Independent school within its right to expel kids‚ SCA rules

05 November 2018 - 19:45 By Ernest Mabuza
In July 2017‚ Acting Judge Clare Hartford dismissed the parents’ application against the termination of the contract.
In July 2017‚ Acting Judge Clare Hartford dismissed the parents’ application against the termination of the contract.
Image: 123RF/paylessimages

Two pupils have been effectively expelled from an independent Johannesburg school after the Supreme Court of Appeal dismissed an appeal by their parents to have the cancellation of their contracts with the school set aside.

Over a period of time‚ from approximately October 2015 until June 30 2016‚ various incidents allegedly took place involving the children’s father in relation to sporting events at Pridwin Preparatory School‚ and at other schools‚ which caused disruption.

The school‚ situated in Melrose‚ Johannesburg‚ and which was established in 1923‚ charges fees ranging from R103‚000 to R139‚460 a year. The couple has an 11-year-old son doing grade 6 and a seven-year-old in grade 2.

But in 2016‚ the parents’ contracts with the school were cancelled.

In one of the incidents‚ during a cricket game in November 2015 against Crawford College at Trinity House School‚ the father shouted at the umpire after his son – playing in the under-9 team - was given out leg before wicket.

Shortly afterwards‚ when the children came off the field‚ he accosted the umpire with a cricket bat in his hand‚ saying: “You fat [expletive omitted]‚ you don’t respect parents.”

He then threatened to wait for him after the match and kill him.

When confronted by the principal‚ Selwyn Marx‚ about his behaviour‚ the father showed no sign of contrition‚ insisting instead that he would talk to umpires in any manner he chose‚ as they were not gods.

The school cancelled the two contracts between itself and the parents on June 30‚ 2016.

The parents applied to the High Court in Johannesburg for the cancellation of the contracts to be set aside.

In December 2016‚ an interim order was granted by the high court to the effect that the children would be entitled to remain in school pending the parents’ challenge‚ including any appeals.

In July last year‚ Acting Judge Clare Hartford dismissed the parents’ application against the termination of the contract.

Hartford granted the parents leave to appeal to the Supreme Court of Appeal.

In its judgment dated November 1‚ the SCA dismissed the parents’ appeal.

The school relied on clause 9.3 of the parents’ contract‚ which stated that the school has the right to cancel the contract at any time‚ for any reason‚ provided that it gives the parent a full term’s notice‚ in writing‚ of its decision to terminate the contract.

The clause says at the end of the term in question‚ the parent will be required to withdraw the child from the school.

In the majority judgment‚ in which three other judges concurred‚ Judge of Appeal Azhar Cachalia‚ said the parents sought 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.”

He said the school‚ on the other hand‚ was acutely aware of its constitutional duties not only to the couple’s children but to all the affected parties in cancelling the contracts.

“The high court correctly dismissed their application‚” Cachalia said.

However‚ in a dissenting judgment‚ Judge of Appeal Baratang Mocumie said clause 9.3 of the parents contracts on which the school relied was unconstitutional‚ contrary to public policy and unenforceable to the extent that it purported to allow the school to terminate the contracts without following fair procedure.