This article examines the legal relationship between parents of private school learners (“Private School Parents”) and private schools as juristic persons, while focusing specifically on the legal consequences faced by parents who default on their school fee payments. Private School Parents often mistakenly believe that the legal protection they receive is similar to that received by the parents of public school learners (“Public School Parents”). Before committing to an often expensive contractual relationship with a private school, it is important that parents understand the legal distinction between private schools and their public counterparts.
The Constitutional Framework
Private schools are expressly established in terms of section 29(8) of the Constitution of the Republic of South Africa (“the Constitution”) and are funded almost entirely by way of school fees. Notably, section 29(3) gives “everyone” the right to establish and maintain private schools. There is, however, no corresponding right to receive an education from a private school.
Public schools, on the other hand, receive most of their funding from the state and, while not being expressly established within the Constitution, are a manifestation of everyone’s right to basic education in terms of section 29(1)(a) thereof. In other words, all South African children have a Constitutional right to attend to a public school.
Legislative Framework – Public Schools
Public schools are governed in accordance with the South African Schools Act, 84 of 1996 (“the Public Schools Act”). The Public Schools Act, together with its corresponding regulations, contains a number of mechanisms which afford protection to Public School Parents who default on their school fee payments. These protective mechanisms include, among others, the following:
- section 41(4) empowers public schools to take legal action against defaulting parents only once they have determined whether the parents qualify for an exemption (or partial exemption) from payment and, if so, only once the appropriate deductions have been made to the amount owing;
- section 41(5) does, however, allow for public schools to take action against parents if it can be proven that the defaulting parents were notified in writing that they failed to apply for an exemption and that they failed to pay their outstanding fees within three months of being so notified. In any event, this provision stills affords defaulting parents an additional three months to consider their positions;
- section 40(2) grants Public School Parents the right to appeal decisions made by public schools in respect of exemptions in terms of section 41. Regulation 8(1) gives Public School Parents 30 days in which to make such an appeal while regulations 8(3)(a)(ii) prevents public schools from taking action against parents in terms section 41 until such time as the appeal has been finalised (14 days from the receipt of the relevant documents);
- in the event that parents fail to quality for an exemption, regulation 6(14) provides that public schools may not take action against their parents in terms of section 41 until they have been adequately notified that they do not qualify for an exemption and until reasonable forms of payment aside from cash have been considered;
- section 41(6) prevents public schools from attaching the homes of Public School Parents in any circumstances whatsoever; and
- sections 5(3)(a) and 41(7) effectively prevent learners from being refused admission to public schools or from being disallowed to participate in schooling activities on the basis of non-payment of school fees.
It is apparent that Public School Parents are afforded an array of protective measures which ensure that even if they are unable to pay their school fees, either timeously or at all, they will be given adequate time and opportunities to rectify or challenge their positions without their children being deprived of their regular schooling experiences.
Legislative Framework – Private Schools
However, the Private Schools Act 104 of 1986 (“the Private Schools Act”) affords no such protection to either learners or their parents. In fact, the Private Schools Act, unlike the Public Schools Act, does not control the relationship between Private School Parents and private schools at all. Practically, in order to send their children to private schools, Private School Parents will, on behalf of their children, conclude a contract with the relevant private school. The terms of the Private School Parents’ relationship with the private school, inclusive of the school fee and debt enforcement regime, will be recorded exclusively in this contract.
Private schools accordingly find themselves in strong bargaining position in relation to Private School Parents. As is the case with ordinary private businesses, private schools have no obligation to accept any clients (parents on behalf of their children) and can therefore dictate and govern the terms of their relationships with their clients.
Likewise, where private schools are contracted to provide a service in exchange for fees, they are not obligated to continue providing such service when their clients stop paying for same.
In this regard, on 17 September 2017, the Sunday Tribune reported that a learner at Epworth School (“Epworth”), a private school in Pietermaritzburg, whose parents’ school fee payments fell into arrears, was prevented from continuing with her regular schooling activities pending the settlement of the outstanding payment. This dispute lasted three days during which the learner was confined to the school sanatorium and was only allowed to interact with visiting teachers.
On the same day, the executive director of the Independent Schools’ Association of Southern Africa (“ISASA”), Lebogang Montjane (“Montjane”), released a publication which supported Epworth’s handling of the issue set out above. The publication firmly expressed that parents who choose to send their children to private schools, are obligated to pay their school fees, failing which, private schools are not obligated to educate their children. Montjane added that private schools would only resort to the exclusion of a learner as a last resort and that:
“Defaulting parents pose a very real sustainability risk for the independently-funded school yet are quick to argue for the ‘rights of the child’ and blame the school, ironically, and not themselves, for ‘denying the child an education’. The responsibility to provide basic education is carried by the State and not independent schools.”
Montjane’s sentiments were echoed in the case of, St Charles College v Du Hecquet De Rauville and Others  3 All SA 358 (KZP). In this case, the KwaZulu Natal High Court, per Jappie JP, ruled in favour of St Charles College thereby allowing the private school to attach and sell the home of two of its learners’ parents in order to settle their unpaid school fees.
In coming to this decision, Jappie JP considered all of the relevant circumstances, especially those set out in the case of Jafta v Schoeman; Van Rooyen v Scholtz 2005 (2) SA 140 CC, which include:
“the circumstances in which the debt was incurred; any attempts made by the debtor to pay off the debt; the financial situation of the parties; the amount of the debt; whether the debtor is employed or has a source of income to pay off the debt and any other factor relevant to the particular facts of the case before the court.”
The parents argued that they ought not to have been unfairly discriminated against on the basis that they had chosen to send their children to a private school.
In dealing with this argument, Jappie JP noted that the parents were fully aware of the fees which they would be obligated to pay if they chose to send their children to St Charles College. He also applied the well-known test for unfair discrimination as formulated in the case of Harksen v Lane NO and others 1997 (11) BCLR (“the Harksen Test”). The Harksen Test is used to distinguish between mere differentiation, which is legally acceptable, and unfair discrimination, which is unconstitutional.
Since the parents enjoyed a higher economic status than most Public School Parents and since they chose to send their children to a private school, Jappie JP had no difficulty in finding that there was no unfair discrimination as alleged.
The attitudes of both the KwaZulu Natal High Court and ISASA are regarding parents who default on their school fee payments. The inescapable conclusion, is that that private schools are at liberty to conduct their affairs in much the same way as any other privately owned business.
To further illustrate this point, consider the case of Mlawuli v St Francis’ College (Marianhill Secondary Indepedant School)  JOL 36068 (KZD). In this case, a parent, with two sons registered as learners at St Francis College (a private school), was informed at the end of the 2015 academic year that one of his sons would not be allowed back for the 2016 academic year. The initial contract between the parent and St Francis College lasted for a period of one year and it expressly provided that the school was under no obligation to renew the contract once it had expired. In finding that the school was not obligated to conclude a further contract with the parent in respect of his son’s 2016 school year, the court reasoned as follows:
“It seems plain that the context in which public schools operate is a public one. They offer education to the public in general. It is a public function. The schools are provided by the government and the educators are employed by it. Independent schools are different. Such a school is owned by a private entity. The owner may be a church, a company, a trust or a private individual. The motive may be religion, educational excellence, profit or a combination of these. The principal and the teachers are employed by the school and paid by it. The relationship between the school and its learners is contractual and the school is not obliged to accept anyone.”
However, this is not to say that private schools may do as they please with no regard whatsoever to the circumstances of their learners and/or their parents. It simply means that parents who choose to send their children to private schools will have a much harder time justifying the non-payment of their school fees while the private schools themselves will more easily be able to justify the harshness of their actions in recovering their debts. Moreover, in applicable circumstances, certain provisions of the Consumer Protection Act 28 of 2008 will govern the relationship between parents, as consumers, and schools as service providers. More generally, and in terms of the common law of South Africa, all contractual relationships are also governed by the ordinary principles of contract, as well as the principle of good faith.
In light of the above, Schindlers Attorneys warns that:
- private schools are free to contract on the same terms as a regular private business;
- private schools are entitled to recover debts owed to them in the same manner as a regular private business including, if necessary, by attaching and selling movable and/or immovable property of the debtor;
- private schools are not obligated to provide a service to defaulting parents and by extension, their children;
- Private School Parents will have a far harder time justifying non-payment of fees than Public School Parents; and
- private schools are able to employ harsher measures against defaulting parents than public schools.
We advise that parents exercise caution when deciding whether or not to send their children to private schools, especially in circumstances where they are financially challenged, or foresee any likelihood of financial difficulty during their children’s intended stay at a private school. Furthermore, even where parents can afford the services of private schools, they are advised to carefully consider the terms and conditions of the relevant contract(s) they are to conclude with such private schools.
Written by Andrew Lawrie and Caleb Mckellar, checked by Paul-Michael Keichel on the 25th September, 2018