AB v Pridwin Preparatory School
Negative obligation imposed and new rule developing the common law under section 8(3)(a) of the Constitution, that was non-existent under the common law or in terms of any prior legislation, by creating the negative obligation not to diminish or interfere with a child’s right to a basic education where an independent school provides basic education.
(CCT294/18)  ZACC 12 (17 June 2020)
1. Leave to appeal is granted.
2. The appeal is upheld and the order of the Supreme Court of Appeal is set aside.
3. It is declared that the decision by Pridwin Preparatory School to cancel the Parent Contract is invalid and set aside.
4. Each party is to pay its own costs in this Court, the High Court and the Supreme Court of Appeal.
Coram: Mogoeng CJ, Cameron J, Froneman J, Jafta J, Khampepe J, Ledwaba AJ, Madlanga J, Mhlantla J, Nicholls AJ and Theron J
Nicholls AJ (dissenting):  to 
Theron J (majority):  to 
Cameron J and Froneman J (concurring dissent):  to  (see below)
Khampepe J (concurring):  to 
“ How far does protection of this right by independent schools go? It cannot be absolute. The finding that its content requires fairness, not only in process-fairness, but also in substance-fairness, before children attending a private school may be required to leave, complies with the requirement in section 8(3)(b) that any limitation upon a newly-established common law right must accord with the limitations provision in the Bill of Rights (section 36(1)). We note that the two judgments diverge in their approach to a limitations analysis and neither applies section 36(1). In fidelity to section 8(3)(b), we consider that a limitations analysis via section 36(1) remains the appropriate route.”
Quotations from judgment
Note: Footnotes omitted and emphasis added
“best interests of the child — right to basic education — independent school contracts — fair process — appropriate justification — section 8(2)”
The following explanatory note is provided to assist the media in reporting this case and is not binding on the Constitutional Court or any member of the Court.
On 17 June 2020 at 10h00, the Constitutional Court handed down judgment in an application concerning the constitutionality of a decision by an independent school to terminate the contracts that entitled two child learners to attend that school. The application arises out of a decision of the Supreme Court of Appeal (SCA) dismissing an appeal against a decision of the High Court of South Africa, Gauteng Division, Johannesburg (High Court).
The applicants are the parents of two children that commenced their schooling at Pridwin Preparatory School (Pridwin or School), the first respondent, in 2012 and 2016, respectively. The applicants concluded identical contracts with the School, a pre-requisite for the admission of the applicants’ children to Pridwin (Parent Contracts). Clause 9.3 of the Parent Contract provided that the school was entitled to cancel the Parent Contract at any time, for any reason, on a full school term’s written notice.
As a result of series of unfortunate incidences of misconduct by the applicants – the first applicant, AB, in particular – the relationship between Pridwin and the applicants soured. The misconduct by the applicants is epitomised by three incidents which occurred between late-2015 and early 2016, when the first applicant levelled aggressive insults at the umpires at two inter-school sporting events and caused an ugly scene by interfering with Pridwin’s under-10 soccer trials. These incidents, as well as several prior episodes of misconduct, unfolded in full view of the young children participating in the sporting events concerned. In June 2016, the second respondent, the headmaster of Pridwin, terminated the Parent Contracts on notice in writing to the applicants, in terms of clause 9.3 of the Parent Contracts.
The applicants instituted urgent proceedings in the High Court against Pridwin, its headmaster, its Board and the Member of the Executive Council for Education. The applicants sought an interim order entitling the applicants’ two children to remain at Pridwin pending the outcome of the main application to declare the termination of the Parent Contracts by the headmaster unconstitutional and have it set side. The applicants argued that the decision to terminate the Parent Contracts was unreasonable, procedurally unfair, did not have regard to the children’s best interests and impermissibly impaired the children’s rights to basic education.
The High Court dismissed the main application and ordered the applicants to remove their two children from Pridwin by the end of the 2017 academic year. It found that the headmaster had had due consideration to the best interests of the children, as required by section 28(2) of the Constitution, when terminating the Parent Contracts. Moreover, it held that Pridwin was not providing a basic education and that section 29(1)(a) of the Constitution was therefore not implicated.
Supreme Court of Appeal
Aggrieved, the applicants appealed to the SCA. The Independent Schools Association of Southern Africa intervened as an additional respondent in that Court. In addition to seeking to have the decision to terminate the Parent Contracts declared unconstitutional, the applicants argued that clause 9.3 of the Parent Contract was contrary to public policy to the extent that it entitled Pridwin to terminate the parent contract without following a fair procedure or taking a reasonable decision.
The SCA upheld the judgment of the High Court, finding that neither section 28(2), nor section 29(1)(a) of the Constitution created a right to a hearing and that Pridwin was correct to consider the interests of all of its learners. That Court confirmed the High Court’s finding that Pridwin did not provide a basic education, that Pridwin had acted reasonably and in accordance with public policy. The applicants then proceeded to knock on the doors of this Court.
The first judgment, penned by Nicholls AJ and concurred in by Mogoeng CJ, Cameron J and Froneman J, held that this matter engages this Court’s jurisdiction. It held that the matter is moot, as the children of the applicants had left Pridwin and were attending a new school; it nevertheless found that the adjudication of this matter would be in the interests of justice. In reaching this conclusion, the first judgment noted that, as independent schools proliferate in South Africa, there is widespread use of clauses, if not identical, then certainly similar to clause 9.3. These do not impact only on the elite as in this case, but also upon less affluent parents who, in the hope of a better education for their children, enrol them in low-fee, state-subsidised independent schools. Furthermore, the first judgment remarked that the educational rights of children at independent schools and the concomitant constitutional obligations of these schools goes far beyond the confines of this case. Accordingly, it held that it would be in the interests of justice that leave to appeal be granted on the issue of the constitutionality of clause 9.3 of the Parent Contracts and its enforceability without following fair procedure.
The first judgment considered, first, whether clause 9.3 was facially valid without more, and second, whether its enforcement should be countenanced in circumstances where the affected parties are not afforded a hearing or an opportunity to make representations. On the first question, the first judgment held that there was nothing facially offensive or unconstitutional about clause 9.3 of the Parent Contracts and noted that counsel for the applicants conceded as much during the hearing. In relation to the second question, the crucial issue was then whether independent schools, by providing education to children, assume constitutional duties and obligations that inhibit the free exercise of contractual rights. In this matter, these are the best interests of the child as entrenched in section 28(2) of the Constitution and the right to basic education as protected in section 29(1)(a).
The first judgment held that the content of independent schools’ obligations under the Constitution is circumscribed. It does not extend to a positive duty to continue providing education at the private institution. But, once an independent school provides basic education, it is then required to ensure that the right to basic education of children attending the independent school is not negatively infringed. That will occur, for instance, where no independent opportunity to be heard is afforded before a decision is made to discontinue that education. Pridwin had a negative duty not to impair and diminish the children’s rights to a basic education. In addition, there should be no interference with the rights already enjoyed by the children, except where there is proper justification for that interference. Therefore, the first judgment found that the constitutional requirement is that there should be both substantive and procedural fairness before any child is excluded from a school, and this would, in certain instances, encompass the right to a hearing in relation to the best interests of the child. However, due to the specific circumstances of this case, which are moot between the parties, the first judgment did not consider it necessary to deal with that issue. It thus expressed no views on the factual findings in that regard.
Accordingly, the first judgment would have declared that clause 9.3 of the Parent Contracts between the applicants and the first respondent is 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
The second judgment, penned by Theron J and concurred in by Jafta J, Khampepe J, Ledwaba AJ, Madlanga J and Mhlantla J, held that, in light of the importance of the legal principles at issue, the rarity with which the Court is faced with such issues, and the far-reaching implications of the orders made by the High Court and the SCA, it was in the interests of justice to hear the matter, notwithstanding the fact that the applicants’ children had since left Pridwin. The second judgment further held that decision to terminate the parent contract was constitutionally invalid, in that it breached the constitutional rights of the applicants’ children. These rights do not arise from the contract, but from the Constitution itself. Adjudication of the matter on this basis rendered it unnecessary to engage with the applicants’ alternative challenge, made on public policy grounds, to the enforcement of clause 9.3.
The second judgment found that section 28(2) of the Constitution required Pridwin to accord the best interests of the applicants’ children paramount importance and to follow a fair and determinable process. Although this may not, in every instance, require the provision of an oral hearing, it required Pridwin to provide an opportunity to make representations on the effects of the termination of the parent contract on the children. Pridwin also bore a negative obligation, in terms of section 29(1)(a) of the Constitution, not to impair the rights to a basic education that the applicants’ children enjoyed pursuant to their enrollment at Pridwin. Although the state bears the duty of providing a basic education, the education offered by independent schools also constitutes basic education. Accordingly, Pridwin, as an independent school is required to provide its learners with a basic education that is not inferior to that offered at comparable public schools and not to diminish any child’s enjoyment of their right to a basic education, as provided by Pridwin, absent appropriate justification. In the circumstances, Pridwin had not demonstrated that there was appropriate justification for summarily limiting the rights to a basic education enjoyed by the applicants’ children. The second judgment concluded that the decision to terminate the Parent Contracts, absent the provision of an opportunity to make representations on the best interests of the children, was constitutionally invalid.
The third judgment, penned by Cameron J and Froneman J, sought to highlight the legal propositions that the first and second judgments both embraced, whether explicitly or implicitly. It held that on the crucial issue – whether the right to a basic education has application in independent schools – there is little difference between the first two judgments. It noted that sections 28(2), 29(1)(a) and 29(3) of the Bill of Rights now impose on independent schools that provide basic education at least the negative obligation not to diminish or interfere with a child’s right to basic education. This, the third judgment called the right that protects basic education. This embodies a new rule, one that did not exist under the common law or in terms of any legislation. The third judgment found that it follows that, to this extent, the first and second judgments developed the common law under section 8(3)(a) of the Constitution. The first judgment resolved that legal issue by directly applying the children’s rights against independent schools that provide basic education. The third judgment considers that the second judgment in fact did the same, though it did not deal with the enforceability of clause 9.3 or similar clauses, and thus made no order pertaining to them. It considered only whether it is constitutionally permissible for an independent school to expel children without following fair process, and on this basis declared the School’s decision here invalid. Despite this difference in approach, the third judgment concluded that the same result would in any event have been reached, indirectly, by applying public policy considerations where clause 9.3 of the Parent Contract was sought to be enforced. On this basis, the third judgment concurred with the order the first judgment makes declaring that particular clause invalid.
The fourth judgment, penned by Khampepe J and concurred in by Jafta J, Ledwaba AJ, Madlanga J, Mhlantla J and Theron J, sought to emphasise the independent and self-standing rights of the children in this matter. It noted that the section 28(2) standard of the best interests of the child includes a procedural right of children to be heard and participate in the decision affecting their lives. The fourth judgment acknowledged, and embraced, the contextual nature and inherent flexibility of section 28(2), but highlighted that, in the context of removing a child from their school, the right of the child to make representations and participate in the decision-making process, in accordance with their age and maturity, is of utmost importance. This right is sourced in section 28(2) of the Constitution and buttressed by the Children’s Act, case-law and international law. The fourth judgment underscored that the Children’s Act unequivocally adopts the position that children should be involved in decisions affecting their lives by expressing their views and participating, where possible and appropriate, in these decisions. It also noted that section 10 of the Children’s Act goes further than the international position, in that it applies horizontally and therefore also binds private actors, which would include independent schools and parents, to consider the views of the children before a decision about their lives is made. The fourth judgment found that removing a child from their school is a major life-changing event for a child and, therefore, the child should be afforded the opportunity to have their views and wishes given due consideration. Thus, it concluded that Pridwin had the obligation to consider the rights of the applicants’ children to have their views heard on the matter and to offer this opportunity to them, either in person or through a representative.