the child.

The father defaulted and the school threatened its exclusion policy for non-payment.

When further accounts were sent, the mother indicated that they were undergoing financial difficulties and requested an indulgence of three months to allow them to bring the arrear amounts up to date.

The school indicated that its policies did not permit negotiated repayment terms and that should the parents fail to pay, the child would not be allowed to write his examinations and ultimately will be deregistered from the school.

The child was kept in the art room while his classmates were writing examinations. This according to the parents affected the child’s psychological well-being and destroyed his self-esteem.

The court highlighted that the exclusion policy relied on by the school was included in a contract of 2011.

However, there was a contract of 2015 which the parents had signed in respect of 2016, which made no provision for the exclusion of learners for non-payment of fees but availed other remedies to the school such as interest being charged together with late payment administration costs, collection costs and legal costs on attorney and own client scale.

The 2015 contract actually made provision for considering a settlement. The court said that these must precede the suspension or expulsion of a learner.

The court held that it is unnecessary to give independent schools powers which result in the victimisation and humiliation of children by excluding them in ordinary school activities as was the case in this matter.

The purpose of section 28(2) of the Constitution was not to impose on a private school the duties of the State, but rather require private schools not to diminish the enjoyment of a right, being the right to a basic education.

Independent schools must act in a manner that minimises the negative impact of their actions on the ability of learners to attend school and the learner’s circumstances must be considered.

Private schools must always bear in mind the role they play in society taking into account that it is dealing with children who are specifically protected by the Constitution and whose rights are paramount.

The writer refers you to his February article on the recent decision of the Supreme Court of Appeal regarding private schools and termination of contracts on the basis of a toxic relationship between the school and the parent(s).

Written by Njabulo Shandu (Candidate Attorney at J Leslie Smith & Inc.)

Editor’s note: The writer refers you to his February article on the recent decision of the Supreme Court of Appeal regarding private schools and termination of contracts on the basis of a toxic relationship between the school and the parent(s).

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