Story of a Helicopter Parent in Full Flight – The Constitutional Constraints to Cancelling Private Schooling for a Child

How Is A Private School To Deal With A Badly Behaved Parent?

On the 17th June 2020 the highest court in South Africa gave judgment on the constitutionality of a private school ( some times referred to as an independent school) cancelling a contract for schooling with a problematic parent, in the case of AB and Another v Pridwin Preparatory School and Others [2020] ZACC 12. The facts of the case read like something out of a movie and, if you will excuse the expression, take helicopter parenting to new heights.

“…the behaviour of the parents began…. as obsessive and disturbingly overbearing, burgeoned into a pattern of persistent and alarming harassment of Pridwin’s staff and culminated in several serious incidents that veered dangerously close to outright physical violence.”  –  Judge Theron in the majority judgment.

The purpose of this article is not to inquire into the merits or otherwise of the Constitutional Court decision but to rather give a practical guide to compliance with the judgment.

The case revealed a father who believed that his older son was a sporting prodigy and anyone, be they school coaches, the principal, selectors, umpires or referees that did not agree with his opinion on this topic, met with the father’s unbridled wrath.

Incidents with this father included him:

  • obtaining the services of an actuary to prove that the school did not correctly choose the cricket team.
  • Reducing a tennis coach to tears as a result of his continuous insults and accusations.
  • Verbally abusing various cricket umpires who had given his son out in cricket matches with other schools.
  • Harassing the staff at Pridwin and coaches of other schools and on several occasions, behaviour that came close to physical violence.
  • Writing abusive correspondence to the school principal calling him a “sociopath” and “a narcissist”.
  • Bringing a professional soccer coach to the school’s soccer trials to “assist” with team selection.

After numerous warning and agreements on behaviour between the school and this father, the school cancelled the schooling contract with both sons at the school and advised that the children needed to be removed from the school on six months’ notice.

The Constitutional Right to Schooling and Private Schools

This father then proceeded to pursue the matter in the high court, then appealed to the Supreme Court of Appeal and finally took it to the Constitutional Court. The grounds of his legal pursuit was that the school could not terminate their contract based on the termination clause as this was unconstitutional as their children had a right to basic education and the school violated this by not affording them an opportunity of a hearing.

The School, on the other hand, argued that they had a right to terminate the parent’s contract as it was a decision taken in the best interests of the school and the other children in the school and that the father’s conduct was threatening and intimidating to the staff and damaging to the reputation of the school. Moreover the Constitutional rights relating to basic education did not apply to private schools and that the children in question were not receiving basic education.

The lower courts did not agree with the father’s argument, concluding that private schools have no constitutional duty to afford a hearing in these circumstances. However, in the Constitutional Court, albeit by a split decision, the father found support for his legal argument, notwithstanding that the case had become moot by the time of the hearing as the children were already at another school.

So while the High Court and the Supreme Court of Appeal had held that the school had not diminished the children’s enjoyment of the right to a basic education, as there were “…three public schools in the area that would be obliged to take them.  There has simply been no breach of the right, in any way.” (Concourt judgment at 44). Holding further that only the state had a duty to provide basic education and not a private school and therefore private schools were not bound by constitutional rights but rather their agreements with the parents.

The Constitutional Court, on the other hand, held that:

  • The right to a basic education is independent of the contract and arises from children receiving a basic education.
  • Private Schools have “negative constitutional obligations” in relation to children receiving basic education in their schools
  • The issue with the contract was not the terms of the contract but the effect of its enforcement on the children to which the contract related. In other words, what effect did the termination of the contract have on the children.
  • Basic education is grades 1 to 7 and every institution, elite or non-elite that provides this level of education is providing basic education.
  • If a private school provides this level of education, it is required to ensure that the right to basic education of the children attending the private school is not negatively infringed.
  • Schools that provide basic education to children are under a constitutional duty not to diminish the right to basic education and must, always, act in the best interests of the child.
  • If the child’s right to basic education is compromised, then the school needs to show proper justification for this.

So What Does a Private School have to do to Legally Terminate a School Contract?

Private schools that provide basic education (grades 1 to 7) must, therefore, ensure that they, before the cancellation of a contract and before any child is excluded from school, have met the constitutional requirement which is that there should be both substantive and procedural fairness by:

  • Alerting the parents involved of the proposed termination
  • Providing reasons for the termination
  • Affording the parents an opportunity for a fair and appropriate hearing in which the school seeks to have representations on whether termination is consistent with the rights and best interests of the children and how best to protect their interests
  • In certain circumstances, what would be reasonable and fair would be to hear teachers, other parents, another intermediary, or even a collection of the above.
  • Allowing the child or children to express their views on the matter that concerns them, whether themselves or through a representative in appropriate circumstances.
  • The school must show that the decision to exclude children from the school based on their parents’ misconduct and failure to adhere to terms of a school contract was justified.
  • The school must show that there was no availability of a less restrictive sanction other than termination that could have been used.

Does this Case Apply in the event of non-payment of School Fees?

The question is, does this process laid down in this Pridwin Preparatory School case also apply to the termination of a Parent agreement on the basis of the parent’s breach of the agreement by non-payment?

It is our opinion that private schools have to apply this Constitutional process of substantive and procedural fairness in respect of non-paying parents whose children are recieiving basic education, in the same way that it would apply to any other termination of the Parent agreement.

Getting it Right

Until a Private school has the application of this judgment mastered, it is probably prudent for them to seek legal advice before implementing any proceedings to terminate a school contract which results in the exclusion of a child or children receiving basic education from the school.

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