Legal warning for parents with children in private schools

Parents who fail to pay their child’s private school fees could face legal action, and in some cases, the school may terminate the learner’s enrolment.

Depending on whether a student attends public or private school in South Africa, unpaid fees could have very different consequences.

This is according to DBM attorneys, which explained that schools have different powers when dealing with unpaid fees, particularly when it comes to suspending, expelling or terminating a learner’s enrolment.

The issue is often misunderstood by both parents and schools. Some parents believe a learner can never be excluded for unpaid fees.

Meanwhile, some private schools may believe that a contractual right to terminate enrolment automatically entitles them to do so.

However, the legal position is more nuanced. Section 29(1)(a) of the Constitution provides that everyone has the right to a basic education.

The Constitutional Court has repeatedly stressed the importance of this right and the need to carefully consider any decision that affects a learner’s access to education.

Section 28(2) of the Constitution also provides that a child’s best interests are of paramount importance in every matter concerning the child.

This means schools in South Africa must consider the effects of decisions about unpaid fees on learners.

The position is relatively clear for public schools. While parents can be required to pay school fees, a learner cannot be suspended, expelled or otherwise prejudiced because their parents have failed to pay.

Sections 39 to 41 of the South African Schools Act regulate school fees at public schools. These provisions allow parents who cannot afford school fees to apply for a full, partial or conditional exemption.

Where fees remain unpaid, the school’s remedy is to recover the debt from the parent. The school cannot punish the learner for the parent’s financial position.

The Schools Act also prohibits public schools from withholding a learner’s report or transfer certificate due to unpaid fees.

This creates a distinction between recovering money from a parent and restricting a child’s access to education.

The rules for private schools

When a child is enrolled at a private school, the parents and school generally enter into a contractual agreement.

That agreement sets out the fees, the parties’ obligations, and the circumstances under which the school may terminate the enrolment.

As such, a private school may have a contractual right to terminate a learner’s enrolment where fees are not paid.

However, that does not mean the school can exercise the right without considering constitutional principles.

The Constitutional Court dealt with this issue in AB and Another v Pridwin Preparatory School and Others.

The case involved two learners whose enrolments were terminated after their parents failed to meet their financial obligations.

The court recognised that independent schools have the right to enforce valid contracts and cannot be required to educate learners indefinitely where parents do not honour their obligations.

However, independent schools also perform an important public function by providing education, and their contractual rights must be exercised in a manner consistent with constitutional values.

This means a private school should not simply treat unpaid fees as an automatic ground for removing a learner.

DBM Attorneys explained that the school should follow the procedures contained in the enrolment agreement and give parents proper notice of the breach and the proposed action.

Parents should also have a reasonable opportunity to address the outstanding fees. This could include paying the amount due, negotiating a payment arrangement or explaining the circumstances that caused the default.

The school should also consider the effect that exclusion could have on the learner. The High Court reinforced this approach in N.F.M v John Wesley School and Another.

In this case, the court stressed that private schools should exercise contractual rights in a way that minimises interference with a learner’s right to education.

A similar principle was recognised in St Charles College v Du Hecquet De Rauville and Others, where the court confirmed that contractual provisions at independent schools remain subject to constitutional values and fairness.

The constitutional right to education does not mean parents can simply stop paying private school fees without consequences.

Enrolling a child at an independent school still creates legally enforceable contractual obligations.

Parents who are struggling financially should communicate with the school as early as possible, DBM Attorneys advised.

Waiting until fees have accumulated can make it harder to reach an agreement and may ultimately result in legal proceedings.

At the same time, schools should consider whether there are alternatives to immediate exclusion. A payment arrangement may resolve the financial problem without disrupting the learner’s education.