BY Aslam Moosajee
The constitutional duties of independent schools, and challenges to the enforcement of a contractual term
On 17 June 2020, the Constitutional Court handed down judgment in AB and Another v Pridwin Preparatory School and Others. The central question at issue in this case was whether an independent school is entitled to terminate a contract on reasonable notice without following a hearing and without providing reasons for its decision. Though the court was divided on ancillary issues, it unanimously held that independent schools are obliged not to impair a child’s right to basic education. The court therefore held that an independent school cannot terminate a schooling contract without following fair process which, in certain circumstances, requires that children are afforded an opportunity to be heard and without proper justification.
The duties of an independent school
The majority of the court sourced the obligation to follow fair process when terminating a contract in terms of section 28(2) of the Constitution, which provides that a child’s best interests are of paramount importance in every matter concerning the child. Furthermore, section 29 of the Constitution, guarantees everyone the right to a basic education.
Even though it was common cause that section 28(2) of the Constitution imposes obligations on independent schools, the Supreme Court of Appeal and the High Court had held that this did not entail that the impugned child had a right to an oral hearing before a contract is terminated. While the majority in the Constitutional Court accepted that such an obligation does not arise in all circumstances, on the facts of the case, it held that the school was obliged to afford the impugned parents and children a hearing before terminating the contract.
With regard to the section 29 right to basic education, the Supreme Court of Appeal and High Court had held that the corresponding duty to provide such education rests on the state, and not on independent schools. The Constitutional Court, by contrast, held that:
- section 8(2) provides for the horizontal application of the provisions of the Bill of Rights, to the extent that the impugned provision is applicable to a private entity, taking into account the nature of the right and the nature of the duty imposed by the right;
- the increasing prominence of independent schools means that there is an increased need for learners who attend such schools to be afforded constitutional protection;
- accordingly, by virtue of sections 8(2) and 29 of the Constitution, while independent schools have no positive obligation to provide basic education, such schools are obliged not to impair a child’s existing access to basic education; and
- the school’s decision to terminate the parent contract, without following a fair process, meant that the school unjustifiably violated its obligation not to impair the impugned children’s rights to basic education.
The differing approaches of the majority and minority, and the broader significance of the case
The majority held that it was the decision of the school to terminate the parent contract, as opposed to the relevant clause in the parent contract, or the enforcement of that clause, that was unconstitutional. It therefore held that the challenge being adjudicated was not of a contractual nature. It is perhaps for this reason that:
- the majority did not feel constrained to assess the challenge in terms of the test set out in the Barkhuizen decision, which provides that constitutional challenges to a contractual term or its enforcement are assessed in terms of a public policy inquiry;
- the majority did not afford the principle, that contracts freely entered into are to be honoured, significance when assessing whether the school’s conduct was unconstitutional; and
- the majority explained that its decision did not entail a far-reaching “development” of the law of contract.
In contrast to the majority, the minority found the school’s enforcement of the impugned contractual provision to be constitutionally impermissible. It held that this outcome could be justified either with reference to the school’s direct constitutional obligations, or in terms of the Barkhuizen public policy inquiry.
On the basis of the majority and minority judgments, it now appears that litigants have two routes to challenge the constitutionality of the enforcement of a contractual term. Litigants can rely on a challenge based on public policy grounds or, where the private party is directly bound by a provision of the Bill of Rights, a litigant can challenge the decision to enforce a contractual term by contending that the enforcement breaches a constitutionally entrenched right.
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