The children are not the problem
by Jerome Veldsman
AB and Another v Pridwin Preparatory School, a decision of the Constitutional Court on 17 June 2020, dealt with the dilemma at a private school of obstreperous parents.
Pridwin Preparatory School is a small private boys’ preparatory school in Johannesburg. The two children (siblings) concerned were model learners. However, their parents caused havoc at and for the School. It is stated in the first judgment (of four) in the Constitutional Court that the facts are so extreme, and the conduct of parents so abhorrent, that they could be considered unique. After so much toxicity, the School exercised its contractual right to cancel the contracts for the two learners to attend the School on a full term’s written notice.
The parents instituted review proceedings in the High Court, Johannesburg to set aside the cancellation of the contracts. The School won.
The parents appealed to the Supreme Court of Appeal. The majority (four Judges) dismissed the appeal, and the School won again. However, the minority (one Judge) would have allowed the appeal, on the basis that it was unconstitutional and contrary to public policy for the School to exercise its contractual right to cancel the contracts without first following a fair procedure, and without giving due and appropriate consideration to the views of the two learners.
The parents appealed to the Constitutional Court. In four separate and somewhat bewildering judgments the ten Judges of Constitutional Court found in favour of the parents.
The first judgment (four Judges) found that the School’s contractual right to cancel the contracts is unconstitutional, contrary to public policy, and unenforceable to the extent that it purports to allow the School to cancel the contracts without following a fair procedure.
The second judgment (six Judges) declared that the decision by the School to cancel the contracts was invalid and set the decision aside, on constitutional grounds, and without regard to contractual rights.
The third judgment (two Judges, who also concurred in the first judgment) is an endeavour to explain that the first and second judgments essentially say the same thing (which is actually disputed in the second judgment).
The fourth judgment (concurred in by the same six Judges as the second judgment) emphasises the importance of the independent and self-standing rights of the children in the circumstances, and is not meaningfully distinguishable from the second judgment.
The bottom line is that the common law has now been changed so that, regardless of the relevant contract, a private school must follow a process that is both substantively and procedurally fair before a learner at the school is excluded from the school. Schools will be well advised to have a comprehensive procedure hardwired into their contractual arrangements, and even that may not in all instances be good enough to deal with obstreperous parents.