CAN A SCHOOL SUSPEND A CHILD BECAUSE OF FAILURE TO PAY SCHOOL FEES? By Oritonda Rambuda

In a state like South Africa, where there are massive inequalities in society’s income and standard of living, it is common to find laws differently applying to private and public spheres. Section 29 of the Constitution states that “everyone has the right to basic education”, but does this apply to both private and public schools?

It has been said in a recent case by the Constitutional Court judgment, that a private school cannot be forced to provide basic education, but a private school should not unreasonably impair the basic education it provides to its learners [See AB & Another V Pridwin Preparatory School & Others BCLR 1029 (CC)]. However, same cannot be said about the public schools.

Both private and public schools are regulated by the South African Schools Act 84 of 1996 (hereinafter the “Act”). Public schools are controlled by the Government and private schools are privately controlled. This means that what applies for public schools, will not (necessarily) apply for private schools.

The Act specifically prohibits public schools from taking action against learners for non-payment of school fees, including suspension from class and / or withholding of school reports [see Section 9]. However, this section of the Act does not prohibit private schools from suspending learners due to failure of school fees payment. Private schools may refuse admission of learners and may suspend learners whose parents are unable to pay the schools fees (pending payment).

The difference between public and private schools is that there is a relationship between the parents and the private schools that is governed by the agreement (contract) they entered into. As to whether or not the school can suspend a child a pending payment is found in the clauses of the agreement as entered into between the school and the parents.

It is reasonable for schools to firstly attempt to consult with the parents to make arrangements payment for outstanding fees, before suspending and / or excluding the learners.

It should be noted that neither private nor public school may withhold a learner’s report for whatever reason [see Section 25(13) of National protocol for Assessment].

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