• A clause in a contract between Pridwin Preparatory School and parents, which allowed the school to terminate the contract "for any reason" has been declared unconstitutional.
• In its decision, the court maintained that an oral hearing or an opportunity for representations must be held before a decision is taken. 
• The court's decision has presented new rules for independent schools and their obligations towards a pupil's right to basic education.

The Centre for Child Law (CCL) has commended the "groundbreaking" judgment by the Constitutional Court on Wednesday which affirmed a child's right to take part in processes or hearings concerning the termination of contracts between independent schools and parents.

"A right protected by section 28(2) of the Constitution which provides that children's best interests should be of paramount importance in any matter that concerns them and to that end the process for determining what is in the best interest of the children should include the children," the CCL said in a statement after the judgment was handed down.

The CCL were admitted as an amicus curiae, or friend of the court, in the matter and argued that the best interests of a child should be primary concern.

The Constitutional Court declared a clause which allowed an independent school, Pridwin Preparatory School, to terminate a contract between them and parents of pupils at the school "for any reason" unconstitutional, saying a fair process or oral hearing must be held before such a decision is taken.

The clause allowed the school to terminate the contract with the parents and end the pupil's education at the school for any reason.

When the relationship between the parents and the school turned sour after one of the parents hurled aggressive insults at the umpires at a school sporting event and - as well as previous incidents of misconduct by the parents - the school decided to terminate the contract.

The parents then took the school to court over the termination, which they said was unreasonable, procedurally unfair, did not take the children's best interest into consideration and weakened the children's right to basic education.

The judgment has set a precedent on the obligations of independent schools toward a pupil's right to basic education and contracts between the school and parents in this regard.

Four judgments

Four judgments were penned on the matter.

In the first, Constitutional Court Justice Caroline Nicholls said the clause was unconstitutional.

"The notice clause be declared unconstitutional in that it was contrary to public policy and unenforceable, to the extent that it allowed Pridwin to cancel the Parent Contract without fair process."

She also found that a school cannot discontinue a pupil's education - through expulsion or dismissal - without a proper hearing that considers the pupil's best interests.

Nicholls added that a pupil's right to basic education could be negatively impacted should there be no hearing or any sort of process before the school makes their decision to discontinue their education.

"It is declared that a child's basic education should not be terminated without an appropriate and substantively fair procedure," Nicholls said.

She added that Pridwin has a duty not to compromise the children's right to basic education and that there should be no interference with a child's right to education unless there is proper justification.

In the second judgment, penned by Justice Leona Theron, the school did not justify limiting the pupil's right to basic education and the school's decision to terminate the contract breached the constitutional rights of the pupils.

She said while an oral hearing was not obligatory, a fair process should still be followed - in which case Pridwin should have provided an opportunity for representation to be made on how the termination of the contract would affect the pupils.

In a third judgment, Justice Edwin Cameron and Justice Johan Froneman agreed 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 that basic education".

They added: "There is no legislation that directly gives effect to the right that protects basic education where independent schools already provide it.

"The judgments both hold that there is, however, at least the negative obligation not to diminish or interfere with a child's right to a basic education where an independent school provides basic education.

"This is a new rule that did not exist under the common law or in terms of any legislation. They thus to that extent develop the common law under section 8(3)(a)," they said.

Rights of children

A fourth judgment by Justice Sisi Khampepe emphasised the rights of children in the matter, saying children have a right to be heard and to participate in decision-making and the opportunity for a hearing should not only be given to parents but also to the pupil, where possible, the court said.

"It is therefore, necessary to clarify any misunderstanding that it may be sufficient to only give the parents a hearing regarding their child's best interests without, at the very least, giving serious consideration to the importance of hearing the children themselves and allowing them to participate in the decision" she said.