Court rules private school can't withhold pupil's report due to unpaid fees

The high court has ordered a private school to furnish a pupil with a report card it withheld because of outstanding fees. 

Polokwane high court acting judge Malose Monene ruled on April 19 Mitchell House must hand over the report of a 13-year-old pupil to her father within seven days of his ruling. 

He made no order on the costs of the application, brought by the teenager’s father against, among others, the school and its principal Stephen Lowry. 

The father sought an order declaring the school’s refusal to release the report “unlawful”.  

However, the school said despite the father’s “dire” financial position, “he still somehow persists with his view his child must continue to school at Mitchell House but without paying for such schooling”.  

“The legal basis on which the applicant can rely on free education from a private school is totally unclear,” it said in court documents.

The father, not named to protect the identity of the minor pupil, argued withholding the report is in breach of basic education minister Angie Motshekga’s established 2011 national protocol for assessment.  

In an e-mail dated March 17 and included in court papers, the father informed the school “there seems to be a persistent effort to frustrate the smooth running of my daughter’s academic programme as I am not receiving any information or updates in respect of any school activities”.  

The school said there was no longer an existing contract between himself and the school.  

The father said in court documents that in another e-mail, dated March 20, the school had indicated his daughter was not added to the school’s administration system “due to the fact that the school has no contract with you as the parent”.  

Reacting to acting judge Monene’s ruling, the father confirmed the school had given his daughter her report in compliance with the order. 

“We are pleased to note that our courts are committed to the foundational values of our constitution, in particular, the rule of law,” he said.

The school’s lawyer, Gert Ehlers, told TimesLIVE it was relatively easy to produce a customised report, “hence the school decided not to argue the point further and incur even more expense on legal fees”.  

He said they were assisting the school to collect outstanding fees.   

“In the previous collection matter instituted against the father, he signed an acknowledgment of debt, the terms of which he failed to honour.”  

Ehlers said the pupil was at school, “because the school is complying with a court order that she should be at school.  

“The school contends that court order to be ultra vires, because it was a second order from the same division. The first court order dismissed the application by the parent with costs, thereby not suspending the school’s cancellation of the contract of enrolment.” 

He said the second court order did not declare the cancellation of the contract irregular and suspend the cancellation. “The child is therefore at school, but with no contract governing the relationship with the school. The process and fiasco of two separate court orders on the same matter requires clarification through the appeal process, which the school is busy with.”

In January the father got an interim order allowing his daughter to remain at school pending a separate application challenging the legality and constitutionality of an earlier decision by the school to exclude the girl and her siblings from Mitchell House from the end of September 2021 because of nonpayment of fees. 

The school’s application for leave to appeal against the January judgment was dismissed last month, but Ehlers confirmed in court papers being instructed to petition the Supreme Court of Appeal in Bloemfontein. 

He said because the father’s claims constitute, in essence, a constitutional right to free education at an independent school, Mitchell House will continue to oppose it. 

“In essence, if the father is to succeed with his attempts and if all believed they could go to an independent school without paying fees, the independent schools would collapse as there would be on money to pay the teachers’ and other employees’ salaries. 

“Surely none of us expects to go into a car dealership and leave with a car without paying for it. Mitchell House and many independent schools receive no government subsidy and is wholly reliant on parents’ fees.” 

Asked to respond to the school’s comments, the father said: “Report whatever you want to report, you have the court order in your possession. You seem to have a propaganda against me. Should you report a factually incorrect story, we will meet in court.” 

Mandla Mthembu, deputy chair of the National Alliance of Independent Schools Associations (Naisa), said when parents choose to take their child to an independent school, they enter into a contractual agreement with it. 

“It’s a contract where the school will educate the child and the parent will pay for the services it offers,” he said. “When those services are being offered without payment, there’s a breach of contract. Parents have to know that if they choose a private school, they have to pay.” 

TimesLIVE

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