On 17 June 2020 the Constitutional Court handed down a landmark judgment which pronounced on a child’s own right to take part in due process or hearings concerning the termination of the contract between independent schools and their parents. The judgment concerns the constitutionality of a decision by an independent school to expel two scholars without giving them a hearing.
The applicants were the parents of two children who attended the independent school. Identical contracts with the school were concluded for each child by the parents, a pre-requisite for the admission of children to the school. Clause 9.3, being the crux of the dispute, provided that:
‘The School also has the right to cancel this Contract at any time, for any reason, provided that it gives you a full term’s notice, in writing, of its decision to terminate this Contract. At the end of the term in question, you will be required to withdraw the Child from the School, and the School will refund to you the amount of any fees pre-paid for a period after the end of the term less anything owing to the School by you.’
Due to a series of unfortunate events involving intolerable conduct by the father of the children, the relationship between the parents and the school deteriorated. Amongst other incidents, one of the parents levelled aggressive insults at the umpires at two inter-school sporting events and interfered with the under-10 soccer trials in an aggressive manner. As a result, the headmaster terminated the contracts in terms of clause 9.3.
The parents sought an order declaring the school’s decision to terminate the contracts unconstitutional and invalid on both procedural and substantive grounds, on the basis that the decision was in breach of section 28(2) (by which the best interests of the child are paramount) and section 29(1)(a) (the right to basic education) of the Bill of Rights. The parents argued further that clause 9.3 was contrary to public policy to the extent that it entitled the school to terminate the contract without a fair hearing or taking a reasonable decision.
The question was whether it was constitutionally permissible for an independent school to expel children due to their parents’ alleged misconduct, without following a fair procedure and without appropriate justification for its decision.
The majority judgments found that section 28(2) of the Constitution requires the school to afford the best interests of the children paramount importance and to follow a fair and determinable process. This encompasses providing the children with the opportunity to make representations on the effects of the termination of the contract on them personally.
The school bears a negative obligation, in terms of section 29(1)(a), not to impair the childrens’ right to basic education. The termination of the contracts, without providing the children an opportunity to make representations on their best interests, was constitutionally invalid.
The school was unable to demonstrate that there was appropriate justification for limiting the children’s rights to basic education.
The decision to terminate the contract was unconstitutional in that it breached the rights of the children to basic education and a fair process. These rights do not arise from the contract, but from the Constitution itself.
Not only was the school under the negative obligation to not interfere with the children’s right to basic education, it had the obligation to recognise the rights of the children to have their views heard on the matter and to offer this opportunity to them, either in person or through a representative.