CONSTITUTIONAL COURT OF SOUTH AFRICA
Case CCT 294/18
In the matter between:
AB First Applicant
CB Second Applicant
and
PRIDWIN PREPARATORY SCHOOL First Respondent
SELWYN MARX N.O. Second Respondent
BOARD OF PRIDWIN PREPARATORY SCHOOL Third Respondent
MEMBER OF THE EXECUTIVE COUNCIL
FOR EDUCATION, GAUTENG Fourth Respondent
INDEPENDENT SCHOOLS ASSOCIATION OF
SOUTHERN AFRICA Fifth Respondent
and
CENTRE FOR CHILD LAW First Amicus Curiae
EQUAL EDUCATION Second Amicus Curiae
Neutral citation: AB and Another v Pridwin Preparatory School and Others
[2020] ZACC 12
Coram: Mogoeng CJ, Cameron J, Froneman J, Jafta J, Khampepe J,
Ledwaba AJ, Madlanga J, Mhlantla J, Nicholls AJ and Theron J
2
Judgments: Nicholls AJ (dissenting): [1] to [96]
Theron J (majority): [97] to [212]
Cameron J and Froneman J (concurring dissent): [213] to [219]
Khampepe J (concurring): [220] to [248]
Heard on: 16 May 2019
Decided on: 17 June 2020
Summary: best interests of the child — right to basic education —
independent school contracts — fair process — appropriate
justification — section 8(2)
ORDER
On appeal from the Supreme Court of Appeal (hearing an appeal from the High Court
of South Africa, Gauteng Local Division, Johannesburg), the following order is made:
1. Leave to appeal is granted.
2. The appeal is upheld and the order of the Supreme Court of Appeal is set
aside.
3. It is declared that the decision by Pridwin Preparatory School to cancel the
Parent Contract is invalid and set aside.
4. Each party is to pay its own costs in this Court, the High Court and the
Supreme Court of Appeal.
JUDGMENT
NICHOLLS AJ (Mogoeng CJ, Cameron J and Froneman J concurring):
NICHOLLS AJ
3
Introduction
Education is central to every child’s development. It is the key to a better life. [1]
It has been eloquently articulated that:
“Literacy is a bridge from misery to hope. It is a tool for daily life in modern society.
It is a bulwark against poverty and a building block of development, an essential
complement to investments in roads, dams, clinics and factories. Literacy is a
platform for democratisation, and a vehicle for the promotion of cultural and national
identity. Especially for girls and women, it is an agent of family health and nutrition.
For everyone, everywhere, literacy is, along with education in general, a basic human
right.”1
As with all socio-economic rights in South Africa, there is an ever-widening [2]
chasm between the standard of education offered to those who are economically
vulnerable and those who enjoy the pinnacle of privilege. At the one end of the
spectrum are the children whose educational choices are defined by poverty. They
have no option other than to attend poorly resourced public schools, some of which do
not have the most basic infrastructure such as toilets. At the other end are the options
of affluence enjoyed by the wealthy. They can attend a variety of world class,
well-resourced independent schools provided they can afford the considerable cost.
This case concerns the latter.
Having said that, it is not insignificant that there is an increasing proliferation [3]
of low-fee independent schools as parents, acutely aware that a good education is a
barometer of a child’s success in adult life, make enormous sacrifices to keep their
children out of the public education system.2 These schools are subsidised by the state
to varying degrees.
1 Kofi Annan’s speech delivered on International Literacy Day 1997.
2 I am indebted to the second amicus curiae (friend of the Court), Equal Education, for its submissions on the
increase on low-paying independent schools.
NICHOLLS AJ
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At the heart of this matter is the determination of the constitutional rights of [4]
children in the private education system and the constitutional obligations of
independent schools towards those children. The issue at stake is what relevance, if
any, do children’s constitutional rights to basic education have on the validity and
enforcement of a private contract between an independent school and a child’s parents
where that contract seeks to regulate the child’s admission to, and attendance at, the
School (Parent Contract). Invariably the Parent Contract contains a clause which
entitles either party to cancel on notice. Is this clause constitutionally valid and, if so,
does its enforcement without affording a child a hearing offend a child’s right to a
basic education and the paramountcy of a child’s best interests?
Before embarking on an analysis, the facts must be set out. They are so [5]
extreme, and the conduct of the applicants so abhorrent, that they could be considered
unique.
Background
The applicants are the parents of two boys who were aged 6 years and 10 years [6]
old when this application was launched. The children, DB and EB, commenced their
schooling at Pridwin Preparatory School (Pridwin or School) in 2012 and 2016
respectively. Pridwin, the first respondent, is a small elite boys’ preparatory school in
Melrose, Johannesburg, and has 445 learners. It is one of the small group of schools
comprising 4% of independent schools that receives no state subsidy at all and is
entirely self-funded. The substantial fees paid by the parents are commensurate with
the quality of education and the lavish amenities it provides.
Mr Selwyn Marx, the headmaster, is the second respondent (headmaster). The [7]
School Board of Pridwin is the third respondent. The Member of the
Executive Council for Education (who has not participated in the proceedings before
this Court) is the fourth respondent and the Independent Schools Association of
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South Africa (ISASA) is the fifth respondent. The Centre for Child Law (CCL) and
Equal Education (EE) have been admitted as amici curiae.
The conclusion of a contract between the School and the parents of each [8]
learner is a prerequisite for admission to Pridwin. The applicants entered into two
identical Parent Contracts with the School in respect of their two boys. Clause 9.3 of
the Parent Contract is the crux of the dispute. It provides:
“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.”
Clause 9.2 is a corresponding clause, which entitles the parents to cancel for [9]
any reason, on one term’s written notice, alternatively on the payment of a full term’s
fees.3 Clause 9.4 provides for the immediate cancellation of the contract by the
School on the grounds of a material breach, which grounds are listed in clause 9.5 and
include acting in a way “that [the parent] or 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”.
3 Clause 9.2 of the Parent Contract provides:
“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. Alternatively, a full term’s fees (including additional fees pro-rated for the
term) is payable to the School in lieu of notice, and as a reasonable cancellation fee taking into
account the nature of the educational services, capacity planning and reasonable potential to
fill the vacancy. Such amount is due and payable on the first day of the term which would
have been the final term if the appropriate notice had been given. Should you have elected to
pay annual school fees or should any additional fees have been paid in advance, those fees
will be credited in proportion to the terms remaining, less any amount payable in lieu of
appropriate notice.”
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What should have been a nurturing and enriching school environment for the [10]
two young boys, their peers and teachers at the School took a nasty turn, almost
entirely as a result of the behaviour of their father, AB, who was aided and abetted by
his wife, CB. There is no suggestion that the two boys were anything but model
learners.
Initially, the applicants’ concern was apparently that their elder son was being [11]
socially isolated and bullied. They requested that he receive preferential treatment.
This concern extended to gross lengths. AB, for instance, came to check the room
temperature in the classroom to ensure that it was appropriate for his son.
Later AB’s primary complaint shifted. Now it was about the standard of sport [12]
at Pridwin. His apparent unshakable conviction was that his children, particularly his
elder son, had exceptional sporting ability, but that this was being stifled because
Pridwin refused to recognise his true potential. This manifested in extreme behaviour;
AB analysed his eldest son’s cricket results to ensure that accurate records were kept
in order to monitor whether due recognition was being given to his son’s
achievements. He insisted that his son was a candidate for the provincial cricket team.
He demanded that the School newsletter be corrected as he did not believe it
accurately recorded the number of runs his son had made in cricket. He regularly
confronted the coaches. He even went so far as to obtain the services of an actuary to
prove that the team selection process was “an absolute farce”.
AB’s grossly intrusive interference was not only confined to cricket. In his [13]
supposed quest for accountability and excellence, he queried the team selections in
soccer. All the while he denied that he was a “pushy” parent. He enrolled his son in a
soccer club with SuperSport and expected that he would be placed in their academy
for gifted players. The under 9 tennis coach was reduced to tears as a result of
exchanges with, and accusations by, AB.
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It seems that the youngest boy was not spared the unrelenting parental pressure [14]
and extremity of conduct – AB informed the headmaster that he had been personally
coaching the young boy in preparation for Pridwin and that he had displayed skills far
beyond his years. AB believed that sporting prowess would turn his children into
successful future businessmen. The headmaster’s suggestion that success in later life
was achieved by a variety of factors including failure, disappointments, support, love
and affirmation, fell on deaf ears.
Predictably, over the years the relationship between AB and Pridwin became [15]
increasingly toxic. This culminated in the headmaster addressing a letter to the
applicants during June 2016, invoking clause 9.3 of the Parent Contract, effectively
terminating the contract and entailing that the two boys’ continued education at
Pridwin came to an end. Rather than the one term’s notice provided for in the clause,
the applicants were given six months as the boys were required to leave the School by
the end of that academic year. What follows are the main incidents that led to this
state of affairs.
On 10 November 2015, while the Pridwin under 9A cricket team was [16]
competing in a cricket festival held at Trinityhouse Preparatory School (Trinity) –
another private school – the headmaster was called by the headmaster of Trinity to
deal with the misconduct of a Pridwin parent, who was, of course, AB. He disputed
the correctness of the Trinity umpire’s decision when his son had been given out. Mr
Mokoele, the Trinity umpire, deposed to an affidavit, expressing his shock at AB’s
aggressive behaviour who told him he had made a mistake by giving his son out and
said: “You fat f***; you don’t respect parents”. With a cricket bat in hand, AB told
Mr Mokoele that he would wait for him after the game and kill him because he did not
show him respect.
The headmaster had to apologise for AB’s behaviour. When confronted, AB [17]
became angry and said that umpires were not gods and that where he came from if an
umpire made a bad decision, they would take a cricket stump out of the ground and
NICHOLLS AJ
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stab him. He told the headmaster that he had connections with the
“Economic Freedom Front” which could easily destroy the School. In reply, AB
denied these allegations. Nevertheless, AB wrote a letter of apology to Mr Mokoele
in which, peculiarly, he concluded by setting out his own sporting history as the
captain of the under 13 and under 16 cricket teams and his student number at Rhodes
University and the University of Cape Town.
In January 2016, as a result of the perceived weakness of the standard of [18]
cricket coaching at Pridwin, AB volunteered his services as coach of the B team. He
offered a donation of R50 000 if the B team he coached could beat Pridwin’s A team,
ostensibly to expose the inadequacy of the coaching. Immediately on his
appointment, acrimony developed between AB and Pridwin’s head of sport,
Mr Joubert. AB’s coaching stint was short-lived, and on the morning of
27 January 2016, after only two and a half weeks, his services as a coach were
terminated.
On the afternoon of the same day, Pridwin’s under 10A cricket team were [19]
playing against a nearby private school, St John’s College (St John’s). During the
game, the umpire gave AB’s son out for being caught behind the wicket. AB
immediately objected to the decision. Another unpleasant scene took place.
According to Pridwin’s coach, Mr Broderick, AB became abusive and called him a
“f***ing s**t coach”. A parent who was present at the game stated that her son had
told her that AB had sat amongst the boys, and, using crude language, criticised the
umpire’s decision and that this had had an adverse effect on her son. He also
undermined and disparaged the performance of the other boys in the team, which was
very distressing for the children.
The following day, 28 January 2016, the headmaster addressed a letter to the [20]
School Board of Pridwin. In it, he indicated his intention to charge AB with
misconduct and to hold a hearing. Before a hearing could take place, the applicants
requested a meeting with the headmaster. This resulted in a settlement being reached.
NICHOLLS AJ
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The applicants indicated their desire to move their boys to St John’s and requested the
headmaster’s assistance in this regard.
AB agreed to certain conditions pending the move. These were that he would [21]
refrain from coaching or offering any advice to any boys during sporting events,
including his own children; not sit with or near the boys at sporting events; refrain
from publicly criticising referees and umpires; and abide by all refereeing and
selection decisions. In return, the headmaster agreed that the boys would not be
victimised and that he would endeavour to assist with securing their placements at
St John’s.
This agreement evidently had little impact on AB. Nevertheless, the [22]
headmaster wrote to St John’s requesting that the two boys be accepted. There is no
suggestion that the boys suffered any victimisation.
The discord between the applicants and Pridwin, particularly Mr Joubert, did [23]
not abate. Relations deteriorated so badly that both parties employed the services of
lawyers – allegations and counter allegations were made. So acute was the suspicion
and mistrust that when the under 10 cricket team was sent to the wrong school to play
a match in March 2016, AB blamed Mr Joubert. Even though Trinity apologised in
writing because the scheduling error was theirs, AB demanded to have access to
Mr Joubert’s telephone records to investigate whether Mr Joubert was lying.
CB, although not directly involved, encouraged her husband’s conduct. She [24]
wrote insultingly to the headmaster that she was “not sure if [Mr Joubert’s] behaviour
emanated from just a low IQ or obvious malice” and that he clearly did not “realise
the calibre of people he is choosing to take on”. At a later stage, she wrote to the
headmaster accusing him of being “a sociopath” and “a narcissist” who had failed her
children.
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The applicants instituted a formal grievance procedure against Mr Joubert and [25]
spuriously requested an independent investigation into “lack of transformation” in
school sports. A meeting was held between the Chairman of the School Board of
Pridwin and CB. The investigation did not proceed as the applicants refused to agree
to the terms of reference.
Matters finally came to a head on 27 June 2016. During that year, the [26]
applicants’ eldest son had been selected for the Soccer SuperSport Gauteng Central
Region team. AB, supposedly suspicious that his son would not be treated fairly when
Pridwin’s soccer trials took place on 21, 23 and 27 June 2016, “offered” for the
SuperSport coach, Mr Mosoana, to attend the trials with him on 27 June 2016.
According to AB, during tea break Mr Mosoana politely approached one of the [27]
coaches, Mr Prinsloo, to discuss the trials. Mr Prinsloo refused to entertain this, and
on AB’s version, was hostile and aggressive. AB claimed that he felt compelled to
intervene and went onto the pitch to confront Mr Prinsloo. Once again the headmaster
had to be called to the scene to deal with AB. The precise details of the altercation are
disputed, but it is common cause that another ugly scene ensued with AB at the centre
of it. Ironically, on that day, AB’s son was not present and did not participate in the
trials as he was ill.
A mother of one of the other boys, who was watching the trials, set out her [28]
observations. On her version, all members of the Pridwin staff conducted themselves
in a placatory manner, in the face of the aggression coming from AB. Despite
Mr Prinsloo’s attempts to divert the attention of the boys, they kept on staring at the
spectacle that was taking place. According to the mother, Pridwin prides itself on
imparting exemplary manners to children and she did not want her son to be exposed
to such inappropriate, disrespectful and aggressive conduct.
This incident was the straw that broke the camel’s back as far as the [29]
headmaster was concerned. On the same afternoon, AB returned to the School after
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dropping off Mr Mosoana and attempted to engage the headmaster. The headmaster
informed AB that his conduct was in breach of the agreement they had reached on
28 January earlier that year and asked him to leave his office.
A few days later on 30 June 2016, the headmaster, after seeking legal advice, [30]
terminated the Parent Contract in terms of clause 9.3.
The parties then entered into correspondence through their attorneys. AB [31]
expressed the view that he should have been afforded a hearing before the decision
was taken. The headmaster’s response was that he was not obliged to do so, as AB
had deliberately flouted the terms of the settlement agreement. In addition, AB’s
representations to the headmaster on the afternoon of 27 June had been rejected. This
decision, said the headmaster, was taken in the best interests of the School – AB’s
conduct had been threatening and intimidating to the staff and damaging to the
reputation of the School. In any event, said the headmaster, the stated intention of the
applicants in January 2016 was to remove their boys from Pridwin.
Litigation history
High Court
On 1 December 2016, almost five months after the headmaster terminated the [32]
contract, the applicants approached the High Court of South Africa, Gauteng Local
Division, Johannesburg (High Court) on an urgent basis. An interim order was sought
entitling the children to remain at Pridwin pending the determination of the main
application. They sought to set aside the headmaster’s cancellation of the Parent
Contract. The High Court granted the interim order.
In the main application that followed, the applicants sought the following [33]
orders:
(a) The decision of the headmaster to cancel the Parent Contract be declared
unconstitutional, unlawful and invalid;
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(b) The decision be reviewed and set aside;
(c) the children be entitled to remain at Pridwin;
(d) The School be precluded from cancelling the Parent Contract subject to
a fair and reasonable procedure being followed;
(e) The notice clause be declared unconstitutional in that it was contrary to
public policy and unenforceable, to the extent that it allowed Pridwin to
cancel the Parent Contract without fair process; and
(f) Costs including the costs of two counsel.
The High Court dismissed the main application.4 The applicants were ordered [34]
to remove their two children from the School by the end of the 2017 academic year.
Until that time, the applicants were ordered to comply with all their obligations in
terms of the Parent Contract.
The High Court upheld the School’s right to cancel the Parent Contract, in [35]
terms of clause 9.3, in accordance with the pacta sunt servanda (agreements must be
honoured) principle.5 As to whether the termination of the contract infringed
section 29(1)(a) of the Constitution, the High Court found this case to be
distinguishable from this Court’s decision in Juma Musjid6 as, unlike Pridwin, the
Juma Musjid Primary School was a public school. In order for the negative obligation
in section 29(1)(a) to be triggered, Pridwin must be exercising private powers for
public purposes.7 Pridwin, unlike low-fee independent schools, is entirely
independent of the state and receives no subsidies from the state. It has no obligation
to provide a basic education. Nor is there any contractual nexus between it and the
state.8 The High Court held that the right to basic education in section 29(1) did not
4 AB v Pridwin Preparatory School [2017] ZAGPJHC 186 (High Court judgment), per Hartford J.
5 Id at para 14.
6 Governing Body of the Juma Musjid Primary School v Essay NO [2011] ZACC 13; 2011 JDR 0343 (CC);
2011 (8) BCLR 761 (CC) (Juma Musjid).
7 High Court judgment above n 4 at paras 18-9 and 25.
8 Id at paras 27-8.
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include the right on the part of a learner to attend a wholly independent school. To
find otherwise would entitle every learner to attend only the best wholly independent
schools.9
With regard to whether the children’s rights in terms of section 28(2) of the [36]
Constitution were infringed, the High Court was satisfied that when the headmaster
terminated the Parent Contract he gave an appropriate degree of consideration to the
best interests of not only the applicants but of all the other 445 learners in the
School.10
After judgment was delivered in the main application, the School approached [37]
the High Court on an urgent basis. It sought an order finding the applicants in
contempt of the order that they should not breach the Parent Contract. The
High Court interdicted and restrained the applicants from acting in breach of the
Parent Contract, specifically from failing to maintain a courteous and constructive
relationship with the headmaster. The incidents which gave rise to this application are
merely further evidence of the irretrievable breakdown in the relationship between the
applicants and the School.
Constitutional Court (2017)
Dissatisfied with the High Court’s decision, the applicants filed an application [38]
for direct access to this Court in 2017 under case number CCT 191/17. On
30 August 2017, the application was dismissed on the grounds that it was not in the
interests of justice to grant leave to appeal at that stage. The applicants then petitioned
the Supreme Court of Appeal, which granted them leave.
9 Id at paras 32-3.
10 Id at para 53.
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Supreme Court of Appeal
On 1 November 2018, a 4-1 majority judgment of the Supreme Court of [39]
Appeal upheld the High Court judgment, concluding that independent schools have no
constitutional duty to afford a hearing in these circumstances.11
The majority noted that it was the School’s business to run a private school to [40]
educate children. This it has done since 1923, embracing the idea that the best
interests of the children are paramount in whatever it does.12 The School quite
properly accepted that it is bound by section 8(2) of the Constitution13 “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.”14 The majority thus found that the headmaster had
considered the best interests of the children when he invoked the termination clause.
He properly balanced the rights of the two children against those of all other children
at the School, as well as those of other stakeholders, in coming to his decision.15
The majority found that Pridwin has no positive duty to provide a basic [41]
education and, therefore, had no constitutional obligation to admit these children into
the School. Nor does it provide a basic education – to find otherwise would lead to
remarkable consequences.16 Instead, Pridwin’s obligations are confined to those set
out in the Parent Contract:
“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
11 AB v Pridwin Preparatory School [2018] ZASCA 150; 2019 (1) SA 327 (SCA) (Supreme Court of Appeal
judgment) per Cachalia JA for the majority. Mocumie JA dissented.
12 Id at para 29.
13 Section 8(2) of the Constitution reads:
“A provision of the Bill of Rights binds a natural or a juristic person if, and to the extent that,
it is applicable, taking into account the nature of the right and the nature of any duty imposed
by the right.”
14 Supreme Court of Appeal judgment above n 11 at para 29.
15 Id at para 31.
16 Id at paras 40 and 42.
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inferior to a public school, it is not providing a basic education as envisaged [in]
section 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. 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 the Parent
Contract”.17
The nub of the majority’s reasoning was that it was not in the best interests of [42]
all concerned for this particular family to remain at Pridwin.18 The provision of basic
education is the state’s obligation and not that of private institutions. Private schools
only have a duty not to unreasonably diminish a learner’s access to an existing
education. Pridwin did not provide a basic education and had done nothing to prevent
the children from obtaining a basic education at one of the three state schools in their
residential area, which would have been obliged to take them.19 Termination clauses
in these kinds of private contracts are not against public policy and not
unconstitutional.20
The dissent held that the appeal should succeed on the basis that the [43]
termination clause is unconstitutional, against public policy and unenforceable to the
extent that it purports to allow the School to terminate the Parent Contract without
following fair procedure and without the views of the affected children being given
due and appropriate consideration.21
17 Id at para 39.
18 Id at para 81.
19 Id at para 44.
20 Id at para 81. The majority judgment summarised what it considered as “clearly established” in contract law
in six propositions. Given that this judgment finds that the majority misperceived the impact of the provisions
of the Bill of Rights on the parties’ contract in this case, it is not necessary to engage with the propositions that
court expounded.
21 Id at para 84.
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The applicants, dissatisfied with the decisions of the High Court and [44]
Supreme Court of Appeal, approached this Court, even though, by now, the boys had
long left Pridwin and were attending another school.
In this Court
The primary issue before this Court is the determination of children’s [45]
constitutional rights in the context of private education. But before that, the applicants
must clear the hurdles of jurisdiction and mootness. The issues before us are thus:
(a) Jurisdiction and leave to appeal;
(b) The constitutional validity of the Parent Contract and the enforcement
thereof; and
(c) Children’s constitutional rights in the context of private education.
Jurisdiction and leave to appeal
Full arguments have been advanced by the parties, including the amici curiae. [46]
There is no dispute between the parties that the constitutionality of the clause is an
important and complex constitutional matter that engages the jurisdiction of this
Court. Both the High Court and the majority of the Supreme Court of Appeal found
that the right to basic education and best interests of the child were not implicated.
The Supreme Court of Appeal’s finding largely insulates non-subsidised independent
schools from constitutional obligations. Whether that is correct is an important
question.
The matter raises important constitutional issues, pertaining to the best interests [47]
of the child and the right to basic education in private schools. The impact of the
enforcement, and thus termination, of the Parent Contract requires interrogation as the
outcome will impact on all independent schools and children attending those schools.
The contractual aspect of this case requires this Court to examine the principles set out
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in Barkhuizen.22 Equally important, the applicants invoke section 8(2) of the
Constitution and call for a direct application of the Bill of Rights to contractual
matters affecting children. As a result, this matter comprises constitutional issues and
raises arguable points of law of general public importance. Therefore, this matter
engages the jurisdiction of this Court in terms of section 167(3)(b) of the
Constitution.23
This takes me to the question of leave to appeal and, particularly, mootness. At [48]
present there is no pending dispute. For all intents and purposes, the applicants’ case
is moot on the facts.
As mentioned above, the boys have since left Pridwin. They now attend [49]
another elite private school. Shortly before the hearing, the applicants indicated that
they did not pursue any relief seeking the children’s reinstatement at Pridwin. They
persist, first, in seeking an order declaring the headmaster’s decision to terminate the
Parent Contract unlawful. Secondly, they seek to declare clause 9.3 unconstitutional,
contrary to public policy and unenforceable to the extent that it purports to allow
Pridwin to cancel the Parent Contract without following a fair procedure and / or
without taking a reasonable decision.
The general principle is that an application is moot when a court’s ruling will [50]
have no direct practical effect.24 Courts exist to determine concrete legal disputes and
22 Barkhuizen v Napier [2007] ZACC 5; 2007 (5) SA 323 (CC); 2007 (7) BCLR 691 (CC).
23 Section 167(3) of the Constitution provides:
“The Constitutional Court—
. . .
(b) may decide—
(i) constitutional matters; and
(ii) any other matter, if the Constitutional Court grants leave to appeal on the
grounds that the matter raises an arguable point of law of general public
importance which ought to be considered by that Court.”
24 Ruta v Minister of Home Affairs [2018] ZACC 52; 2019 (2) SA 329 (CC); 2019 (3) BCLR 383 (CC) at para 7.
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their scarce resources should not be frittered away by entertaining abstract
propositions of law, however engaging. Typically, this Court will not adjudicate an
appeal if it no longer presents an existing or live controversy, and will refrain from
giving advisory opinions on legal questions which are merely abstract, academic or
hypothetical and have no immediate practical effect or result.25 This principle was
recently reiterated in President of the Republic of South Africa.26 There, it was held
that “courts should be loath to fulfil an advisory role, particularly for the benefit of
those who have dependable advice abundantly available to them and in circumstances
where no actual purpose would be served by that decision”.27
But that is not the end of the matter because “mootness is not an absolute bar to [51]
deciding an issue . . . the question is whether the interests of justice require that it be
decided.”28 In class actions or public interest litigation, the decisions pertaining to the
rights contained in the Bill of Rights can have a far-reaching practical effect on many
others.
In Langeberg Municipality, this Court formulated the test for adjudicating a [52]
moot matter in these terms:
“This Court has a discretion to decide issues on appeal even if they no longer present
existing or live controversies. That discretion must be exercised according to what
the interests of justice require. A prerequisite for the exercise of the discretion is that
any order, which this Court may make, will have some practical effect either on the
parties or on others. Other factors that may be relevant will include the nature and
25 National Coalition for Gay and Lesbian Equality v Minister of Home Affairs [1999] ZACC 17; 2000 (2) SA 1
(CC); 2000 (1) BCLR 39 (CC) at para 21 and JT Publishing v Minister of Safety and Security [1996] ZACC 23;
1997 (3) SA 514 (CC); 1996 (12) BCLR 1599 (CC) at para 15.
26 President of the Republic of South Africa v Democratic Alliance [2019] ZACC 35; 2019 JDR 1753 (CC);
2019 (11) BCLR 1403 (CC).
27 Id at para 35.
28 Sebola v Standard Bank of South Africa Ltd [2012] ZACC 11; 2012 (5) SA 142 (CC); 2012 (8) BCLR 785
(CC) at para 32.
NICHOLLS AJ
19
extent of the practical effect that any possible order might have, the importance of the
issue, its complexity and the fullness or otherwise of the argument advanced.”29
The interests of justice test, to determine mootness, has been reiterated several [53]
times by this Court. In POPCRU, it was held that the discretion is based upon a
number of factors which include, but are not limited to, considering whether the order
may have some practical effect, and if so, its nature or importance to the parties or to
others.30 The prospects of success are an additional consideration, which, although
important are not decisive in determining whether it would be in the interests of
justice to adjudicate the matter, notwithstanding its mootness.31
This Court in Pillay32 dealt with a public school that had prohibited a Hindu [54]
girl from wearing a small nose stud. By the time the matter reached this Court, she
had matriculated and left the School. The following factors were identified as being
relevant to whether the matter should be heard: the nature and extent of the practical
effect any possible order may have; the importance and complexity of the issue; the
fullness or otherwise of the arguments advanced; and whether a judgment would
resolve disputes between different courts.33
The Court held that the issue impacted upon Ms Pillay’s religious and cultural [55]
rights and would, in the future, have significant practical effect on the school she had
attended, as well as all other schools across the country. It was therefore held that,
29 Independent Electoral Commission v Langeberg Municipality [2001] ZACC 23; 2001 (3) SA 925 (CC); 2001
(9) BCLR 883 (CC) (Langeberg Municipality) at para 11.
30 POPCRU v SACOSWU [2018] ZACC 24; 2019 (1) SA 73 (CC); 2018 (11) BCLR 1411 (CC) at para 44.
31 Mankayi v AngloGold Ashanti Ltd [2011] ZACC 3; 2011 (3) SA 237 (CC); 2011 (5) BCLR 453 (CC) at
para 20; National Education Health & Allied Workers Union v University of Cape Town [2002] ZACC 27; 2003
(3) SA (1) (CC); 2003 (2) BCLR 154 (CC) at para 25 and S v Boesak [2000] ZACC 25; 2001 (1) SA 912 (CC);
2001 (1) BCLR 36 (CC) at para 12.
32 MEC for Education, Kwazulu-Natal v Pillay [2007] ZACC 21; 2008 (1) SA 474 (CC); 2008 (2) BCLR 99
(CC) (Pillay).
33 Id at para 32.
NICHOLLS AJ
20
even though there was no live issue between the parties, it was in the interests of
justice to grant leave to appeal and that the matter be heard by this Court.34
As independent schools proliferate in South Africa, there is widespread use of [56]
clauses, if not identical, then certainly similar to clause 9.3. These do not impact only
on the elite as in this case, but also upon less affluent parents who, in the hope of a
better education for their children, enrol them in low-fee, state-subsidised independent
schools. Statistics indicate that the majority of independent schools now serve low-
and middle-income children. The demographic shift in the composition shows that
the children who attend these schools are mainly black and female. The impact of a
judgment dealing with these clauses will be far-reaching. It will determine how
independent schools conduct themselves when terminating these types of Parent
Contracts.
The educational rights of children at independent schools and the concomitant [57]
constitutional obligations of these schools goes far beyond the confines of this case.
Indeed, the transient nature of schooling makes the presence of an extant legal issue
by the time the court processes are finalised, a rare occurrence. Accordingly, it is in
the interests of justice that leave should be granted on the issue of the constitutionality
of clause 9.3 of the Parent Contract and its enforceability without following fair
procedure.
However, the order sought to declare the headmaster’s decision to terminate the [58]
Parent Contract invalid, is of an altogether different nature. The children have left the
School. The facts are unique and the likelihood of a termination on similar facts is
extremely remote. A decision on this aspect has no practical effect on the parties
themselves. Nor can it be said that the applicants’ motive for pursuing the litigation is
born of altruism. Their impetuous insistence on litigating to the highest court in the
country was not to vindicate constitutional principles but to settle a score against the
34 Id at para 35.
NICHOLLS AJ
21
School. This is evidenced by the acrimony and vitriol they displayed at every point.
This Court cannot be used to settle scores, instigated and self-created by the parents.
In the light of these particular and extraordinary facts it is therefore, in my [59]
view, not in the interests of justice for this Court to determine whether the
headmaster’s decision to terminate the Parent Contract was invalid. What will have
practical and far-reaching effects is a pronouncement on the constitutionality of
clause 9.3 and the enforcement thereof. To this extent, and to this extent only, it is in
the broader public interest for this Court to make a decision on that point alone, and to
thus grant leave to appeal notwithstanding mootness.
The constitutional validity of clause 9.3
The first question is whether the clause is facially valid without more and, if so, [60]
whether its enforcement should be countenanced in circumstances where the affected
parties are not afforded a hearing. Counsel for the applicants, in this Court as well as
in the Supreme Court of Appeal, stressed that the primary challenge was not to the
validity of the clause on its face, but to the manner in which it was enforced without
affording the parties a hearing.
All contractual agreements between private parties are governed by the [61]
principle of pacta sunt servanda, unless they offend public policy. Where it is alleged
that constitutional values or rights are implicated, public policy must now be
determined by reference to the values embedded in the Constitution, including notions
of fairness, justice and reasonableness.35 The Parent Contract, in particular clause 9.3,
must stand up to scrutiny, based on the test set out in Barkhuizen, where this Court
authoritatively stated that the application of public policy in determining the
unconscionableness of contractual terms and their enforcement must, where
constitutional values or rights are implicated, be done in accordance with notions of
fairness, justice and equity, and reasonableness cannot be separated from public
35 Barkhuizen above n 22 at para 51.
NICHOLLS AJ
22
policy. Public policy takes into consideration the necessity to do simple justice
between individuals and is informed by the concept of ubuntu.36 What public policy
is, and whether a term in a contract is contrary to public policy, must now be
determined by reference to these values. This leaves space for enforcing agreed
bargains (pacta sunt servanda), but at the same time allows courts to decline to
enforce particular contractual terms that are in conflict with public policy, as informed
by constitutional values, even though the parties may have consented to them.37
The majority in the Supreme Court of Appeal found that the right of the School [62]
to enter into contracts, to terminate them freely according to their terms, along with
the freedom to disassociate with whomsoever it wishes should take precedence.38 The
Court reasoned that, since one is dealing with a private power, no right to be heard
arises. Nor can a right to be heard before cancellation be inferred from
section 28(2).39 If this was the case, it would, for example, the Court continued,
oblige a lessor to hold a prior hearing if she wished to terminate a lease where children
were involved. To preclude a party from relying on a breach clause before cancelling
any contract without a hearing on the best interests of the child, would lead to an
absurd result.40
However, this finding fails to account for the peculiar nature of contracts that [63]
seek to impinge upon or regulate the fundamental educational rights of children under
the Constitution. These cannot be equated with standard commercial contracts such as
a lease. Contracts specifically dealing with the education of children are of a different
species in that there are markedly different considerations at stake. While there is
nothing offensive about the clause itself (per se), the enforceability of clause 9.3 and
36 Id.
37 Id at paras 29, 30, 51 and 73.
38 Supreme Court of Appeal judgment above n 11 at para 32.
39 Id at para 37.
40 Id at paras 33-4.
NICHOLLS AJ
23
similar clauses may impact directly upon the educational and other constitutional
rights of children.
The School contends that the Supreme Court of Appeal majority was correct in [64]
holding that independent schools have no constitutional obligation to provide basic
education. Accordingly, except to the limited extent that the child’s best interests are
of paramount importance in every matter concerning the child, the contract between
the School and the parents is a private matter between private contracting parties. As
between the contracting parties, there is no reason to find the notice clause to be
facially against public policy,41 nor would its enforcement without hearing interested
parties be in breach of the general duty of good faith that underlies contracts.42
There is nothing intrinsically unreasonable or unfair in clause 9.3 of the Parent [65]
Contract, the School contends. There is no suggestion that clause 9.3 was not drawn
to the attention of the parents, nor that one term’s notice is an unreasonably short
period of time. The Parent Contract was freely and voluntarily entered into between
persons of equal bargaining power. It cannot be said to fall short of the Barkhuizen
standard.43
The problem here lies not with the facial terms of the contract, but with the [66]
effect of its enforcement — not on the parties to the contract, the parents — but on
their children. Then the question is how do obligations owed to the children by the
School possibly arise? And if there are obligations of this kind, how would that
impact on enforcement of the Parent Contract?
Barkhuizen clearly viewed the constitutionality of a contractual clause through [67]
the prism of public policy. However, where constitutional rights are directly at issue,
41 Barkhuizen above n 22 at para 59.
42 Id at para 80.
43 Id at para 59.
NICHOLLS AJ
24
I do not understand Barkhuizen to inhibit determining the enforceability of a
contractual clause by direct application of the Bill of Rights to private persons in
terms of sections 8(2) and 8(3). Langa CJ in his concurring judgment pointed out that,
to the extent that Ngcobo J’s judgment was authority for the proposition that the only
acceptable challenge to the constitutionality of a contractual term was an indirect
application under section 39(2), he disagreed, stating that:
“While I agree that indirect application may ordinarily be the best manner to address
the problem, I am not convinced that section 8 does not allow for the possibility that
certain rights may apply directly to contractual terms or the common law that
underlies them. Fortunately, I find it unnecessary to decide the matter at this time as,
to my mind, what public policy requires in this case is exactly the same as what a
direct application of section 34 would demand. Indeed, the distinction between direct
and indirect application will seldom be outcome determinative.”44
The crucial issue is then whether independent schools, by providing education [68]
to children, assume constitutional duties and obligations that inhibit the free exercise
of contractual rights. In this matter, these are the best interests of the child as
entrenched in section 28(2) of the Constitution and the right to basic education as
protected in section 29(1)(a) of the Constitution. If independent schools do not have
this duty, the children will have no independent right to expect their constitutional
educational rights to be enforced through inhibiting free exercise of contractual rights.
That the best interests of the child are paramount is accepted and embraced by the
School. But, if a constitutional duty to provide basic education protects also those
children who attend an independent school, may the School evade these obligations by
attempting to contract out of it? To answer that one needs to consider the
Constitution.
44 Id at para 186.
NICHOLLS AJ
25
Children’s constitutional rights in private basic education
Best interests of the child
Section 28(2) of the Constitution provides that “[a] child’s best interests are of [69]
paramount importance in every matter concerning the child”.45 The paramountcy of
the rights of the child has been emphasised by this Court in numerous cases. In
Fitzpatrick, this Court stated:
“The plain meaning of the words clearly indicates that the reach of section 28(2)
cannot be limited to the rights enumerated in section 28(1) and section 28(2) must be
45 Section 28 of the Constitution states:
“(1) Every child has the right—
(a) to a name and a nationality from birth;
(b) to family care or parental care, or to appropriate alternative care when
removed from the family environment;
(c) to basic nutrition, shelter, basic health care services and social services;
(d) to be protected from maltreatment, neglect, abuse or degradation;
(e) to be protected from exploitative labour practices;
(f) not to be required or permitted to perform work or provide services that—
(i) are inappropriate for a person of that child’s age; or
(ii) place at risk the child’s well-being, education, physical or mental
health or spiritual, moral or social development;
(g) not to be detained except as a measure of last resort, in which case, in
addition to the rights a child enjoys under sections 12 and 35, the child may
be detained only for the shortest appropriate period of time, and has the right
to be—
(i) kept separately from detained persons over the age of 18 years; and
(ii) treated in a manner, and kept in conditions, that take account of the child’s
age;
(h) to have a legal practitioner assigned to the child by the state, and at state
expense, in civil proceedings affecting the child, if substantial injustice would
otherwise result; and
(i) not to be used directly in armed conflict, and to be protected in times of
armed conflict.
(2) A child’s best interests are of paramount importance in every matter concerning the
child.
(3) In this section “child” means a person under the age of 18 years.””
NICHOLLS AJ
26
interpreted to extend beyond those provisions. It creates a right that is independent of
those specified in section 28(1).”46
In J, the above dictum from Fitzpatrick was confirmed.47 However, this is not [70]
without its limitations and should not be taken without qualification. The fact that a
child’s best interests are paramount does not mean that those interests are superior to,
and will trump, all other fundamental rights. Otherwise taken literally, it would cover
every field of human endeavour that has some direct or indirect impact on children, as
indeed the Supreme Court of Appeal sought to reason, and it could even be rendered
empty rhetoric. The import of the principle was eloquently articulated in S v M, where
this Court held:
“The paramountcy principle, read with the right to family care, requires that the
interests of children who stand to be affected receive due consideration. It does not
necessitate overriding all other considerations. Rather, it calls for appropriate weight
to be given in each case to a consideration to which the law attaches the highest
value, namely, the interests of children who may be concerned.”48
This Court also held that: [71]
“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 with other rights which might require that their ambit be
limited.”49
There is no dispute that section 28(2) is binding on all schools including [72]
independent schools, and the School accepted as much. The best interests of the child
46 Minister for Welfare and Population Development v Fitzpatrick [2000] ZACC 6; 2000 (3) SA 422 (CC); 2000
(7) BCLR 713(CC) at para 17 (Fitzpatrick).
47 J v National Director of Public Prosecutions [2014] ZACC 1; 2014 (2) SACR 1 (CC); 2014 (7) BCLR 764
(CC) at para 35.
48 S v M [2007] ZACC 18; 2008 (3) SA 232 (CC); 2007 (12) BCLR 1312 (CC) at para 42.
49 Id at para 26.
NICHOLLS AJ
27
provision is both a constitutional principle and a self-standing right.50 The content of
the child’s best interests right is encapsulated in Director of Public Prosecutions,
Transvaal, where this Court held that although it is neither necessary nor desirable to
define the content of the right in section 28(2), the right in that subsection—
“imposes an obligation on all those who make decisions concerning a child to ensure
that the best interests of the child enjoy paramount importance in their decisions.
Section 28(2) provides a benchmark for the treatment and the protection of
children”51
This Court has held that, in other contexts, section 28(2) incorporates a [73]
procedural component affording a right to a fair hearing where the interests of
children are at stake. In C, it was held that the child concerned must be given an
opportunity to make representations to a Children’s Court on whether the removal to a
place of safety is in the child’s best interests.52 The Supreme Court of Appeal
confirmed this in Fochville.53 However, both these cases involved the exercise of a
public power.
Although there are provisions in the Children’s Act54 and international law [74]
instruments55 as to rights of representation of children themselves in matters affecting
50 J above n 47 at para 35.
51 Director of Public Prosecutions, Transvaal v Minister of Justice and Constitutional Development [2009]
ZACC 8; 2009 (4) SA 222 (CC); 2009 (7) BCLR 637 (CC) at para 73.
52 C v Department of Health and Social Development, Gauteng [2012] ZACC 1; 2012 (2) SA 208 (CC); 2012
(4) BCLR 329 (CC) at para 27.
53 Centre for Child Law v The Governing Body of Hoërskool Fochville [2015] ZASCA 155; 2016 (2) SA 121
(SCA) at para 22 (Hoërskool Fochville).
54 38 of 2005. Section 6(3) of Children’s Act states that “[i]f it is in the best interests of the child, the child’s
family must be given the opportunity to express their views in any matter concerning the child.”
Section 10 of the Children’s Act provides:
“Every child that is of such an age, maturity and stage of development as to be able to
participate in any matter concerning that child has the right to participate in an appropriate
way and views expressed by the child must be given due consideration.”
55 For example, see article 12 of the The Convention on the Rights of the Child, United Nations
General Assembly, adopted 20 November 1989 (Convention), which provides:
NICHOLLS AJ
28
them, there is no direct authority that imposes this obligation on independent schools
in relation to the enforcement of Parent Contract with the School.
If the Supreme Court of Appeal is correct that independent schools have no [75]
constitutional educational obligations towards those children attending them, it may
be difficult to locate an obligation under section 28(2) paramountcy alone as the
source of a constitutional right in favour of the children in the contractual arrangement
between the School and the parents. It is thus necessary to examine section 29 of the
Constitution, which deals with education rights, in order to see whether it provides the
source for the constitutional rights of children who attend independent schools and the
constitutional obligations of those independent schools that the applicants contend for.
The right to basic education
The relevant parts of section 29 of the Constitution provide: [76]
“(1) Everyone has the right—
(a) to a basic education, including adult basic education; and
(b) to further education, which the state, through reasonable measures,
must make progressively available and accessible.
(2) . . .
(3) Everyone has the right to establish and maintain, at their own expense,
independent educational institutions that—
(a) do not discriminate on the basis of race;
(b) are registered with the state; and
(c) maintain standards that are not inferior to standards at comparable
public educational institutions.
“1. States Parties shall assure to the child who is capable of forming their own views the right to
express those views freely in all matters affecting the child, the views of the child being given
due weight in accordance with the age and maturity of the child.
2. For this purpose, the child shall in particular be provided the opportunity to be heard
in any judicial and administrative proceedings affecting the child, either directly, or
through a representative or an appropriate body, in a manner consistent with the
procedural rules of national law.”
NICHOLLS AJ
29
(4) Subsection (3) does not preclude state subsidies for independent educational
institutions.”
Clearly, there is no general positive duty on private entities to provide [77]
education, basic or otherwise. Section 29(3) makes it plain that they may establish
and maintain independent educational institutions. And when they do so these
independent educational institutions provide, at least in a literal sense, “education”.
They must maintain standards not inferior to those at comparable public educational
institutions. There is thus nothing textually, either in section 29(1)(a) or section 29(3),
that militates against holding that independent schools established under section 29(3)
assume constitutional education obligations towards those children who are educated
in them.
While it is difficult to establish where the line should be drawn between basic [78]
education and further education, it cannot be disputed that basic education includes
what is commonly known as primary education. Indeed, in Juma Musjid this Court
accepted that education offered from Grades 1 to 9 constituted basic education.56
Here, when the application was launched in 2016, the boys were in Grade R and
Grade 4 respectively. Consequently, Pridwin was offering a basic education, albeit
one of a superior quality than that offered at most public schools.
The School contended, supporting the judgments in its favour by both the [79]
majority of the Supreme Court of Appeal and the High Court, that it does not provide
a “basic education”. What it offers is a superior education to which not every child is
constitutionally entitled. But that is to misconstrue the concept of basic education,
which stands in contradistinction not to a superior education, but to a secondary or
tertiary education.
56 Juma Musjid above n 6 at para 38.
NICHOLLS AJ
30
Accordingly, it is clear that every institution, elite or non-elite, that provides [80]
non-secondary or non-tertiary education is necessarily simultaneously engaged in
providing those attending it a basic education. From a slightly different perspective, a
basic education is also a component of every superior education.
To find that only the state provides a basic education, and that only the state [81]
bears the burden of providing a basic education, is to misconstrue what this Court has
held in Juma Musjid and Kwa-Zulu Natal Joint Liaison Committee.57 In Juma Musjid,
the High Court concluded that the Trust owed no constitutional obligation to the
learners at the school. This Court unequivocally repudiated that conclusion, and
stated that it “was based squarely on pre-constitutional common law principles”.58 It
criticised the High Court for its failure to have “proper regard to section 8(2) of the
Constitution and the impact the eviction would have on the learners’ rights”.59 In the
case before us, there is no eviction, but other breaches of fundamental rights are at
issue. The notion that the School, because it is arguably superior and operates
independently of the state, does not provide basic education, and therefore owes no
constitutional duties of fair consideration to the children for whose education the
parents have contracted with it, errs in the same way.
This is not to suggest that the private conduct of independent schools should be [82]
subject to the Bill of Rights in the same manner and to the same extent as public
institutions. This Court, in Daniels,60 was at pains to draw the distinction between the
positive obligation imposed on the state, which has the public purse at its disposal and
private institutions with limited resources. But independent schools cannot be
enclaves of power immune from constitutional obligations.
57 Kwazulu-Natal Joint Liaison Committee v MEC for Education, Kwazulu-Natal [2013] ZACC 10; 2013 (4) SA
262 (CC); 2013 (6) BCLR 615 (CC).
58 Juma Musjid above n 6 at para 54.
59 Id.
60 Daniels v Scribante [2017] ZACC 13; 2017 (4) SA 341 (CC); 2017 (8) BCLR 949 (CC) at para 40 quoting
Currie and De Waal The Bill of Rights Handbook 6 ed (Juta & Co Ltd, Cape Town 2013) at 50. Currie and De
Waal state that “the state is supposed to be motivated by a concern for the well-being of society as a whole”.
NICHOLLS AJ
31
While the majority of the Supreme Court of Appeal’s did not distinguish Kwa-[83]
Zulu Natal Joint Liaison Committee from this case, the High Court attempted to
distinguish Kwa-Zulu Natal Joint Liaison Committee on the basis that the schools
involved were receiving state subsidies. This implies that a child receives a basic
education only if the state contributes financially.61 On this interpretation, once the
state fails to pay, the children are no longer receiving a basic education. This cannot
be. Whether one receives a basic education depends on the content of the education
provided and not on the financial source providing the means for that education. The
identity of the service provider cannot determine the nature of the service provided.
The Supreme Court of Appeal majority relied on this Court’s decision in [84]
AllPay II62 in support of its conclusion that independent schools do not undertake
constitutional obligations to provide education. The distinction, it held, lies in the fact
that in that case the private entity contracted with the relevant state department to
fulfil its constitutional functions.63 The distinction fails at two levels.
First, the assumption of constitutional obligations does not ultimately depend [85]
on the form by which they are assumed (a contract in the case of AllPay), but on the
volitional nature of the assumption. No private entity is constitutionally obliged to
establish and maintain independent educational institutions. But once a private entity
voluntarily decides to do so, it cannot escape at least some constitutional
responsibilities that the right entails, as the provisions of section 29(3)(a)-(c) explicitly
recognise.
Secondly, the right to basic education contains both positive and negative [86]
obligations. In Juma Musjid, this Court held that the right to basic education is
61 High Court judgment above n 4 at paras 31-3.
62 AllPay Consolidated Investment Holdings (Pty) Ltd v Chief Executive Officer, South African Social Security
Agency [2014] ZACC 42; 2014 (1) SA 604 (CC); 2014 (6) BCLR 461 (CC) (AllPay).
63 Supreme Court of Appeal judgment above n 11 at para 39.
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32
immediately realisable and not subject to an internal limitation requiring it to be
realised only “progressively”.64 While the state has both a positive and a negative
duty to realise the right, private entities, have, at the very least, a negative duty not to
diminish the right. That emerges from Juma Musjid itself, as well as from Daniels.65
No attempt was made by the applicants to argue that independent schools have a
positive obligation. In fact, this was specifically disavowed by counsel for the
applicants.
In the particular circumstances of Juma Musjid, the negative duty was sourced [87]
in section 8(2) of the Constitution:66
“[I]t needs to be stressed however that the purpose of section 8(2) of the Constitution
is not to obstruct private autonomy or to impose on a private party the duties of the
state in protecting the Bill of Rights. It is rather to require private parties not to
interfere with or diminish the enjoyment of a right. Its application also depends on
the ‘intensity of the constitutional right in question, coupled with the potential
invasion of that right which could be occasioned by persons other than the state or
organs of state’.”67
The content of independent schools’ obligations under the Constitution is [88]
circumscribed. It does not extend to a positive duty to continue providing education at
the private institution. But once an independent school provides basic education, it is
then required to ensure that the right to basic education of children attending the
independent school is not negatively infringed. That will occur, for instance, where
no independent opportunity to be heard is afforded before a decision is made to
discontinue that education.
64 Juma Musjid above n 6 at para 37.
65 Id at para 57 and Daniels above n 60 at para 159.
66 Section 8(2) provides:
“A provision of the Bill of Rights binds a natural or a juristic person if, and to the extent that,
it is applicable, taking into account the nature of the right and the nature of any duty imposed
by the right.”
67 Juma Musjid above n 6 at para 58.
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33
Pridwin had a negative duty not to impair and diminish the boys’ right to a [89]
basic education. In addition, there should be no interference with the rights already
enjoyed by the boys except where there is proper justification for that interference.68
In Hoërskool Ermelo,69 this Court dealt with the right of learners to receive education
in a language of their choice at a public school. The test was formulated in these
terms:
“It must follow that when a learner already enjoys the benefit of being taught in an
official language of choice the state bears the negative duty not to take away or
diminish the right without appropriate justification.”70
As it is apparent from Juma Musjid, this test applies even where the [90]
interference with the enjoyment of this right comes from a private person. This stems
from the direct application of the Bill of Rights, which guarantees rights, including
rights of access to education.
Therefore, while Barkhuizen demands that contracts freely and consciously [91]
entered into must be honoured, the contractual autonomy of parties is curtailed when
dealing with the right of basic education and the best interests of the child. In these
instances, the enforcement of the contract must be subject to the constitutional
precepts outlined above because of the direct applicability of rights in the
Bill of Rights. Even if the more general public policy approach is preferred, the result
will effectively be the same: it is against public policy to enforce a contractual claim
that infringes the constitutional rights of children who are not parties to the contract.
68 Id; Jaftha v Schoeman; Van Rooyen v Stoltz [2004] ZACC 25; 2005 (2) SA 140 (CC); 2005 (1) BCLR 78
(CC) at para 33; Minister of Health v Treatment Action Campaign (No 2) [2002] ZACC 15; 2002 (5) SA 721
(CC); 2002 (10) BCLR 1033 (CC) at para 46; and Government of the Republic of South Africa v Grootboom
[2000] ZACC 19; 2001 (1) SA 46 (CC); 2000 (11) BCLR 1169 (CC) at para 34.
69 Head of Department, Mpumalanga Department of Education v Hoërskool Ermelo [2009] ZACC 32; 2010 (2)
SA 415 (CC); 2010 (3) BCLR 177 (CC) (Hoërskool Ermelo).
70 Id at para 52.
NICHOLLS AJ
34
This outcome renders it unnecessary to seek an alternative source for [92]
independent schools’ constitutional education obligations in either the Children’s Act
or Promotion of Administrative Justice Act.71
Conclusion
Schools that provide basic education are under a constitutional duty not to [93]
diminish the right to basic education and at all times to act in the best interests of the
child. In most circumstances, this would entail: alerting the parents involved to the
proposed termination; providing reasons therefor; and affording an opportunity for a
fair and appropriate hearing. Of course, this would entail giving the children
themselves the opportunity to express their views on a matter that concerns them,
where this would be appropriate. In certain circumstances, what would be reasonable
and fair would be to hear their teachers, parents, another intermediary, or even a
collection of the above. However, after a hearing, the best interests of the other
children at the school, or any other relevant consideration, may well prevail.
The constitutional requirement is that there should be both substantive and [94]
procedural fairness before any child is excluded from a school.72 Because the specific
circumstances of this case are moot between the parties, I do not consider it necessary
to deal with that issue. I thus express no views on the factual findings in that regard in
the second judgment.
71 Act 3 of 2000.
72 Process requirements do not only have a functional purpose; they also have intrinsic value. See, albeit in a
different context, Helen Suzman Foundation v Judicial Service Commission [2018] ZACC 8; 2018 (4) SA 1
(CC); 2018 (7) BCLR 763 (CC) at para 158.
Costs
The applicants have won their constitutional point, but it is a Pyrrhic victory. [95]
The exhausting battle they waged against the School became pointless once their sons
were accommodated elsewhere. The primary issue that occupied the High Court and
the Supreme Court of Appeal, namely the children’s entitlement to remain at Pridwin,
NICHOLLS J / THERON J
35
is long since moot. Having found that it is not in the interests of justice to hear this
aspect of the case, there is no justification for awarding costs to the applicants. Their
conduct throughout, even approaching witnesses to change statements made under
oath, militates against any costs order in their favour.
Order
In the result, I would have made the following order: [96]
1. Leave to appeal is granted.
2. It is declared that clause 9.3 of the Parent Contract between the applicants
and the first respondent is 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.
3. It is declared that a child’s basic education should not be terminated without
an appropriate and substantively fair procedure.
4. There is no order as to costs in this Court.
5. The applicants are to pay their own costs in the High Court and the
Supreme Court of Appeal.
THERON J (Jafta J, Khampepe J, Ledwaba AJ, Madlanga J and Mhlantla J
concurring)
Introduction
This application concerns the constitutional rights of the applicants’ children, [97]
two boys, DB and EB, to have their best interests considered paramount in all matters
concerning them and to a basic education. The central question to be considered is
whether it is constitutionally permissible for an independent school to expel children
due to their parents’ alleged misconduct, without following a fair procedure and
without appropriate justification for its decision. DB and EB were learners at Pridwin,
an independent school in Johannesburg. In 2016, they were in grade 4 and grade R
respectively. On 30 June 2016, Pridwin took the unilateral decision to terminate the
THERON J
35
Parent Contract that allowed the children to attend the School.73 This application
concerns the constitutional validity of that decision.
In making the decision to cancel the Parent Contract, Pridwin relied on clause [98]
9.3 of that contract, which provides:
“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.”
The applicants seek orders declaring Pridwin’s decision unconstitutional and [99]
invalid on both procedural and substantive grounds, on the basis that the decision was
in breach of section 28(2) (the best interests of the child standard) and section 29(1)(a)
(the right to basic education) of the Constitution. In the event that this Court finds that
clause 9.3 is not capable of a constitutionally compliant interpretation, they seek an
order declaring clause 9.3 of the Parent Contract unconstitutional, contrary to public
policy and invalid to the extent that it permits cancellation of the Parent Contract
without a fair hearing and on unreasonable grounds that breach children’s rights.
Divergence of approach between the judgments
I have read the comprehensive judgment by my sister, Nicholls AJ [100]
(first judgment). I am regrettably unable to agree with paragraphs 1 and 2 of the
proposed order and the underlying reasoning. The first judgment has carefully set out
the relevant facts in this matter and I gratefully adopt that exposition. I refer to the
facts in this judgment only insofar as is necessary.
73 Like many independent schools, Pridwin requires the parent(s) or guardian(s) of the learners that attend the
school to enter into an agreement that governs the relationship between the school and the parent(s) or
guardian(s) and, to some extent, the relationship between the school and its learners. The Parent Contract is a
precondition for admission of the learners. It establishes, among other things, the standards of conduct that each
of the parties must comply with and the bases on which the relationship may be terminated with the result that
the learners will be required to leave the school.
THERON J
36
The first judgment finds that leave to appeal should be granted in respect of the [101]
constitutionality of clause 9.3 of the Parent Contract and its enforceability without
following a fair procedure.74 This is clearly the public policy challenge. In this Court
and the Supreme Court of Appeal, the attack by the applicants was not that the clause
itself was impugned, but that to enforce it, without a prior hearing or unreasonably,
was contrary to public policy.75
In addressing the public policy challenge,76 the first judgment applies the test [102]
as enunciated in Barkhuizen.77 The first judgment simultaneously favours the direct
application of the Bill of Rights to private persons in terms of sections 8(2) and 8(3) of
the Constitution.78 This represents a novel approach by this Court. The first judgment
appears to have conflated two different approaches.
In this matter, the claim based on public policy is directed, not at upholding the [103]
constitutional rights of the boys, but at the School’s enforcement of the Parent
Contract and the potential invalidity of clause 9.3 of the Parent Contract. This claim
is contractual in nature, even though public policy is based on the values underpinning
the Constitution. It is about the enforcement of a contractual term. The claim relating
to the constitutional validity of the decision to terminate the Parent Contract is
directed at upholding the boys’ constitutional rights. This claim is grounded in
Pridwin’s obligation not to breach the boys’ rights in sections 28(2) and 29(1) of the
74 First judgment at [57].
75 Above n 11 at para 75. Cachalia JA explained:
“I return to the appellants’ public policy challenge to the termination clause
. . .
[Counsel’s] submissions focused 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 First judgment at [60] and [61].
77 Barkhuizen above n 22 at para 51.
78 First judgment at [67] to [68].
THERON J
37
Constitution, which flow directly from the Constitution and operate independently
from the contract. These rights are not dependent on whether the contract was
terminated lawfully or not.
This judgment deals exclusively with the constitutional validity of the decision [104]
to terminate the Parent Contract. I note the valiant attempt by my colleagues
Cameron J and Froneman J in their succinct concurrence (third judgment), to find
common ground between the first and second judgments. I make no comment. The
second judgment will speak for itself in this regard.
This case presents an opportunity to clarify certain aspects of Barkhuizen [105]
relating to direct horizontal application of rights between private parties, as against
their indirect application through public policy. In Barkhuizen, this Court
distinguished clearly between the public policy route and the direct application route.
It stated that the public policy route involves reliance on a fundamental right “for the
purpose of determining the content of public policy” and “as a reflection of public
policy”.79
In Barkhuizen, this Court clarified that the direct application route, on the other [106]
hand, concerns the “direct application of the Bill of Rights to private persons as
contemplated in sections 8(2) and 8(3) of the Constitution.”80 Because it did not
consider and decide the matter in the context of sections 8(2) and (3), this Court then
79 Barkhuizen above n 22 at para 20, where Ngcobo J held:
“Now this argument conflates two different arguments. The first argument is one based on
public policy, namely that clause 5.2.5 is contrary to public policy because it violates the right
of the applicant to seek judicial redress. This argument does not rely directly on section 34 as
a separate and independent ground for attacking the limitation clause. Rather, it relies on
section 34 only for the purposes of determining the content of public policy and demonstrating
that clause 5.2.5 is contrary to public policy. This argument, therefore, relies upon section 34
as a reflection of public policy. The other argument is based directly on section 34. This
argument contends that clause 5.2.5 limits the rights guaranteed in section 34 and considers
whether such limitation is reasonable and justifiable under section 36(1). It is this argument
that was considered and upheld by the High Court but was rejected by the Supreme Court of
Appeal.”
80 Id at para 23.
THERON J
38
considered that the public policy route would generally be appropriate in challenges to
the constitutionality of contractual terms. This is because contractual terms on their
own do not constitute law or conduct for purposes section 172(1)(a) of the
Constitution, nor are they laws of general application that can be subjected to a
limitation analysis under section 36.81 Applying the public policy approach would
then mean that, instead of a section 36 limitations analysis, the validity of the
contractual clause’s content or enforcement will be determined with reference to
public policy as evidenced by constitutional values.82
In my view, there is no need to determine the public policy challenge, which [107]
was argued by the applicants in the alternative. The constitutional obligations
imposed upon Pridwin do not arise from the Parent Contract. They arise directly from
the Constitution and the application of section 8(2). On this approach, and in light of
the outcome reached by applying section 8(2), a decision in respect of the public
policy challenge is rendered superfluous. A challenge based on the direct application
of constitutional rights to the decision of the School is discernible from the pleadings.
That should be the applicable route.
Issues
These are the issues in this matter: [108]
(i) Is it in the interests of justice to hear this application?
(ii) Was Pridwin’s decision unconstitutional due to the failure to afford the
applicants an opportunity to be heard regarding the best interests of the
children, in breach of the requirements of sections 28(2) and 29(1) of the
Constitution?
(iii) Was Pridwin’s decision unconstitutional in that it violated Pridwin’s
obligation not to unreasonably interfere with the children’s basic education,
in breach of sections 28(2) and 29(1) of the Constitution?
81 Id at paras 24-30.
82 Id at para 30.
THERON J
39
Interests of justice
Prior to the hearing of this matter, and in a letter dated 18 March 2019, this [109]
Court was advised that the applicants’ children had left Pridwin and been placed in
another school. Given the change in circumstances, the applicants no longer seek an
order entitling the children to remain at Pridwin, as they did in the High Court and the
Supreme Court of Appeal. The dispute is focused squarely on the constitutional
validity of Pridwin’s decision to terminate the Parent Contract and on whether
Pridwin’s enforcement of clause 9.3 was contrary to public policy.
In these circumstances, has the matter become moot? A matter is moot if it no [110]
longer raises an “existing or live controversy” between the parties, such that this
Court’s order will have no practical effect or result.83 Mootness is not an absolute bar
to the justiciability of an issue. This Court has a discretion to entertain an appeal,
even if moot, where it is in the interests of justice to do so.84 This Court has identified
a number of considerations in answering the question of whether it is in the interests
of justice to hear an appeal that is moot. These include the nature and extent of the
practical effect that any possible order might have and the importance and complexity
of the issue.85
Pillay arose in a similar context to this case. The child at the centre of that [111]
dispute, Sunali Pillay, had already left school by the time the appeal was heard in this
Court. Nevertheless, this Court held that it was in the interests of justice to decide the
matter. Langa CJ, writing for the majority, explained why:
“[T]his matter raises vital questions about the extent of protection afforded to cultural
83 POPCRU above n 30 at paras 43-4 (this was said in the minority judgment of Cachalia AJ, but there was no
dispute over this principle) and National Coalition above n 25 at fn 18. See also Pillay above n 32 at para 32
and Independent Electoral Commission above n 29 at paras 9-11.
84 Independent Electoral Commission id at para 11.
85 Pillay above n 29 at para 32.
THERON J
40
and religious rights in the school setting and possibly beyond.
. . .
The issues are both important and complex. . . . Extensive argument has been
presented, not only from the parties but [also] from three amici curiae. There is
accordingly no doubt that the order, if the matter is heard, will have a significant
practical effect on the school and all other schools in the country, although it will
have no direct impact on Sunali.”86
These considerations apply with equal force in this case. First, it raises [112]
important and complex legal questions about the constitutional rights of learners under
sections 28(2) and 29(1)(a) of the Constitution and the corresponding constitutional
duties of independent schools. Secondly, the relief sought by the applicants will have
broad practical effect. This is because clause 9.3 of the Parent Contract is a generic
clause applied by independent schools across the country. ISASA, a voluntary
association that represents the interests of more than 750 independent schools, and of
which Pridwin is a member, drafted this clause and its members have adopted it,
affecting up to 168 000 learners who attend ISASA schools. The evidence also shows
that the use of this clause has spread beyond ISASA schools. Variants of this clause
have been adopted by comparatively low-fee independent schools serving
disadvantaged communities.
ISASA intervened in the High Court because the relief sought by the applicants [113]
would have far-reaching practical consequences for other schools and learners.
ISASA repeatedly emphasised this point in its founding papers in the High Court:
“ISASA is the author of the Parent Contracts. The potential for far-reaching
consequences arises from the fact that contracts similar to the Parent Contracts are
used in a number of ISASA’s other member schools.
. . .
86 Id at para 35.
THERON J
41
If clause 9.3 of the parents contract is declared invalid and unenforceable, this would
have a direct and material impact upon its enforcement by all of the member schools
of ISASA that have incorporated this provision in their Parents Contract.
. . .
For the reasons set out above, it is clear that any relief granted by this Court . . .
especially with regard to the validity and enforceability of clause 9.3, could
materially prejudice the interests of ISASA and its member schools.”
Thirdly, the precedent set by the High Court and Supreme Court of Appeal [114]
judgments has far broader implications for the rights of learners at independent
schools, which are not confined to Pridwin or the use of clause 9.3. These judgments
also stand in conflict with this Court’s jurisprudence. Recently, in POPCRU, Jafta J
affirmed that it is in the interests of justice to “correct wrong statements of law”, even
where the dispute may have been rendered moot between the parties.87 That need is
amplified by the presence of conflicting judgments.88 As a result, this matter raises
“discrete legal issue[s] of public importance . . . that would affect matters in the future
and on which the adjudication of this Court [is] required”.89
Fourthly, this Court has been presented with extensive argument from the [115]
applicants, as well as Pridwin. In addition, ISASA intervened and was joined as a
party in the High Court. It has actively participated in this matter. Two amici curiae,
the Centre for Child Law and Equal Education, have also participated in these
proceedings.90
Finally, this is the first time that this Court has had an opportunity squarely to [116]
address the rights of learners at independent schools. It is also a rare opportunity, not
87 POPCRU above n 22 at para 81 and the authorities cited at fn 33.
88 AAA Investments (Pty) Ltd v Micro Finance Regulatory Council [2006] ZACC 9; 2007 (1) SA 343 (CC);
2006 (11) BCLR 1255 (CC) at para 27.
89 Hoërskool Fochville above n 53 at para 11 and Qoboshiyane N.O. v Avusa Publishing Eastern Cape (Pty) Ltd
[2012] ZASCA 166; 2013 (3) SA 315 (SCA) at para 5.
THERON J
42
because of the scarcity of rights violations in independent schools, but because of the
difficulties and costs involved in litigating these matters to the appellate and apex
levels. Most parents and learners in the applicants’ situation would not have the
resources to bring a matter before this Court.
In the circumstances, it is in the interests of justice to grant leave to appeal and [117]
adjudicate this matter, even though the children have since left Pridwin.
The horizontal application of constitutional rights
The substance of the applicants’ claim is directed at upholding the [118]
constitutional rights of the boys. The applicants’ founding affidavit in this Court
introduces this matter as one that “concerns the constitutional rights of [their]
children, DB and EB, to have their best interests considered paramount in all matters
concerning them.” The key issue, the applicants contend, is whether it is
“constitutionally permissible for independent schools to expel children . . . without
any prior hearing on the children’s best interests,” notwithstanding the fact that the
school concedes that it is bound by section 28(2). The applicants argue that the
cancellation of the Parent Contract was unconstitutional under sections 28(2) and
29(1)(a) of the Constitution in that the children were denied a hearing (procedural
argument) and the decision was unreasonable (substantive argument).
In the High Court, the applicants sought an order setting aside Pridwin’s [119]
decision as unconstitutional, unlawful and invalid, as well as an order declaring
clause 9.3 of the Parent Contract contrary to public policy to the extent that it
permitted Pridwin to cancel the Parent Contract without following a fair procedure or
taking a reasonable decision. In the Supreme Court of Appeal, the applicants
challenged the procedural fairness and substantive reasonableness of Mr Marx’s
decision under sections 28(2) and 29(1)(a) of the Constitution. They also persisted
90 EE was admitted as an amicus in the High Court, but withdrew from the appeal. It was subsequently admitted
as an amicus in this Court. The CCL was unsuccessful in its application for admission as an amicus in the
THERON J
43
with their public policy challenge in that Court.91
While Pridwin accepts that it is bound by the Constitution, it suggests that the [120]
imposition of constitutional obligations on Pridwin and other independent schools is
extreme or undesirable. This aversion to constitutional obligations is out of step with
section 8(2) of the Constitution and its transformative purpose to improve the lives of
all citizens and undoing the status quo of entrenched inequality and disadvantage in
our society.92
Section 8(2) provides: [121]
“A provision of the Bill of Rights binds a natural or juristic person if, and to the
extent that, it is applicable, taking into account the nature of the right and the nature
of any duty imposed by the right.”
Madlanga J recently explained, extra-curially, the transformative aims of section 8(2):
“If we are to take seriously the transformative injunction of our Constitution to
‘[i]mprove the quality of life of all citizens and free the potential of each person’, then
our private interactions cannot be left out of the reach of those human rights
obligations that may appropriately be borne by private individuals. We cannot take a
business as usual approach and maintain the status quo insofar as our private
interactions are concerned.
. . .
Simply put: if we refuse to impose human rights obligations on private individuals for
fear of interfering with their autonomy, we risk maintaining a perverse status quo
which entrenches a social and economic system that privileges the haves, mainly
white people in the South African context. By imposing certain human rights
obligations on private individuals and companies, we acknowledge that our current
Supreme Court of Appeal, but was admitted as an amicus in this Court.
91 This challenge was dismissed by the Supreme Court of Appeal, as was the challenge to the validity of
clause 9.3 of the Parent Contract.
92 Daniels v Scribante above n 60 at paras 41 and 57 and Residents of Joe Slovo Community, Western Cape v
Thubelisha Homes [2009] ZACC 16; 2010 (3) SA 454 (CC); 2009 (9) BCLR 847 (CC) at para 142.
THERON J
44
social and economic realities have arisen out of our perverted past and cannot be
sanitised.”93
As mentioned, the question of direct application of constitutional rights to [122]
challenge the constitutionality of contractual terms was raised in Barkhuizen. There,
Ngcobo J, writing for the majority, held that the proper approach to constitutional
challenges to contractual terms is to determine whether the term challenged is contrary
to public policy as evidenced by constitutional values.94 However, in this instance, the
applicants direct their challenge not only at the contractual clause, but also at the
School’s infringement of the boys’ constitutional rights as a separate and independent
ground.
In Juma Musjid,95 this Court held that the purpose of section 8(2) was not to [123]
impose the duties of the state in protecting the Bill of Rights on a private party, but
“rather to require private parties not to interfere with or diminish the enjoyment of a
right”.96 It put the matter thus:
“This Court, in Ex Parte Chairperson of the Constitutional Assembly: In re
Certification of the Constitution of the Republic of South Africa, made it clear that
socio-economic rights (like the right to a basic education) may be negatively
protected from improper invasion. Breach of this obligation occurs directly when
there is a failure to respect the right, or indirectly, when there is a failure to prevent
the direct infringement of the right by another or a failure to respect the existing
protection of the right by taking measures that diminish that protection. It needs to be
stressed however that the purpose of section 8(2) of the Constitution is not to obstruct
private autonomy or to impose on a private party the duties of the state in protecting
the Bill of Rights. It is rather to require private parties not to interfere with or
93 Madlanga “The Human Rights Duties of Companies and other Private Actors in South Africa” (2018) 29
Stellenbosch Law Review 359 at 364 and 368.
94 Barkhuizen above n 22 at para 30.
95 Juma Musjid above n 6.
96 Id at paras 57-8.
THERON J
45
diminish the enjoyment of a right.”97
In AllPay II, this Court confirmed that private parties may, in certain [124]
circumstances, assume constitutional obligations.98 This Court held that where a
private entity has performed a constitutional function for a significant period,
considerations of obstructing private autonomy by imposing the duties of the state to
protect constitutional rights on such an entity, do not feature prominently, if at all.99
In AllPay II, this Court held that Cash Paymaster, the entity which administered social
grants in South Africa pursuant to an agreement concluded with the South African
Social Security Agency (SASSA), incurred positive constitutional obligations towards
the beneficiaries of social grants.100
Later, in Daniels,101 this Court clarified that Juma Musjid should not be seen [125]
as espousing the principle that section 8(2) does not envisage that a private party may
bear positive obligations in respect of some rights in the Bill of Rights.102 Madlanga
J, writing for the majority, in considering section 8(2) and the extent of its application,
held that private persons may bear positive obligations under the Bill of Rights. He
reasoned:
“Ultimately, the question is whether – overall – private persons should be bound by
the relevant provision in the Bill of Rights. In the context of that broad formulation,
this question is easy to answer insofar as the right to security of tenure is concerned.
By its very nature the duty imposed by the right to security of tenure, in both the
negative and positive forms, does rest on private persons. People requiring protection
under ESTA more often than not live on land owned by private persons.
Unsurprisingly, that is the premise from which this matter is being litigated. And I
97 Id at para 58.
98 AllPay Consolidated Investment Holdings (Pty) Ltd v Chief Executive Officer, South African Social Security
Agency (No 2) [2014] ZACC 12; 2014 (4) SA 179 (CC); 2014 (6) BCLR 641 (CC) (AllPay II) at para 66.
99 Id.
100 Id.
101 Daniels above n 60.
102 Id at para 46.
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46
dare say the obligation resting, in particular, on an owner is a positive one. A private
person is enjoined by section 25(6) of the Constitution through ESTA to
accommodate another on her or his land. It is so that the obligation is also negative in
the sense that the occupier’s right should not be ‘improperly invaded’.”103
The rights implicated in this matter are located in sections 28(2) and 29(1) of [126]
the Constitution, which are provisions of the Bill of Rights. Section 8(2) makes it
expressly clear that the rights contained in the Bill of Rights can, depending on the
nature of the rights and the duties imposed by it, be applied horizontally to bind
private parties. Thus, section 8(2) imposes constitutional obligations on private
entities, such as Pridwin.
Former Deputy Chief Justice Moseneke, writing extra-curially, discussed the [127]
direct and indirect horizontal application of rights in the Bill of Rights in the context
of the transformative mission of the Constitution in the private sphere.104 He sought
to address what he termed “the troubled question” of “whether, in a dispute between
private parties, courts are obliged to resort to the direct horizontality sanctioned by
sections 8(1) and (2) of the Constitution, or to the indirect horizontality foreshadowed
by section 39(2) of the Constitution.”105
Moseneke recounts the criticisms advanced against this Court’s decision in [128]
Du Plessis,106 in which the majority held that the rights in the interim Constitution did
not have “general direct horizontal application”.107 He states:
“An additional criticism is that if there is no direct horizontal application of
103 Id at para 49. Madlanga J, at para 53, referred with approval to City of Johannesburg Metropolitan
Municipality v Blue Moonlight Properties 39 (Pty) Ltd [2011] ZACC 33; 2012 (2) SA 104 (CC); 2012 (2)
BCLR 150 (CC), where this Court placed a direct and positive obligation on a private party by directing that it
continue to house illegal occupiers who – if evicted immediately – would have been rendered homeless.
104 Moseneke “Transformative Constitutionalism: Its Implications for the Law of Contract” (2009) 20
Stellenbosch Law Review 3.
105 Id at 5.
106 Du Plessis v De Klerk [1996] ZACC 10; 1996 (3) SA 850 (CC); 1996 (5) BCLR 658 (CC).
107 Id at para 62.
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47
fundamental rights, a private party whose rights have been violated by another private
party will be without effective remedy. On this argument, in a historically unequal
society with such severe cleavages of class, gender and race as we have, private
parties and associations continue to wield enormous social and financial power,
which will be immunised from constitutional scrutiny at the expense of those
disadvantaged and marginalised by colonialism and apartheid. The charge is that a
rejection of direct horizontality is at odds with the transformative project of the new
democratic order with overt pursuit of human dignity and equality as much, if not
more than freedom.”108
Our final Constitution expressly recognises the direct horizontal application of [129]
the rights in the Bill of Rights. Moseneke, however, points out that nonetheless courts
often resort to indirect horizontality under section 39(2) of the Constitution – avoiding
direct horizontal application.109 In questioning the appropriateness of this reluctant
approach, he states:
“[T]he Constitution harbours a transformative mission with an altruistic rather than
individualistic hue. The foremost purpose of the change sought by the Constitution is
not only freedom, but also the achievement of equal worth and social justice.
. . .
[P]rivate power cannot be held to be immune from constitutional scrutiny. This is
particularly so, as we have already seen, when private power approximates public
power or has a wide and public impact. But the horizontal application of rights and
values may also be invoked even in a dispute between two private parties with no
public ramification. This must be so because all rights conferred by our Constitution
should be capable of full vindication. Everyone, whether faced with a big corporation
or his or her neighbour only, is entitled to effective relief in the face of an unjustified
invasion of a right expressly or otherwise conferred by the highest law in our land.”110
Certain academics have argued that the avoidance of direct application of the [130]
rights in the Bill of Rights has prevented this Court from giving rights “identifiable
108 Moseneke above n 104 at 7.
109 Id at 8.
110 Id at 12.
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48
content” and has resulted in a Bill of Rights “increasingly denuded of meaning”.111
This Court should not avoid direct horizontal application where it appears to be the
most appropriate means of resolving a constitutional dispute. This depends to some
extent on whether the parties have pleaded their case in a way that demonstrates the
direct applicability of constitutional rights to the impugned conduct. Here, we are
confronted with the constitutional validity of a decision purportedly taken in the
exercise of a power conferred by contract. The challenge to clause 9.3, the contractual
term that ostensibly confers this power, need only be addressed in the event that the
primary challenge to the conduct of the School, in making the decision to expel the
children without following fair procedure and / or without taking a reasonable
decision, does not succeed.
In subjecting private power to constitutional control, section 8(2) recognises [131]
that private interactions have the potential to violate human rights and to perpetuate
inequality and disadvantage. Independent schools, like Pridwin, are not exempt from
constitutional obligations and the demands for transformation of private relations.
Indeed, section 8(2) has particular significance given the expanding role of
independent schools in the South African education system. In 2015, independent
schools catered for approximately 566 195 South African learners. This amounted to
a 40% increase in relation to the number of learners attending independent schools in
the preceding decade. Independent schools no longer only cater to the wealthy. The
independent school sector is now dominated by comparatively low-fee independent
schools, which educate up to 73% of the learners in this sector. This change has been
driven, in large part, by the fact that the public school system is, unfortunately, ailing.
As the Chief Executive Officer of the Anglican Board of Education put it, “there is a
crisis in [South African] education. . . . That is why independent schools are
thriving.” As the power and significance of the independent school sector continues
to grow, so too does the need for constitutional protection. Children should not be
excluded from this protection merely because parental choices or circumstances have
111 Woolman “The Amazing, Vanishing Bill of Rights” (2007) 124 SALJ 762 at 763.
THERON J
49
placed them in independent schools.
Constitutional validity of Pridwin’s decision
In determining the constitutional validity of Pridwin’s decision, regard must be [132]
had to the circumstances surrounding it. Relevant circumstances include, in
particular, the conduct of the applicants, as well as the content, context and purpose of
the implicated constitutional rights.
Conduct of the applicants
In considering the circumstances in which Pridwin decided to terminate the [133]
Parent Contract, it is necessary to deal briefly with the behaviour of the parents. As is
evident from the detailed account contained in the first judgment, the behaviour of the
parents began in October 2015 as obsessive and disturbingly overbearing, burgeoned
into a pattern of persistent and alarming harassment of Pridwin’s staff and culminated
in several serious incidents that veered dangerously close to outright physical
violence. Although most of the events canvassed in the papers were instigated by AB,
the second applicant (CB) appears to have been complicit in AB’s conduct. The
escalating misdeeds of the parents in this matter are astonishing and fall to be
condemned in the strongest possible terms.
So transfixing is the unpleasant montage of parental impropriety that the best [134]
interests of DB and EB – which the parents claim they seek to vindicate – are
momentarily overshadowed. But the misconduct of the parents is, for present
purposes, relevant only in limited aspects. First, it is notable that the incidents
precipitated by AB were, on multiple occasions, observed by other parents and
children at Pridwin. On some occasions, audible disparaging remarks were made by
AB about other children on his sons’ sports teams. Secondly, it is relevant that,
following one particularly unpleasant interaction on 27 January 2016 between AB and
Pridwin’s under-10 cricket coach, Mr Marx sought to hold a formal hearing with AB
and CB, regarding AB’s misconduct. This hearing did not take place. It was pre-
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empted by the parents’ arrival at the School the day after the incident and the
subsequent conclusion of a settlement agreement between the parents and the School,
in terms of which AB agreed to cease certain offending behaviours. Finally, it is
relevant that AB breached this agreement on 27 June 2016. An external soccer coach,
at the invitation of AB, attended Pridwin’s under-10 soccer trials and provided
unsolicited advice to the Pridwin coach. A terse verbal exchange between AB and Mr
Marx in Mr Marx’s office followed as a result of this incident.
Mr Marx dispatched a termination letter to AB and CB on 30 June 2016. In the [135]
letter, he stated that he had exercised his right to invoke clause 9.3 in the interests of
DB and EB. Pridwin extended the notice period for termination under clause 9.3 to
afford the applicants time to find a new school for the children. Mr Marx also wrote a
letter of support for the children’s move to another school.
The next step of the enquiry entails consideration of the affected constitutional [136]
rights.
Section 28(2) of the Constitution
The right of children to have their best interests be of paramount importance in [137]
matters affecting them is a constitutional right enjoyed by every child in South Africa.
Section 28(2) of the Constitution provides that “[a] child’s best interests are of
paramount importance in every matter concerning the child.”
Section 28(2) requires that appropriate weight be given to a child’s best [138]
interests as the consideration to which the law attaches the “highest value” and that the
interests of children be given due consideration112 when different interests are being
considered in order to reach a decision.113 In engaging in this consideration,
112 S v M above n 48 at para 42.
113 Centre for Child Law v Minister for Justice and Constitutional Development [2009] ZACC 18; 2009 (6) SA
632 (CC); 2009 (11) BCLR 1105 (CC) at para 29 and Director of Public Prosecutions, Transvaal v Minister for
Justice and Constitutional Development above n 51 at para 73.
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appropriate weight must be given to the best interests of the child.114 Section 28 must
be interpreted in a manner that promotes the foundational values of human dignity,
equality and freedom.115
The principle of the best interests of the child is one of the four pillars of the [139]
United Nations Convention on the Rights of the Child.116 Article 3(1) of the
Convention provides:
“In all actions concerning children, whether undertaken by public or private social
welfare institutions, courts of law, administrative authorities or legislative bodies, the
best interests of the child shall be a primary consideration.”
The United Nations Committee on the Rights of the Child (Committee) [140]
recognises the child’s best interests as a threefold concept in terms of which it is
considered to be a right, a principle and a rule of procedure.117 The Committee has
described the procedural element of the best interests standard, in the following terms:
“Assessing and determining the best interests of the child require procedural
guarantees. Furthermore, the justification of a decision must show that the right has
been explicitly taken into account.”118
This Court has held that section 28(2) incorporates a procedural component, [141]
affording a right to be heard where the interests of children are at stake.119 This was
made clear in C,120 where this Court dealt with statutory provisions which permitted a
114 S v M above n 48 at para 42 and Centre for Child Law v Media 24 (Pty) Limited [2019] ZACC 46; 2019 JDR
2422 (CC); 2020 (3) BCLR 245 (CC) at para 55.
115 Director of Public Prosecutions, Transvaal above n 51 at para 72.
116 Above n 55. South Africa ratified the Convention on 16 June 1995.
117 United Nations Committee on the Rights of the Child, General Comment No.14 (2013) on the right of a child
to have his or her best interests taken as a primary consideration, adopted 29 May 2013 at page 4 (article 3
para 1).
118 Id.
119 C above n 52.
120 Id.
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child to be removed from his or her parents’ care, but did not afford any automatic
opportunity to make representations. The concurring judgment of Skweyiya J held
that this was impermissible, because section 28(2) required that the family and the
child concerned be afforded an opportunity to make representations:
“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.”121
This Court in J122 confirmed that section 28(2) affords a child or her [142]
representatives “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.”123 In effect, section 28(2) recognises the vulnerability of
children, their special importance in our society and the need for additional protection
for them.124
The “overarching principle” in matters involving children’s rights and interests [143]
121 Id at para 27.
122 J above n 47.
123 Id at para 40. See also Hoërskool Fochville above n 53 at para 19, where the Supreme Court of Appeal held
that children have a right to be heard in matters affecting their interests, either directly or through their
representatives. At para 20, the Supreme Court of Appeal pointedly noted:
“The child’s right to be heard and to have his or her views taken into account, in terms of the
[United Nation Convention on the Rights of the Child] and the [African Charter on the Rights
and Welfare of the Child] , has been recognised as forming part of South African law.”
124 Teddy Bear Clinic for Abused Children v Minister of Justice and Constitutional Development [2013] ZACC
35; 2014 (2) SA 168 (CC); 2013 (12) BCLR 1429 (CC) (Teddy Bear Clinic) at para 1, where Khampepe J
explained:
“Children are precious members of our society and any law that affects them must have due regard to
their vulnerability and their need for guidance. We have a duty to ensure that they receive the support
and assistance that is necessary for their positive growth and development. Indeed, this Court has
recognised that children merit special protection through legislation that guards and enforces their
rights and liberties.”
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is that their best interests must be considered.125 This “overarching principle” has
been codified in the provisions of the Children’s Act.126 Section 10 of the Children’s
Act confers a specific right on children to participate in all decisions affecting them,
taking into account their age, maturity and development.127 Section 6(3) of the
Children’s Act provides for the right of family members to express their views
concerning the interests of children.128 The provisions of section 6 serve as a guide
for “the implementation of all legislation applicable to children” including the
Children’s Act.129
These provisions of the Children’s Act give effect to South Africa’s [144]
international law obligations under the Convention130 and the African Charter on the
Rights and Welfare of the Child,131 which both recognise the rights of children to be
heard, either in person or through representatives, in decisions affecting their interests.
Pridwin did not dispute that it was bound by section 28(2) of the Constitution [145]
to ensure that a child’s best interests are of paramount importance in every matter
125 This principle was recognised by the dissenting judgment of Mocumie J in this matter in the Supreme Court
of Appeal at para 99.
126 Above n 54.
127 Id.
128 Id.
129 Section 6(1)(a) of the Children’s Act.
130 Article 12 of the Convention above n 116 provides, in relevant part:
“1. States Parties shall assure to the child who is capable of forming his or her own views the
right to express those views freely in all matters affecting the child, the views of the child
being given due weight in accordance with the age and maturity of the child.
2. For this purpose, the child shall in particular be provided the opportunity to be heard in
any judicial and administrative proceedings affecting the child, either directly, or through a
representative or an appropriate body, in a manner consistent with the procedural rules of
national law.”
131 Article 4(1) of the African Charter on the Rights and Welfare of the Child reads:
“In all judicial or administrative proceedings affecting a child who is capable of
communicating his [or] 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.”
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concerning the child.132 Both the High Court and the Supreme Court of Appeal
accepted that it was so bound.133 Pridwin, however, argued that the applicants’
reliance on this right cannot exclude the interests and rights of the other children at the
School, the School itself, its staff members, parents and Board. Pridwin disputed that
its enforcement of clause 9.3 undermined the values espoused by section 28(2) of the
Constitution: it was, it contended, required to act in the best interests of all the
children, not only EB and DB.
The appropriate enquiry in relation to the duty in section 28(2) is whether [146]
Pridwin sufficiently considered the best interests of the affected children when it took
the decision to terminate the Parent Contract. A determination of what is in the best
interests of children in a particular instance is a balancing exercise, to be undertaken
in light of all relevant factors.134
Pridwin, being bound by section 28(2) of the Constitution, was required to [147]
accord the best interests of DB and EB paramount importance. Once this was so, it is
unclear how Pridwin could justify a decision not to afford the applicants an
opportunity to make representations on whether cancellation would be in the best
interests of DB and EB and how best to safeguard their interests.
Once Pridwin decided to terminate the Parent Contract, which decision – to put [148]
it at its lowest – had a profound effect on the rights and interests of DB and EB, it was
required, at least, to give AB and CB a fair opportunity to be heard on whether the
decision was in the best interests of the children. In particular, it ought to have sought
132 Supreme Court of Appeal judgment above n 11 at para 29.
133 High Court judgment above n 4 at paras 52–3 and Supreme Court of Appeal judgment id at paras 8 and 29.
134 In S v M above n 48, this Court emphasised at para 24 that—
“it is precisely the contextual nature and inherent flexibility of section 28 that constitutes the source of
its strength . . . . A truly principled child-centred approach requires a close and individualised
examination of the precise real-life situation of the particular child involved. To apply a pre-
determined formula for the sake of certainty, irrespective of the circumstances, would in fact be
contrary to the best interests of the child concerned.”
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representations on whether termination was consistent with the rights and best
interests of the children and how best to protect their interests. DB and EB also had a
self-standing right to have their views heard on this issue, either in person or through a
representative.135
The applicants accepted that this Court is not called upon to decide that there is [149]
a right to an oral hearing on the children’s best interests in every instance where a
decision is made to terminate the Parent Contract. All that need be determined is
whether Pridwin and other independent schools are subject to the constitutional
obligation in section 28(2) to give due consideration to the best interests of the child
when deciding to terminate a child’s schooling, given the potential impact of such
decisions on children’s rights.
The majority judgment of the Supreme Court of Appeal, ostensibly referring to [150]
an oral hearing, also concluded that there is no general right to a hearing. It held that a
court is required 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 section 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.”136
The Supreme Court of Appeal emphasised the right to a hearing, reasoning that [151]
a failure to allow for a hearing is not contemporaneous with a failure to consider the
135 Id paras 18-9 and 30, which read:
“If a child is to be constitutionally imagined as an individual with a distinctive personality, and not
merely as a miniature adult waiting to reach full size, he or she cannot be treated as a mere extension of
his or her parents. . . . Individually and collectively all children have the right to express themselves as
independent social beings
. . .
The tart reply of the amicus was that a child of a primary caregiver is not a ‘circumstance’, but an
individual whose interests needed to be considered independently”.
136 Supreme Court of Appeal judgment above n 11 at para 30.
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best interests of the child. Read in the context of the judgment, this reasoning seems
to contemplate an oral hearing. The focus on the right to a hearing creates a
misnomer, in that the right to a hearing has been conflated with the procedural
component of section 28(2), which dictates that whenever a decision is taken
concerning children, a fair and determinable process must be followed. This may not
amount to an oral hearing. In this case, the application of section 28(2) required
Pridwin to solicit representations on the best interests of EB and DB and to consider
these representations before making a final decision to exclude EB and DB.
Pridwin failed to explain the process it undertook to determine what was in the [152]
best interests of the children. Mocumie JA, in her dissenting judgment in the Supreme
Court of Appeal dealt with this failure:
“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
longstanding and prestigious reputation of the School in the context of the
circumstances prevailing at the time. It is only his ipse dixit [unverified statement]
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 being
undertaken?”137
There is no general requirement for an oral hearing, in that section 28(2) does [153]
not specifically create an obligation for an oral hearing. In the context of this matter,
section 28(2) requires that a fair process be followed by an independent school when it
takes a decision that affects the rights of children to a basic education. A
determination of what is in the best interests of a child, as provided for in
137 Id at para 100.
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section 28(2), cannot be conducted in a discretionary and abstract manner. A mere
statement by Pridwin that a balancing of rights has been undertaken is insufficient and
does not satisfy the obligations created by the section. That the best interests of the
children have been given due consideration should be objectively evident. This is not
evident in this matter.
Section 29 of the Constitution
Section 29(1)(a) of the Constitution provides that “everyone has the right to a [154]
basic education”. Section 29(1)(a) is an overarching right to basic education that
applies to all persons. This Court has held that the right to a basic education is
enjoyed by children at public and independent schools alike.138
Section 29(3) of the Constitution grants “everyone” the right to establish and [155]
maintain independent schools. It provides, in relevant part:
“Everyone has the right to establish and maintain, at their own expense, independent
educational institutions that –
(a) do not discriminate on the basis of race;
(b) are registered with the state; and
(c) maintain standards that are not inferior to standards at comparable public
educational institutions.”
The right in section 29(3) is both a defensive and permissive right. Speaking of [156]
its predecessor, this Court stated that it “guarantees a freedom . . . to establish
educational institutions . . . A person can invoke the protection of the Court where
that freedom is threatened”.139 In this form, the right is defensive. It is also
permissive in the sense that it permits all persons to establish and maintain
independent education institutions. That which the independent educational
138 KwaZulu Natal Joint Liaison Committee above n 57 at para 47.
139 Ex Parte Gauteng Provincial Legislature: In re Dispute Concerning the Constitutionality of the Gauteng
School Education Bill of 1995 [1996] ZACC 4, 1996 (3) SA 165 (CC), 1996 (4) BCLR 537 (Gauteng Provincial
Legislature) at para 9.
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institutions must provide is basic education as enunciated in section 29(1). The state
has a negative obligation not to interfere with the enjoyment of the right to establish
an independent educational institution where that institution meets the grounds set out
in sub-sections (a) to (c) of section 29(3).
The rights set out in section 29 are not mutually exclusive; to the contrary, [157]
within the private education sphere, they are cooperative. Section 29(1)(a) speaks to
the right of children to be educated and section 29(3) speaks to the freedom given to
independent schools to provide education. In providing that education, independent
schools are to fulfil their negative obligation in terms of section 29(1)(a) and not
obviate children’s rights to basic education. In terms of section 29(3), they also
assume a positive obligation, upon establishment of an independent school, to
maintain standards not inferior to that of comparable public schools.
This Court dealt extensively with the ambit of the right to basic education in [158]
Juma Musjid, noting that it is fundamental for the transformation of our society.140
This Court emphasised the significance of the right in our overall constitutional
scheme:
“Basic education provides a foundation for a child’s lifetime learning and work
opportunities. To this end, access to school – an important component of the right to
a basic education guaranteed to everyone by section 29(1)(a) of the Constitution – is a
necessary condition for the achievement of this right.”141
The majority of the Supreme Court of Appeal held that Pridwin was not [159]
providing a basic education as envisaged by section 29(1)(a). It concluded that this is
an obligation imposed on the state and that a non-subsidised independent school has
no positive or negative obligations.142
140 Juma Musjid above n 6 at paras 37-44.
141 Id at para 43.
142 Supreme Court of Appeal judgment above n 11 at paras 38-40.
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What is a basic education? Article 26 of the Universal Declaration of Human [160]
Rights (UDHR) provides for compulsory elementary education.143 The UDHR was
followed, more than 40 years later, by the World Declaration on Education for All.144
It is in the World Declaration that there was a shift away from the use of the term
“primary” or “elementary” education to the term “basic education” instead. Article 1
of the World Declaration states:
“Every person – child, youth and adult – shall be able to benefit from educational
opportunities designed to meet their basic learning needs. These needs comprise both
essential learning tools (such as literacy, oral expression, numeracy, and problem
solving) and the basic learning content (such as knowledge, skills, values, and
attitudes) required by human beings to be able to survive, to develop their full
capacities, to live and work in dignity, to participate fully in development, to improve
the quality of their lives, to make informed decisions, and to continue learning. The
scope of basic learning needs and how they should be met varies with individual
countries and cultures, and inevitably, changes with the passage of time.
Basic education is more than an end in itself. It is the foundation for lifelong learning
and human development on which countries may build, systematically, further levels
and types of education and training.”
The term “basic education” was first introduced through section 32 of the [161]
interim Constitution.145 In 1995, the Ministry of Education released the White Paper
143 The Universal Declaration of Human Rights (10 December 1948) at Article 26(1) states:
“Everyone has the right to education. Education shall be free, at least in the elementary and
fundamental stages. Elementary education shall be compulsory. Technical and professional
education shall be made generally available and higher education shall be equally accessible
to all on the basis of merit.”
144 United Nations Educational, Scientific and Cultural Organization World Declaration on Education for All,
1990 (World Declaration).
145 Section 32 reads:
“Every person shall have the right –
(a) to basic education and to equal access to educational institutions;
(b) to instruction in the language of his or her choice where this is reasonably
practicable;
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on Education and Training which sought to grapple with the term “basic
education”.146 The White Paper notes:
“The right to basic education accorded in section 32(a) [of the Interim Constitution]
applies to all persons, that is to all children, youth and adults. Basic education is thus
a legal entitlement to which every person has a claim”.147
The White Paper goes on to cite the definition of basic education set out in the [162]
World Declaration and endorses this definition. It states:
“Basic education must be defined in terms of learning needs appropriate to the age
and experience of the learner, whether child, youth or adult, men or women, workers,
work seekers or self-employed. Basic education programmes should therefore be
flexible, developmental, and targeted at the specific requirements of particular
learning audiences or groups, and should provide access to a nationally recognised
qualification or qualifications.”148
In Juma Musjid, this Court echoed the World Declaration’s description in [163]
describing the purpose of a basic education:
“[B]asic education is an important socio-economic right directed, among other things,
at promoting and developing a child’s personality, talents and mental and physical
abilities to his or her fullest potential. Basic education also provides a foundation for
a child’s lifetime learning and work opportunities.”149
It is clear from this analysis that the term “basic education”150 refers primarily [164]
(c) to establish, where practicable, educational institutions based on a common
culture, language or religion, provided that there shall be no discrimination
on the ground of race.”
146 Department of Education White Paper on Education and Training (March 1995) (White paper).
147 Id, Chapter 7 at para 11.
148 Id at para 14.
149 Juma Musjid above n 6 at para 43.
150 In Churr “Realisation of a Child's Right to a Basic Education in the South African School System:
Some Lessons from Germany” (2015) 18 PER 7, Churr explains the term basic as:
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to the content of the right to education. On this understanding of the term, children
attending non-subsidised independent schools are undoubtedly receiving and enjoying
a basic education. The quality of the education may, at times, extend beyond what
section 29(1)(a) requires from the state. But that does not mean that children stop
receiving a basic education the moment they enrol at these independent schools, nor
do they lose constitutional protection against unjustified interferences with their
education while they remain at these schools.
In Gauteng Provincial Legislature, Mahomed DP acknowledged that the [165]
education offered at independent schools may extend beyond a basic education as
envisaged in section 29(1).151 He held that section 29(3) of the Constitution serves an
important societal purpose:
“The object of [the provision] is to make clear that while every person has a right to
basic education through instruction in the language of his or her choice, those persons
who want more than [a basic education] and wish to have educational institutions
based on a special culture, language or religion which is common, have the freedom
to set up such institutions based on that commonality.”152
In its broadest and most general sense, the term “basic education” pertains to [166]
the legal entitlement to having one’s basic learning needs met. Whether those basic
learning needs are met by the state or an independent school is a separate and distinct
issue. The Supreme Court of Appeal’s finding that Pridwin was not providing a basic
education as envisaged by section 29(1)(a) and had no obligations in respect thereof
conflates the content of the right to basic education with the obligation to provide
basic education.
“[A] flexible concept which must be defined so as to meet the ‘learning needs appropriate to
the age and experience of the learner, whether child, youth or adult . . .’ and should also
provide access to nationally recognised qualifications.”
151 Gauteng Provincial Legislature above n 139.
152 Id at para 8.
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Pridwin’s constitutional obligations are reinforced by section 29(3)(c). At the [167]
very least, that section requires independent schools to provide a basic education,
which is not inferior to that offered at comparable public schools, to learners who
attend their schools and not to diminish the standards of that education while the
learners remain at the School. Sections 29(1)(a) and 29(3)(c) are therefore intertwined
and mutually reinforcing provisions, rather than being bifurcated standards, as Pridwin
contends.
The applicants do not submit that independent schools have a positive [168]
obligation to provide a basic education to all children in South Africa. Rather, they
claim that when a child attends an independent school, that school is indeed providing
the basic education to which the child is constitutionally entitled in terms of
section 29(1)(a). They argue that, while a child attends Pridwin, the School is, at the
very least, under a negative duty not to unreasonably impair or diminish the child’s
ongoing education.
The School parties, (Pridwin, the Board of Pridwin Preparatory School and [169]
ISASA) on the other hand, argue that there are material flaws in the applicants’
argument that Pridwin is providing a basic education and fulfilling a constitutional
duty in doing so. They submit that such a finding would necessarily imply that, for
example, a doctor in private practice likewise discharges a state function. Independent
educational institutions, according to the School parties, have nothing to do with
section 29(1): rather, their constitutional locus is section 29(3), which expressly
provides for independent educational institutions, distinct from those of the state. This
argument found favour with the majority at the Supreme Court of Appeal which held:
“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, it is not providing a basic education as envisaged in
section 29(1)(a). It would only be doing so if it was contracted by the state for this
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purpose, as explained in Allpay v SASSA. It would then be under a positive duty to do
so because it was performing a constitutional function.”153
The School parties’ submissions proceed primarily from the ill-conceived [170]
premise that the right to a basic education in section 29(1) may only be fulfilled by a
party that bears a positive obligation to do so – the state. It is on this basis that they
contend that—
“were Pridwin to be providing a basic education, as that concept is to be understood
in terms of section 29(1)(a), then the termination of the Parent Contracts would be an
infringement of DB’s and EB’s direct right to basic education, not one which is only
negatively protectable against the school. . . . It is clear from case authority that
interference with a negatively protectable right occurs where the wrong-doing party is
not itself under the obligation to provide the service (here, the provision of a basic
education)”.
The School parties accept that section 8(2) of the Constitution may impose a [171]
negative obligation on private parties, requiring them not to interfere with, or diminish
the enjoyment of a right. They also accept that breach of this obligation would occur
wherever the existing right is unjustifiably diminished. However, they argue that
there has been no diminishment in this instance:
“Nothing that Pridwin has done has in any way prevented DB and EB from obtaining
‘a basic education’ from a public school. There has been no infringement, direct or
indirect, of that right. There has been no failure to respect that right by Mr Marx, the
school or the Board.”
The Supreme Court of Appeal accepted that Pridwin had not diminished the [172]
boys’ enjoyment of the right to a basic education. It reasoned:
153 Supreme Court of Appeal judgment above n 11 at para 39.
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“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. 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. There has
simply been no breach of the right, in any way.”154
I now deal with each of the arguments, as well as the reasoning of the majority [173]
in the Supreme Court of Appeal.
In Juma Musjid, this Court squarely addressed the constitutional obligations [174]
placed on private entities to respect the right to a basic education. There, a private
trust had permitted the establishment of a public primary school on its private land.
No proper agreement was concluded between the trustees and the Department, as
required by the relevant legislation, and the trust was not being paid for the use of the
land. The trust subsequently indicated to the provincial Member of the Executive
Council for Education that it intended to establish a private school on the land and
sought to terminate the Department’s right of occupation, invoking the rei
vindicatio.155 This Court emphatically rejected the finding by the High Court that the
trust bore no constitutional obligations in relation to the affected learners’ rights to a
basic education. It held that the trust had a negative constitutional obligation not to
impair the learners' right to a basic education.”156 It explained:
“[S]ocio-economic rights (like the right to a basic education) may be negatively
protected from improper invasion. Breach of this obligation occurs directly when
there is a failure to respect the right, or indirectly, when there is a failure to prevent
the direct infringement of the right by another or a failure to respect the existing
154 Id at para 44.
155 The rei vindicatio is a legal remedy available to a lawful owner who has been deprived of his or her property
without consent and who wishes to recover it from the possession of another.
156 Juma Musjid above n 6 at para 60.
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protection of the right by taking measures that diminish that protection.”157
The majority of the Supreme Court of Appeal relied on Juma Musjid in [175]
reaching the conclusion that Pridwin had not interfered with or diminished the boys’
enjoyment of the right to a basic education. It reasoned:
“The Trust, like Pridwin, had no positive obligation to provide a basic education; that
duty, as I have said, rests on the State. There was no constitutional obligation on
Pridwin to admit the appellants' children. The children also had no constitutional
right to attend [Pridwin]. 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.”158
The boys’ attendance at Pridwin was a result of the agreement concluded [176]
between the parents and Pridwin, as reflected in the Parent Contract. However, the
boys’ enjoyment of the right to a basic education flows directly from the Constitution.
The Supreme Court of Appeal is correct in concluding that EB and DB’s right to
remain at Pridwin, specifically, flowed from the Parent Contract.159 However, this
does not absolve Pridwin from its negative constitutional obligations in relation to
EB’s and DB’s right to a basic education. The right to a basic education is
independent of the contract and arises as a result of the fact that EB and DB were, at
the time, receiving a basic education.
For this reason, the Supreme Court of Appeal’s reliance on the ratio in [177]
Juma Musjid is misplaced.160 The Supreme Court of Appeal finds that Juma Musjid
supports the conclusion that “interference with a negatively protectable right occurs
when the wrong-doing party is not itself under an obligation to provide the service –
157 Id at paras 57-60.
158 Id at para 42.
159 Id.
160 Id at paras 41-4.
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basic education here – but its actions indirectly have that effect.”161 In Juma Musjid, a
private trust’s conduct negatively impacted upon a school’s duty to provide a basic
education to its learners. The Supreme Court of Appeal found that Pridwin, by
contrast, had no constitutional duty to provide a basic education to its learners and that
the termination of the Parent Contract could not have diminished the right to a basic
education. The premise that Pridwin cannot provide a basic education unless it has a
positive constitutional duty to do so is misconceived. It is true that neither Pridwin,
nor the private trust in Juma Musjid, were compelled to provide a basic education.
Notwithstanding this, Pridwin did provide EB and DB with a basic education.
Pridwin contends that it cannot be subject to constitutional duties in terms of [178]
section 29(1)(a) in the absence of a subsidy or some other contractual link with the
state. As noted above, this argument found favour with the majority in the
Supreme Court of Appeal.162 The Supreme Court of Appeal may be correct that a
private entity, upon conclusion of a contract with the state, would assume a positive
obligation under section 29(1)(a) to provide a basic education. No such contract exists
here. However, the reasoning of the Supreme Court of Appeal, which is based on that
advanced by Pridwin, proceeds from a flawed premise. It is not the case that the
positive duty to provide a basic education borne by the state under section 29(1)(a)
excludes the possibility of a basic education being provided by any other entity. In
this case, the other entity is Pridwin. Pridwin does not have to step into the shoes of
the state in order to provide a basic education. And the state does not cease to provide
basic education due to the operation of independent schools like Pridwin. As
mentioned, the question whether education is “basic education” for purposes of
section 29(1)(a) is determined with reference to the curriculum. Neither the entity
providing the education, nor the source of that entity’s obligation to provide education
– if any – to do so, is relevant to that determination. The finding by the Supreme
Court of Appeal on this score erroneously conflates the content of basic education
161 Id at para 41.
162 See [169].
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with the duty to provide it. Pridwin, like other independent schools, provides a basic
education despite the fact that they do not bear a positive obligation to do so.
The analogy that the Supreme Court of Appeal draws with AllPay II is [179]
misplaced. As mentioned, in AllPay II, this Court, per Froneman J, held that Cash
Paymaster, the entity which administered social grants in South Africa pursuant to an
agreement concluded with SASSA, incurred positive constitutional obligations
towards the beneficiaries of social grants. In reaching this conclusion, this Court
reasoned that Cash Paymaster administered the payment of social grants on SASSA’s
behalf – in other words, it performed its functions in the stead of the state. Cash
Paymaster was thus held to be exercising a public power: it was deemed to be the
“gatekeeper of the right to social security” for all recipients in South Africa and to
constitute the operational arm of social grants payment in the national sphere of
government.163 Froneman J also pointed out that the contract concluded between
Cash Paymaster and SASSA made clear that the former undertook constitutional
obligations.164 This Court did not hold that Cash Paymaster incurred a positive
obligation to administer social grants under section 27(1)(c) purely because of its
contract with SASSA. Cash Paymaster’s positive obligations survived the termination
of the contract. It had assumed a role that the state would otherwise have had to
perform itself and, in the event that it ceased to perform that role, the adverse effects
on the rights afforded to the beneficiaries of social grants in terms of section 27(1)(c)
of the Constitution would have been egregious. The reliance on AllPay II must be
qualified. Pridwin, while subject to a negative obligation, does not incur positive
obligations under section 29(1)(a). Pridwin may perform a constitutional function,
but, unlike Cash Paymaster, it does not fulfil a constitutional duty.
The reasoning of the Supreme Court of Appeal is also contrary to this Court’s [180]
163 AllPay II above n 98 at para 55.
164 Id at para 56.
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judgment in Daniels.165 This Court was resolute that it is not the case that section 8(2)
of the Constitution means that a private person will never bear positive obligations in
relation to the rights in the Bill of Rights.166 These obligations arise even where there
is no contractual nexus between the private party (in that case, a private landowner)
and the state.167 And again, in any event, the negative obligation borne by Pridwin
does not depend on the existence of the fulfilment of a positive obligation to provide a
basic education: rather, it arises from the fact that EB and DB, like other learners at
Pridwin, received a basic education while they attend Pridwin.
The suggestion that EB and DB’s rights to a basic education under [181]
section 29(1)(a) have gone unfulfilled for the duration of their time as learners at
Pridwin is ludicrous. These rights were, until the children left the School, fulfilled by
Pridwin. As a result of EB and DB enjoying a basic education at Pridwin, the School
(like other natural and juristic persons) incurred a negative obligation towards EB and
DB.
The School parties argue that there is no authority for the proposition that [182]
notice clauses, which result in the termination of agreements that may affect children,
require a fair hearing prior to a party relying on this clause. They also raise concerns
that a finding that Pridwin was required to provide an opportunity to make
representations would have a far-reaching and undesirable effect on the law of
contract. Both the Supreme Court of Appeal and the High Court rejected the
existence of a duty to provide a fair process in the best interests of the children by
using a “floodgates” argument. On Pridwin’s urging, both courts reasoned that a fair
hearing requirement would have “catastrophic” consequences for all commercial
contracts that have the potential to affect children. The Supreme Court of Appeal
held:
165 Daniels above n 60.
166 Id at paras 39-41 and 46-8.
167 Id at paras 37-51.
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“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.”168
Pridwin’s Parent Contract was likened to an ordinary lease, a standard-form [183]
commercial contract, a contract for private security and even a credit agreement for
the purchase of a scooter.169 These arguments are unsustainable. As Mocumie JA
held in her dissenting judgment, a contract with an independent school for the
provision of an education is “distinctly different” from an ordinary commercial
transaction.170
This concern finds no foundation in the context of a direct constitutional [184]
challenge to conduct and the nature of the section 8(2) inquiry under the Constitution.
The mere fact that independent schools are subject to constitutional and statutory
duties to follow a fair process does not mean that all natural and juristic persons in all
other contexts will be subject to identical duties. In this context, there is no
purportedly far-reaching “development” of the law of contract. The challenge being
adjudicated is not of a contractual nature.
An example of a fact-specific direct horizontal application of rights is [185]
evidenced by this Court’s finding in Juma Musjid.171 As explained above,172 in that
case, this Court held that, notwithstanding that the trust was a private entity, it had a
168 Supreme Court of Appeal judgment above n 11 at para 77. See also High Court judgment above n 4 at
para 89, where it is stated:
“[T]o find such a provision in law exists requiring a hearing in these circumstances would create an
absurd situation and open the floodgates in relation to the termination, on notice, of all contracts
involving children, whether directly or indirectly.”
169 Supreme Court of Appeal judgment id at para 34. See also High Court judgment id at para 89.
170 Supreme Court of Appeal judgment id at para 92.
171 Juma Musjid above n 6.
172 See [80] – [81].
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negative constitutional obligation under section 29(1)(a), as well as a positive
constitutional obligation under section 28(2). With reference to the specific
circumstances of the case, this Court assessed the conduct of the trust and held that the
trust had acted reasonably in seeking an eviction order.
In Daniels, Madlanga J explained this context-specific inquiry in these terms: [186]
“Whether private persons will be bound depends on a number of factors. What is
paramount includes: what is the nature of the right; what is the history behind the
right; what does the right seek to achieve; how best can that be achieved; what is the
‘potential of invasion of that right by persons other than the State or organs of state’;
and, would letting private persons off the net not negate the essential content of the
right? If, on weighing up all the relevant factors, we are led to the conclusion that
private persons are not only bound but must in fact bear a positive obligation, we
should not shy away from imposing it. . . . The truth is that ‘questions concerning the
horizontal application of the Bill of Rights cannot be determined a priori and in the
abstract.’”173
This Court is not called upon to decide that there is a right to be heard on the [187]
children’s best interests in every contractual context. All that this Court need decide
is that Pridwin and other independent schools are subject to this duty when deciding to
terminate a child’s schooling.
In addition, this Court has held that the strength of section 28(2) is its [188]
contextual nature and inherent flexibility.174 Similarly, whether or not there is
appropriate justification for a rights infringement necessarily requires consideration of
the context in which the conduct occurred.175 Accordingly, a finding that section
28(2) required the School to seek representations on the children’s best interests prior
to taking the decision to remove them does not reach beyond the context of exclusion
173 Daniels above n 60 at paras 39-41.
174 S v M above n 48 at para 24.
175 Id.
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of children from an independent school. The same circumscription would apply in
relation to a finding on whether the School’s impairment of the right to a basic
education was justifiable for purposes of section 29(1)(a). A determination of whether
there was appropriate justification for the decision to terminate the Parent Contract
would require an assessment of the particular circumstances, including the fact that an
impairment of the right afforded by section 29(1)(a) will, in most instances, inevitably
implicate section 28(2).
The Pridwin's breach of the right to be heard
Pridwin’s failure to afford the applicants, or EB and DB, an opportunity to be [189]
heard in relation to the best interests of EB and DB is plain from the papers.176 In his
answering affidavit in the High Court, Mr Marx repeatedly denied that he was under
any obligation to afford the applicants a hearing. He further asserted that, to the
extent that AB was entitled to a hearing, the brief exchange with AB on 27 June 2016
“constituted the exercising of his right” to be heard.
Mr Marx's version of that “hearing” on 27 June 2016 was as follows: [190]
“[AB] insisted that he wished to speak to me and explain his actions. He wanted
Mosoana, so he said, to observe the trials and to see how they could support his elder
son to best prepare for his soccer season at the School. I informed him that I found it
totally unacceptable that he brings a stranger onto school premises, uninvited, and
that they then proceed to disrupt the sporting sessions. I informed him that this was
in breach of the agreement that we had reached on 28 January 2016 in the office and I
asked him to leave.”
On Mr Marx’s own version, it is clear that the representations, such as they [191]
were, were made at the behest of AB, not Mr Marx. The representations did not
176 It must be noted that hearing from the children directly or through representation is a decision that must be
made having regard to the circumstances of the matter, the age and maturity of the children as well as any
detrimental effect this could have on them. See, for example, Teddy Bear Clinic above n 124 at para 1 and S v
M above n 48 at para 24.
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actually canvass the incident itself, nor who had behaved properly or improperly.
Instead, they dealt solely with why AB had brought Mr Mosoana to the soccer trials.
Mr Marx gave no indication that he was of the view that AB had breached the Parent
Contract, nor that he was considering excluding EB and DB from Pridwin. Mr Marx
did not invite AB to make representations about this decision, and AB did not make
such representations. Significantly, Mr Marx did not give AB an opportunity to make
representations about whether such a decision would be in the best interests of DB and
EB. There was also no opportunity afforded to CB to make any representations of any
kind, despite the fact that she is the mother of the children. There was no attempt,
direct or indirect, to inquire into the children’s views on termination.
To the extent that AB made any representations on 27 June 2016, they were [192]
meaningless in the context as Pridwin, represented by Mr Marx, gave no indication
that it was considering excluding EB and DB from Pridwin. It is trite that an
opportunity to make representations will be effective only if it relates to the decision
to be made and if this is made clear to the affected parties.177
The suggestion running throughout Pridwin's case is that a hearing would have [193]
made no difference to its unilateral decision, given its allegations against AB on
paper. That runs contrary to the principle that the denial of a fair hearing cannot be
excused merely because one party asserts that their mind was made up and that a
hearing would have made no difference.178 This Court has consistently rejected this
argument, holding in My Vote Counts that—
“authority tells us that even in the apparent ‘open and shut’ case, an affected party
must be given an opportunity to meet the case advanced by an adversary.”179
177 Sokhela v MEG for Agriculture and Environmental Affairs, KwaZulu-Natal 2010 (5) SA 574 (KZP) at para
58.
178 My Vote Counts NPC v Speaker of the National Assembly [2015] ZACC 31; 2016 (1) SA 132; 2015 (12)
BCLR 1407 (CC) at para 176, citing John v Rees [1969] 2 All ER 274 (CH) at 402.
179 My Vote Counts id. See also Minister of Defence and Military Veterans v Motau [2014] ZACC 18; 2014 (5)
SA 69 (CC); 2014 (8) BCLR 930 (CC) at para 85 and Lufuno Mphaphuli & Associates (Pty) Ltd v Andrews
[2009] ZACC 6; 2009 (4) SA 529 (CC); 2009 (6) BCLR 527 (CC) at paras 153-4.
THERON J
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This principle has particular significance in this case. The purpose of a fair [194]
process was not primarily to determine AB’s guilt or innocence. Rather, the focus
ought to have been whether the decision to terminate the Parent Contract was
consistent with the rights and best interests of the children and how best to protect
their interests.
In the circumstances, Pridwin ought to have afforded an opportunity for [195]
representations to be made on the best interests of EB and DB, before deciding to
terminate the Parent Contract which had the effect that the children were required to
leave Pridwin.
Is there appropriate justification for Pridwin’s decision to terminate the Parent
Contract?
Under section 29(1)(a), read with section 8(2) of the Constitution, private [196]
entities are under a negative obligation to refrain from limiting or impairing the right
to basic education. However, this obligation is not absolute: limitation of the right is
permissible. What is the test to be applied? What constitutes a justifiable infringement
or limitation by a private party?
A limitation analysis in terms of section 36 of the Constitution is not possible [197]
due to the “law of general application” threshold. The standard of appropriate
justification, applied by this Court in Hoërskool Ermelo180 is, however, equally
applicable here.
In determining whether there is appropriate justification for the limitation of [198]
the right, a number of factors may be considered – all circumstances surrounding the
impairment of the right must be taken into account as it is a fact and context specific
180 Hoërskool Ermelo above n 69 at para 52. See also Gelyke Kanse v Chairperson of the Senate of the
University of Stellenbosch [2019] ZACC 38; 2020 (1) SA 368 (CC); 2019 (12) BCLR 1479 (CC) at para 23.
THERON J
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enquiry:181 the nature of the obligation on the alleged wrongdoer; whether the
wrongdoer took measures to ameliorate the impact of the limitation of the right; the
availability of alternative options; whether the process leading up to the limitation of
the right was procedurally fair; and the extent of the limitation and its effect on the
right holder. This list of considerations is not intended to be exhaustive. While these
examples of consideration factors are sourced from Juma Musjid, where the standard
applied was “reasonableness” and not “appropriate justification”, they nevertheless
offer a helpful starting point for the factors that constitute contextual considerations.
In considering whether the trust was reasonable in seeking to evict the school, [199]
this Court, in Juma Musjid, held that a relevant factor was that the primary, positive
obligation to provide a basic education rested on the state. The obligation of the trust
in that case was secondary, arising only out of its willingness to allow its private
property to be used as a school. The trust had, moreover, engaged in extensive
negotiations with the provincial Department of Education concerned, in an effort to
minimise the potential impairment of the rights to a basic education enjoyed by the
learners at the Juma Musjid Primary School.
It was held to be relevant, in Juma Musjid, that the private trust was subject to [200]
less stringent standards of reasonableness than the state, which does bear such an
obligation. The obligations of an independent school in relation to the provision of a
basic education are, of course, distinct from those borne by public school. Pridwin
bears no positive obligation under section 29(1)(a). However, an independent school,
upon its establishment and in representing itself as a provider of education to learners,
does assume certain obligations under both section 29(3) of the Constitution and the
relevant provisions of the Schools Act.182 Moreover, as explained, Pridwin, unlike the
private trust in Juma Musjid, does provide a basic education.
181 Hoërskool Ermelo id at para 52.
182 84 of 1996.
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This Court, in Juma Musjid, also emphasises that procedural fairness, which [201]
may be employed to minimise impairment of a right, is a critical component in
evaluating whether conduct that results in the limitation of a right was reasonable.183
For example, the Court reasoned that “the purposes of these negotiations [regarding
the conclusion of an agreement], even though not stated in these terms, was to
minimise the impairment of the rights of the learners.”184 The trust’s repeated
engagement with the provincial Department of Education and the notice of the
impending potential eviction repeatedly given by the trust to the Department were
found to be relevant factors in ascertaining the reasonableness of the trust’s conduct.
The School contended that the decision to exclude EB and DB from Pridwin [202]
was also designed to safeguard the rights of the other learners at the School. The
decision to exclude the boys was prompted by the conduct of the parents. However,
the present facts are quite distinct from a scenario in which a school had no option but
to limit the rights of its learners due, for example, to lack of resources. The
availability of less restrictive sanctions is a key consideration in the objective
assessment of whether Pridwin’s decision was justified. Even if AB had
misconducted himself in the manner alleged by Pridwin there were a range of
measures available to Pridwin to sanction his behaviour while still respecting the
rights of the children. For example, Pridwin could have issued a final warning,
notifying AB and CB that further misconduct would result in termination of the Parent
Contract. Alternatively, it could have continued to ban AB from attending sports
practices, or conversing with staff members involved in the sporting programme at
Pridwin. The protection of the rights of the other children enjoying the benefits of a
basic education at Pridwin must also be taken into account. If adequate measures had
been implemented to manage AB’s conduct, it is doubtful that the rights of the other
learners would have been impaired had EB and DB remained at Pridwin.
Accordingly, the invocation of the rights of the other learners does not constitute
183 Juma Musjid above n 6 at paras 63-4.
184 Id at para 64.
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76
appropriate justification for Pridwin’s impairment of the children’s rights.
Both the Supreme Court of Appeal and the High Court erred in finding that [203]
Mr Marx’s actions were reasonable because he had satisfied himself that places were
available in public schools.185 That is not an accurate reflection of the facts. Mr Marx
did not seek such confirmation when deciding to cancel the contracts in June 2016.
Mr Marx addressed a letter to the Chief Director: School Management at the Gauteng
Department of Education only on 30 November 2016. The letter enquired if and how
DB and EB would be placed at a public school for the 2017 academic year. It was
sent some five months after the cancellation of the contracts. Moreover, the response
from the Department was that DB and EB would not be guaranteed a place in a
specific school. In respect of EB, the response was that he would merely be added to
the waiting list for a school somewhere in the Gauteng Province.
The effect of Pridwin’s decision to terminate the Parent Contract was that the [204]
boys had to leave the School. In this context, Pridwin was obliged to hear the
applicants, at least, on whether cancellation was in the children’s best interests, given
the likely disruption to their education and wellbeing. These were children who had
known no other school and had formed strong bonds with their teachers and friends.
Again, it is no answer for Pridwin to claim that a hearing would have made no
difference to the decision.186
As noted, the School quite rightly contends that it was required to have regard [205]
to the best interests of not only EB and DB, but of all the children at the School.
Affording an opportunity to be heard in relation to the best interests of EB and DB,
prior to a decision being made, could hardly be said to have a detrimental effect (or,
indeed, any effect) on the best interests of the other children at the School. It could
only have been beneficial.
185 High Court judgment above n 4 at para 42 and Supreme Court of Appeal judgment above n 11 at para 44.
186 My Vote Counts above n 178 at para 176.
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77
It is not insignificant that the applicants had already, as early as January 2016, [206]
signified their intention to remove their children from Pridwin. It is also not
insignificant that the headmaster had, prior to the conclusion of the January 2016
agreement between the parties, contemplated conducting a hearing around the alleged
misconduct by AB. However, these facts are insufficient for purposes of satisfying
the fair process required in relation to the decision to terminate a Parent Contract by
an independent school. The decision to conclude a settlement agreement, made at the
meeting of 28 January 2016, is distinct from the School’s decision to terminate the
Parent Contract, thereby excluding EB and DB from Pridwin. Similarly, the
“meeting” between AB and Mr Marx on 27 June 2016 was not preceded by any
notice, nor was it demarcated as an opportunity to make representations on the
decision to terminate the Parent Contract.
In this matter, where the diminishment of the right to basic education could [207]
have had a significant impact on the education and day-to-day lives of two young
children, the School’s actions, in failing to create an opportunity for representations on
their best interests, was unjustified. There is nothing to suggest that the surrounding
circumstances justified anything less. No appropriate justification for the limitation of
the children’s rights was advanced by Pridwin. This is so irrespective of the fact that
the applicants had sufficient time to find another school for DB and EB to attend and
sufficient resources to cause DB and EB to attend an alternative private school. That
this is the case is fortunate for the boys, but it does not mean that the School was
entitled to decide to terminate the Parent Contract without following due process.
In the circumstances of this matter, the obligation on Pridwin, pursuant to the [208]
provisions of sections 28(2) and 29(1)(a) included the duty to inform the parents of its
intention to terminate the Parent Contract. Pridwin was further obliged to afford one
or both of them an opportunity to make representations on the best interests of the
boys, the impact this could have on the boys’ right to an education and possible steps
that could have been taken to ameliorate any interference with their right to a basic
THERON J
78
education. This would have discharged Pridwin’s negative obligation to respect the
boys’ rights to a basic education and placed Pridwin in a position to give proper
consideration to the best interests of the children, and make a decision that was
procedurally and substantively fair.
Conclusion
Pridwin’s decision to terminate the Parent Contract was unconstitutional due to [209]
the failure to afford the applicants an opportunity to be heard on the best interests of
the boys, in breach of sections 28(2) and 29(1)(a) of the Constitution. In addition, the
decision was unconstitutional as, absent a fair process, it was self-evidently and
objectively not in the best interests of DB and EB and, moreover, in violation of
Pridwin’s obligation not to interfere with the boys’ right to a basic education, in the
absence of any appropriate justification.
For these reasons, the decision is invalid and falls to be set aside. [210]
Costs
While the applicants have been successful, this success is tainted by the long [211]
shadow of the conduct that led them to this Court. The conduct of the applicants
leading to the termination of the Parent Contract is sufficient reason to depart from the
general principle that costs should follow the result.
Order
The following order is made: [212]
1. Leave to appeal is granted.
2. The appeal is upheld and the order of the Supreme Court of Appeal is
set aside.
3. It is declared that the decision by Pridwin Preparatory School to cancel
the Parent Contract is invalid and set aside.
4. Each party is to pay its own costs in this Court, the High Court and the
THERON J / CAMERON J and FRONEMAN J
79
Supreme Court of Appeal.
CAMERON J and FRONEMAN J
We may be doing the valuable judgments of our colleagues Nicholls AJ [213]
(first judgment) and Theron J (second judgment) a disservice by stating that on the
crucial issue – whether the right to a basic education applies in independent schools –
we discern little difference between them. This concurrence seeks to highlight the
legal propositions that we consider the two judgments both embrace, whether
explicitly or implicitly. And, in any event, in what follows we set out the legal
propositions that we endorse as correct and agree with.
Under the common law, private parties, like independent schools, had no [214]
obligation to provide basic education nor, where they did provide it, did they owe any
obligation to children not to diminish or interfere with that right. This meant that the
provision of private education to learners attending private schools was regulated
entirely by principles of contract – including contractual autonomy.
For the reasons both judgments advance, we agree that sections 28(2), 29(1)(a) [215]
and 29(3) of the Bill of Rights now impose on independent schools that provide basic
education at least the negative obligation not to diminish or interfere with a child’s
right to that basic education. This we may call: the right that protects basic education.
In applying these provisions of the Bill of Rights to private parties like [216]
independent schools, the applicable constitutional provisions are section 8(1)187 and
section 8(2). There is no legislation that directly gives effect to the right that protects
basic education where independent schools already provide it. The judgments both
187 Section 8(1) of the Constitution reads:
CAMERON J and FRONEMAN J
80
hold that there is, however, at least the negative obligation not to diminish or interfere
with a child’s right to a basic education where an independent school provides basic
education. This is a new rule that did not exist under the common law or in terms of
any legislation. They thus to that extent develop the common law under
section 8(3)(a).188
How far does protection of this right by independent schools go? It cannot be [217]
absolute. The finding that its content requires fairness, not only in process-fairness,
but also in substance-fairness, before children attending a private school may be
required to leave, complies with the requirement in section 8(3)(b) that any limitation
upon a newly-established common law right must accord with the limitations
provision in the Bill of Rights (section 36(1)).189 We note that the two judgments
diverge in their approach to a limitations analysis and neither applies section 36(1).190
In fidelity to section 8(3)(b), we consider that a limitations analysis via section 36(1)
remains the appropriate route.
“The Bill of Rights applies to all law, and binds the Legislature, the Executive, the Judiciary
and all organs of state.”
188 Section 8(3) reads:
“When applying a provision of the Bill of Rights to a natural or juristic person in terms of
subsection (2), a court—
(a) in order to give effect to a right in the Bill, must apply, or if necessary
develop, the common law to the extent that legislation does not give effect
to that right; and
(b) may develop rules of the common law to limit the right, provided that the
limitation is in accordance with section 36(1).”
189 Section 36(1) reads:
“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.”
190 See the first judgment at [89] to [90] and second judgment at [196] to [198].
CAMERON J and FRONEMAN J / KHAMPEPE J
81
It is obvious that the parties’ factual disputes are long since moot. We agree [218]
with the first judgment that the only remaining peg on which leave could be granted
was the question whether clauses similar to clause 9.3 are enforceable. This question
impinged upon a child’s right to basic education at independent schools where basic
education is provided.
The first judgment resolves that legal issue by direct application of the [219]
children’s rights against independent schools that provide basic education. On our
reading the second judgment does the same, but does not deal with the enforceability
of clause 9.3 or similar clauses, and thus makes no order pertaining to them. It
considers only whether it is constitutionally permissible for an independent school to
expel children without following fair process,191 and accordingly declares the School’s
decision invalid. Despite this difference in approach, we consider that the same result
would have been reached, indirectly, by applying public policy considerations where
clause 9.3 was sought to be enforced,192 and thus agree with the order the first
judgment makes.
KHAMPEPE J: (Jafta J, Ledwaba AJ, Madlanga J, Mhlantla J and Theron J
concurring)
Introduction
191 Second judgment at [97] and [132].
192 First judgment at [61] and [91].
This case is about children. In particular, it concerns two boys who, in their [220]
short lives, have already had to deal not only with the ordinary day-to-day excitement
and stresses of an all-boys preparatory school – juggling friends, teachers, classes and
sport – but who have also had to cope with particularly aggressive and intolerable
behaviour by their parents during their after-school activities. This culminated in
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them being asked to leave the only school they had ever known through no fault of
their own. It is hard to imagine the emotional impact this has had on them and, to
make matters worse, no one asked these particular boys how they felt about this major
life change. For some reason, it was not deemed necessary to consider their views or
invite them to participate in this life-altering decision. They have since begun
attending a new school but have still been plagued by the litigation between their
parents and their previous school, in public, all the way up to the highest Court in the
land. We can only hope that they will be able to settle down and continue with their
young lives once this Court has given judgment. Although both the parents and the
School have paid lip-service to the best interests of the children in their arguments, the
children’s views and participation in this matter have largely been ignored, just as at
the time of their removal from their school. This concurrence focuses on what should
have been the imperative all along: the children and their constitutionally-guaranteed
rights.
I concur in the well-considered reasoning and outcome of the judgment of my [221]
colleague, Theron J (second judgment). However, for reasons fully elucidated below,
I believe it necessary to emphasise the importance of the independent and self-
standing rights of the children in these circumstances.
The judgments of my colleagues Nicholls AJ (first judgment) and Theron J [222]
each consider, among others, the issue of whether section 28(2) of the Constitution
affords a right to a hearing on the best interests of the child when an independent
school decides to terminate a Parent Contract with a child’s parent(s). Both conclude
on that particular question that the section 28(2) right read with section 29, in this
context, affords a right to fair process, which in most cases would encompass the right
to a hearing, when clauses like the one at issue in this case are sought to be enforced.
However, neither judgment emphasises the importance not only of procedural fairness
when enforcing these terms, but of the child’s right to participate in matters directly
affecting them.
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A principal reason for hearing this matter and handing down judgment, even [223]
though the children have long-since moved to another school and the dispute is moot,
is that these types of clauses exist in most independent-school contracts and thus this
Court’s decision will transcend the narrow interests of the parties in this matter and
affect a large number of people. It was pointed out in the second judgment that
ISASA intervened for that very reason.193 It is, therefore, necessary to clarify any
misunderstanding that it may be sufficient to only give the parents a hearing regarding
their child’s best interests without, at the very least, giving serious consideration to the
importance of hearing the children themselves and allowing them to participate in the
decision.
The first judgment recognises that our jurisprudence has found that [224]
section 28(2) gives children the right to have an opportunity to make representations
in matters affecting them, but distinguishes these cases on the basis that they involved
the exercise of public power.194 It concludes that whilst the Children’s Act and
international law instruments provide for children’s rights to make representations in
matters affecting them, there is “no direct authority that imposes this obligation on
independent schools in relation to the enforcement of Parent Contracts with the
school.”195 However, having found that even independent schools have a negative
obligation under section 29(1) to not interfere in a child’s right to basic education, it
finds that this, read alongside the best interests principle, would, in “most
circumstances . . . entail . . . affording an opportunity for a fair and appropriate
hearing.”196 The first judgment qualifies that this is not necessarily a hearing of the
children themselves and could be in a number of forms. However, I believe that it is
important to emphasise that the default or starting position should be that the child
concerned is given an opportunity to make representations.
193 Second judgment at [114]. The second amicus curiae in this Court also emphasised the importance of being
cognisant of the broader context of the independent school sector and its growth.
194 First judgment at [73].
195 Id at [74].
196 Id at [93].
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The second judgment, in which I concur, acknowledges that DB and EB had a [225]
self-standing right to have their views heard on the matter, either in person or through
a representative.197 The judgment goes on to state that section 28(2) does not
specifically create an obligation for an oral hearing to be given, but rather requires that
a fair process be followed.198 It continues to find, however, that in the specific context
of excluding children from independent schools, section 28(2) in most cases would
require the School to seek representations on the children’s best interests prior to
taking the decision to remove them from the School.199 However, the representations
it focuses on are mostly those of the parents and not from the children themselves.
Thus, the purpose of this concurrence is to emphasise that the procedural right [226]
forming part of the best interests of the child in this context is, first and foremost, a
right given to the child, which may be exercised by a representative where children
are not of sufficient age or maturity to make these representations themselves. This is
emphasised in our case law, our legislation as well as in international law instruments
to which we are party. This concurrence does not seek to address whether or not
section 28(2) always gives rise to the right of children to participate or make
representations, but focuses more specifically on the relevant context this case is
concerned with – namely, the exclusion of children from an independent school as a
result of a breach of the Parent Contract – and the importance, in this context, for the
children concerned to be given an opportunity to have their views heard on this major
life change in their thus-far short life.
Best interests of the child
Section 28(2) of the Constitution states that a child’s best interests are of [227]
paramount importance in every matter concerning that child. This section forms part
197 Second judgment at [148].
198 Id at [153].
199 Id at [187-8] and [195].
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of the Bill of Rights and therefore, under section 8(2) of the Constitution, also binds
natural and juristic persons. There is therefore no question that independent schools
are bound by section 28(2).
In Teddy Bear Clinic, this Court, in a unanimous judgment, emphasised that the [228]
“best interests of the child” under section 28(2) is both a principle, which must be at
the fore of any decision involving a particular child, as well as a standard against
which to test provisions or conduct that affect children in general.200 In the current
case, and cases similar to it, both roles of section 28(2) are implicated. Under its first
role, section 28(2) requires that, before an independent school may enforce a
termination provision in a Parent Contract in a particular case, it must have due
consideration of the best interests of the individual child who will be removed from
the School. Under its second role, section 28(2) forms a standard that is expected of
conduct which affects children in general. In this case, it prescribes that the conduct
of independent schools, generally, in terminating Parent Contracts (and thereby
interfering with the basic education of children) must be done in accordance with the
“best interests of the child” standard required by section 28(2).
I focus mostly on the latter role because we did not have the advantage of a [229]
separate representative in the hearing who could speak to the best interests of the
specific children in this matter. Further, the second judgment already declares the
conduct of the School invalid as a result of its failure to have due regard to the
particular best interests of the children in this matter. It is, therefore, unnecessary for
me to repeat this.
I turn instead to the general standard required by section 28(2), against which [230]
the conduct of independent schools, when terminating a Parent Contract, can be
tested.
200 Teddy Bear Clinic above n 124 at para 69.
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The precise meaning of section 28(2) has not been defined by this Court and I [231]
do not deem it necessary to do so here. It is “precisely the contextual nature and
inherent flexibility of section 28 that constitutes the source of its strength.”201
However, we have a rich jurisprudence from which we can draw meaning in order to
give effect to the best-interests standard. We are also obliged to consider international
law when determining this standard.202
It is perspicuous from our jurisprudence that the participation of children in [232]
matters involving them is an important part of the best-interests standard. The right to
participate is the right of each child “to be heard and to take part in processes that
affect their life course”.203 In C, Skweyiya J’s concurrence held that section 28(2)
requires “as a minimum [that] the family, and particularly the child concerned, must
be given an opportunity to make representations”.204 The majority judgment in that
matter, penned by Yacoob J, found that, in the context of removing children from
family care, it is in the interests of children that an incorrect decision made by a court,
social worker or police officer without hearing the child or the parents is subject to an
automatic review by a court in the presence of the child and the parents.205 It was held
that the failure of the impugned provisions in that case to provide for this automatic
review rendered those sections contrary to section 28(2).206 Similarly, in J, an
important element of the best-interests standard was that “the child or her
representatives must be afforded an appropriate and adequate opportunity to make
representations and to be heard at every stage.”207 In Hoërskool Fochville, the
Supreme Court of Appeal highlighted that the right of children to representation that is
separate from their parents’, stems from their right to participate in all matters
201 S v M above n 48 at para 24.
202 Section 39(1)(b) of the Constitution.
203 Moyo “Child Participation Under South African Law: Beyond the Convention on the Rights of the Child?”
(2015) 31 SAJHR 173.
204 C above n 52 at para 27 (emphasis added).
205 Id at para 77.
206 Id.
207 J above n 47 at para 40.
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affecting them which “is a right widely recognised in international law and forms part
of South African law”.208
My colleagues, in the first and second judgments, have also relied on much of [233]
this jurisprudence to conclude that a hearing, in general, is necessary and, in the
interests of non-repetition, I am grateful for their more detailed exposition thereon. I
turn now to the provisions in international law and in the Children’s Act to support my
assertion that it is particularly the child’s right to be heard that is generally required in
this context, although a flexible and child-sensitive approach would require each case
to be considered in light of its own particular facts.209
The child’s right to participate or make representations in matters affecting them
As a point of departure, it must be emphasised that children are individual [234]
right-bearers and not “mere extensions of [their] parents, umbilically destined to sink
or swim with them.”210 It is the child whose world will be upturned by being told to
leave the only school they have ever known. Moreover, it is their right to basic
education that is interfered with; and it is their best interests that schools and parents
are required to have due consideration of. A child’s participation right acknowledges
their “separate personhood” and “the need to take seriously the view expressed by the
child”.211 It is hardly in line with the constitutional recognition of a child as “an
individual with a distinctive personality”212 and with “their own dignity”213 for a
school to submit that it has acted fairly by giving the parents a hearing but not
granting the child an opportunity to express their views before they are removed from
their school. Of course, the appropriateness of this must be determined in each case
208 Hoërskool Fochville above n 53 at para 19.
209 S v M above n 48 at para 24.
210 Id at para 18.
211 Moyo above n 203 at 174.
212 S v M above n 48 at para 18.
213 Id.
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and on the basis of the age and maturity of the child, but it should, at least, be the
default position under the best-interests standard in this context.
This position is buttressed both by international law instruments concerning [235]
children and, domestically, through the Children’s Act.
International law instruments
The first and second judgments touch on the right of the child to participate in [236]
matters affecting them in international instruments like the United Nations Convention
on the Rights of the Child214 (Convention) and the African Charter on the Rights and
Welfare of the Child215 (African Charter). I wish to expand briefly on these.
As a point of departure, it is worth noting that the right of all children to be [237]
heard and to be taken seriously is one of the fundamental values of the Convention,216
which forms part of a process of “information-sharing and dialogue between children
and adults based on mutual respect”.217
Article 12 of the Convention states that a “child who is capable of forming his [238]
or her own views [has] the right to express those views freely in all matters affecting
the child”.218 This means that the child must be given the opportunity to be heard if
the matter under discussion affects them.219 It also requires that a child shall “in
particular, be provided the opportunity to be heard in any judicial and administrative
214 Convention above n 55 and 116.
215 1 June 1981.
216 United Nations Committee on the Rights of the Child General Comment No. 12 (2009) on the right of the
child to be heard (General Comment No. 12) at para 2. It is also one of the four general principles of the
Convention, alongside the right of the child to non-discrimination, the right to life and development, and the
primary consideration of the child’s best interests. It is therefore not only a right but also an interpretative value
to be used in the interpretation and implementation of all other children’s rights.
217 Id at para 3.
218 Article 12(1) of the Convention.
219 General Comment No. 12 above n 216 at para 26.
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proceedings affecting the child”.220 General Comment No. 12 describes typical
administrative proceedings in article 12(2) as including “decisions about children’s
education”221 and suspensions and expulsions from schools are given as examples of
matters where a child should have the right to be heard.222
In drawing the connection between the best interests of the child standard223 [239]
and article 12, the Committee describes the interrelation between these two as follows:
“The best interests of the child . . . obliges State Parties to introduce steps into the
[process of undertaking actions concerning children] to ensure that the best interests
of the child are taken into consideration. The Convention obliges State Parties to
assure that those responsible for these actions hear the child as stipulated in article 12.
This step is mandatory.
. . .
There is . . . a complementary role of the two general principles: one establishes the
objective of achieving the best interests of the child and the other provides the
methodology for reaching the goal of hearing either the child or the children. In fact,
there can be no correct application of article 3 if the components of article 12 are not
respected. Likewise, article 3 reinforces the functionality of article 12, facilitating the
essential role of children in all decisions affecting their lives.”224
The African Charter, in fact, incorporates the right of a child to be heard and to [240]
participate directly or indirectly in matters affecting them as part of the best interests
of the child.225 Article 4(2) of the African Charter is similarly worded to article 12(2)
of the Convention and states that, in judicial or administrative proceedings affecting a
child, an opportunity must be provided for the views of that child to be expressed
220 Article 12(2) of the Convention.
221 General Comment No. 12 above n 216 at para 32.
222 Id at para 67.
223 Found in article 3 of the Convention.
224 General Comment No. 12 above n 216 at paras 70 and 74.
225 Article 4 is titled the “Best Interests of the Child”. Article 4(1) provides that “[i]n all actions concerning the
child undertaken by any person or authority the best interests of the child shall be the primary consideration”.
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either by that child, if they have the capacity to form and communicate their own
views, or through an impartial representative and that these views must be taken into
consideration by the relevant authority.226
International law enjoins us to give due regard to the views and wishes of the [241]
child and to allow them to participate in matters that affect them. This is a right held
by children themselves, as independent rights-holders. Whilst it might be the case that
the parents are better placed to speak to what might objectively be in the best interests
of the child in a particular case, an important facet of the best-interests standard is
allowing the child concerned to participate, where possible, in the major decisions
affecting their life. Giving them an opportunity to be heard is not just a step in the
process of seeking to uncover what is in their best interests; it is part and parcel of the
best-interests standard against which conduct must be tested. This is even more so
where the conduct concerned interferes with the educational rights of the child.
Children’s Act
The Children’s Act was enacted to give effect to,227 and supplement,228 the [242]
constitutional rights of children and the rights of the child under the Convention and
African Charter.229 It “binds both natural and juristic persons, to the extent that it is
applicable, taking into account the nature of the right and the nature of any duty
imposed by the right.”230 A great proportion of a child’s developmental years are
spent at school and, having consideration of the purpose of the Children’s Act to
226 Article 4(2) of the African Charter reads:
“In all judicial or administrative proceedings affecting a child who is capable of
communicating his or 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.”
227 Long title of the Children’s Act.
228 Section 8(1) of the Children’s Act.
229 Preamble of the Children’s Act.
230 Section 8(3) of the Children’s Act.
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regulate children’s rights and welfare, independent schools plainly fall within the
category of juristic persons whom the Act binds.
The Children’s Act unequivocally adopts the position that children should be [243]
involved in the decisions affecting their lives by expressing their views and
participating in these decisions. This is expressly found in section 10 where a child is
given the right to participate, in an appropriate way, in any matter concerning them
and prescribes that their views must be given due consideration.231 Section 10 of the
Children’s Act thereby largely incorporates article 12 of the Convention and
article 4(2) of the African Charter into our domestic law and thus gives effect to South
Africa’s international obligations.
Notably, section 10 of the Children’s Act goes further than the international [244]
position. It does not limit the right to be heard to “judicial and administrative
proceedings.” Instead, it “applies horizontally and binds families and other private
actors to consider the child’s views before making decisions which affect [the
child]”.232 The fact, therefore, that it may be an independent school does not limit the
right of the child to participate. This is because: (i) the Children’s Act, including
section 10, which requires child participation, applies to private parties as well as to
the state;233 (ii) section 28(2) of the Constitution, read with section 8(2), applies to
private and public parties; and (iii) in the context of education, section 29(3)(c) of the
Constitution requires independent institutions to maintain standards that are not
inferior to standards at comparable public institutions.234 It is therefore imperative
that the right of the child to participate in decisions concerning their schooling exists
regardless of whether they attend an independent or public school. As highlighted by
231 Above n 54.
232 Moyo above n 203 at 177.
233 Section 8(3) of the Children’s Act.
234 It is worth noting that section 9(1) of the South African Schools Act 84 of 1996 requires a fair hearing before
a child may be suspended from a public school. Bearing in mind that section 29(3) of the Constitution requires
independent institutions to maintain standards not inferior to public schools, independent schools ought also to
provide an opportunity for a fair hearing before a student is asked to leave the school.
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my colleagues, independent schools cannot be said to be immune to requirements of
procedural fairness nor can they be immune to the obligations expounded above.
In my view, removing a child from their school is undoubtedly a life-changing [245]
event which greatly affects a child. It is arguable that this is, in fact, one of the
biggest decisions, or changes, that may befall a child in their formative years, if they
are fortunate enough to avoid other challenges like a familial death, a fatal illness,
moving homes or their parents’ divorce. Section 31 of the Children’s Act deals with
“major decisions” involving the child. Whilst section 31 focuses on the
responsibilities of parents, or persons with parental responsibilities, towards the child
in relation to major decisions and is therefore not directly applicable here, the section
is nonetheless noteworthy for two reasons. First, it mandates that before any major
decision is made, the person holding parental responsibilities “must give due
consideration to any views and wishes expressed by the child”.235 Second, a major
decision, as defined in this section, includes one which “is likely to significantly
change, or to have an adverse effect on . . . the child’s education, . . . or, generally, the
child’s well-being”.236
In the context of removing a child from a school, whether due to the child’s [246]
fault or that of the parents, which will have a major impact on the child’s life, it is
axiomatic that due consideration ought to be given to that child’s views and wishes.
The decision-maker would be unable to have this due consideration if the child
concerned is not given an opportunity to express their views. Further, it is of little
comfort to rest on the assumption that the parent will represent these views –
particularly in a case like this where it was the parents’ actions that caused the
children’s removal from the School.
235 Section 31 of the Children’s Act.
236 Id.
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I wish to make a final comment. This relates to the best interests of the other [247]
learners and the contention that the requirement for a hearing would open the
floodgates to having to hold hearings for each child and thus be unmanageable.
Whilst, of course, the School is obliged to have due consideration of the best interests
of all children and, in general, this gives rise to a right to a hearing, the individual
facts of each case must be determinative. In the context of removing a child from a
school, the child who is predominantly affected by the decision, so much so that the
decision would constitute a “major life decision”, is undoubtedly the child who is
being removed from the School. Thus, depending on the facts of the particular case, it
may be that whilst the decision may indirectly affect the other children at the School,
their right to participate could, for example, be exercised through a representative,
such as a school counsellor, who is given the opportunity to voice to the decision-
makers the impact of the decision on the best interests of the other learners and
through whom the children may make any representations.
Conclusion
In the event, the conspectus of obligations that arise from constitutional, [248]
international and legislative instruments leads to the ineluctable conclusion that not
only was Pridwin under the negative obligation to not interfere in DB and EB’s right
to basic education without a fair process, but it also had the obligation to consider DB
and EB’s rights to have their views heard on the matter, and to offer this opportunity
to them, either in person or through a representative. In my view, that obligation
recognises the dignity and humanity of the children by ventilating the concerns,
frustrations and aspirations of these two independent, young human beings who have
been caught up in a fracas not of their doing.
For the Applicant:
For the First to Third Respondents:
For the Fifth Respondent:
For the First Amicus Curiae:
For the Second Amicus Curiae:
G Marcus SC and C McConnachie
instructed by Knowles Husain Lindsay
Incorporated
A Franklin SC and A Bishop instructed
by Webber Wentzel
M Stubbs instructed by Bowman
Gilfillan Incorporated
I Cloete instructed by Centre for Child
Law
L Zikalala and N Nyembe instructed by
Equal Education