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[2016] ZAKZDHC 17
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Mlawuli v St Francis' College (1102//2016) [2016] ZAKZDHC 17 (20 April 2016)
IN
THE HIGH COURT OF SOUTH AFRICA
KWAZULU-NATAL
LOCAL DIVISION, DURBAN
Case
no: 1102//2016
DATE:
20 APRIL 2016
In
the matter between:
ARTWELL
FRANCIS
MLAWULI
...................................................................................
APPLICANT
And
ST
FRANCIS’
COLLEGE
.............................................................................................
RESPONDENT
(MARIANHILL
SECONDARY INDEPENDENT SCHOOL)
Judgment
PLOOS
VAN AMSTEL
[1]
The applicant’s two sons have been learners at St Francis’
College, near Durban, since 2013. They are currently
in grade 11.
Towards the end of 2015 the applicant was notified by the school that
one of the boys would not be allowed back for
the 2016 academic year.
He seeks an order declaring that decision to be unlawful and
directing the school to admit his son for
the 2016 year. In terms of
an interim order granted on 8 February 2016 the school was directed,
pending the finalisation of this
application, to admit the boy. The
central issue in the case is whether the decision by the school is
reviewable as administrative
action or whether the matter is purely
one of contract.
[2]
The school is an independent school as defined in section 1 of the
South African Schools Act
[1]
.
Admission to the school is on application and in terms of a contract
concluded in respect of each academic year. Provisions of
the
school’s standard contract which are material for present
purposes include the following:
(i)
The learner is enrolled for one academic
year only.
(ii)
If he wishes to be enrolled for the
following year he has to re-apply for admission. His application will
be considered by the school
authorities who may re-accept him at
their entire discretion.
(iii)
If the school is not satisfied with his
attitude or behaviour he may not be re-admitted.
(iv)
The agreement is for a period of one
academic year only and can be terminated by either party giving the
other one term’s
notice or three calendar months, whichever is
the lesser.
[3]
The contract signed by the applicant and his son for the 2015
academic year was in the standard form and contained the terms
to
which I have referred. The stance taken by the school is that it
honoured the contract in respect of the 2015 year but was under
no
obligation to conclude a new contract for the following year.
Although the school maintains that it was not obliged to provide
reasons, Mrs Kuboni, an educator and head of the disciplinary
committee, explains in the answering affidavit that although the
applicant’s son never failed any subjects and did not commit
any act which would warrant expulsion, his attitude at the school
was
surly, disrespectful and disruptive. She says when he was called into
a meeting with her, two other teachers and the applicant
to discuss
his attitude he said he was not happy there and did not want to be at
the school. She emphasises that the school has
a proud academic
record and strives to produce young people with the right attitude.
She said the school authorities felt that
the boy was a negative
influence on the other learners and that they did not want him to
return after the 2015 year. She says the
applicant was notified of
this in November 2015, in good time for him to make arrangements for
his son to be enrolled elsewhere.
[4]
The basis on which the applicant seeks the decision by the school to
be reviewed is that it constituted administrative action
and was
taken in bad faith, arbitrarily and capriciously.
[5]
Administrative action is defined in section 1 of PAJA.
[2]
In the case of a natural or juristic person, other than an organ of
state, it means any decision taken or any failure to take a
decision,
when exercising a public power or performing a public function in
terms of an empowering provision, which adversely affects
the rights
of any person and which has a direct, external legal effect. It was
held in
Khan
[3]
that the officials of an independent school who take administrative
decisions do not exercise a public power, nor do they perform
a
public function. The judgment in
Khan
is binding on me unless I am convinced that it is clearly wrong. It
does not appear to me to be wrong, and accords with the approach
in
Klein
.
[4]
A clear distinction is drawn in the Schools Act
[5]
between public and independent schools. Public schools are provided
by the provincial government out of funds appropriated for
this
purpose by the provincial legislature.
[6]
The professional management of such a school is undertaken by the
principal under the authority of the head of the education
department.
[7]
There are
extensive provisions in the Act regarding the management of public
schools, relating to, inter alia, the admission of
learners
[8]
,
norms and standards for school infrastructure, the capacity of a
school in respect of the number of learners a school can admit
and
the provision of learning and teacher support material,
[9]
language policy,
[10]
a code of
conduct for learners,
[11]
suspension and expulsion,
[12]
the academic performance of the school,
[13]
governing bodies
[14]
, funding
of the school
[15]
and so on.
These provisions do not apply to independent schools. They are not
subject to the supervisory provisions in the Act
to which I have
referred. The only requirement is that an independent school must be
registered by the head of education in the
province.
[16]
He can however not prescribe to the school which learners, or how
many, it should admit.
[6]
It seems plain that the context in which public schools operate is a
public one. They offer education to the public in general.
It is a
public function. The schools are provided by the government and the
educators are employed by it. Independent schools are
different. Such
a school is owned by a private entity. The owner may be a church, a
company, a trust or a private individual. The
motive may be religion,
educational excellence, profit or a combination of these. The
principal and the teachers are employed by
the school and paid by it.
The relationship between the school and its learners is contractual
and the school is not obliged to
accept anyone.
[17]
[7]
The right of the school in the present matter to decline to enter
into a further contract for the following year was expressly
provided
for in the contract. The decision not to conclude a new contract with
the applicant, at a time when the current contract
was about to come
to an end, was to my mind a private matter between the contracting
parties. There is nothing in the contract
which suggests that the
parties intended to incorporate the requirements of administrative
justice into the contract. I conclude
therefore that the provisions
of PAJA find no application in this matter.
[8]
The decision in
Hlongwane
[18]
,
to
which counsel for the applicant referred me, has no application in
this matter. It was decided before PAJA was promulgated, and
what
Galgut J said
[19]
about review
proceedings must be seen in the context of disciplinary proceedings
and a common law review.
[9]
Counsel submitted that the contract in any event required one term’s
notice or three months for its termination. The simple
answer to this
is that the contract was not terminated. It ran its course and the
school declined to enter into a new contract
for the following year.
[10]
Counsel also referred to section 6(2) of the Children’s Act
[20]
and section 29(2) of the Constitution
[21]
,
in support of a submission that a child’s rights, dignity and
best interests are paramount in every matter concerning the
child.
This is so, but in the proper context. These considerations have
nothing to do with a determination as to what contractual
or
administrative rights or remedies a child has.
[11]
It follows that the decision by the school not to admit the
applicant’s son for the 2016 academic year is not reviewable.
The applicant has also not shown that he has any contractual right to
demand that his son be so admitted.
[12]
In the result the rule nisi is discharged with costs, including those
reserved on previous occasions.
PLOOS
VAN AMSTEL J
Appearances:
For
the Applicant : Adv. V Sitram
Instructed
by : Deker Govender
Durban
For
the Respondents : Adv. J W B Wolmarans
Instructed
by : Collingwood Attorneys
Durban
Date
of Hearing : 01 April 2016
Date
of Judgment : 20 April 2016
[1]
South
African Schools Act 84 of 1996
.
[2]
Promotion
of Administrative Justice Act 3 of 2000
.
[3]
Khan
v Ansur NO And Others
2009 (3) SA 258
(D) para 32.
[4]
Klein
v Dainfern College And Another
2006 (3) SA 73
(T) para [30].
[5]
South
African Schools Act 84 of 1996
.
[6]
Section
12(1).
[7]
Section
16(3).
[8]
Section
5.
[9]
Section
5A.
[10]
Section
6.
[11]
Section
8.
[12]
Section
9.
[13]
Section
16A.
[14]
Sections
18
-
32
.
[15]
Sections
34
-
44
.
[16]
Section
46.
[17]
Subject
to its constitutional obligation not to discriminate against anyone.
[18]
Hlongwane
And Others v Rector, St Francis’ College And Others 1989 (3)
SA 318 (D)
[19]
At
323F-G.
[20]
Children’s
Act 38 of 2005.
[21]
Constitution
of the Republic of South Africa 1996.