Non Payment Of Private School Fees

Enrolling your child into a Private School is both daunting and assuring. More parents are starting to send their children to Private schools in hopes of affording them a better education and opportunities. Whereas, the other side of the coin is that Private School fees are on the rise, and you are not afforded the same graces as you would be at a Public School.

It is known that although you have the Right to Basic Education – when you put your child in a Private School, you are engaging in a contract with the School. The agreement between the School and parents is entirely contractual as all contracts permit – both Parties must fulfil their designated obligations.

Parents would know that when they struggle to pay their children’s school fees at a Private School, their children are denied reports, denied going to school and denied writing their examinations.

Such is the story of many South African families and one such child in Kwa-Zulu Natal. In the case of Mhlongo v John Wesley School and Another (4594/2016) [2018] ZAKZDHC 64, a father brought an application to Court – when his child was denied writing his exams and subjected to remain in an Art Hall whilst the rest of the School wrote their examinations, on the basis of non-payment of school fees.

In summary, due to unforeseen circumstances, the parents of the affected child fell on hard times financially and could not meet their monthly obligation to the School. The amount in arrears was a R3 830.00 (THREE THOUSAND EIGHT HUNDRED AND THIRTY RAND). The parents tried to make an arrangement with the School – to which the school refused saying they did not make arrangements.

In a drastic measure, the child was subsequently denied from writing exams and kept in the Art Hall whilst his classmates wrote exams.

His father was appalled at this measure and brought an application seeking to declare this action as unconstitutional.

The Court heard both sides; the father represented himself and argued that the exclusion was unconstitutional in that it punished the child for actions of his parents. Moreover, it proved to be humiliating and against the best interests of the child and the child’s right to education as afforded by the Bill of Rights.

Whereas, the School argued that their actions were based on the contractual agreement. Further, they stated that excluding children from participating in his exams yielded effective results for non-payment of fees.

The Court found that although it is true that the Private Schools and parents only have a contractual relationship, and that it is fair for children to be excluded from Private Schools if their parents could not pay fees – it was found that such exclusion must be the last resort and after a fair process has been followed.

Ultimately, it found that the conduct of the School was unconstitutional. It humiliated and disregarded the best interests of the child for something beyond their control.

The Court stated that should Private Schools wish to exclude a learner due to their parents not managing to upkeep commitments of school fees- proper process is to be followed. They must engage with the parents as to why fees cannot be paid; they should try payment arrangements and should this all fail; the last resort is to exclude the learner, with sufficient notice for the parents to make arrangements for the child to attend school. The Court held that at no point should the child’s ordinary course of schooling be disrupted as a result of non-payment.

This is a landmark decision. It has changed the way Private Schools are to handle scenarios of late payments. As a parent it is important to know the rights you have when you are falling behind on school fees at a Private School. Similarly, as an authority in a Private School, you must know your limitations on restricting your learners.

A. Singh

Practising Attorney