A B v Pridwin Preparatory School

Invoking termination clause upheld by SCA as the parents freely as autonomous individuals and alive to the consequences of what they were signing concluded these contracts with the school in which their attention was specifically drawn to certain clauses, including those setting out the standard of conduct expected of them, the consequences for breach and the mutual right to terminate on notice and public policy demands that they be held to their terms.

“The appellants provide no other facts to support their case that the enforcement of the termination clause offends public policy in the circumstances of this case, much less showing that any substantial harm to the public or the children will result from the cancellation. The facts show the contrary. Mr Marx’s conduct, in contrast to the appellants’, was exemplary. He allowed the two children to remain for five months, until the end of the academic year. There are several other public schools at which they may be enrolled. The truth, however, is that the appellants wish to send their children to another private school of equivalent standard to Pridwin, as the facts show, but also to keep their children there until they achieve this. There are no public policy grounds for indulging this need.” [para 79]

Essence

Invoking termination clause upheld by SCA and Constitution does not impose any obligation to allow the parents to be heard before invoking the clause

Decision

(1134/2017) [2018] ZASCA 150 (1 November 2018).

Disallowed the appeal from the judgment of Clare Hartford AJ in the high court on 3 July 2017, with costs.

Judges

Cachalia JA (Shongwe ADP, Schippers JA and Mothle AJA concurring and Mocumie JA dissenting)

Related books

Darcy du Toit et al

Reasons

“The appellants sought, in the main, to make a case that they ought to have been heard before the termination clauses were invoked.  There were no constitutional or other public policy grounds to justify this.  Nor was their attempt to find a basis in PAJA for it.  The challenge to clause 9.3 of the contracts on public policy grounds was also unmeritorious.    The School, on the other hand, was acutely aware of its constitutional duties not only to the appellants’ children but to all the affected parties in cancelling the contracts.   Its reason for doing so, though not relevant, was unimpeachable, given the extraordinary behaviour of the appellants.  The high court correctly dismissed their application.  Furthermore, having regard to  their subsequent behaviour, which another court has again found to have been in breach of their contracts, it can hardly be in the best interests of all concerned for this family to remain at the School.” [para 81]

Quotations from judgment

Note: Footnotes omitted and emphasis added

Introduction

[1] This appeal concerns the right of a private school to terminate contracts between it and the parents of two children. The School exercised that right by invoking a termination clause in the contracts.[1] The consequence of the termination is that the parents will have to find another school for their children.

[2] The parents dispute the School’s right to cancel the contracts by using the termination clause, without more. They say that the Constitution imposes an obligation on the School to hear them and to act reasonably before cancelling the contracts. They also contend that the Promotion of Administrative Justice Act 3 of 2000 (PAJA) gives them a right to be heard. In addition, there is constitutional challenge to the termination clause on public policy grounds.

[3] The parents accordingly instituted review proceedings in the High Court, Gauteng, before Hartford AJ, to set aside the cancellation of the contract. In a comprehensive and closely reasoned judgment, the learned judge dismissed each of the parents’ contentions and upheld the School’s right to cancel the contract.[2] She also granted the parents leave to appeal to this court on 5 October 2017, after they had failed to obtain direct access to the Constitutional Court.[3]

The Parties

[4] In the high court the parents were referred to as AB (the father) and CB (the mother), and their children as DB and EB. I shall adopt this nomenclature. It shall be convenient to refer to the parents together as the appellants. The School, Pridwin Preparatory School (Pridwin or the School) is the first respondent and, Mr Selwyn Marx, the Principal, the second respondent. The third and fourth respondents are the School Board and the Member of the Executive Council for Education, Gauteng, who is not party to the dispute. The Independent Schools Association of Southern Africa (ISASA) is an intervening party. It is an umbrella body representing the interests of private schools, including Pridwin. Equal Education was admitted as amicus curiae in the high court, but withdrew from the appeal. The Centre for Child Law applied belatedly to be admitted as amicus curiae in this court. Its application was refused.

The terms of the contract

[5] There were two contracts, in identical terms, styled the ‘parent contract’, concluded on 8 March 2011 on 9 March and 2015 for DB and EB respectively. I shall set out the terms of the contract that bear on this appeal. The document containing the contract has the following heading: ‘Parent . . . Declaration and Contract of Enrolment’. It is followed by this statement: ‘. . . The rights and obligations contained in this Contract are binding . . . and must be carried out in order for the Child to be successfully enrolled and retained at the School’.

[6] What follows is an ‘Important Notice’ whose contents read thus: ‘By . . . entering into this Contract you agree to the conditions contained in this document as well as any terms and conditions contained in the Policies of the School, which forms part of this Contract. It is important that you read and understand these Policies as they have important legal consequences for you. If there is any provision in this Contract that you do not fully understand, please ask for an explanation before signing . . .This contract contains clauses which appear in similar text to this notice, which have also been highlighted…’

[7] The highlighted clauses include the following:

‘GENERAL OBLIGATIONS OF THE SCHOOL
2.1 . . . The Head may, at his/her sole discretion, cancel enrolment in accordance with the Rules.
2.2 For the sake of clarity, this Agreement regulates the enrolment and admission of your child to the school and also regulates the relationship between the School, your Child, yourself and/or a Third party once your child is admitted and enrolled with the School.’

‘PARENT’S GENERAL OBLIGATIONS
4.2 In order to fulfil our obligations, we need your co-operation. Without detracting from any specific obligations contained in this contract, you are required to: fulfil your own obligations under these terms and conditions; . . . maintain a courteous and constructive relationship with School staff.
4.3 The Head may in his or her discretion require you to remove or may suspend or expel your child if your behaviour is in the reasonable opinion of the Head so unreasonable as to affect or likely to affect the progress of your child or another child (or other children) at the School or the well-being of the School Staff or to bring the School into disrepute.

‘TERMINATION AND NOTICE REQUIREMENTS
9.2 You have the right to cancel this Contract at any time, for any reason, provided that you give the School a full term’s notice, in writing, of this intention before the withdrawal of the Child from the School . . . .
9.3 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.
9.4 This is without prejudice to the School’s other remedies: the School may cancel this Contract immediately and has no obligation to return any Deposit or pre-paid fees to you if you are in material breach of any of your obligations and have not (in the case of a breach which is capable of remedy) remedied the material breach within twenty (20) business days of a notice from the School requiring you to remedy the breach, . . . .
9.5 For purposes of this Contract, a material breach is considered to exist where you or your Child (as the case may be) –
9.5.1 fail to uphold the Policies and/or Rules of the School; . . . .
9.5.5 act in such a way that you or the Child become seriously and unreasonably uncooperative with the School and in the opinion of the Head, your or your Child’s behaviour negatively affects your Child’s or other children’s progress at the School, the well-being of School staff, or brings the School into disrepute.

In clause 1.13 ‘Policies’ is defined as:

‘The rules and principles adopted by the School, as published by the School from time to time, which are used to regulate the day-to-day running of the School. These Policies may include (but need not be limited to) the School rules; Schedule of Fees; Debtor’s Policy; Terms and Conditions of the School; as well as the Code of Conduct and the School’s Cautionary and Grievance Procedures for Parents and are available on request free of charge, or on the School’s website’ (emphasis added).

[8] In cancelling the contract the School invoked clause 9.3 (the termination and notice provision). It is important to point out that even though this clause entitles the School to ‘terminate for any reason’ it accepts that the termination is subject to constitutional scrutiny. It also acknowledges its constitutional obligation to apply the ‘best interests of the child’ principle when terminating a contract, and maintains that it did so. I explore this issue later in the judgment.

Circumstances leading to and reason for the termination

[9] Mr Marx explains the circumstances leading to the cancellation in the School’s affidavits. The appellants elide the facts described here; no doubt because they catalogue a sorry tale of misconduct on their part spanning eight months. But, before us, counsel properly accepted that they were bound by these facts in motion proceedings, as the high court had found. This narrative shows that the School would have been entitled to cancel the contract summarily for breach. Instead, it opted to terminate on notice, allowing the parents adequate time to find another school for their children.

[10] The earliest event occurred in October 2015, during the under-9 tennis trials. In the course of a meeting with a young intern in charge of tennis, Ms Migliore, AB rudely and aggressively accused her of incompetence, demoralising the children and damaging their enthusiasm for tennis. It left her in tears feeling threatened and traumatised. It also diminished her self-confidence, and took her a long time to recover from.

[11] This episode forms part of the matrix of AB’s persistent harassment of Pridwin’s staff members. Initially, this was reflected in his obsession with match statistics, his displeasure with team selection and the batting line-up for the Under-9 cricket team. This fixation included:

(i) Making detailed comparisons between hard copy cricket results produced by the School, and the electronically published versions, and producing a barrage of email complaints, pertaining to DB, who was just 8 years’ old at the time;
(ii) Tendering his services as a cricket coach over a fortnight in order to demonstrate how poor the School’s coaching standards were, while refusing to comply with its standard coaching procedures and etiquette, and
(iii) Demanding an apology from the head of sport, Mr Joubert, on the groundless allegation that the latter had defamed him.

[12] Although most of the events relate to AB’s conduct, CB, his wife, was complicit. Regarding the alleged defamation of AB, CB, a practising psychiatrist, wrote to Mr Marx, saying ‘I am not sure if JP’s (Joubert’s) behaviour emanates from a low IQ or obvious malice’ and ‘I don’t think JP realises the calibre of people he is choosing to take on’.

[13] These episodes were followed by three significant incidents. The first occurred on 10 November 2015, during a cricket game against Crawford College at Trinity House School. AB was watching his son, DB, playing in the Under-9 team. The child was given out leg before wicket. In response AB shouted abuse at the umpire, Mr Mokoela, from the side of the field. Shortly afterwards, when the children came off the field, he accosted Mr Mokoele with a cricket-bat in his hand, saying: ‘you fat . . . (expletive omitted), you don’t respect parents’, and threatened to wait for him after the match and kill him.[4][14] Mr Joubert contacted Mr Marx and requested his immediate attendance at Trinity House to deal with the problem. When he arrived there he confronted AB over his reported behaviour. AB showed no sign of contrition, insisting instead that he would talk to umpires in any manner he chose, as they were not gods.

When Mr Marx intimated that he would have to exclude AB or his son from sport matches in future if AB was not willing to comply with the School’s code of conduct, AB retorted that where he came from, an umpire would be stabbed with a stump from the wicket for having made a bad decision.

[15] The second incident occurred on 27 January 2016. DB had been given out (caught behind) in an under-10 cricket match, prompting AB to shout from the side of the field that it was ‘a useless decision’. After the match, AB confronted the coach, Mr Broderick, and accused him of being a ‘. . . (expletive omitted)’ coach. AB also made disparaging remarks about other boys in the team, which appears to have been a pattern of his behaviour at these matches. Mrs Till, a parent, reported this to Mr Marx and expressed her disquiet at AB’s behaviour, which was having an adverse effect on her son.

[16] The following morning, Mr Marx wrote to the Chairman of the School Board and two other board members, Ms Patel and Ms Theunissen, about this incident and recommended that a hearing be held. The Board approved his recommendation. Later that morning AB and CB arrived at Mr Marx’s office to discuss the previous day’s events. During the meeting, Mr Marx informed them that he had approached the Board.

[17] The idea of holding a hearing was abandoned. Instead, Mr Marx reached an agreement with the appellants on 28 January 2016 to the following effect:

(i) AB would refrain from coaching or offering advice or giving his opinion to any boys at sporting activities, including his own children; he would not sit with or near the boys at sporting activities; he would not publicly criticise referees and would abide by coaching, refereeing and selection decisions. He would also not do anything to bring the School into disrepute.
(ii) In return, Mr Marx undertook to ensure that the appellants’ children would not be victimised by the staff and that their efforts to find a place for them at another school would not be impeded. Shortly after the conclusion of the agreement, on 3 February 2016, Mr Marx penned a letter to support their application to move their boys to another private school in Johannesburg, St John’s. But for reasons not explained in the papers, the children were not moved.

[18] The agreement seems to have had no effect on AB. Because, on 27 June 2016, Mr Marx was once again called to a sporting event: this time it was to the soccer-field. On his arrival he found a soccer-coach, Mr Mosoana, who is not associated with the School, there at AB’s behest. Mr Mosoana was attempting to give unsolicited – and unwelcome – advice to the School’s soccer-coach, Mr Prinsloo, while the under-10 soccer trials were in progress.

[19] Mr Marx approached Mr Mosoana, imploring him to leave the field and told AB that it was unacceptable for him to interrupt the sports program by bringing his own coach to the School without an appointment. He also objected to AB’s interference with the coaching as he no longer wanted his children to be at the School. AB’s retort was that sport at the School was pathetic and that he did not want to be there. He would leave because the School did not know what it was doing, he added. He then left with Mr Mosoana.

[20] Shortly afterwards AB arrived at Mr Marx’s office and insisted on explaining his actions that day. Mr Marx said that it was unacceptable for him to have brought an outsider onto the school’s premises, uninvited, and for them to then disrupt the sporting session. He made it clear that this was a breach of the 28 January 2016 agreement. The meeting ended on this note.

[21] On 23 February 2016, the Board met with the appellants to hear their grievances regarding the head of sport, Mr Joubert, who they claimed, had defamed AB during the Trinity School incident. They were offered an independent lawyer to hear the grievances of both sides and make recommendations to the School. The offer came to naught.

[22] From the School’s perspective, the behaviour of AB and CB had created a toxic and intolerable atmosphere. The School had had enough. On 30 June 2016, Mr Marx despatched a carefully written letter to AB. In summary he said the following:

(i) The contracts could immediately be terminated in terms of clause 4.3, as read with clause 9.5, of the parent contracts for material breach. He explained that a material breach exists ‘where you act in such a way that you become seriously and unreasonably uncooperative with the School and in the opinion of the Head, your behaviour negatively affects your child’s or other children’s progress at the School, the well-being of School staff, or brings the School into disrepute.’
(ii) There had been breaches as the incidents mentioned above showed;
(iii) That ‘in the interests only of your sons, I have instead, in my sole discretion, elected to invoke clause 9.3 of the Contract’; (emphasis added) and
(iv) That he was giving a full term’s notice to cancel the parent contracts at the end of the third term of 2016, which meant that the children’s last day at school would be 9 December 2016. In effect, the appellants were given five months’ notice, which is more than the clause required.

The Appellants’ case

[23] The appellants enrolled their children at Pridwin by concluding the two parent contracts four years apart. They were aware that these contracts contained a highlighted warning that ‘If there is any provision in this Contract that you do not fully understand, please ask for an explanation before signing’. They signed both contracts freely, without question. They thereby accepted, explicitly, to be bound by its terms for their children to remain at the School. And they understood, too, the standard of conduct expected of them as parents for the right of their children to be and to remain at the School.

[24] They accept too, as they must, that the contracts do not provide – expressly or tacitly – for a hearing or require the School to consider lesser sanctions before termination. Their contention that the principles of natural justice afford them these rights was properly rejected by the high court,[5] as was an attempt to find them in the School’s policies.[6] These arguments were abandoned in this court, for good reason.

[25] Knowing all of this the appellants sought to have the termination of the contracts declared unconstitutional, invalid and unlawful, and reviewed and set aside. They rely, mainly, upon two constitutional provisions, namely s 28(2), that the child’s best interests are of paramount importance in every matter concerning the child, and s 29(1)(a), the right to a basic education, to achieve this. They thus seek a finding that the School’s decision violated these provisions.

[26] Their second ground of attack flows from a latterly introduced prayer, after Pridwin had filed its answering papers, that the termination clause (clause 9.3) be declared unconstitutional, contrary to public policy and unenforceable ‘to the extent that it purports to allow Pridwin to cancel the parent contracts without following a fair procedure and/or without taking a reasonable decision’.

Private Contracts and Public Policy

[27] The relationship between private contracts and their control by the courts through the instrument of public policy, underpinned by the Constitution, is now clearly established. It is unnecessary to rehash all the learning from our courts on this topic. It suffices to set out the most important principles to be gleaned from them:

(i) Public policy demands that contracts freely and consciously entered into must be honoured;[7]
(ii) A court will declare invalid a contract that is prima facie inimical to a constitutional value or principle, or otherwise contrary to public policy;[8]
(iii) Where a contract is not prima facie contrary to public policy, but its enforcement in particular circumstances is, a court will not enforce it;[9]
(iv) The party who attacks the contract or its enforcement bears the onus to establish the facts;[10]
(v) A court will use the power to invalidate a contract or not to enforce it, sparingly, and only in the clearest of cases in which harm to the public is substantially incontestable and does not depend on the idiosyncratic inferences of a few judicial minds;[11]
(vi) A court will decline to use this power where a party relies directly on abstract values of fairness and reasonableness to escape the consequences of a contract because they are not substantive rules that may be used for this purpose.[12][28] I shall return to the public policy challenge later. At this stage I point out only that the appellants do not attack the enforcement of the contracts by relying directly upon the School’s failure to act fairly and reasonably. What they do, instead, is attempt to import this duty through ss 28(2) and 29(1)(a) of the Constitution. I examine how they do this and whether there are proper legal grounds for doing so. First, s 28(2).

The s 28(2) challenge

[29] Pridwin’s business is to run a private school to educate children, and it has done so since 1923. So, it is hardly surprising that the School embraces the idea that the best interests of the children is paramount in whatever it does. Further, it quite properly accepts that s 28(2), which embodies this principle, binds it, in the language of s 8(2) of the Bill of rights: ‘…to the extent that, it is applicable, taking into account the nature of the right and the nature of the duty imposed by the right’. I shall henceforth refer to it as the ‘best interests principle’.

[30] The Constitutional Court has said that s 28(2) ‘must be interpreted so as to promote the foundational values of human dignity, equality and freedom’.[13] It has also said that it is unnecessary to determine the content of this right because it provides an adequate benchmark for the treatment and protection of children in its present form.[14] It bears emphasis that the application of the right must take into account its relationship with other rights, which might limit its ambit. Otherwise, taken literally, it could cover virtually every field of human endeavour – public and private – that has some direct or indirect impact on children, thereby rendering the right meaningless.[15]

In each case what is required, therefore, is for a court to weigh the interests protected by the right against any countervailing interests protected by other rights to produce a legally sensible outcome. It follows that there would be instances where s 28(2) requires a hearing before a decision having an impact on a child is made, but not in others. What is clear, however, is that there is no general requirement for a hearing.

[31] There is no dispute that Pridwin applied the best interests principle when it terminated the contracts. In his termination letter to the appellants, Mr Marx said that he had exercised his discretion to invoke the termination clause, which provided for a notice period, solely in the interests of the two children, instead of summarily cancelling the contracts because of the appellants’ repeated breaches, as he was entitled to do. In addition, he said, he had balanced their rights against those of all the other children as well as other stakeholders, in coming to his decision. He was particularly mindful of the deleterious effect that AB’s behaviour was having on the other children.

[32] The approach of the appellants in demanding a hearing before the contracts were cancelled, however, is to focus on the interests of their children to the exclusion of all others. It is not only the dignity of DB and EB that needs protection, but also the dignity of every other child and every other person at the School. This means that every person’s rights are worthy of equal consideration. This includes the right of the School to enter into and terminate contracts freely in accordance with their terms, and the freedom to associate and to disassociate with whomsoever it wishes.[16][33] Bearing this in mind the argument that s 28(2) gives rise to an implied right to be heard before a parent contract is terminated, falls flat. It is not a right that arises generally from s 28(2), and it cannot be deployed to limit a party’s rights to terminate a contract on notice.

[34] If it were otherwise this would entitle a lessee to a prior hearing whenever a lessor wishes to terminate a lease, if there are children on the property. It would also mean, as counsel for the appellants was constrained to accept, that if the appellants themselves wished to terminate the contract, in accordance with clause 9.2, they would first have to give the School a hearing. Even more preposterous is the idea that the School or a lessor would not be able to rely on a breach clause before cancelling a contract, without affording a hearing to the aggrieved party, which is the unavoidable consequence of the appellants’ stance.

[35] The appellants call in aid three cases in attempt to buttress their case for a hearing flowing from s 28(2).

They are

In the first matter the court found that before children are removed from their families under the Children’s Act 38 of 2005, the family and children should have the right make representations as to whether their removal was in their best interests.

The second matter (J v NDPP) had to decide the constitutional validity of a provision placing child offenders on the sex-offenders’ registry, and again, the court held that this could not be done without affording the right of the child ‘to make representations and to be heard’.

[36] In Hoërskool Fochville, this court was dealing with an application under Uniform rule 30 A to compel the production of documents in which children had made statements regarding the School. One of the questions considered was whether it was appropriate for an intervening party – a public interest body representing the interests of children – to assist the children in the litigation.

During the course of its judgment this court referred to a passage in Christian Education South Africa v Minister of Education[20], in which the Constitutional Court said in a postscript, after deciding that case, that it would have been of assistance to the court had a curator ad litem been appointed to represent the children in order to hear their views.

[37] None of these cases helps us answer the question with which we are concerned: whether a right to a hearing, derived from s 28(2), may be imported into a termination clause in a private contract between parents and a school. In fact, they are wholly inapplicable to this case. This brings me to what the appellants contend is the second source of the right to a hearing, namely, s 29(1)(a) of the Constitution.

Section 29(1)(a)

[38] Section 29(1)(a) guarantees the right of everyone to a ‘basic education’. This is an obligation on the State, not one imposed on private institutions. But, the appellants contend, Pridwin provides a basic education and is thus performing a constitutional function. It therefore bears a negative duty not to unreasonably diminish a learner’s access to an education. The obligation to act reasonably, therefore, requires the School to afford the opportunity to make representations before a contract is terminated. And also to consider alternative sanctions available to it before taking this step. There is little merit in the point.

[39] Section 29(3) expressly recognises the right to establish and maintain independent schools, which is what Pridwin is. And though it provides a standard of education not inferior to a public school[21] it is not providing a basic education as envisaged s 29(1)(a). It would only be doing so if it was contracted by the State for this purpose, as explained in Allpay v SASSA.[22]

It would then be under a positive duty to do so because it was performing a constitutional function. Section 29(1)(a) cannot therefore be used to impose a duty on a private school, not provided for in a parent contract, to grant a hearing before it terminates a contract on notice.

[40] It is thus difficult to understand the appellants’ contention that Pridwin is performing a constitutional function (which would ordinarily impose a positive duty on it), but is saddled, instead, with a negative duty not to impede the right of the appellants’ children to a basic education.

If the appellants were correct that Pridwin, a non-subsidised independent educational institution, is providing a basic education, it would lead to remarkable consequences.[23] It would mean that a private security company contracted to provide safety and security to a community is discharging a constitutional function.[24] So too would a private clinic that renders treatment to a patient, since the provision of health care services is also a state obligation.[25] The proposition simply cannot withstand the most basic scrutiny.

[41] It is apparent from the authorities that interference with a negatively protectable right occurs when the wrong-doing party is not itself under an obligation to provide the service – basic education, here – but its actions indirectly have that effect. Juma Musjid[26] is a case in point.

The owner of a private property (a trust) obtained an eviction order against Juma Musjid School, after notifying it that it was terminating the school’s occupancy. Juma Musjid was a public school and the responsible public authority – the MEC for Education – had failed to enter into a lease with the Trust.

[42] The Trust, like Pridwin, had no positive obligation to provide a basic education; that duty, as I have said, rests on the state.[27] There was no constitutional obligation on Pridwin to admit the appellants’ children. The children also had no constitutional right to attend this School. They were admitted after their parents had signed contracts with the School, subject to the limited provisions in the South African Schools Act 84 of 1996 not here relevant. And their right to remain at the School flowed from these contracts.

[43] While s 8(2) of the Constitution provides that the Bill of Rights applies horizontally, it was pertinently pointed out in Juma Musjid that its purpose is not to obstruct private autonomy or to impose the duties of the state on private parties. Rather, it is to oblige private parties not to impede, interfere with or diminish the enjoyment of a right.[28] A private party would thus breach the obligation directly if it failed to respect the right, and indirectly if there was a failure to prevent its direct infringement by another; or to take steps to avoid its diminution.[29]

[44] In Juma Musjid, the Trust permitted the School to occupy its premises and paid for certain expenses, which the Department undertook to repay, but failed to do so. In seeking to evict the School from its property, the Trust’s action negatively impacted upon the School’s duty to provide a basic education to its learners. That is not the case here. Pridwin has done nothing to prevent the appellants’ children from obtaining a basic education at a public school. As the high court pointed out, there are three public schools in the area that would be obliged to take them.[30] There has simply been no breach of the right, in any way.

[45] Another case on which the appellants place much store is Daniels v Scribante.[31]

There the court had to determine whether a domestic worker, who had occupied land with the owner’s consent, under the Extension of Security of Tenure Act 62 of 1997 (ESTA) was entitled to make improvements to her dwelling. Among the questions the court had to deal with was whether the owner was under an obligation to permit this right, under s 25(6) of the Constitution,[32] where she had not obtained the owner’s permission in terms of s 6 of ESTA. She contended that s 13 of ESTA imposed a positive obligation on the owner to allow this.[33][46] The court had little difficulty finding in her favour.[34] It held that by its very nature s 25(6) read with ESTA imposes both a positive and a negative duty on private persons to protect security of land tenure. The positive duty on the landowner is to accommodate persons of insecure tenure on their land. And the negative obligation is not to improperly invade that right.[35] The appellants invoke this judgment to support the contention that there is no requirement for a contractual nexus between the state and a private person for a positive or negative duty to be imposed, as the high court had found.[36][47] The contention is stillborn. What is clear from this case is that the obligations – in both their positive and negative guises – were imposed on the private land owner in the first instance by s 25(6) and secondly through ESTA. But, as I have pointed out earlier, the fact that s 29(3) of the Constitution, read with the Schools Act, specifically permits independent educational institutions to be established does not mean that they perform a constitutional function to provide basic education as envisaged in s 29(1)(a).

[48] It follows that the appellants’ attempt to source the right to a hearing from a negative duty to act fairly arising from s 29(1)(a) of the Constitution must also fail, as must its attempt to impose a duty on the School to act reasonably, an issue to which I shall return. Suffice to say at this stage that even if there was a duty on Pridwin to act reasonably in terminating the contracts, it did so adequately.

PAJA

[49] The appellants last and perhaps least meritorious attempt to insist that they had a right to be heard is their reliance on PAJA. The short answer is that in cancelling the contracts Pridwin was not exercising a public power or performing a public function. It was exercising a contractual right that did not constitute administrative action. The high court dismissed their argument.[37][50] In this court, counsel for the appellants made another attempt to rescue the PAJA argument; they contended that there is a ‘governmental’ interest in the decision to cancel the contracts, derived from this court’s adoption of the test for judicial review in Calibre Clinical Consultants.[38]

Nugent JA explained in that case that the courts tend to seek out features that are governmental in kind to decide whether conduct is reviewable.[39] What needs to be considered, he said:

‘is the extent to which the functions concerned are “woven into a system of governmental control”, or “integrated into a system of statutory regulation”, or that the government “regulates, supervises and inspects the performance of the function”, or it is “a task for which the public, in the shape of the state, have assumed responsibility”, or it is “linked to the functions and powers of government”, or it constitutes “a privatisation of the business of government itself”, or it is publicly funded, or there is “potentially a governmental interest in the decision-making power in question”, or the body concerned is “taking the place of central government or local authorities”, and so on.’[40]

[51] The appellants say that the ‘governmental interest’, which would make the termination of the parent contracts an exercise of public power, is apparent from a document signed by the Department of Education and the National Association of Independent Schools (NAISA) (of which ISASA is a part) styled the ‘Rights and Responsibilities of Independent Schools’ (R & R document).

Clause 8 of this document deals with the exclusion of learners and provides:

‘Exclusions fall into two broad areas:
• Exclusion on grounds of contravention of the rules contained in the School’s Code of Conduct and grievance procedure, drafted in line with the relevant legislation and good practice.
• Exclusion on the grounds that the contract between the parents and the school has been broken, usually because the parents have failed to pay fees.
Independent schools may exclude a learner on the basis of any of the above grounds provided that a fair procedure has been followed. (emphasis added)
The best interests of the child should always be adhered to.’

[52] The appellants appear to have obtained the R & R document from the internet and served it on the respondents on 24 May 2017, with a supplementary affidavit, a day before the hearing in the high court.

Both Pridwin and ISASA took the view at the time that they would not respond to it because of its lateness and also because it was not binding on them. I should add that NAISA was not joined in the proceedings and the MEC for Education, who is, did not file any affidavit. So we have no idea what their views on the purpose or effect of the document are.

[53] In the high court, the appellants conceded that the document was not binding on the School but argued that it must nevertheless be part of the context of matters present in the mind of the parties when they contracted. That was of course not true because the document had only belatedly become part of their case.[41][54] As a result of the uncertainty regarding the status of the document, at the hearing of the appeal, the presiding judge directed the parties to file further affidavits on this point. They did so. In Pridwin’s supplementary affidavit, Mr Marx confirms that the document is not binding on the School and that he had not been aware of it before it was filed in court. ISASA’s affidavit further confirms that the document is not binding on it or on Pridwin. It explains that it is no more than a communications protocol, which is clear from the document itself.

[55] The high court correctly rejected the appellants’ attempt to use this document as a basis for attempting to secure a right to be heard before the contracts were cancelled.

The learned judge put it thus:

‘This document was simply plucked from the internet and provided to this Court without further information. There is neither a date that it was signed or placed before the court, nor any evidence provided to show that it was part of the context in which the parent contracts were drawn up. In any event, clause 8 of the document refers to a termination for breach, but does not refer to a termination on notice, as was the case here.’[42]

[56] CB has also filed a further supplementary affidavit. The appellants now realise that their contention in the high court that the document was part of the context, which must have been in the minds of the contracting parties when they contracted, is not sustainable. Undeterred, they now say that it is irrelevant whether or not it is binding; it is nonetheless ‘indicative of a strong governmental interest in independent schools’ decisions to exclude learners, they assert.

[57] In this court the appellants found another ground to impute a governmental interest in order to justify a right to a hearing under PAJA: Regulations 6(1)(i) and 6(2) of the Gauteng Regulations.[43] They cannot do so; the regulations were not specifically part of their case in the founding or supplementary affidavits in the high court and the respondents had no opportunity to respond to them. I shall nonetheless deal with them. They provide:

‘Post-registration obligations of an independent school
6.(1) Once an independent school has been registered with the Department, the following post registration requirements must be adhered to:
. . .
(h) allow unannounced visits by the Department for the purpose of monitoring the leadership, management, curriculum delivery and governance of the school; and
(i) not expel or suspend a learner during an academic year or withhold the learner’s progress report due to non-adherence to contractual obligations between the parent and the school.
(2) Where the board of an independent school and the parent cannot reach an agreement on contractual obligation as contemplated in subparagraph 6(1)(i) the board must escalate the matter to the Directorate responsible for independent schools in the Department.’

[58] The appellants say that the R&R document and the regulations show that independent schools are, to extract some features from the governmental interest test expounded in Calibre Clinical, woven into a system of governmental control under the Constitution and the statutory scheme governing school education. Government inspects the performance of these schools and subjects them to exacting standards failing which their registration may be withdrawn. The provision of an education, they continue, is also a task for which the public, in the shape of the state, has assumed responsibility and education is inextricably linked to the functions and powers of government.

[59] Before I deal with the governmental interest test, it is evident that there is a difference between clause 8 of the R & R document and the regulations now sought to be relied upon to justify a hearing. The former says that there should be a fair procedure before a learner is excluded following a ‘broken contract’, which presumably means a breach of the contract by the parents. The regulations, which were promulgated long after the communication protocol, say nothing of the sort. Regulation 6(1)(i) is mainly concerned that the child’s academic year must not be disrupted as a result of ‘non-adherence to contractual obligations’. It does purport to prescribe what the content of the terms of a parent contract should be, much less prescribe a fair procedure for termination. The regulations have the force of law but the R & R document does not.

[60] Furthermore, neither the R & R document, nor the regulations deal with termination of contracts on notice. In so far as there is any governmental interest in the exclusion of a learner on any ground it goes no further than to impose an obligation on a school to ensure that it complies with the regulations. It bears mentioning that Pridwin met any potential governmental concern in the exclusion of the children by allowing them to remain until the end of the academic year after the contracts had been cancelled.

[61] In any event the appellants misuse the ‘governmental interest’ test.

In Calibre Clinical Consultants Nugent JA made clear that the question whether there was a ‘governmental interest in the decision making power in question’ was not of universal application to determine whether PAJA applies.[44]

As Hoexter points out ‘[o]ther considerations . . . include the source of the power, whether it is exercised consensually or coercively and its effect on the public . . . [A] mere interest in the activity on the part of the public is unlikely to play a decisive role’.[45] And citing De Smith’s Judicial Review, she adds that a broad and flexible approach is indicated rather than mechanical or formulaic reliance on one or more of these criteria.[46] Here, the power to terminate the contracts – concluded consensually – arises from the contracts themselves, not from the coercive power of the School or the state. The termination also has no effect on the broader public.

[62] Importantly, as Nugent JA emphasised, the utility of the inquiry is aimed at determining whether or not the decision-maker is accountable to the public for its actions, as this is what PAJA is concerned with.

It is, he explained:

‘…[a]bout accountability to those with whom the functionary or body has no special relationship other than that they are adversely affected by its conduct and the question in each case will be whether it can properly be said to be accountable notwithstanding the absence of any special relationship.’[47]

[63] Pridwin is not accountable to the public for a decision to terminate a parent contract. Neither is it answerable to any public authority for the manner in which it terminates its parent contracts. Its accountability is limited only to those with whom it has a ‘special relationship’ by virtue of the contracts: the appellants in this case (and perhaps the other parents, who have contracts with the School). It follows that there are simply no grounds for the appellants’ contention that either the R & R document or the regulations are indicative of a governmental interest in the cancellation of the contracts, which constitutes an exercise of a public power, as envisaged in PAJA.

Substantive breaches.

[64] Apart from the appellants’ complaint that Pridwin breached their procedural right to fairness, they also say that the cancellation was substantively unlawful. They ground this claim in what the Constitutional Court said in S v M[48] about the effect of the best interests principle as presupposing that ‘the sins and traumas of fathers and mothers should not be visited on their children’.[49]

Relying on this case, they contend that because the two children are innocent, they should not be excluded from the School only because of their parents’ misconduct. There would have to be, they say, ‘extraordinary circumstances’ before a school would be entitled to do this.

[65] The School therefore had a duty, they say, to act reasonably before terminating the contracts, not only arising from the best interests principle in s 28(2), but also from the negative duty imposed upon it by s 29(1)(a). This entailed, they continue, an obligation on the School to act to consider ‘alternative sanctions’ before taking the drastic action that it did.

[66] It is apposite to remind ourselves what the Constitutional Court said about the best interests principle in S v M: if ‘spread too thin it risks being transformed from an effective instrument of child protection into an empty rhetorical phrase of weak application’.[50] This caution is even more pertinent to an attempt to elevate the idea of the ‘sins of the father’, which has biblical resonance, to a legal rule of general application.

[67] S v M concerned the sentencing of a mother for fraud. She was the primary care-giver of her three dependent children. The question was whether a custodial sentence imposed by the lower courts under s 276(1)(i) of the Criminal Procedure Act 51 of 1977, (the CPA) in terms of which she would be eligible for release after serving eight months’ imprisonment, should stand. Having regard to the best interests of her children, the court, in a split decision, ordered that she be placed under correctional supervision in terms of s 276(1)(h) of the CPA.[51] It is, however, quite clear that the court would have arrived at this conclusion by simply relying on the ‘best interests’ principle without referring to the ‘sins of the (mother)’. It is equally clear that where the nature of the crime is so serious as to warrant a lengthy prison sentence, the best interests principle has little utility, if any.

[68] In the same vein, when a parent contract is terminated a school is obliged to consider the best interests principle, but it cannot be precluded from cancelling a contract only for fear of visiting the indiscretions of the parents on the children. This brings me to the complaint that the duty to act reasonably required Pridwin to have considered alternative sanctions before the cancellation.

[69] I have already concluded that the duty to act fairly or reasonably cannot be imported into the terms of the contracts. So that is really the end of the fairness and reasonableness challenges. But assuming, in favour of the appellants, that there is such a duty arising from the failure of Mr Marx to comply with the best interests principle, or from s 29(1), the simple test to be applied on review is whether the decision is one that a reasonable decision-maker could not reach. Among the factors the courts consider in this exercise are:

‘[T]he nature of the decision, the identity and expertise of the decision-maker, the range of factors relevant to the decision, the reasons given for the decision, the nature of the competing interests involved and the impact of the decision on the lives and well-being of those affected.’[52][70] Against the factual background I have described earlier the high court concluded that Mr Marx had acted ‘eminently reasonably’ in terminating the contract. The learned judge continued:

‘[D]espite being entitled to terminate DB and EB’s attendance at the school immediately for the first applicant’s material breach in terms of clause 9.4, specifically taking the children’s interests in the school, he decided not only not to terminate forthwith, but rather to allow the children to remain longer than even the term’s notice set out in clause 9.3, namely until the end of the year.’[53]

[71] I concur with her reasoning. She need not have gone further. But she proceeded to deal with the argument relating to the failure to consider other alternatives. She reasoned thus:

‘[The appellants] . . . stated that Marx had at least four options open to him, including issuing a final written warning, banning the first applicant from attending sport practices, banning him from addressing or conversing with the staff members and barring his children from the sporting programme at Pridwin.

However, Marx had already attempted to impose a lesser sanction by entering into the agreement with the first applicant on 28 January 2016 which the first applicant subsequently breached. He had accordingly already given the first applicant a full opportunity to desist in his behaviour. Furthermore, the suggestion by the applicants that their children should have been barred from the sporting programme at Pridwin is surprising as, in my view, that option would have caused ongoing distress and harm to their children on a daily basis whenever their friends went off to engage in sporting activities whilst they were not permitted to do so. This suggestion is accordingly rejected.’[54][72] Here too, her reasoning cannot be faulted. I accordingly find that the attack on the substantive lawfulness of the termination is also ill-founded.

[73] One would have thought that the judgment of the high court would have had a salutary effect on the appellants’ conduct. Alas, this was not to be. Two further incidents occurred after the judgment, which resulted in Pridwin obtaining an interdict against them in the Gauteng Division of the High Court, Johannesburg, on 19 February 2018.[55]In the first, on 6 October 2017, CB wrote to Mr Marx following a regular newsletter he distributed to parents to which she had taken umbrage. She accused him, astonishingly, of being ‘a sociopath and narcissist’ who had failed her children, which was reminiscent of similar unbecoming remarks she had made about Mr Joubert, earlier. The second incident on, 22 January 2018, resulted in a verbal confrontation between AB and Mr Marx. The court found that AB’s conduct was ‘aggressive . . . and seeking out conflict’. The facts pertaining to both incidents are described in the judgment of the high court, and need not be repeated here.[56][74] In granting the interdict against the appellants the court found that both CB and AB had breached their contractual obligations to maintain a constructive and courteous relationship with the School, and specifically with the principal.[57] The evidence of these subsequent events that resulted in the interdict is of course not relevant to determine the lawfulness of the termination. But, as the appellants have framed their case as a constitutional matter, involving as it does the applications of s 28 and s 29 to parent contracts, the subsequent events are relevant to determine any ‘just and equitable’ relief that may be appropriate in terms of s 172(1)(b) of the Constitution.

The Public Policy Challenge.

[75] I return to the appellants’ public policy challenge to the termination clause, the legal principles of which I have set out earlier.[58] In the high court the appellants sought a declaration that both the clause itself and its enforcement are contrary to public policy because the clause does not provide for a fair procedure or reasonable decision. This was also the stance adopted in their written submissions to this court prepared by their previous counsel. However, I did not understand their newly appointed counsel, Mr Marcus, to persist with the attack on the terms of the clause; his submissions focussed on the enforcement of the clause. In other words it is not the clause itself that is impugned, but the fact that it was enforced, without a prior hearing or reasonably, which is said to be inimical to public policy.

[76] Now I have already found that there are no grounds for importing a duty to act fairly or reasonably into the termination clause from s 28(2) and s 29(1) of the Constitution, or from PAJA. And, because fairness and reasonableness are not free standing grounds to impugn the terms of a contract the attempt to invalidate the terms of the contract has no merit. There is nothing on the face of clause, or intrinsically, that offends any constitutional value or principle or is otherwise contrary to public policy. It is certainly not immoral. No facts have been placed before us to suggest otherwise.

[77] As the high court pointed out this type of clause is a common feature of commercial contracts. Many may affect children, for example an ordinary lease, as alluded to earlier. The consequence of a finding that such clauses are invalid because of some indirect effect they may have on children would be catastrophic.[59] Mr Marcus rightly did not persist with this line.

[78] Instead, he concentrated his attack on the enforcement of the contracts as being contrary to public policy, the argument being that public policy, as determined by the legal convictions of the ‘legal policy makers community of the community’ imposed a duty on Pridwin to hear the appellants and to act reasonably before terminating the contracts. Once again the R & R document was enlisted to support this argument. However, I have earlier dealt with the fact that it is a mere communications protocol. It is not a policy document that independent schools affiliated to ISASA, such as Pridwin are obliged to apply. It can, therefore, form no basis for public policy. And as I have also pointed out earlier, reg 6(1)(i), incorrectly relied upon to support a right to hearing under PAJA, contains no injunction for independent schools to apply a fair procedure before terminating a parent contract.

[79] The appellants provide no other facts to support their case that the enforcement of the termination clause offends public policy in the circumstances of this case, much less showing that any substantial harm to the public or the children will result from the cancellation. The facts show the contrary. Mr Marx’s conduct, in contrast to the appellants’, was exemplary. He allowed the two children to remain for five months, until the end of the academic year. There are several other public schools at which they may be enrolled. The truth, however, is that the appellants wish to send their children to another private school of equivalent standard to Pridwin, as the facts show, but also to keep their children there until they achieve this. There are no public policy grounds for indulging this need.

[80] The facts also show that the appellants concluded these contracts in which their attention was specifically drawn to certain clauses, including those that set out the standard of conduct expected of them, the consequences for breach and the mutual right to terminate on notice. The contracts are not one sided or unduly onerous on one of the parties. The appellants concluded the contracts freely, as autonomous individuals, alive to the consequences of what they were signing. Public policy demands that they be held to their terms.

Conclusion

[81] The appellants sought, in the main, to make a case that they ought to have been heard before the termination clauses were invoked. There were no constitutional or other public policy grounds to justify this. Nor was their attempt to find a basis in PAJA for it. The challenge to clause 9.3 of the contracts on public policy grounds was also unmeritorious. The School, on the other hand, was acutely aware of its constitutional duties not only to the appellants’ children but to all the affected parties in cancelling the contracts. Its reason for doing so, though not relevant, was unimpeachable, given the extraordinary behaviour of the appellants. The high court correctly dismissed their application. Furthermore, having regard to their subsequent behaviour, which another court has again found to have been in breach of their contracts, it can hardly be in the best interests of all concerned for this family to remain at the School.

[82] In the result the following order is made:

The appeal is dismissed with costs, including those of two counsel.