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[2018] ZASCA 150
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A B and Another v Pridwin Preparatory School and Others (1134/2017) [2018] ZASCA 150; [2019] 1 All SA 1 (SCA); 2019 (1) SA 327 (SCA); 2019 (8) BCLR 1006 (SCA) (1 November 2018)
Links to summary
THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Reportable
Case No: 1134/2017
In the matter between:
AB FIRST
APPELLANT
CB
SECOND
APPELLANT
and
PRIDWIN PREPARATORY
SCHOOL FIRST
RESPONDENT
SELWYN
MARX SECOND
RESPONDENT
THE BOARD OF PRIDWIN
PREPARATORY SCHOOL THIRD
RESPONDENT
THE MEMBER OF THE
EXECUTIVE COUNCIL
FOR EDUCATION,
GAUTENG FOURTH
RESPONDENT
THE INDEPENDENT
SCHOOLS ASSOCIATION
OF SOUTHERN
AFRICA FIFTH
RESPONDENT
EQUAL
EDUCATION
AMICUS
CURIAE
Neutral
citation:
A B v Pridwin Preparatory
School
(1134/2017)
[2018] ZASCA 150
(01
November 2018)
Coram:
Shongwe ADP, Cachalia, Mocumie,
Schippers JJA and Mothle AJA
Heard:
12 September 2018
Delivered:
01 November 2018
Summary:
Contract – Termination of parent contracts
between independent school and parents – whether parents
entitled to hearing
– whether school has a duty to act
reasonably – whether s 28(2) and s 29(1) of the Constitution
applies – whether
reciprocal termination clauses in contracts
contrary to public policy.
ORDER
On
appeal from:
Gauteng Division of the
High Court, Johannesburg (
Hartford AJ
sitting
as court of first instance):
The
appeal is dismissed with costs, including the costs of two counsel.
JUDGMENT
Cachalia
JA (
Shongwe ADP, Schippers JA and Mothle
AJA
concurring)
Introduction
[1]
This appeal concerns the right of a private school to terminate
contracts between it and the parents of two children. The School
exercised that right by invoking a termination clause in the
contracts.
[1]
The consequence of the termination is that the parents will have to
find another school for their children.
[2]
The parents dispute the School’s right to cancel the contracts
by using the termination clause, without more. They say
that the
Constitution imposes an obligation on the School to hear them and to
act reasonably before cancelling the contracts. They
also contend
that the Promotion of Administrative Justice Act 3 of 2000 (PAJA)
gives them a right to be heard. In addition, there
is constitutional
challenge to the termination clause on public policy grounds.
[3]
The parents accordingly instituted review proceedings in the High
Court, Gauteng, before Hartford AJ, to set aside the cancellation
of
the contract. In a comprehensive and closely reasoned judgment, the
learned judge dismissed each of the parents’ contentions
and
upheld the School’s right to cancel the contract.
[2]
She also granted the parents leave to appeal to this court on 5
October 2017, after they had failed to obtain direct access to
the
Constitutional Court.
[3]
The
Parties
[4]
In the high court the parents were referred to as AB (the father) and
CB (the mother), and their children as DB and EB. I shall
adopt this
nomenclature. It shall be convenient to refer to the parents together
as the appellants. The School, Pridwin Preparatory
School (Pridwin or
the School) is the first respondent and, Mr Selwyn Marx, the
Principal, the second respondent. The third and
fourth respondents
are the School Board and the Member of the Executive Council for
Education, Gauteng, who is not party to the
dispute. The Independent
Schools Association of Southern Africa (ISASA) is an intervening
party. It is an umbrella body representing
the interests of private
schools, including Pridwin. Equal Education was admitted as amicus
curiae in the high court, but withdrew
from the appeal. The Centre
for Child Law applied belatedly to be admitted as amicus curiae in
this court. Its application was
refused.
The
terms of the contract
[5]
There were two contracts, in identical terms, styled the ‘parent
contract’, concluded on 8 March 2011 on 9 March
and 2015 for DB
and EB respectively. I shall set out the terms of the contract that
bear on this appeal. The document containing
the contract has the
following heading: ‘
Parent . . . Declaration and Contract of
Enrolment’.
It is followed by this statement: ‘. . .
The rights and obligations contained in this Contract are binding
. . . and must be carried out in order for the Child to be
successfully
enrolled and retained at the School’
.
[6]
What follows is an ‘Important Notice’ whose contents read
thus: ‘
By . . . entering into this Contract you agree to the
conditions contained in this document as well as any terms and
conditions
contained in the Policies of the School, which forms part
of this Contract.
It is important that you read and
understand these Policies as they have important legal consequences
for you. If there is any provision
in this Contract that you do not
fully understand, please ask for an explanation before signing . . .
This contract contains clauses which appear in similar
text to this notice, which have also been highlighted…’
[7]
The highlighted clauses include the following:
‘
GENERAL
OBLIGATIONS OF THE SCHOOL
2.1
. . .
The
Head may, at his/her sole discretion, cancel enrolment in accordance
with the Rules.
2.2
For the sake of
clarity, this Agreement regulates the enrolment and admission of your
child to the school and also regulates the
relationship between the
School, your Child, yourself and/or a Third party once your child is
admitted and enrolled with the School.’
‘
PARENT’S
GENERAL OBLIGATIONS
4.2
In order to fulfil
our obligations, we need your co-operation. Without detracting from
any specific obligations contained in this
contract,
you
are required to: fulfil your own obligations under these terms and
conditions; . . . maintain a courteous and constructive relationship
with School staff.
4.3
The Head may in
his or her discretion require you to remove or may suspend or expel
your child if your behaviour is in the reasonable
opinion of the Head
so unreasonable as to affect or likely to affect the progress of your
child or another child (or other children)
at the School or the
well-being of the School Staff or to bring the School into disrepute.
…
‘
TERMINATION AND
NOTICE REQUIREMENTS
9.2
You have the
right to cancel this Contract at any time, for any reason, provided
that you give the School a full term’s notice,
in writing, of
this intention before the withdrawal of the Child from the School . .
.
.
9.3
The School also
has the right to cancel this Contract at any time, for any reason,
provided that it gives you a full term’s
notice, in writing, of
its decision to terminate this Contract. At the end of the term in
question, you will be required to withdraw
the Child from the School,
and the School will refund to you the amount of any fees pre-paid for
a period after the end of the
term less anything owing to the School
by you.
9.4
This is without
prejudice to the School’s other remedies:
the School
may cancel this Contract immediately
and has no obligation
to return any Deposit or pre-paid fees to you
if you are in
material breach of any of your obligations and have not (in the case
of a breach which is capable of remedy) remedied
the material breach
within twenty (20) business days of a notice from the School
requiring you to remedy the breach, . . . .
9.5
For purposes of
this Contract,
a material breach is considered to exist
where you
or your Child (as the case may be) –
9.5.1
fail to uphold the Policies and/or Rules of the School;
. . . .
9.5.5
act in such a way that you
or the Child
become
seriously and unreasonably uncooperative with the School and in the
opinion of the Head, your
or your Child’s
behaviour negatively
affects your Child’s or
other children’s progress at the School,
the
well-being of School staff, or brings the School into disrepute.
In clause 1.13 ‘
Policies’
is defined as:
‘
The
rules and principles adopted by the School, as published by the
School from time to time, which are used to regulate the day-to-day
running of the School. These Policies may include (but need not be
limited to) the School rules; Schedule of Fees; Debtor’s
Policy; Terms and Conditions of the School; as well as the Code of
Conduct and the School’s Cautionary and Grievance Procedures
for Parents and are available on request free of charge, or on the
School’s website’
(emphasis added).
[8]
In cancelling the contract the School invoked clause 9.3 (the
termination and notice provision). It is important to point out
that
even though this clause entitles the School to ‘terminate for
any reason’ it accepts that the termination is subject
to
constitutional scrutiny. It also acknowledges its constitutional
obligation to apply the ‘best interests of the child’
principle when terminating a contract, and maintains that it did so.
I explore this issue later in the judgment.
Circumstances
leading to and reason for the termination
[9]
Mr Marx explains the circumstances leading to the cancellation in the
School’s affidavits. The appellants elide the facts
described
here; no doubt because they catalogue a sorry tale of misconduct on
their part spanning eight months. But, before us,
counsel properly
accepted that they were bound by these facts in motion proceedings,
as the high court had found. This narrative
shows that the School
would have been entitled to cancel the contract summarily for breach.
Instead, it opted to terminate on notice,
allowing the parents
adequate time to find another school for their children.
[10]
The earliest event occurred in October 2015, during the under-9
tennis trials. In the course of a meeting with a young intern
in
charge of tennis, Ms Migliore, AB rudely and aggressively accused her
of incompetence, demoralising the children and damaging
their
enthusiasm for tennis. It left her in tears feeling threatened and
traumatised. It also diminished her self-confidence, and
took her a
long time to recover from.
[11]
This episode forms part of the matrix of AB’s persistent
harassment of Pridwin’s staff members. Initially, this
was
reflected in his obsession with match statistics, his displeasure
with team selection and the batting line-up for the Under-9
cricket
team. This fixation included:
(i) Making detailed
comparisons between hard copy cricket results produced by the School,
and the electronically published versions,
and producing a barrage of
email complaints, pertaining to DB, who was just 8 years’ old
at the time;
(ii) Tendering his
services as a cricket coach over a fortnight in order to demonstrate
how poor the School’s coaching standards
were, while refusing
to comply with its standard coaching procedures and etiquette, and
(iii) Demanding an
apology from the head of sport, Mr Joubert, on the groundless
allegation that the latter had defamed him.
[12]
Although most of the events relate to AB’s conduct, CB, his
wife, was complicit. Regarding the alleged defamation of
AB, CB, a
practising psychiatrist, wrote to Mr Marx, saying ‘I am
not sure if JP’s (Joubert’s) behaviour
emanates from a
low IQ or obvious malice’ and ‘I don’t think JP
realises the calibre of people he is choosing
to take on’.
[13]
These episodes were followed by three significant incidents. The
first occurred on 10 November 2015, during a cricket game
against
Crawford College at Trinity House School. AB was watching his son,
DB, playing in the Under-9 team. The child was given
out leg before
wicket. In response AB shouted abuse at the umpire, Mr Mokoela,
from the side of the field. Shortly afterwards,
when the children
came off the field, he accosted Mr Mokoele with a cricket-bat in his
hand, saying: ‘you fat . . .
(expletive omitted), you
don’t respect parents’, and threatened to wait for him
after the match and kill him.
[4]
[14]
Mr Joubert contacted Mr Marx and requested his immediate attendance
at Trinity House to deal with the problem. When he arrived
there he
confronted AB over his reported behaviour. AB showed no sign of
contrition, insisting instead that he would talk to umpires
in any
manner he chose, as they were not gods. When Mr Marx intimated that
he would have to exclude AB or his son from sport matches
in future
if AB was not willing to comply with the School’s code of
conduct, AB retorted that where he came from, an umpire
would be
stabbed with a stump from the wicket for having made a bad decision.
[15]
The second incident occurred on 27 January 2016. DB had been given
out (caught behind) in an under-10 cricket match, prompting
AB to
shout from the side of the field that it was ‘a useless
decision’. After the match, AB confronted the coach,
Mr Broderick, and accused him of being a ‘. . .
(expletive omitted)’ coach. AB also made disparaging
remarks
about other boys in the team, which appears to have been a
pattern of his behaviour at these matches. Mrs Till, a parent,
reported
this to Mr Marx and expressed her disquiet at AB’s
behaviour, which was having an adverse effect on her son.
[16]
The following morning, Mr Marx wrote to the Chairman of the School
Board and two other board members, Ms Patel and Ms Theunissen,
about
this incident and recommended that a hearing be held. The Board
approved his recommendation. Later that morning AB and CB
arrived at
Mr Marx’s office to discuss the previous day’s events.
During the meeting, Mr Marx informed them that he
had approached the
Board.
[17]
The idea of holding a hearing was abandoned. Instead, Mr Marx reached
an agreement with the appellants on 28 January 2016 to
the following
effect:
(i) AB would refrain from
coaching or offering advice or giving his opinion to any boys at
sporting activities, including his own
children; he would not sit
with or near the boys at sporting activities; he would not publicly
criticise referees and would abide
by coaching, refereeing and
selection decisions. He would also not do anything to bring the
School into disrepute.
(ii) In return, Mr Marx
undertook to ensure that the appellants’ children would not be
victimised by the staff and that their
efforts to find a place for
them at another school would not be impeded. Shortly after the
conclusion of the agreement, on 3 February
2016, Mr Marx penned a
letter to support their application to move their boys to another
private school in Johannesburg, St John’s.
But for reasons not
explained in the papers, the children were not moved.
[18]
The agreement seems to have had no effect on AB. Because, on 27 June
2016, Mr Marx was once again called to a sporting event:
this time it
was to the soccer-field. On his arrival he found a soccer-coach, Mr
Mosoana, who is not associated with the School,
there at AB’s
behest. Mr Mosoana was attempting to give unsolicited – and
unwelcome – advice to the School’s
soccer-coach, Mr
Prinsloo, while the under-10 soccer trials were in progress.
[19]
Mr Marx approached Mr Mosoana, imploring him to leave the field and
told AB that it was unacceptable for him to interrupt the
sports
program by bringing his own coach to the School without an
appointment. He also objected to AB’s interference with
the
coaching as he no longer wanted his children to be at the School.
AB’s retort was that sport at the School was pathetic
and that
he did not want to be there. He would leave because the School did
not know what it was doing, he added. He then left
with Mr Mosoana.
[20]
Shortly afterwards AB arrived at Mr Marx’s office and insisted
on explaining his actions that day. Mr Marx said that
it was
unacceptable for him to have brought an outsider onto the school’s
premises, uninvited, and for them to then disrupt
the sporting
session. He made it clear that this was a breach of the 28 January
2016 agreement. The meeting ended on this note.
[21]
On 23 February 2016, the Board met with the appellants to hear their
grievances regarding the head of sport, Mr Joubert, who
they claimed,
had defamed AB during the Trinity School incident. They were offered
an independent lawyer to hear the grievances
of both sides and make
recommendations to the School. The offer came to naught.
[22]
From the School’s perspective, the behaviour of AB and CB had
created a toxic and intolerable atmosphere. The School
had had
enough. On 30 June 2016, Mr Marx despatched a carefully written
letter to AB. In summary he said the following:
(i) The contracts could
immediately be terminated in terms of clause 4.3, as read with clause
9.5, of the parent contracts for material
breach. He explained that a
material breach exists ‘where you act in such a way that you
become seriously and unreasonably
uncooperative with the School and
in the opinion of the Head, your behaviour negatively affects your
child’s or other children’s
progress at the School, the
well-being of School staff, or brings the School into disrepute.’
(ii) There had been
breaches as the incidents mentioned above showed;
(iii) That ‘
in
the interests only of your sons, I have instead, in my sole
discretion, elected to invoke clause 9.3 of the Contract’
;
(emphasis added) and
(iv) That he was giving a
full term’s notice to cancel the parent contracts at the end of
the third term of 2016, which meant
that the children’s last
day at school would be 9 December 2016. In effect, the appellants
were given five months’
notice, which is more than the clause
required.
The
Appellants’ case
[23]
The appellants enrolled their children at Pridwin by concluding the
two parent contracts four years apart. They were aware
that these
contracts contained a highlighted warning that ‘
If there is
any provision in this Contract that you do not fully understand,
please ask for an explanation before signing’
. They signed
both contracts freely, without question. They thereby accepted,
explicitly, to be bound by its terms for their children
to remain at
the School
.
And they understood, too, the standard of conduct
expected of them as parents for the right of their children to be and
to remain
at the School.
[24]
They accept too, as they must, that the contracts do not provide –
expressly or tacitly – for a hearing or require
the School to
consider lesser sanctions before termination. Their contention that
the principles of natural justice afford them
these rights was
properly rejected by the high court,
[5]
as was an attempt to find them in the School’s policies.
[6]
These arguments were abandoned in this court, for good reason.
[25]
Knowing all of this the appellants sought to have the termination of
the contracts declared unconstitutional, invalid and unlawful,
and
reviewed and set aside. They rely, mainly, upon two constitutional
provisions, namely s 28(2), that the child’s best
interests are
of paramount importance in every matter concerning the child, and
s 29(1)
(a)
, the right to a basic education, to achieve
this. They thus seek a finding that the School’s decision
violated these provisions.
[26]
Their second ground of attack flows from a latterly introduced
prayer, after Pridwin had filed its answering papers, that the
termination clause (clause 9.3) be declared unconstitutional,
contrary to public policy and unenforceable ‘to the extent
that
it purports to allow Pridwin to cancel the parent contracts without
following a fair procedure and/or without taking a reasonable
decision’.
Private
Contracts and Public Policy
[27]
The relationship between private contracts and their control by the
courts through the instrument of public policy, underpinned
by the
Constitution, is now clearly established. It is unnecessary to rehash
all the learning from our courts on this topic. It
suffices to set
out the most important principles to be gleaned from them:
(i) Public policy demands
that contracts freely and consciously entered into must be
honoured;
[7]
(ii) A court will declare
invalid a contract that is prima facie inimical to a constitutional
value or principle, or otherwise contrary
to public policy;
[8]
(iii) Where a contract is
not prima facie contrary to public policy, but its enforcement in
particular circumstances is, a court
will not enforce it;
[9]
(iv) The party who
attacks the contract or its enforcement bears the onus to establish
the facts;
[10]
(v) A court will use the
power to invalidate a contract or not to enforce it, sparingly, and
only in the clearest of cases in which
harm to the public is
substantially incontestable and does not depend on the idiosyncratic
inferences of a few judicial minds;
[11]
(vi) A court will decline
to use this power where a party relies directly on abstract values of
fairness and reasonableness to escape
the consequences of a contract
because they are not substantive rules that may be used for this
purpose.
[12]
[28]
I shall return to the public policy challenge later. At this stage I
point out only that the appellants do not attack the enforcement
of
the contracts by relying directly upon the School’s failure to
act fairly and reasonably. What they do, instead, is attempt
to
import this duty through ss 28(2) and 29(1)
(a)
of the
Constitution. I examine how they do this and whether there are proper
legal grounds for doing so. First, s 28(2).
The
s 28(2) challenge
[29]
Pridwin’s business is to run a private school to educate
children, and it has done so since 1923. So, it is hardly surprising
that the School embraces the idea that the best interests of the
children is paramount in whatever it does. Further, it quite properly
accepts that s 28(2), which embodies this principle, binds it, in the
language of s 8(2) of the Bill of rights: ‘…to
the
extent that, it is applicable, taking into account the nature of the
right and the nature of the duty imposed by the right’.
I shall
henceforth refer to it as the ‘best interests principle’.
[30]
The Constitutional Court has said that s 28 (2) ‘must be
interpreted so as to promote the foundational values of human
dignity, equality and freedom’.
[13]
It has also said that it is unnecessary to determine the content of
this right because it provides an adequate benchmark for the
treatment and protection of children in its present form.
[14]
It bears emphasis that the application of the right must take into
account its relationship with other rights, which might limit
its
ambit. Otherwise, taken literally, it could cover virtually every
field of human endeavour – public and private –
that has
some direct or indirect impact on children, thereby rendering the
right meaningless.
[15]
In each case what is required, therefore, is for a court to weigh the
interests protected by the right against any countervailing
interests
protected by other rights to produce a legally sensible outcome. It
follows that there would be instances where s 28(2)
requires a
hearing before a decision having an impact on a child is made, but
not in others. What is clear, however, is that there
is no general
requirement for a hearing.
[31]
There is no dispute that Pridwin applied the best interests principle
when it terminated the contracts. In his termination
letter to the
appellants, Mr Marx said that he had exercised his discretion to
invoke the termination clause, which provided for
a notice period,
solely in the interests of the two children, instead of summarily
cancelling the contracts because of the appellants’
repeated
breaches, as he was entitled to do. In addition, he said, he had
balanced their rights against those of all the other
children as well
as other stakeholders, in coming to his decision. He was particularly
mindful of the deleterious effect that AB’s
behaviour was
having on the other children.
[32]
The approach of the appellants in demanding a hearing before the
contracts were cancelled, however, is to focus on the interests
of
their children to the exclusion of all others. It is not only the
dignity of DB and EB that needs protection, but also the dignity
of
every other child and every other person at the School. This means
that every person’s rights are worthy of equal consideration.
This includes the right of the School to enter into and terminate
contracts freely in accordance with their terms, and the freedom
to
associate and to disassociate with whomsoever it wishes.
[16]
[33]
Bearing this in mind the argument that s 28(2) gives rise to an
implied right to be heard before a parent contract is terminated,
falls flat. It is not a right that arises generally from s 28(2), and
it cannot be deployed to limit a party’s rights to
terminate a
contract on notice.
[34]
If it were otherwise this would entitle a lessee to a prior hearing
whenever a lessor wishes to terminate a lease, if there
are children
on the property. It would also mean, as counsel for the appellants
was constrained to accept, that if the appellants
themselves wished
to terminate the contract, in accordance with clause 9.2, they would
first have to give the School a hearing.
Even more preposterous is
the idea that the School or a lessor would not be able to rely on a
breach clause before cancelling a
contract, without affording a
hearing to the aggrieved party, which is the unavoidable consequence
of the appellants’ stance.
[35]
The appellants call in aid three cases in attempt to buttress their
case for a hearing flowing from s 28(2). They are
C
v Department of Health and Social Development
;
[17]
J v
NDPP
[18]
and
Centre
for Child Law v Hoërskool Fochville.
[19]
In the first matter the court found that before children are removed
from their families under the Children’s Act 38 of 2005,
the
family and children should have the right make representations as to
whether their removal was in their best interests. The
second matter
(
J v
NDPP
)
had to decide the constitutional validity of a provision placing
child offenders on the sex-offenders’ registry, and again,
the
court held that this could not be done without affording the right of
the child ‘to make representations and to be heard’.
[36]
In
Hoërskool
Fochville
,
this court was dealing with an application under Uniform rule 30 A to
compel the production of documents in which children had
made
statements regarding the School. One of the questions considered was
whether it was appropriate for an intervening party –
a public
interest body representing the interests of children – to
assist the children in the litigation. During the course
of its
judgment this court referred to a passage in
Christian
Education South Africa v Minister of Education
[20]
,
in which the Constitutional Court said in a postscript, after
deciding that case, that it would have been of assistance to the
court had a
curator
ad litem
been
appointed to represent the children in order to hear their views.
[37]
None of these cases helps us answer the question with which we are
concerned: whether a right to a hearing, derived from s
28(2), may be
imported into a termination clause in a private contract between
parents and a school. In fact, they are wholly inapplicable
to this
case. This brings me to what the appellants contend is the second
source of the right to a hearing, namely, s 29(1)(a)
of the
Constitution.
Section
29(1)(a)
[38]
Section 29 (1)
(a)
guarantees the right of everyone to a ‘basic
education’. This is an obligation on the State, not one imposed
on private
institutions. But, the appellants contend, Pridwin
provides a basic education and is thus performing a constitutional
function.
It therefore bears a negative duty not to unreasonably
diminish a learner’s access to an education. The obligation to
act
reasonably, therefore, requires the School to afford the
opportunity to make representations before a contract is terminated.
And
also to consider alternative sanctions available to it before
taking this step. There is little merit in the point.
[39]
Section 29(3) expressly recognises the right to establish and
maintain independent schools, which is what Pridwin is. And though
it
provides a standard of education not inferior to a public school
[21]
it is not providing a basic education as envisaged s 29(1)
(a)
.
It would only be doing so if it was contracted by the State for this
purpose, as explained in
Allpay
v SASSA.
[22]
It would then be under a positive duty to do so because it was
performing a constitutional function. Section 29(1)
(a)
cannot
therefore be used to impose a duty on a private school, not provided
for in a parent contract, to grant a hearing before
it terminates a
contract on notice.
[40]
It is thus difficult to understand the appellants’ contention
that Pridwin is performing a constitutional function (which
would
ordinarily impose a positive duty on it), but is saddled, instead,
with a negative duty not to impede the right of the appellants’
children to a basic education. If the appellants were correct that
Pridwin, a non-subsidised independent educational institution,
is
providing a basic education, it would lead to remarkable
consequences.
[23]
It would
mean that a private security company contracted to provide safety and
security to a community is discharging a constitutional
function.
[24]
So too would a private clinic that renders treatment to a patient,
since the provision of health care services is also a state
obligation.
[25]
The
proposition simply cannot withstand the most basic scrutiny.
[41]
It is apparent from the authorities that interference with a
negatively protectable right occurs when the wrong-doing party
is not
itself under an obligation to provide the service – basic
education, here – but its actions indirectly have
that effect.
Juma
Musjid
[26]
is a case in point. The owner of a private property (a trust)
obtained an eviction order against Juma Musjid School, after
notifying
it that it was terminating the school’s occupancy.
Juma Musjid was a public school and the responsible public authority
–
the MEC for Education – had failed to enter into a
lease with the Trust.
[42]
The Trust, like Pridwin, had no positive obligation to provide a
basic education; that duty, as I have said, rests on the state.
[27]
There was no constitutional obligation on Pridwin to admit the
appellants’ children. The children also had no constitutional
right to attend this School. They were admitted after their parents
had signed contracts with the School, subject to the limited
provisions in the
South African Schools Act 84 of 1996
not here
relevant. And their right to remain at the School flowed from these
contracts.
[43]
While s 8(2) of the Constitution provides that the Bill of Rights
applies horizontally, it was pertinently pointed out in
Juma
Musjid
that
its purpose is not to obstruct private autonomy or to impose the
duties of the state on private parties. Rather, it is to oblige
private parties not to impede, interfere with or diminish the
enjoyment of a right.
[28]
A
private party would thus breach the obligation directly if it failed
to respect the right, and indirectly if there was a failure
to
prevent its direct infringement by another; or to take steps to avoid
its diminution.
[29]
[44]
In
Juma
Musjid
,
the Trust permitted the School to occupy its premises and paid for
certain expenses, which the Department undertook to repay,
but failed
to do so. In seeking to evict the School from its property, the
Trust’s action negatively impacted upon the School’s
duty
to provide a basic education to its learners. That is not the case
here. Pridwin has done nothing to prevent the appellants’
children from obtaining a basic education at a public school. As the
high court pointed out, there are three public schools in
the area
that would be obliged to take them.
[30]
There has simply been no breach of the right, in any way.
[45]
Another case on which the appellants place much store is
Daniels
v Scribante
.
[31]
There the court had to determine whether a domestic worker, who had
occupied land with the owner’s consent, under the Extension
of
Security of Tenure Act 62 of 1997 (ESTA) was entitled to make
improvements to her dwelling. Among the questions the court had
to
deal with was whether the owner was under an obligation to permit
this right, under s 25(6) of the Constitution,
[32]
where she had not obtained the owner’s permission in terms of s
6 of ESTA. She contended that s 13 of ESTA imposed a positive
obligation on the owner to allow this.
[33]
[46]
The court had little difficulty finding in her favour.
[34]
It held that by its very nature s 25(6) read with ESTA imposes both a
positive and a negative duty on private persons to protect
security
of land tenure. The positive duty on the landowner is to accommodate
persons of insecure tenure on their land. And the
negative obligation
is not to improperly invade that right.
[35]
The appellants invoke this judgment to support the contention that
there is no requirement for a contractual nexus between the
state and
a private person for a positive or negative duty to be imposed, as
the high court had found.
[36]
[47]
The contention is stillborn. What is clear from this case is that the
obligations – in both their positive and negative
guises –
were imposed on the private land owner in the first instance by s
25(6) and secondly through ESTA. But, as I have
pointed out earlier,
the fact that s 29(3) of the Constitution, read with the Schools Act,
specifically permits independent educational
institutions to be
established does not mean that they perform a constitutional function
to provide basic education as envisaged
in s 29(1)
(a)
.
[48]
It follows that the appellants’ attempt to source the right to
a hearing from a negative duty to act fairly arising from
s 29(1)
(a)
of the Constitution must also fail, as must its attempt to impose
a duty on the School to act reasonably, an issue to which I shall
return. Suffice to say at this stage that even if there was a duty on
Pridwin to act reasonably in terminating the contracts, it
did so
adequately.
PAJA
[49]
The appellants last and perhaps least meritorious attempt to insist
that they had a right to be heard is their reliance on
PAJA. The
short answer is that in cancelling the contracts Pridwin was not
exercising a public power or performing a public function.
It was
exercising a contractual right that did not constitute administrative
action. The high court dismissed their argument.
[37]
[50]
In this court, counsel for the appellants made another attempt to
rescue the PAJA argument; they contended that there is a
‘governmental’ interest in the decision to cancel the
contracts, derived from this court’s adoption of the test
for
judicial review in
Calibre
Clinical Consultants.
[38]
Nugent JA explained in that case that the courts tend to seek out
features that are governmental in kind to decide whether conduct
is
reviewable.
[39]
What needs to
be considered, he said:
‘
is the extent to
which the functions concerned are “woven into a system of
governmental control”, or “integrated
into a system of
statutory regulation”, or that the government “regulates,
supervises and inspects the performance
of the function”, or it
is “a task for which the public, in the shape of the state,
have assumed responsibility”,
or it is “linked to the
functions and powers of government”, or it constitutes “a
privatisation of the business
of government itself”, or it is
publicly funded, or there is “potentially a governmental
interest in the decision-making
power in question”, or the body
concerned is “taking the place of central government or local
authorities”, and
so on.’
[40]
[51]
The appellants say that the ‘governmental interest’,
which would make the termination of the parent contracts an
exercise
of public power, is apparent from a document signed by the Department
of Education and the National Association of Independent
Schools
(NAISA) (of which ISASA is a part) styled the ‘Rights and
Responsibilities of Independent Schools’ (R &
R document).
Clause 8 of this document deals with the exclusion of learners and
provides:
‘
Exclusions fall
into two broad areas:
· Exclusion on
grounds of contravention of the rules contained in the School’s
Code of Conduct and grievance procedure,
drafted in line with the
relevant legislation and good practice.
· Exclusion on the
grounds that the contract between the parents and the school has been
broken, usually because the parents
have failed to pay fees.
Independent schools
may exclude a learner on the basis of any of the above grounds
provided that a fair procedure has been followed.
(emphasis
added)
The
best interests of the child should always be adhered to.’
[52]
The appellants appear to have obtained the R & R document from
the internet and served it on the respondents on 24 May
2017, with a
supplementary affidavit, a day before the hearing in the high court.
Both Pridwin and ISASA took the view at the time
that they would not
respond to it because of its lateness and also because it was not
binding on them. I should add that NAISA
was not joined in the
proceedings and the MEC for Education, who is, did not file any
affidavit. So we have no idea what their
views on the purpose or
effect of the document are.
[53]
In the high court, the appellants conceded that the document was not
binding on the School but argued that it must nevertheless
be part of
the context of matters present in the mind of the parties when they
contracted. That was of course not true because
the document had only
belatedly become part of their case.
[41]
[54]
As a result of the uncertainty regarding the status of the document,
at the hearing of the appeal, the presiding judge directed
the
parties to file further affidavits on this point. They did so. In
Pridwin’s supplementary affidavit, Mr Marx confirms
that the
document is not binding on the School and that he had not been aware
of it before it was filed in court. ISASA’s
affidavit further
confirms that the document is not binding on it or on Pridwin. It
explains that it is no more than a communications
protocol, which is
clear from the document itself.
[55]
The high court correctly rejected the appellants’ attempt to
use this document as a basis for attempting to secure a
right to be
heard before the contracts were cancelled. The learned judge put it
thus:
‘
This document was
simply plucked from the internet and provided to this Court without
further information. There is neither a date
that it was signed or
placed before the court, nor any evidence provided to show that it
was part of the context in which the parent
contracts were drawn up.
In any event, clause 8 of the document refers to a termination for
breach, but does not refer to a termination
on notice, as was the
case here.’
[42]
[56]
CB has also filed a further supplementary affidavit. The appellants
now realise that their contention in the high court that
the document
was part of the context, which must have been in the minds of the
contracting parties when they contracted, is not
sustainable.
Undeterred, they now say that it is irrelevant whether or not it is
binding; it is nonetheless ‘indicative of
a strong governmental
interest in independent schools’ decisions to exclude learners,
they assert.
[57]
In this court the appellants found another ground to impute a
governmental interest in order to justify a right to a hearing
under
PAJA: Regulations 6(1)(i) and 6(2) of the Gauteng Regulations.
[43]
They cannot do so; the regulations were not specifically part of
their case in the founding or supplementary affidavits in the
high
court and the respondents had no opportunity to respond to them. I
shall nonetheless deal with them. They provide:
‘
Post-registration
obligations of an independent school
6.(1) Once an independent
school has been registered with the Department, the following post
registration requirements must be adhered
to:
. . .
(h)
allow unannounced visits by the Department for the purpose of
monitoring the leadership, management, curriculum delivery and
governance of the school; and
(i)
not expel or suspend a learner during an academic year or withhold
the learner’s progress report due to non-adherence
to
contractual obligations between the parent and the school.
(2) Where the board of an
independent school and the parent cannot reach an agreement on
contractual obligation as contemplated
in subparagraph 6(1)(i) the
board must escalate the matter to the Directorate responsible for
independent schools in the Department.’
[58]
The appellants say that the R&R document and the regulations show
that independent schools are, to extract some features
from the
governmental interest test expounded in
Calibre Clinical
,
woven into a system of governmental control under the Constitution
and the statutory scheme governing school education. Government
inspects the performance of these schools and subjects them to
exacting standards failing which their registration may be withdrawn.
The provision of an education, they continue, is also a task for
which the public, in the shape of the state, has assumed
responsibility
and education is inextricably linked to the functions
and powers of government.
[59]
Before I deal with the governmental interest test, it is evident that
there is a difference between clause 8 of the R &
R document and
the regulations now sought to be relied upon to justify a hearing.
The former says that there should be a fair procedure
before a
learner is excluded following a ‘broken contract’, which
presumably means a breach of the contract by the
parents. The
regulations, which were promulgated long after the communication
protocol, say nothing of the sort. Regulation 6(1)(i)
is mainly
concerned that the child’s academic year must not be disrupted
as a result of ‘non-adherence to contractual
obligations’.
It does purport to prescribe what the content of the terms of a
parent contract should be, much less prescribe
a fair procedure for
termination. The regulations have the force of law but the R & R
document does not.
[60]
Furthermore, neither the R & R document, nor the regulations deal
with termination of contracts on notice. In so far as
there is any
governmental interest in the exclusion of a learner on any ground it
goes no further than to impose an obligation
on a school to ensure
that it complies with the regulations. It bears mentioning that
Pridwin met any potential governmental concern
in the exclusion of
the children by allowing them to remain until the end of the academic
year after the contracts had been cancelled.
[61]
In any event the appellants misuse the ‘governmental interest’
test. In
Calibre
Clinical Consultants
Nugent JA made clear that the question whether there was a
‘governmental interest in the decision making power in
question’
was not of universal application to determine whether
PAJA applies.
[44]
As Hoexter
points out ‘[o]ther considerations . . . include the source of
the power, whether it is exercised consensually
or coercively and its
effect on the public . . . [A] mere interest in the activity on the
part of the public is unlikely to play
a decisive role’.
[45]
And citing
De
Smith’s Judicial Review
,
she adds that a broad and flexible approach is indicated rather than
mechanical or formulaic reliance on one or more of these
criteria.
[46]
Here, the power
to terminate the contracts – concluded consensually –
arises from the contracts themselves, not from
the coercive power of
the School or the state. The termination also has no effect on the
broader public.
[62]
Importantly, as Nugent JA emphasised, the utility of the inquiry is
aimed at determining whether or not the decision-maker
is accountable
to the public for its actions, as this is what PAJA is concerned
with. It is, he explained:
‘…
[a]bout
accountability to those with whom the functionary or body has no
special relationship other than that they are adversely
affected by
its conduct and the question in each case will be whether it can
properly be said to be accountable notwithstanding
the absence of any
special relationship.’
[47]
[63]
Pridwin is not accountable to the public for a decision to terminate
a parent contract. Neither is it answerable to any public
authority
for the manner in which it terminates its parent contracts. Its
accountability is limited only to those with whom it
has a ‘special
relationship’ by virtue of the contracts: the appellants in
this case (and perhaps the other parents,
who have contracts with the
School). It follows that there are simply no grounds for the
appellants’ contention that either
the R & R document or
the regulations are indicative of a governmental interest in the
cancellation of the contracts, which
constitutes an exercise of a
public power, as envisaged in PAJA.
Substantive
breaches.
[64]
Apart from the appellants’ complaint that Pridwin breached
their procedural right to fairness, they also say that the
cancellation was substantively unlawful. They ground this claim in
what the Constitutional Court said in
S
v M
[48]
about the effect of the best interests principle as presupposing that
‘the sins and traumas of fathers and mothers should
not be
visited on their children’.
[49]
Relying on this case, they contend that because the two children are
innocent, they should not be excluded from the School only
because of
their parents’ misconduct. There would have to be, they say,
‘extraordinary circumstances’ before
a school would be
entitled to do this.
[65]
The School therefore had a duty, they say, to act reasonably before
terminating the contracts, not only arising from the best
interests
principle in s 28(2), but also from the negative duty imposed upon it
by s 29(1)
(a)
. This entailed, they continue, an obligation on
the School to act to consider ‘alternative sanctions’
before taking
the drastic action that it did.
[66]
It is apposite to remind ourselves what the Constitutional Court said
about the best interests principle in
S
v M
: if
‘spread too thin it risks being transformed from an effective
instrument of child protection into an empty rhetorical
phrase of
weak application’.
[50]
This caution is even more pertinent to an attempt to elevate the idea
of the ‘sins of the father’, which has biblical
resonance, to a legal rule of general application.
[67]
S v M
concerned
the sentencing of a mother for fraud. She was the primary care-giver
of her three dependent children. The question was
whether a custodial
sentence imposed by the lower courts under s 276(1)(i) of the
Criminal Procedure Act 51 of 1977, (the CPA)
in terms of which she
would be eligible for release after serving eight months’
imprisonment, should stand. Having regard
to the best interests of
her children, the court, in a split decision, ordered that she be
placed under correctional supervision
in terms of s 276(1)
(h)
of the
CPA.
[51]
It is, however, quite
clear that the court would have arrived at this conclusion by simply
relying on the ‘best interests’
principle without
referring to the ‘sins of the (mother)’. It is equally
clear that where the nature of the crime is
so serious as to warrant
a lengthy prison sentence, the best interests principle has little
utility, if any.
[68]
In the same vein, when a parent contract is terminated a school is
obliged to consider the best interests principle, but it
cannot be
precluded from cancelling a contract only for fear of visiting the
indiscretions of the parents on the children. This
brings me to the
complaint that the duty to act reasonably required Pridwin to have
considered alternative sanctions before the
cancellation.
[69]
I have already concluded that the duty to act fairly or reasonably
cannot be imported into the terms of the contracts. So that
is really
the end of the fairness and reasonableness challenges. But assuming,
in favour of the appellants, that there is such
a duty arising from
the failure of Mr Marx to comply with the best interests principle,
or from s 29(1), the simple test to be
applied on review is whether
the decision is one that a reasonable decision-maker could not reach.
Among the factors the courts
consider in this exercise are:
‘
[T]he nature of
the decision, the identity and expertise of the decision-maker, the
range of factors relevant to the decision, the
reasons given for the
decision, the nature of the competing interests involved and the
impact of the decision on the lives and
well-being of those
affected.’
[52]
[70]
Against the factual background I have described earlier the high
court concluded that Mr Marx had acted ‘eminently reasonably’
in terminating the contract. The learned judge continued:
‘
[D]espite being
entitled to terminate DB and EB’s attendance at the school
immediately for the first applicant’s material
breach in terms
of clause 9.4, specifically taking the children’s interests in
the school, he decided not only not to terminate
forthwith, but
rather to allow the children to remain longer than even the term’s
notice set out in clause 9.3, namely until
the end of the year.’
[53]
[71]
I concur with her reasoning. She need not have gone further. But she
proceeded to deal with the argument relating to the failure
to
consider other alternatives. She reasoned thus:
‘
[The appellants] .
. . stated that Marx had at least four options open to him, including
issuing a final written warning, banning
the first applicant from
attending sport practices, banning him from addressing or conversing
with the staff members and barring
his children from the sporting
programme at Pridwin.
However, Marx had already
attempted to impose a lesser sanction by entering into the agreement
with the first applicant on 28 January
2016 which the first applicant
subsequently breached. He had accordingly already given the first
applicant a full opportunity to
desist in his behaviour. Furthermore,
the suggestion by the applicants that their children should have been
barred from the sporting
programme at Pridwin is surprising as, in my
view, that option would have caused ongoing distress and harm to
their children on
a daily basis whenever their friends went off to
engage in sporting activities whilst they were not permitted to do
so. This suggestion
is accordingly rejected.’
[54]
[72]
Here too, her reasoning cannot be faulted. I accordingly find that
the attack on the substantive lawfulness of the termination
is also
ill-founded.
[73]
One would have thought that the judgment of the high court would have
had a salutary effect on the appellants’ conduct.
Alas, this
was not to be. Two further incidents occurred after the judgment,
which resulted in Pridwin obtaining an interdict against
them in the
Gauteng Division of the High Court, Johannesburg, on 19 February
2018.
[55]
In the first, on 6
October 2017, CB wrote to Mr Marx following a regular newsletter he
distributed to parents to which she had
taken umbrage. She accused
him, astonishingly, of being ‘a sociopath and narcissist’
who had failed her children, which
was reminiscent of similar
unbecoming remarks she had made about Mr Joubert, earlier. The second
incident on, 22 January 2018,
resulted in a verbal confrontation
between AB and Mr Marx. The court found that AB’s conduct was
‘aggressive . . .
and seeking out conflict’. The facts
pertaining to both incidents are described in the judgment of the
high court, and need
not be repeated here.
[56]
[74]
In granting the interdict against the appellants the court found that
both CB and AB had breached their contractual obligations
to maintain
a constructive and courteous relationship with the School, and
specifically with the principal.
[57]
The evidence of these subsequent events that resulted in the
interdict is of course not relevant to determine the lawfulness of
the termination. But, as the appellants have framed their case as a
constitutional matter, involving as it does the applications
of s 28
and s 29 to parent contracts, the subsequent events are relevant to
determine any ‘just and equitable’
relief that may
be appropriate in terms of s 172(1)
(b)
of the Constitution.
The
Public Policy Challenge.
[75]
I return to the appellants’ public policy challenge to the
termination clause, the legal principles of which I have set
out
earlier.
[58]
In the high court
the appellants sought a declaration that both the clause itself and
its enforcement are contrary to public policy
because the clause does
not provide for a fair procedure or reasonable decision. This was
also the stance adopted in their written
submissions to this court
prepared by their previous counsel. However, I did not understand
their newly appointed counsel, Mr Marcus,
to persist with the
attack on the terms of the clause; his submissions focussed on the
enforcement of the clause. In other words
it is not the clause itself
that is impugned, but the fact that it was enforced, without a prior
hearing or reasonably, which is
said to be inimical to public policy.
[76]
Now I have already found that there are no grounds for importing a
duty to act fairly or reasonably into the termination clause
from s
28(2) and s 29(1) of the Constitution, or from PAJA. And, because
fairness and reasonableness are not free standing grounds
to impugn
the terms of a contract the attempt to invalidate the terms of the
contract has no merit. There is nothing on the face
of clause, or
intrinsically, that offends any constitutional value or principle or
is otherwise contrary to public policy. It is
certainly not immoral.
No facts have been placed before us to suggest otherwise.
[77]
As the high court pointed out this type of clause is a common feature
of commercial contracts. Many may affect children, for
example an
ordinary lease, as alluded to earlier. The consequence of a finding
that such clauses are invalid because of some indirect
effect they
may have on children would be catastrophic.
[59]
Mr Marcus rightly did not persist with this line.
[78]
Instead, he concentrated his attack on the enforcement of the
contracts as being contrary to public policy, the argument being
that
public policy, as determined by the legal convictions of the ‘legal
policy makers community of the community’
imposed a duty on
Pridwin to hear the appellants and to act reasonably before
terminating the contracts. Once again the R &
R document was
enlisted to support this argument. However, I have earlier dealt with
the fact that it is a mere communications
protocol. It is not a
policy document that independent schools affiliated to ISASA, such as
Pridwin are obliged to apply. It can,
therefore, form no basis for
public policy. And as I have also pointed out earlier, reg 6(1)(i),
incorrectly relied upon to support
a right to hearing under PAJA,
contains no injunction for independent schools to apply a fair
procedure before terminating a parent
contract.
[79]
The appellants provide no other facts to support their case that the
enforcement of the termination clause offends public policy
in the
circumstances of this case, much less showing that any substantial
harm to the public or the children will result from the
cancellation.
The facts show the contrary. Mr Marx’s conduct, in contrast to
the appellants’, was exemplary. He allowed
the two children to
remain for five months, until the end of the academic year. There are
several other public schools at which
they may be enrolled. The
truth, however, is that the appellants wish to send their children to
another private school of equivalent
standard to Pridwin, as the
facts show, but also to keep their children there until they achieve
this. There are no public policy
grounds for indulging this need.
[80]
The facts also show that the appellants concluded these contracts in
which their attention was specifically drawn to certain
clauses,
including those that set out the standard of conduct expected of
them, the consequences for breach and the mutual right
to terminate
on notice. The contracts are not one sided or unduly onerous on one
of the parties. The appellants concluded the contracts
freely, as
autonomous individuals, alive to the consequences of what they were
signing. Public policy demands that they be held
to their terms.
Conclusion
[81]
The appellants sought, in the main, 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. Nor was their attempt to find a basis in PAJA for
it. The
challenge to clause 9.3 of the contracts on public policy grounds was
also unmeritorious. The School, on the
other hand, was
acutely aware of its constitutional duties not only to the
appellants’ children but to all the affected parties
in
cancelling the contracts. Its reason for doing so, though not
relevant, was unimpeachable, given the extraordinary behaviour
of the
appellants. The high court correctly dismissed their application.
Furthermore, having regard to their subsequent behaviour,
which
another court has again found to have been in breach of their
contracts, it can hardly be in the best interests of all concerned
for this family to remain at the School.
[82]
In the result the following order is made:
The
appeal is dismissed with costs, including those of two counsel.
_______________
A
Cachalia
Judge
of Appeal
Mocumie
JA (dissenting)
[83]
I have read the well-crafted judgment of my colleague, Cachalia JA. I
am grateful for his narration of the background, with
which I agree.
He would dismiss the appeal and confirm the judgment and order of the
high court upholding the common law principle
of
pacta sunt
servanda
. I am in respectful disagreement with this outcome
[84]
In my view clause 9.3 of the Parents Contracts (the contracts) on
which Pridwin Preparatory School (the School) relied when
on 30 June
2016 it terminated the contracts of the parents of the two young
learners(the appellants), aged 11 and 9 (DB and EB),
is
unconstitutional, contrary to public policy and unenforceable to the
extent that it purports to allow the School to terminate
the
contracts without following fair procedure; and without the views of
DB and EB being given due and appropriate consideration.
Accordingly,
I would uphold the appeal with costs and set aside the order of the
high court. What follows are my reasons for reaching
this conclusion.
[85]
For purposes of the conclusion I reach, it is convenient that I only
highlight, very briefly, two aspects of this litigation:
the conduct
of the appellants on the one hand and that of the School on the
other. As detailed in the main judgment
[60]
,
there were several incidents by the father (AB) of DB and EB which
were considered by the School as threatening and intimidating
to
educators and coaches of sports and not in the best interests of all
learners enrolled at the School including DB and EB. The
conduct of
AB, the School complained, also brought disrepute to the School which
has been in existence since 1923. Several attempts
were embarked upon
to resolve this conduct including intervention by the School Board
and interdictory proceedings. All these attempts
came to naught for
reasons which I will traverse later in this judgment. When an
amicable solution could not be reached, the School
opted to terminate
the contracts. This, inevitably and as provided for in the contracts,
led to the expulsion of DB and EB
[86]
The appellants approached the high court on an urgent basis to review
and set aside the decision of the School on the basis
that the
termination of the contracts under the circumstances was
unconstitutional and contrary to public policy as they were not
given
a hearing prior to the termination of the contracts. This was more
so, it was argued before us, because the termination of
the contracts
led to the expulsion of DB and EB without them as learners at the
School affected adversely by the decision, without
being given a
hearing prior to the termination of the contracts.
[61]
The School stuck to its guns. It relied on the wording of clause 9.3
of the contracts. It cited what the main judgment describe
in several
paragraphs as ‘. . .a sorry tale of misconduct on their part
spanning eight months. . . .’ which ‘.
. . created a
toxic and intolerable atmosphere.’ The School insisted that the
appellants knew when they signed the contracts
what they were
agreeing to. The decision to expel DB and EB flowed from a breach of
the contracts by AB. It maintained that it
also took into
consideration the best interests of DB and EB by not expelling them
immediately as it was entitled to in terms of
the contracts but by
allowing them to remain in the School until the end of the term in
December 2016. The Principal (Mr Marx)
assisted the appellants to
look for alternative accommodation at a school of a similar status as
Pridwin, namely, St John. He even
engaged with a Member of the
Executive Council of Education, Gauteng (the MEC), who assured him
that DB and EB could be accommodated
at any of three public schools
in the vicinity of their residential area in the next academic year.
[87]
Having considered the submissions by the parties, the high court
found in favour of the School. It held that ‘on the
facts both
parties contracted freely and voluntarily. The plain language of
clause 9.3 is clear. Prima facie, the notice given
by Pridwin under
clause 9.3 is valid.’ The high court pointed to the fact that
the contracts made no provision for a hearing
prior to the
termination. With reference to the best interests of DB and EB under
s 28(2) of the Constitution, the high court reasoned
that the School,
represented by Mr Marx, acted in the best interests of DB and EB as
indicated in the letter of termination of
the contracts and also took
into consideration the best interests of other learners enrolled at
the same School. Relying on the
judgment of this court in
Bredenkamp
v Standard Bank of South Africa Ltd
,
[62]
it concluded that the sanctity of a contract between parties had to
prevail.
[63]
[88]
In this Court, counsel for the appellants did not attack the general
validity and applicability of the time-honoured contractual
doctrine
that agreements solemnly entered into should be honoured and enforced
(
pacta
sunt servanda
).
Nor did he raise the issue of the development of the common law under
s 39(2) of the Constitution, correctly so, as this case
is not about
the development of the common law principle that agreements are
binding in the strict sense; where the appellants
would have been
expected to have pleaded s 39(2) of the Constitution and accordingly
afforded the School the opportunity to rebut
that case as made out in
the papers (see
Barkhuizen
and
Everfresh
Market
Virginia (Pty) Ltd v Shoprite Checkers (Pty) Ltd
).
[64]
He however submitted, that when taking into account the spirit,
purport and object of the Constitution when interpreting contracts
and legislation, the School acted unreasonably and contrary to its
duty and responsibility not only to hear the appellants before
the
expulsions of DB and EB but also to hear DB and EB who, he contended,
were to be treated as separate individuals from their
parents. These
two, he argued, had the right to be heard before any decision which
affects them is taken by anyone as provided
in the Children’s
Act 38, 2005 (the Children’s Act) – premised on the
United Nations Convention on the Rights
of the Child, 1989 (the UN
Convention on the Rights of the Child).
[65]
Relying on the
Governing
Body of the Juma Musjid Primary School & others
v
Essay
N.O. and
others
,
[66]
he argued that s 29(1) of the Constitution imposed a negative duty on
the School not to diminish the constitutionally entrenched
right to
basic education of DB and EB.
[67]
Its decision which led to the expulsion of the two impacted
negatively on that right.
[89]
Counsel for the School submitted that although it admitted the import
of s 28(2) of the Constitution and its applicability
on these facts,
the best interests of a child are not absolute against the interests
of others. In this instance, he argued, the
School took into
consideration the best interests of not only DB and EB but the
interests of the four hundred-plus other learners
enrolled in the
same school. Those interests and those of other stakeholders had to
be taken into consideration in the balancing
of the conflicting
interests. He submitted further that to that extent the
Constitutional Court has warned in
S
v M
[68]
that:
‘
This Court, far
from holding that section 28 [of the Constitution] acts as an
overbearing and unrealistic trump of other rights,
has declared that
the best interests injunction is capable of limitation. In
Fitzpatrick
this Court found that no persuasive justifications
under section 36 of the Constitution were put forward to support the
ban on
foreign persons adopting South African-born children, which
was contrary to the best interests of the child. In
De Reuck
,
in the context of deciding whether the definition and criminalisation
of child pornography was constitutional, this Court determined
that
section 28(2) cannot be said to assume dominance over other
constitutional rights. It emphasised that
“
.
. . constitutional rights are mutually interrelated and
interdependent and form a single constitutional value system. This
Court
has held that s 28(2), like the other rights enshrined in the
Bill of Rights, is subject to limitations that are reasonable and
justifiable in compliance with s 36.”
Accordingly, the fact
that the best interests of the child are paramount does not mean that
they are absolute. Like all rights in
the Bill of Rights their
operation has to take account of their relationship to other rights,
which might require that their ambit
be limited.’ (Footnotes
omitted)
The
law
[90]
In South Africa, the principle of sanctity of contracts,
pacta
sunt servanda,
is one of the fundamental ideas that underpin the modern law of
contract. Freedom of contract and the concept of good faith are
other
fundamental concepts of contract law.
[69]
Authors in the field have begun to reflect on the extended definition
of good faith which, they argue, include components of fairness
and
equity influenced by the values underpinning the Constitution.
[70]
[91]
The infusion of constitutional values when
interpreting a contract, inevitably constitutes a limitation of the
right of the parties
to freely contract with each other, which is
protected by the values of equality before the law in s 9 of the
Constitution, freedom
of human dignity in s 10 of the Constitution in
conjunction with the right to freedom of association under s 18 of
the Constitution.
Over and above deciding whether Mr Marx was obliged
to give the parties a hearing prior to terminating the contracts, the
crucial
issue to keep in mind is whether the limitation sought is
reasonable and justifiable in terms of s 36 of the Constitution –
in line with the proportionality analysis. Section 36 of the
Constitution provides as follows:
‘
(1)
The rights in the Bill of Rights may be limited only in terms of law
of general application to the extent that the limitation
is
reasonable and justifiable in an open and democratic society based on
human dignity, equality and freedom, taking into account
all relevant
factors, including –
(
a
) the nature of
the right;
(
b
) the importance
of the purpose of the limitation;
(
c
) the nature and
extent of the limitation;
(
d
) the relation
between the limitation and its purpose; and
(
e
) less
restrictive means to achieve the purpose.
(2) Except as provided in
subsection (1) or in any other provision of the Constitution, no law
may limit any right entrenched in
the Bill of Rights.’
Application
of the law to the facts
[92]
I accept that agreements solemnly made should be honoured and
enforced. In my view, it would however be contrary to widely
accepted
jurisprudence to look at the contracts in issue exclusively on the
basis of the old-age sanctity of contract as the high
court did
without the proportionality analysis embarked upon in
S
v Makwanyane
[71]
in the context of ‘the best interests of a child.’ The
context in which the contracts in issue were concluded between
the
parties, is distinctly different – not one of the normal day to
day contracts in the commercial world. That is what distinguishes
the
facts of this case from all others referred to by counsel for the
School, particularly the judgments of this Court, a distinction
the
high court seems to have missed. Having said that, I however must
still consider whether the clause indeed infringed upon s
28(2) and s
29(1) of the Constitution as I do hereafter. For the conclusion that
I reach premised on s 28(2) and s 29(1), it is
not necessary to make
any conclusive finding on whether the decision made by Mr Marx was
administrative in nature under the Promotion
of Access to Justice Act
3 of 2000.
Whether
the termination of the contracts infringed section 29(1) of the
Constitution
[93]
Section 29(1) of the Constitution stipulates that the State must
provide each child with basic education. Section 29(3) obliges
independent schools to ‘maintain standards that are not
inferior to standards at comparable public educational institutions.’
The high court, relying on
Musjid
and
KwaZulu
Natal Joint Liaison Committee v MEC Department of Education, KwaZulu
Natal and others
[72]
and other cases of local divisions, found that ‘whilst everyone
is entitled to basic education in terms of section 29(1)
of the
Constitution, this basic education must be provided by the State
either through public schools or independent schools subsidised
by
the State.’ It sought to distinguish this case from
KwaZulu
Natal Joint Liaison Committee
and
Musjid
on the narrow distinction between independent schools which are
subsidised by the State on the one hand and those not subsidised
on
the other. On that basis it found ‘that Pridwin receives no
subsidies from the State at all …I cannot find that
Pridwin,
as a wholly independent school, has the obligation to provide a basic
education…’
[94]
That is the fallacy that ran through this litigation in the high
court and in this Court, which I do not deem necessary to
traverse at
length in this judgment for the reason that the appellants’
case is distinctly and deeply embedded in section
28(2) and public
policy. Suffice to say the following. Section 29(1) of the
Constitution indeed places a positive obligation on
the State to
provide basic education. In 2013 the Centre for Child Law, University
of Pretoria conducted a research on obligations
of independent
schools in respect of children’s right to basic education. In
its conclusion, it made the submission that:
‘
In
Juma Musjid
,
the [Constitutional] Court emphasised that the primary duty to
provide a basic education falls on the state:
It is clear that there is
no primary positive obligation on the Trust to provide basic
education to the learners. That primary positive
obligation rests on
the MEC.
As a result, it stressed
that the Trust was not obliged to continue to make its land available
to the public school for all time.
However, the Court recognised
that the Trust was subject to a duty to minimise the impact of an
eviction order on the learners
:
At most, the Trust‘s
constitutional obligation, once it had allowed the school to be
conducted on its property, was to minimise
the potential impairment
of the learners’ right to a basic education.’
[73]
(Emphasis
added)
[95]
This research strengthens my resolute view that the underlying tone
of the Constitutional Court in
Musjid
,
read within the framework of the
South African Schools Act
>
,
84 of 1996 (the Schools Act) and taking into account the values
underpinning our Constitution which not only promotes but protects
equality of all under s 9; s29 (1), imposes a negative obligation on
independent schools not to diminish the right to basic education.
Noel Zaal & Ann Skelton
[74]
,
make the point persuasively that there is a constitutional
distinction between ‘basic’ and ‘further’
education, which makes school attendance compulsory for learners from
the age of seven years until the age of 15 years or until
the learner
reaches the ninth grade, whichever occurs first.
[75]
Their informed opinion, which I share, is that basic education is
widely accepted as compulsory education.
[76]
This much was accepted by the high court in its judgment when it
stated that ‘even if Pridwin does have a negative
constitutional
obligation not to impair DB and EB’s right to
basic education by terminating the contract[s], Pridwin did not
breach this
obligation on the facts’ because ‘[a]fter
terminating the contract[s] Pridwin wrote to the Department of
Education
and secured a written undertaking from the Chief Director,
School Management, that both DB and EB would be guaranteed at a
public
school in 2017, immediately after the children were to leave
Pridwin.’ This, however does not detract from the fact that
once a school, independent as Pridwin, had taken the responsibility
of providing ‘an environment in which each child may develop
a
lively, enquiring mind and positive attitudes towards learning’,
as well as promoting ‘in each child respect and
empathy for
others and the environment through the encouragement of good manners,
discipline, responsibility, leadership and service’,
[77]
it cannot diminish that right because of the wrong doings of their
father. The main judgment recognises in para [41] – that
‘interference with a negatively protectable right occurs when
the wrong doing party itself is not under an obligation to
provide
service – basic education, here – but its actions
indirectly have that effect…’
I
am led, inescapably, to come to the conclusion that the actions of
the School indirectly had that negative effect on DB and EB.
As a
result, it indeed acted unreasonably in terminating the contracts.
Whether
the termination of the contracts infringed section 28(2) of the
Constitution, 1996.
[96]
Section 28(2) of the Constitution provides that in every matter that
affects the child, the best interests of the child must
be taken into
consideration. Our Constitution is unique and amongst the best in the
world. Distinct from other progressive Constitutions
around the world
is the fact that it holds the best interests of the child to be of
paramountcy in every matter that affects the
child; separate from all
other protective rights in the Bill of Rights. The basic principle
laid down in determining what ‘taking
into consideration the
best interest of the child’ entails is emphatically stated by
the Constitutional Court in
C
v Department of Health
[78]
albeit
in the context of medical treatment as follows:
‘
Section 28(2) of
the Constitution requires an
appropriate degree
of
consideration of the best interests of the child. Removal of a child
from family care, therefore, requires
adequate consideration
.
As a minimum, the family and particularly the child concerned, must
be given an opportunity to make representations on whether
removal is
in the child’s best interests.’ (Emphasis added)
[97]
Subsequently in
J
v NDPP
[79]
the Constitutional Court emphasised three principles which arise when
considering ‘the best interests of the child’
under s
28(2) of the Constitution. The court stated:
‘
A third principle
is that the child or her representative must be afforded an
appropriate and adequate opportunity
to make representations
and to be heard at every stage of the justice process, giving due
weight to the age and maturity of the
child’. (Emphasis added.)
One
common thread that can be discerned from these two judgments is the
appropriate
and
adequate opportunity
to be heard and
make representation before any decision affecting a child can be
taken. It is noteworthy that the Constitutional
Court did not make
any distinction when it made these pronouncements on these two
occasions and others not referred to in this
judgment.
[98]
As in
Christian
Education South Africa v Minister of Education
,
[80]
both in the high court and this Court if we have had the assistance
of a
curator
ad litem
to represent the interests of the children, the curator could have
made sensitive enquiries so as to enable their voices to be
heard. As
the Constitutional Court stated ‘[t]heir actual experiences and
opinions would not necessarily have been decisive,
but they would
have enriched the dialogue, and the factual and experiential
foundations for the balancing exercise in this difficult
matter would
have been more secure.’ The School, admittedly, on their case,
did not afford DB and EB appropriate and adequate
opportunity to be
heard and make representations before terminating the contracts which
led to their expulsion. Courts are encouraged
to be wiser and have a
curator ad litem appointed in all matters of this nature and
magnitude even where the parties do not make
an application to that
effect.
[99]
On the value of affording people procedural fairness, the
Constitutional Court stated in
Joseph
and others v City of Johannesburg and others
[81]
as follows:
‘
Procedural
fairness. . . is concerned with giving people an opportunity to
participate in the decision that will affect them, and
–
crucially – a chance of influencing the outcome of those
decisions. Such participation is a safe guard that not only
signals
respect for the dignity and worth of the participants, but also
likely to improve the quality and rationality of administrative
decision making and to enhance its legitimacy.’
As
my colleague correctly points out, these cases are distinguishable on
their facts from the facts of this matter before us. But
the
overarching principle derived from them remains ie that ‘the
best interests of the child’ are to be of paramountcy
in every
matter that affects the child. And flowing from that, that a child of
appropriate age must be given an appropriate and
adequate opportunity
to be heard and to make representations before any decision affecting
him or her can be taken.
[100]
To indicate that Mr Marx took into consideration the best interests
of DB and EB and balanced them against those of the other
four
hundred-plus learners enrolled at the same School, he simply stated
that he did so in the letter of termination of the contracts
and
repeated same in his answering affidavit. He added that he also took
into consideration the parents of the four hundred-plus
learners as
well as the long standing and prestigious reputation of the School in
the context of the circumstances prevailing at
the time. It is only
his
ipse dixit
that he indeed took the best interests of DB
and EB into consideration when he terminated the contracts. In the
light of the arguments
raised by the appellants in this Court, I find
that such assertion is not supported by any evidence. It therefore
begs the question,
on these facts, what did he do that points to such
an exercise been undertaken?
[101]
I appreciate that this could not have been an easy task due to the
unprecedented conduct of a parent at such a school. At
best, in this
case, Mr Marx did not expel DB and EB summarily but extended their
stay until end of term ‘in the interests
only of your sons’
who he regarded as model learners. This is later repeated in the
answering affidavit. But considering
the drastic results of the
termination of the contracts on DB and EB, his say so alone would not
be sufficient. A prudent and considerate
Principal, who has the best
interests of all his learners, as Mr Marx portrayed himself to be,
would have taken into consideration
many other relevant factors which
I will allude to hereafter. Instead, the record is replete only with
the incidents of the unacceptable
conduct of AB. What is obviously
lacking in his purported balancing of interests of the two against
four hundred-plus learners,
shorn off all extras (the prestigious
reputation of 95 years of the School and the rights of other parents
and stakeholders) is
the following:
a) Mr Marx makes no
reference to when such exercise was undertaken. For instance, did the
School Board take part or not? If not,
why, when AB had suggested the
intervention by the
School Board
which
inexplicably did not happen. There are no
minutes
of a meeting of the School Board where the best interests of the set
of interests were considered and a decision was taken
to sacrifice
them and why this was in their best interests. The minutes would have
been filed with the papers when the appellants
attacked the process
that the School followed.
b) Who participated in
the exercise? – ie of the four hundred-plus learners;
c) Whether the continued
presence of DB and EB threatened the lives of the other four
hundred-plus learners, made them uncomfortable
or had any bad impact
on their safety, education and development at the School;
d) Whether DB and EB were
disrespectful to him as the Principal, educators who taught them or
any other persons in a position of
authority or even the same four
hundred-plus learners including their leaders, Representatives of
Learners Council members or a
body of similar stature.
[102]
To the contrary, it is on record that DB and EB are model learners.
The eldest of the two, the 11 year old, will be completing
his
preparatory phase at the School in 2019. One can safely assume that
from the time they were enrolled at the School, they have
never been
disciplined for any serious infraction in general, against Mr Marx,
educators at the School and against their peers.
[103]
In contrast the impact of what Mr Marx terms, in his strange wisdom,
‘in the best interests’ of DB and EB is the
opposite and
not in the least in their best interests. The results are that
amongst all advantages of independents schools as the
appellant
irrefutably lamented in their founding affidavit inter alia:
‘
85.1
he effectively expelled two model students with deep attachment to
the staff, learners and culture of Pridwin;
85.2 he was not appraised
of DB’s or EB’s feelings and or attachments towards
Pridwin;
85.3 he did not consider
the emotional and psychological impact that being removed from the
school would have on DB or EB;
85.4 …
85.5 …’
This is against the
background that none of the four hundred-plus learners nor their
parents for that matter, except an odd parent,
have said anything
adverse about DB and EB. Otherwise the School would have filed
confirmatory affidavits of all those who disapproved
strongly of the
appellants’ conduct to the extent that they would condone the
expulsion of two innocent children for ‘the
sins of the
father.’
[104]
On these facts, it is clear that Mr Marx did not undertake the above
exercise. What he did is an afterthought and a ruse to
justify
terminating the contracts which had the devastating effect of the
expulsion of DB and EB without taking into consideration
their best
interests or their views. There is no indication that available legal
processes at the disposal of the School which
were initiated against
AB were followed through. One instance where the court did not find
him in contempt of the court order,
cannot be the answer to expel DB
and EB from the School. Proportionally, the
nature
of the rights at stake, ‘the best interests of the child’,
are just too important to be limited unjustifiably
under s 36 (1) of
the Constitution by the right of the parties to freely contract with
each other or even resile from such contract
when any one of them
failed to comply with any of the terms and conditions. I say
proportionally, to make the point that, as much
as the bests
interests of the other four hundred –plus learners at the
School are just as important and of paramountcy in
every matter that
affects them, on these facts, the rights of DB and EB were more at
stake than theirs. As I have demonstrated
in the preceding
paragraphs, the impact of the decision to terminate the contracts had
a more devastating effect on the two as
opposed to retaining them at
the School, than on the four hundred – plus other learners.
[105]
This Court in
Centre
for
Child
Law v Governing Body of Hoërskool Fochville
[82]
with reference to authors in the area of child justice
[83]
dedicated six paragraphs on ‘the best interests of the child’
to illustrate and emphatically make the point that in
every weighing
up of rights and interests and any value judgment, the best interests
of the child would have to be the paramount
consideration. In my
view, this approach cannot be overemphasised enough because
that
is how fair procedure and processes operate in any civil and
democratic society. It would be astonishing that any institution
–
no matter how independent – in a democratic society such as
South Africa with its recent history of abuse of power
by
institutions as it happened in not so far a past, would be allowed to
operate unchecked even when it affected the rights of
the most
vulnerable of our society, children. To do otherwise would amount to
an arbitrary injunction on the rights of DB and EB
to compulsory
education (s29 (1) and s
3(1)
of the
Schools
Act).
[84]
[106]
Looking at other jurisdictions, in
Re D
[2006] UKHL 51
;
[2007] 1 AC 619
,
Baroness Hale in the UK provide the following seminal articulation of
the importance of listening to children in the context of
litigation
that touches and concerns their lives which we should take to heart:
‘
There
is a growing understanding of the importance of listening to children
involved in children’s cases, it is the child,
more than anyone
else, who will have to live with what the court decides. Those who do
listen to children understand that they
often have a point of view
which is quite distinct from that of the person looking after them.
They are quite capable of being
moral actors in their own right. Just
as the adults may have to do what the court decides whether they like
it or not, so may the
child. But that is no more reason for failing
to hear what the child has to say than that it is for refusing to
hear the parents
view.’
[107]
It is on this basis that I find that clause 9.3 is unconstitutional
as it is conflict with s 28(2) and s 29(1) of the Constitution
to the
extent that it entitled the School to terminate the contracts without
affording DB and EB appropriate opportunity to make
representations
and be heard before it took the decision to terminate the contracts
which led to their expulsion from the School.
Public
policy
[108]
The appellant’s prayer which remains is the question whether
clause 9.3 of the contracts is unlawful, contrary to public
policy
and unenforceable to the extent that it purports to allow Pridwin to
cancel the parents contracts without following a fair
procedure
and/or without a reasonable decision.’
[109]
At para 27 of the main judgment, my colleague sets out important
‘learning from our courts’ on the jurisprudence
of
private contracts and public policy which I embrace and will not
repeat for the sake of brevity. I however deem it necessary
to state
the following as a starting point. Over three decades ago in
Magna
Alloys
[85]
this Court held that the mere fact that an agreement operated in an
unfair or unreasonable manner would not ordinarily constitute
a
ground on which to challenge such an agreement.
[86]
As expressed in the recent judgment of
Maphango
and
others
v Aengus
Lifestyle Properties (Pty) Ltd
[87]
twenty seven years later that unless and until the Constitutional
Court holds otherwise, the law is therefore as stated by this
Court,
for example, in
South
African Forestry Co
[88]
,
Brisley
[89]
,
and Bredenkamp
[90]
.
Accordingly, ‘a court cannot refuse to give effect to the
implementation of a contract simply because that implementation
is
regarded by the individual judge to be unreasonable and unfair’.
[110]
In its wisdom to align the interpretation of contracts with the
constitutional values underpinning our Constitution, the
Constitutional Court, Ngcobo J, writing for the majority in
Barkhuizen
,
stated that ‘. . . the proper approach to the constitutional
challenges to contractual terms is to determine whether the
term
challenged is contrary to public policy as evidenced by the
constitutional values, in particular, those found in the Bill
of
Rights.’
[91]
He warned that although this left ‘space for the doctrine of
pacta
sunt servanda
to operate . . . [it] allows courts to decline to enforce contractual
terms that are in conflict with the constitutional values
even though
parties may have consented to them.’
[92]
He reasoned that the concept of fairness, justice, equity and
reasonableness could not be isolated from public policy and that
the
concept of
ubuntu
would
play a role.
[93]
The Constitutional Court recently reiterated this nuanced development
of the jurisprudence of contract law in
Everfresh
Green Market Virginia (Pty Ltd) v Shoprite Checkers (Pty) Ltd
[94]
where, Moseneke DCJ, writing for the majority, stated ‘[i]ndeed,
it is highly desirable and in fact necessary to infuse the
law of
contract with constitutional values, including values of
ubuntu
,
which inspire much of our constitutional compact. On a number of
occasions in the past this Court has had regard to the meaning
and
content of the concept of ubuntu. It emphasises the communal nature
of society and “carries in it the ideas of humaneness,
social
justice and fairness” and envelopes “the key values of
group solidarity, compassion, respect, human dignity,
conformity to
basic norms and collective unity.”’
[111]
In
Barkhuizen
the Constitutional court stated that to determine whether contract is
fair, a two pronged enquiry had to be embarked upon.
[95]
It held:
‘
There are two
questions to be asked in determining fairness. The first is whether
the clause itself is unreasonable. Secondly, if
the clause is
reasonable, whether it should be enforced in the light of the
circumstances which prevented compliance with the time
limitation
clause.
The first question
involves the weighing-up of two considerations. On the one hand,
public policy, as informed by the Constitution,
requires, in general,
that parties should comply with contractual obligations that have
been freely and voluntarily undertaken.
This consideration is
expressed in the maxim
pacta sunt servanda
which, as the
Supreme Court of Appeal has repeatedly noted, gives effect to the
central constitutional values of freedom and dignity
.
Self-autonomy, or the ability to regulate one’s own affairs,
even to one’s own detriment, is the very essence of freedom
and
a vital part of dignity. The extent to which the contract was freely
and voluntarily concluded is clearly a vital factor as
it will
determine the weight that should be afforded to the values of freedom
and dignity. The other consideration is that all
persons have a right
to seek judicial redress. These considerations express the
constitutional values which must now inform all
laws, including the
common law principles of contract.
The second question
involves an inquiry into the circumstances that prevented compliance
with the clause. It was unreasonable to
insist on compliance with the
clause or impossible for the person to comply with the time
limitation clause. Naturally, the onus
is upon the party seeking to
avoid the enforcement of the time limitation clause. What this means
in practical terms is that once
it is accepted that the clause does
not violate public policy and non-compliance with it is established,
the claimant is required
to show that, in the circumstances of the
case there was a good reason why there was a failure to comply.’
[96]
[112]
Applying this two staged enquiry to this case, the first enquiry is
whether the notice clause in the contracts is in itself
unconstitutional; and if not the second enquiry is whether the
termination on notice is unconstitutional in the light of the
circumstances
prevailing at the time.
[113]
As a starting point, the first enquiry must be directed at the
objective terms of the contract. If it is found that the objective
terms are not inconsistent with public policy on their face, the
further question will then arise, which is, whether the terms
are
contrary to public policy in the light of the prevailing
circumstances then.
Is
clause 9.3 unconstitutional and contrary to public policy?
[114]
Clause 9.3 of the Contracts reads:
‘
The school has the
right to cancel this contract at any time,
for
any reason
,
provided that it gives you a full term’s notice, in writing, of
its decision to terminate this contract. At the end of the
term in
question, you will be required to withdraw the child from the school,
and the school will refund to you the amount to you
of any fees
pre-paid for a period after the end of the term less anything owing
to the school by you.’
[97]
(Emphasis added)
[115]
The first flaw with this provision is that the contracts are clearly
between private individuals and the School. Despite the
context in
which they were concluded ie the values underpinning our Constitution
(the other consideration is that all persons have
a right to seek
judicial redress)
[98]
and in particular the best interests of DB and EB,
ex
facie
it makes no provision for a hearing before the School terminates the
contracts. It makes no provision for a child to be heard before
he or
she is expelled in conflict with the Children’s Act, the UN
Convention of the Right of the Child as well as the African
Charter
on the Rights and Welfare of the Child,1990 (ACRWC)
[99]
.
It makes no provision for any fair procedure to be adopted before the
decision to expel is taken and implemented.
[116]
The second flaw is, the terms of the contracts are overbroad ie
termination for ‘
any
reason’
.
I take cognisance of the fact that although this is a common
provision in commercial contracts, the appellants’ case is
that
the enforcement of the clause is unlawful and contrary to the mores
of our society and natural justice. My view is that these
overbroad
terms and the enforcement thereof infringe on the right of the child
to basic education (s 29(1) of the Constitution)
in
the context of independent schools which as the Constitutional Court
held in
Musjid
[100]
have a negative obligation not to diminish a child’s basic
right to education. The right to basic education is accepted
universally as a right to compulsory education which any institution
which has taken the responsibility of the State whether private
and
partly subsidised or independent cannot diminish as I have found
earlier. It is different from further education. What is of
extreme
concern is that a decision of such serious implications was taken by
Mr Marx on his own, without the wisdom of the broadly
representative
School Board which would in most likelihood have the capacity,
expertise, objective and untainted responsibility
to deal with a
disciplinary action of this magnitude and conflicting interests. The
hearing by the School Board which I dealt with
earlier, related to a
request by AB for its intervention on the very decision to expel DB
and EB. Such intervention never materialised.
The intervention which
the School Board was involved in, was in connection with a complaint
laid by AB against a Mr Fourie who
he alleged had defamed him and CB,
which is obviously not relevant for the determination of whether
cause 9.3 of the contracts
is against public policy.
[117]
The third and most critical flaw - the approach of the School on the
best interests of DB and EB. The submission on behalf
of the School
that it took the best interests of DB and EB in issue into
consideration is not borne out by the facts. In the letter
of
termination of the contracts and expulsion of DB and EB, Mr Marx
explains why he was supposedly constrained to take this drastic
step.
He cites all the incidents including the incident which AB allegedly
physically threatened a coach hardly a day after he
had made another
undertaking on 27 June 2016 to refrain from unbecoming conduct. In
his answering affidavit, Mr Marx states that
he took the best
interests of DB and EB into consideration. It was argued that, in
terms of the clear provisions of the contracts,
he could have invoked
the summary expulsion stipulation in the light of the repeated
unbecoming conduct of AB. But, he opted to
give the appellants notice
until the end of the year to find alternative accommodation at
another school and that ‘in the
interests only of your sons, I
have instead, in my sole discretion, elected to invoke clause 9.3 of
the Contract.’ This is
so, in my view, because he regarded DB
and EB as model learners.’ He even asked the Chief Director to
give an undertaking,
as the high court observed, that DB and EB will
be accommodated in public schools in their area in the next academic
year. In my
view, contrary to what the high court and my colleague
found in the main judgment at para [31] that ‘…he
(referring
to Mr Marx) said, he had balanced their rights against
those of all other children as well as other stake holders, in coming
to
his decision… ’, in my view, is only his
ipse
dixet
– which is not supported by any other evidence
despite being repeated.
[118]
Reverting to the issue before us, considering that the provision
makes no room for a hearing before a decision to terminate
the
contracts which results in the expulsion of children from the School,
the contracts are manifestly unconstitutional, unfair
and offends
public policy. It would be unlikely even in these circumstances, to
imagine that a society such as ours, protective
of its children,
would approve of a clause in a contract between parents and a school,
which expels a child from a school out of
no wrongdoing on his or her
part but that of their parents. It can never be in the best interests
of a child where the school fails
to use all measures available to
deal decisively with parents, to resort to such unconscionable
intrusion into the right to compulsory
education of a child, under
the guise of the ‘sanctity of a contract’. In the worst
case scenario, even in the law
of contracts the appellants cannot be
heard to have waived the rights of DB and EB to compulsory education
or to be heard on the
basis which is clearly contrary to their best
interests and public policy This Court in
Bafana
Finance Mabopane v Makwakwa
[101]
,Cachalia JA writing for the majority,
albeit
in different circumstances and in the context of a piece of
legislation, stated ‘an agreement whereby a party purports to
waive the benefits conferred upon him or her by statute will be
contra bonos mores, and therefore not enforceable, if it can be
shown
that such agreement would deprive the party of protection which the
legislature considered it should as a matter of policy
be afforded by
law. An agreement is contrary to public policy, according to Wille:
“
. . .if it is
opposed to the interests of the state ,or justice, or of the
public.”’
[119]
For the reasons set out in the preceding paras, clause 9.3 of the
contracts stands to be declared unconstitutional, contrary
to public
policy and unenforceable to the extent that it does not make
provision for a hearing or representations prior to expelling
any
child on the basis of a breach of the contracts on the part of the
parents. The Children’s Act 38 of 2005
[102]
demands this. The Schools Act demands this. The UN Convention on the
Rights of the Child entrenches the right of the child to participate
makes it obligatory on all States Parties to assure to the child that
his or her views shall be given due weight according to the
age and
maturity of the child. The School is left with the option to correct
itself by infusing fair processes into the contract.
This is a
less
restrictive means to achieve the purpose of ensuring that the best
interests of DB and EB in these circumstances are protected
and are
of paramountcy in all matters affecting them.
[120]
Lest I be misunderstood, I appreciate that independent schools
somewhat like public schools emphasise the best interests of
the
schools (s 20(1) of the Schools Act). But they must realise that they
are evolving and not static or insular entities. They
cannot be
cocooned from the fair processes specifically provided for under the
Schools Act which governs them. Nor can they operate
outside the
obligations imposed by the Constitution on any institution, be it
public or private to uphold the best interests of
the child. That is
why the Department of Education and relevant stakeholders including
the National Alliance of Independent Schools
(NAISA), Independent
Schools Association of South Africa (ISASA) which is a member of
NAISA to which the School in this matter
is affiliated, deemed it
necessary to conclude the Rights and Responsibilities of Independent
Schools document which provides guidance
to all parties on how to go
about when they deal with expulsion of learners. Clause 8 thereof
provides that ‘
whenever an independent school seeks to
exclude a learner.
’ I must add in my view, even if it
refers to ‘on the basis of failure to pay fees’- the same
is applicable to
expulsion on any other reason- ‘
a fair
procedure must be followed and the best interests of the child should
always be adhered to.’
(Emphasis added.)
[121]
My colleague in the main judgment holds as the School argued
strenuously that the document is not binding on all the parties
as it
is unsigned and was pulled from the internet the day before the
hearing in the high court. And it is irrelevant to determine
a basis
for public policy. I do not declare that this document is binding on
the parties. Nor do I declare that it is relevant
for the purpose
alluded to. I refer to it to demonstrate the commitment of the
Department of Education and all concerned to strive
to ensure that
the Constitution is not undermined in the process of protecting and
promoting the independence and autonomy of independent
schools –
and that the best interests of the child are promoted and protected
in all matters which affect them, especially
expulsion.
[122]
This is in line with the approach adopted by this Court in
interpreting legislations and contracts in this era as evidenced
in
Malcolm
v Premier, Western Cape Government N.O.
[103]
where it is stated:
‘
There
is obvious sense in this approach when a court is confronted with a
novel situation that could not have been in the contemplation
of the
legislature at the time the legislation was enacted. Courts can then,
in the light of the broad purpose of the legislation,
current social
conditions and technological development, determine whether the new
situation can properly, as a matter of interpretation,
be encompassed
by the language. But, as Lord Bingham pointed out in
Quintavalle
,
by way of example,
they cannot use the
principle to extend legislation relating to dogs to cats, however
desirable such an extension may seem. In other
words the principle
has limits, but subject to that qualification and the case by case
working out of those limits, I see no reason
why, in appropriate
cases, South African courts should not invoke it, particularly in the
light of our present constitutional order
in terms of which statutes
are to be construed in the light of constitutional values.
The
Constitution enjoins us to interpret legislation in accordance with
the spirit, purport and objects of the Bill of Rights. Where
a
previous interpretation of a statute is no longer consistent with
those values then we are obliged to depart from it. In this
case
there are relevant provisions of the Constitution, to some extent
those relating to children, but in particular s 10, which
guarantees
the right to dignity and provides that everyone is entitled to have
their dignity protected and respected. This is a
core value of our
Constitution.’ (Footnotes omitted.)
[123]
In conclusion, the world has changed dramatically in line with
international trends and international instruments on how it
treats
children in matters which affect them. South Africa as a signatory to
many such instruments, in particular the UN Convention
on the Rights
of the Child, is no exception that is why the legislature chose to
use the words of the Convention when it promulgated
the Children’s
Act with reference to the right of the child to be heard in matters
that affect him or her. As the Constitutional
Court held in
Christian
Schools
[104]
in the context of religion, ‘Courts throughout the world have
shown special solicitude for protecting children from what
they have
regarded as the potentially injurious consequences of their parents’
religious practices. It is now widely accepted
that in every matter
concerning the child, the child’s best interests must be of
paramount importance. This Court has recently
reaffirmed the
significance of this right which every child has. The principle is
not excluded in cases where the religious rights
of the parent are
involved. As L’Heureux-Dube J pointed out in the Canadian case
of
P v
S
:
[105]
‘
[I]n ruling on a
child’s best interests, a court is not putting religion on
trial nor its exercise by a parent for himself
or herself, but is
merely examining the way in which the exercise of a given religion by
a parent throughout his or her right to
access affects the child’s
best interests.’
So
too, by analogy, the right of the appellants to conclude contracts
freely with the School are not put on trial in this matter,
but
courts are bound to examine the way in which the exercise of such
freedom to contract with each other affects the best interests
of DB
and EB. Such right cannot trump the best interests of DB and EB in
these circumstances. Simply put, the right to be heard
before any
decision which affects the child is taken, is more precious in the
context of our Constitution than the right to freedom
of contract,
more so when it amounts to expulsion of young learners on no wrong
doing on their part.
[124]
To hold otherwise – in the context of this case and its facts –
the values underpinning our Constitution –
particularly ‘the
best interests of the child’– would be too formalistic
and against the provisions of s 31(2)
of the Constitution which
provides that ‘the rights in subsection (1) may not be
exercised in a manner inconsistent with
any provision of the Bill of
Rights’. It will also not be in line with the constitutional
obligation on courts to develop
the principles of, in this instance,
the law of contract so as to promote the values that underpin our
Constitution as courts are
obligated by the Constitution to do in s
39(2).
[125]
Having found that clause 9.3 of the contracts is not reasonable and
justifiable under s 36(1), I find that the specific clause,
not the
common law principle that agreement are binding (
pacta sunt
servanda
), falls foul of ss 28(2) and 29(1) of the Constitution
as I have interpreted both sections in this judgment, but in
particular
s 28(2).
[126]
In the result, I would have made the following order.
1 The appeal is upheld
with costs, including the costs of two counsel.
B
C Mocumie
Judge
of Appeal
Appearances:
For
Appellant: G Marcus SC (With him C McConnachie)
Instructed
by:
Knowles
Husain Lindsay Inc, Sandton
Lovius
Block, Bloemfontein
For
First to Third Respondents: A E Franklin SC (with him A Bishop)
Instructed
by:
Webber
Wentzel, Johannesburg
Honey
Attorneys, Bloemfontein
For
Fifth Respondent: Instructed by:
Bowman
Gilfillan Inc, Johannesburg
McIntyre
& Van der Post, Bloemfontein
Amicus
Curiae: Equal Education Law Centre, Khayelitsha
Webbers
Attorneys, Bloemfontein
[1]
Clause 9.3 para 7 below.
[2]
AB &
another v Pridwin Preparatory School & others
(38670/2016) [2017] ZAGPJHC 186 (3 July 2017).
[3]
Case CCT 191/17 (30 August 2017).
[4]
It is a matter of concern that against the advice of his own legal
representatives, AB approached Mr Mokoele, after the
high court
had delivered its judgment, and secured his agreement to retract
this allegation. The appellants’ attorneys
then obtained an
affidavit from Mr Mokoela in which he did precisely this. The
affidavit formed part of an application to introduce
further
evidence at the appeal, which included a different version of the
Migliore and Joubert incidents. The evidence pertaining
to the
Migliore and Joubert incidents was not tendered in their replying
affidavits on the advice of their legal representatives,
they say.
The appellants also considered it necessary to change their counsel
shortly before the appeal. However, in a letter
to the registrar
dated 5 September 2018, the appellants’ attorneys informed the
court that: ‘Upon further advice
and in the interests of
justice’ the application to introduce further evidence is
withdrawn. Pursuant thereto a ‘Notice
of Withdrawal’
together with a tender to pay the respondents’ costs was
delivered.
[5]
Judgment fn 2 paras [95]-[97].
[6]
Ibid [98]-[101].
[7]
Barkhuizen
V Napier
[2007] ZACC 5
;
2007
(5) SA 323
(CC) paras 57 and 87.
[8]
Barkhuizen
Ibid
para 28;
Bredenkamp
& others v Standard Bank of South Africa Ltd
2010
(4) SA 468
(SCA) paras 46 and 47.
[9]
Bredenkamp
Ibid
para 47.
[10]
Ibid para 49.
[11]
Sasfin
(Pty) Ltd v Beukes
1989
(1) SA (A) 1 at 9C-D;
Verolin
Spence, et al. v. BMO Trust Company,
2016
CanLII 34005
(SCC) at para 41.This was a judgment of the Court of
Appeal for Ontario in Canada. An application for leave to appeal to
the
Canadian Supreme Court was dismissed. The dispute was over the
disherison by a testator (a black man) of one of his daughters
(Verolin) because she had borne a child from a white man and the
question was whether the disherison was contrary to public policy.
The Court held that it was not.
[12]
Potgieter
& another v Potgieter NO & others
2012
(1) SA 637
(SCA) paras 32-34.
[13]
Director
of Public Prosecutions, Transvaal v Minister of Justice and
Constitutional Development, & others
2009
(4) SA 222
(CC) para 72.
[14]
Ibid para 73.
[15]
S v M
(Centre for Child Law as Amicus Curiae)
[2007] ZACC 18
;
2008
(3) SA 232
(CC) para 26.
[16]
Section 18 of the Constitution says that everyone has the right to
freedom of association.
[17]
C &
others v Department of Health and Social Development, Gauteng &
others
2012
(2) SA 208
(CC) para 27.
[18]
J v
National Director of Public Prosecutions & another
(
Childline
South Africa & others
as
Amici
Curiae
)
2014 (7) BCLR 764
(CC) para 40.
[19]
Centre
for Child Law v Hoërskool Fochville & another
2016
(2) SA 121
(SCA) para 20.
[20]
Christian
Education South Africa v Minister of Education
[2000] ZACC 11
;
2000
(4) SA 757
CC para 53.
[21]
Section 29(3)
(c)
.
[22]
Allpay
Consolidated Investment Holdings (Pty) Ltd & others v Chief
Executive Officer, South African Social Security Agency
& others
2014
(4) SA 179
(CC) para 51-53.
[23]
Compare
KwaZulu-Natal
Joint Liaison Committee v MEC Department of Education, KwaZulu-Natal
& others
2013
(4) SA 202
(CC) paras 39 and 45. The Court held that where the state
pays a subsidy to an independent school, it does so in accordance
with
its duty to fulfil the right to basic education and therefore
attracts a negative duty not to impair the right by removing the
subsidy without hearing the school.
[24]
See the policing function in s 205 of the Constitution read with
read with s 12(1) of the Bill of Rights.
[25]
Section 27(1)
(a)
imposes
an obligation of the state to provide access to health care
services.
[26]
Governing
Body of the Juma Musjid Primary School & others v Essay NO &
others (Centre for Child Law & another as amici
curiae)
2011
(8) BCLR 761
(CC).
[27]
Ibid para 57.
[28]
Ibid para 58.
[29]
Ibid.
[30]
Judgment fn 2 para 43.
[31]
Daniels
v Scribante & another
2017
(4) SA 341
(CC).
[32]
‘
Property
(6) A person or
community whose tenure of land is legally insecure as a result of
past racially discriminatory laws or practices
is entitled, to the
extent provided by an Act of Parliament, either to tenure which is
legally secure or to comparable redress.’
[33]
Section 6
Rights
and duties of occupier
‘
(1)
Subject to the provisions of this Act, an occupier shall have the
right to reside on and use the land on which he or she resided
and
which he or she used on or after 4 February 1997, and to have access
to such services as had been agreed upon with the owner
or person in
charge, whether expressly or tacitly.
(2)
Without prejudice to the generality of the provisions of section 5
and subsection (1), and balanced with the rights of the owner
or
person in charge, an occupier shall have the right-
(a)
to security
of tenure;
. . . .’
Section
13
Effect of order for eviction
‘
(1)
If a court makes an order for eviction in terms of this Act-
(a)
the court
shall order the owner or person in charge to pay compensation for
structures erected and improvements made by the occupier
and any
standing crops planted by the occupier, to the extent that it is
just and equitable with due regard to all relevant factors
. . . .’
[34]
Ibid para 37.
[35]
Ibid para 49.
[36]
Judgment fn 2 para 27.
[37]
See judgment fn 2 paras 29, 30 and 96. See also
Khan
v Ansur NO & others
2009
(3) SA 258
(D) para 32.
[38]
Calibre
Clinical Consultants (Pty) Ltd & another v National Bargaining
Council for the Road Freight Industry & another
2010 (5) SA 457
(SCA) para 38.
[39]
Ibid para 39.
[40]
Ibid.
[41]
Judgment fn 2 para 103.
[42]
Judgment fn 2 para 104.
[43]
Registration and Subsidy of Independent Schools, Notice 2919 of
2013, Gauteng
Provincial
Gazette
No 303, 25 October 2013. This notice was promulgated by the Gauteng
MEC for Education, pursuant to his powers under sections
46(2) and
50(1)
(d)
of the
South African Schools Act 84 of 1996
.
[44]
Calibre
Clinical Consultants (Pty) Ltd & another v National Bargaining
Council for the Road Freight Industry & another
2010 (5) SA 457
(SCA) para 40.
[45]
Cora Hoexter
Administrative
Law in South Africa
2 ed (2012) 4-5.
[46]
Ibid p 5.
[47]
Calibre
Clinical Consultants (Pty) Ltd & another v National Bargaining
Council for the Road Freight Industry & another
2010 (5) SA 457
(SCA) para 40.
[48]
S v M
(Centre for Child Law as Amicus Curiae)
2008
(3) SA 232 (CC).
[49]
Ibid para 18.
[50]
Ibid para 25.
[51]
Moseneke DCJ, Mokgoro J, Ngcobo J, O’Regan J, Skweyiya J and
Van der Westhuizen J, concurred in the judgment of Sachs J.
Nkabinde
J and Navsa AJ concurred in the judgment of Madala J.
[52]
Bato
Star Fishing (Pty) Ltd v Minister of Environmental Affairs
[2004] ZACC 15
;
2004 (4) SA 490
(CC) para 45; See generally Hoexter pp 346-350.
[53]
Judgment fn 2 para 138.
[54]
Judgment fn 2 paras 140-141.
[55]
Case No 38670/2016.
[56]
Ibid paras 10-17.
[57]
Ibid para 34.
[58]
Above para 27.
[59]
See judgment fn 2 para 122.
[60]
Paras 17-26.
[61]
It is appropriate to mention that this argument was made in its
expanded form including reference to judgments of this Court,
the
Constitutional Court and the United Nations Convention on the Rights
of the Child, 1989 only in this Court. Counsel for the
School
diligently responded to this argument in this Court when it was
raised – although maintaining the case for the School
ie
upholding the principle of
pacta
sunt servanda
being a moral principle consistent with the constitutional values
and principles as enunciated in cases such as
Sasfin
(Pty) Ltd vs Beukes
1989
(1) SA 1
(A). The issue was raised by the court and both counsel
addressed this as it happened in
Brooks
and another v National Director of Public Prosecutions
[2017] ZASCA 42
;
2017 (1) SACR 701
(SCA);
[2017] 2 All SA 690
(SCA)
where this Court
mero
motu
raised the issue of ‘the best interests of the children’
which both parties did not raise in the high court or in
their heads
of argument before this Court.
[62]
Bredenkamp
v Standard Bank of South Africa Ltd
[2010]
ZASCA 75; 2010 (4) SA 468 (SCA); 2010 (9) BCLR 892 (SCA); [2010] 4
All SA 113 (SCA).
[63]
Bredenkamp
paras
27-28 and 50-54.
[64]
Everfresh
Market Virginia (Pty) Ltd v Shoprite Checkers (Pty) Ltd
[2011] ZACC 30.
[65]
Article 12 of the United Nations Convention on the Rights of the
Child, 1989.
[66]
Governing
Body of the Juma Musjid Primary School & others v Essay N.O. and
others
[2011] ZACC 13; 2011 (8) BCLR 761 (CC).
[67]
See footnote 2 above.
[68]
S v M
[2007]
ZACC 18
;
2008 (3) SA 232
(CC);
2007 (12) BCLR 1312
(CC) paras 25-26.
[69]
Dale Hutchison & Chris – James Pretorius (eds)
The
Law of Contract in South Africa
2 ed (2012) para 1.8.
[70]
See Brand FDC, ‘
The
role of good faith, equity and fairness in the South African law of
contract: the influence of the common law and the Constitution’
(2009) 126 SALJ 1
at 73 where he makes the point in support of the
doctrine of
pacta
sunt servanda
– that good faith is not an independent basis to invalidate
contracts. This is the position this Court has adopted in the
clearest of terms in a number of its judgments referred to in this
judgment.
[71]
S v
Makwanyane and another
[1995] ZACC 3
;
1995 (6) BCLR 665
;
1995 (3) SA 391
;
[1996] 2 CHRLD
164
;
1995 (2) SACR 1.
[72]
KwaZulu
Natal Joint Liaison Committee v MEC Department of Education, Kwazulu
Natal and others
2013 (4) SA 202 (CC).
[73]
Oxford
Pro Bono Publico of Independent Schools in South Africa
page
10
.
[74]
Noel
Zaal & Ann Skelton ‘
Providing
effective representation for children in a new constitutional era:
Lawyers in the criminal and children’s courts’
(1998) 14 SAJHR 539
at 554.
[75]
Section 3(1) of the Schools Act makes school attendance compulsory
for learners from the age of seven years until the age of
15 years
or until the learner reaches the ninth grade, whichever occurs
first.
[76]
Musjid
para
58.
[77]
See the Mission and Values Statement of Pridwin Independent School.
[78]
C and
others v Department of Health and Social Development, Gauteng and
others
[2012] ZACC 1
;
2012 (2) SA 208
(CC);
2012 (4) BCLR 329
(CC) para 27.
[79]
J
v National Director of Public Prosecutions and another
[2014] ZACC 13
;
2014 (2) SACR 1
(CC);
2014 (7) BCLR 764
(CC) para
40
.
[80]
Christian
Education South Africa v Minister of Education
[2000]
ZACC 11
;
2000 (4) SA 757
;
2000 (10) BCLR 1051
para 53.
[81]
Joseph
and Others v City of Johannesburg and Others
[2009] ZACC 30
;
2010 (3) BCLR 212
(CC);
2010 (4) SA 55
(CC) para 42.
[82]
Centre
for Child Law v The Governing Body of Hoërskool Fochville
[2015] ZASCA 155
;
[2015] 4 All SA 571
(SCA);
2016 (2) SA 121
(SCA)
para 19-25.
[83]
Noel Zaal & Ann Skelton ‘
Providing
effective representation for children in a new constitutional era:
Lawyers in the criminal and children’s courts’
(1998) 14 SAJHR 539
at 554.
[84]
The
Act came into operation on 1 January 1997.
Section 3(1) makes school attendance compulsory for learners from
the age of seven years until the age of 15 years or until the
learner reaches the ninth grade, whichever occurs first:
[85]
Magna
Allloys & Research (SA) (Pty) Ltd v Ellis
1984 (4) SA 874 (A).
[86]
Magna
Alloys
para 893H.
[87]
Maphango
and others v Aengus Lifestyle Properties (Pty) Ltd
[2012] ZACC 2; 2012 (3) SA 531 (CC); 2012 (5) BCLR 449 (CC).
[88]
S
outh
African Forestry Company Ltd v York Timbers Ltd
[2004] ZASCA 72; [2004] 4 All SA 168 (SCA).
[89]
Brisley
v Drotsky
[2002] ZASCA 35.
[90]
Bredenkamp
above
.
[91]
Barkhuizen
para 30.
[92]
Barkhuizen
para 30.
[93]
Barkhuizen
para 51.
[94]
Everfresh
above
para 71.
[95]
The two staged enquiry was recently restated in
Bredenkamp
above para 44.
[96]
Barkhuizen
paras
56, 57 and 58.
[97]
Annexure Q Record Vol 1, page 133.
[98]
Barkhuizen
above.
[99]
The
African Charter on the Rights and Welfare of the Child
,
1990 article 4(1) provides:
‘
In all judicial
or administrative proceedings affecting a child who is capable of
communicating
his/her own views, an opportunity
shall be provided for the views of the child to be heard either
directly or through an impartial
representative as a party to the
proceedings, and those views shall be taken into consideration by
the relevant authority in
accordance with the provisions of
appropriate law.’
[100]
Musjid
above.
[101]
Bafana
Finance Mabopane v Makwakwa and another
[2006]
ZASCA 46
;
2006 (4) SA 581
(SCA);
[2006] 4 All SA 1
(SCA) para 10.
[102]
Sections 10, 14 and 15.
[103]
Malcolm
v Premier, Western Cape Government N.O.
[103]
(207/2013)
[2014] ZASCA 9
;
2014 (3) SA 177
(SCA);
[2014] 2 All SA
251
(SCA) (14 March 2014) para 11-12.
[104]
Christian
Schools
above para 41.
[105]
P v S
4 (1993) SCR 141.