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DATE DOWNLOADED: Mon Oct 30 16:28:52 2023 SOURCE: Content Downloaded from HeinOnline Citations: Please note: citations are provided as a general guideline. Users should consult their preferred citation format's style manual for proper citation formatting. Bluebook 21st ed. Nurina Ally & Daniel Linde, Pridwin: Private School Contracts, the Bill of Rights and a Missed Opportunity, 11 Const. CT. REV. 275 (2021). ALWD 7th ed. Nurina Ally & Daniel Linde, Pridwin: Private School Contracts, the Bill of Rights and a Missed Opportunity, 11 Const. Ct. Rev. 275 (2021). APA 7th ed. Ally, N., & Linde, D. (2021). Pridwin: Private School Contracts, the Bill of Rights and Missed Opportunity. Constitutional Court Review, 11, 275-300. Chicago 17th ed. Nurina Ally; Daniel Linde, "Pridwin: Private School Contracts, the Bill of Rights and a Missed Opportunity," Constitutional Court Review 11 (2021): 275- McGill Guide 9th ed. Nurina Ally & Daniel Linde, "Pridwin: Private School Contracts, the Bill of Rights and a Missed Opportunity" (2021) 11 Const Ct Rev 275. AGLC 4th ed. Nurina Ally and Daniel Linde, 'Pridwin: Private School Contracts, the Bill of Rights and a Missed Opportunity' (2021) 11 Constitutional Court Review 275 MLA 9th ed. Ally, Nurina, and Daniel Linde. "Pridwin: Private School Contracts, the Bill of Rights and a Missed Opportunity." Constitutional Court Review, 11, 2021, pp. 275-300. HeinOnline. OSCOLA 4th ed. Nurina Ally & Daniel Linde, 'Pridwin: Private School Contracts, the Bill of Rights and a Missed Opportunity' (2021) 11 Const Ct Rev 275 Please note: citations are provided as a general guideline. Users should consult their preferred citation format's style manual for proper citation formatting. -- Your use of this HeinOnline PDF indicates your acceptance of HeinOnline's Terms and Conditions of the license agreement available at heinonline/HOL/License -- The search text of this PDF is generated from uncorrected OCR text. -- To obtain permission to use this article beyond the scope of your license, please use: Copyright Information
ConstitutionalCourt Review 2021 © The Authors
Volume 11, 275-300 Open Access article distributed in terms of the
doi/10.2989/CCR.2021.0010 Creative Commons Attribution License [CC BY 4]
Pridwin: Private School Contracts, the Bill of Rights
and a Missed Opportunity
NURINA ALLY & DANIEL LINDE
ABSTRACT: AB and Another v Pridwin PreparatorySchool and Others is a cause for
both celebration and concern. The Court's conclusion that private schools are bound
by the rights to basic education and the paramountcy of a child's best interests is an
important development in South Africa's education jurisprudence. However, the majority
judgment missed an opportunity to fully embrace the constitutionalisation of contract law
through section 8 of the Constitution. By contrast, the minority's approach hints toward
a promising pathway to demonstrating how section 8, when properly applied, can offer a
coherent and balanced approach to the development of the common law in order to give
effect to or justifiably limit the application of constitutional rights in contractual disputes.
KEYWORDS: basic education, best interests of the child, horizontal application,
common law development, independent schools.
AUTHORS: Nurina Ally* - Lecturer, Department of Public Law, University of Cape
Town; former Executive Director at the Equal Education Law Centre ('EELC'). The EELC
represented Equal Education as amicuscuriaeinthis matter. ORCiD: 0000-0003-1587-
Daniel Linde - Pupil advocate, Johannesburg Society of Advocates; former
Deputy Director, Equal Education Law Centre and attorney on record
for Equal Education as amicus curiae in the High Court in this matter.
*Correspondence: nurina@uct.ac
ACKNOWLEDGEMENTS: We are grateful to the organisers and participants of
the Constitutional Court Review XI Conference held in December 2020 at which we
presented an earlier version of this article. We are especially indebted to Leo Boonzaier
and Faranaaz Veriava for their detailed and constructive comments, as well Khomotso
Moshikaro and Jason Brickhill for their meticulous engagement with the article as
editors. We also appreciate the valuable feedback and suggestions received from the two
anonymous reviewers.
Constitutional CourtReview is published by NISC (Pty) Ltd.
PRIDWIN: PRIVATE SCHOOL CONTRACTS AND THE BILL OF RIGHTS
####### of these parent contracts, following an intense and nasty dispute between the school and the
####### parents of two young boys (aged six and ten years old), that took centre stage in a legal drama
####### that eventually reached the Constitutional Court in 2019.
####### Every judge who heard the matter accepted that, on the record, the dispute arose primarily
####### from the perpetual and unreasonable demands, and unrelenting hostility of the children's
####### father (AB) toward the school, 'aided and abetted' by his wife's (CB's) conduct. 5 The parents
took particular issue with the quality of sports coaching at Pridwin, motivated by the belief that
####### the natural sporting talent of their children was not being sufficiently nurtured by the school. 6
To this end, AB resorted to a range of pedantic interventions including, for example, analysing
####### hard copy and electronic versions of cricket results to make sure that his sons' achievements
####### were being properly recorded and obtaining the services of an actuary to challenge team
####### selection processes. 7
####### AB's pursuit of sporting excellence also manifested in outwardly aggressive behaviour. He
####### demeaned, threatened and harassed umpires, coaches and staff when any adverse decision was
####### made against his sons in sports matches. When his son was declared 'out' in a cricket match at
####### a rival school, AB hurled expletives and verbal abuse at the umpire and, with a cricket bat in
####### his hand, threatened to kill the umpire. On another occasion he verbally abused the school's
####### cricket coach and made disparaging remarks about other children on the team. This prompted
####### another parent at the school to complain about the adverse effect AB's conduct was having
####### on her son.'
The parents and the principal agreed that AB would correct his behaviour at sporting
####### events. 9 The resulting calm did not last long. Less than six months after the truce, AB arrived
####### at a soccer match with his own coach in tow, who then sought to instruct the school's coach
####### (during the match). This led to yet another argument with the school's principal, who in turn
####### made it clear that AB had breached their prior agreement. 10 By 30 June 2016, the school had
####### reached its limit. The school sent a letter to the parents terminating their contract with the
####### school in relation to both children, and relying on the following termination clause:
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 Findings of the Living Conditions Survey 2014/15' (2018), available at statssa.gov/publications/ Report-03-10-02%20/Report-03-10-02%202015. 4 AB & Another v Pridwin PreparatorySchool & Others [2017] ZAGPJHC 186 ('Pridwin HC'); AB & Another v Pridwin PreparatorySchool & Others [2018] ZASCA 150, 2019 (1) SA 327 (SCA)('Pridwin SCA'). s Pridwin CC (note 1 above) at para 10. See also: Pridwin HC (note 4 above) at paras 127-137; Pridwin SCA (note 4 above) at paras 9-22, 73 (majority) and 85 (minority); Pridwin CC (note 1 above) at paras 5, 10-31, 100. Following the Constitutional Court's judgment, CB (the mother of the children) penned an opinion piece refuting the 'caricature of the uncivilized brown person', which, she said, 'so successfully managed to capture the imagination of the media and the judiciary' (CB: 'I was the Barbarian at the Gate of Pridwin Preparatory School' Daily Maverick (19 June 2020), available at dailymaverick.co/ article/2020-06-19-i-was-the-barbarian-at-the-gate-of-pridwin-preparatory-school).
####### 6 Pridwin CC (note 1 above) at para 12.
####### 7 Pridwin SCA (note 4 above) at para 11 and Pridwin CC (note 1 above) at para 12.
####### 8 Pridwin CC (note 1 above) at paras 16-19.
9 Ibid at paras 20, 21. 10 Ibid at paras 26-29 and Pridwin SCA (note 4 above) at para 18.
NURINA ALLY & DANIEL LINDE 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."
####### Five months after the contracts were terminated, the parents approached the High Court on
####### an urgent basis to challenge the cancellation. The main issue before the court was whether
####### the school's termination clause should be constrained by the rights of the two children who,
####### as a result of the termination and through no fault of their own, would be excluded from the
####### school.
####### B The broader context - expanding role of independent schools
####### A fight between badly behaved wealthy parents and an elite private school may not set the
####### scene for a case with significant public interest implications. But the broader context matters.
####### Firstly, the specific termination clause at issue in the case is regularly utilised in pro forma
####### contracts by member schools of the Independent Schools Association of South Africa (ISASA).
####### ISASA's membership includes approximately 750 independent schools across South Africa
####### servicing 167 000 pupils (of varying social and economic backgrounds). 12 Indeed, ISASA
####### intervened in the matter as a respondent exactly because of the extensive consequences that
####### the case had for its member schools. As it said: '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.'1 3
Secondly, intervening as amicus curiae, Equal Education (EE), a social justice movement
####### advocating for equal and quality education in South Africa, highlighted the significant growth
####### of independent schools across the country over the previous two decades. Between 2000
####### and 2010 alone, enrolment at independent schools grew by 75 per cent. 14 Public school
enrolment grew by only 1 per cent in that period. 15 Equal Education (EE) also pointed to
####### the significant change in the demographics of children attending independent schools, from
####### 'being mainly white and serving the rich' to 'being mainly black and the majority of schools
####### now serving low- and middle-income learners'.1 6 Independent schools are also not necessarily a
####### beacon of highly-resourced educational opportunity. Instead, EE cited research indicating that
####### low-fee independent schools are likely to be in 'abandoned factories and shacks to shopping
####### centres' and may have smaller classes as well as fewer facilities than public schools. 17
" Pridwin CC (note 1 above) at paras 97-98. About five months after the contract was terminated, the principal
wrote to the provincial department of education seeking confirmation that the boys could be placed in a public school if the parents sought this option. The provincial department indicated that a place in a specific school could not be guaranteed and that at least one of the boys could be placed on a waiting list. " Ibid at para 112.
####### 13 Ibid at para 113. See also NMv John Wesley School &Another [2018] ZAKZDHC 64, 2019 (2) SA 557 (KZD)
(John Wesley'), where a low-fee independent school, and member of ISASA, relied on an ISASA policy document when excluding a learner from the writing of examinations as a result of the parents' inability to pay school fees. a Heads of Argument for EE in Pridwin (15 May 2019), available at eelawcentre.org/wp-content/ uploads/second-amicus-curiaes-heads-of-argument, at para 6. " Ibid. 16 Heads of Argument for EE (note 14 above) at para 6. 17 Ibid at para 6. See also T McKay, M Mafanya & A C Horn 'Johannesburg's Inner City Private Schools: The Teacher's Perspective' (2018) 38 South African Journalof Education 1, 1 where they indicate that a sample of teachers in Johannesburg's inner city private schools reported 'unhappiness with their low salaries, long working hours and poor working conditions' and 'lamented the lack of adequate teaching and learning materials, as well
####### as negligible educational infrastructure such as libraries, laboratories and sports fields'; and J Brickhill & Y van
NURINA ALLY & DANIEL LINDE Equal Education (as amicus curiae in the High Court and Constitutional Court) and Centre
####### for Child Law (as amicus curiae in the Constitutional Court) supported the argument that
####### private schools bear constitutional obligations in relation to their learners. ISASA joined the
####### proceedings as second respondent, in support of Pridwin.
####### Pridwin accepted that it was bound by section 28(2) of the Constitution but argued that
####### this requirement had been met. Even though the principal had not specifically solicited
####### representations on the best interests of the two boys, he had nonetheless taken their interests
####### into account and appropriately weighted those interests against the other 445 children at the
####### school. 24 In relation to section 29(1)(a), Pridwin and ISASA strenuously objected to the claim
####### that the right to basic education imposed any obligations on private schools in respect of their
####### learners. 25 The nub of their contention was that private schools do not provide basic education
####### at all. On the contrary, the provision of basic education is a constitutional function which the
####### state has a duty to provide. Since the state is the bearer of the positive obligation to provide
####### basic education, it follows that basic education refers to state provided schooling and not to
####### schooling by wholly independent private schools. To conclude otherwise, they said, would
####### result in private schools being saddled with the constitutional duty to provide basic education
####### to children.
The High Court and majority of the Supreme Court of Appeal 26 agreed with Pridwin and
####### ISASA on all fronts, and upheld the parent contract in accordance with the principle ofpacta
####### sunt servanda (that parties should honour contracts that have been entered into freely and
####### consciously). 27 This set the precedent that private schools are not bound by the right to basic
####### education in relation to the learners who attend those schools, and that a private school can
####### terminate parent contracts without having obtained representations on the best interests of the
####### children who would be excluded as a result. The Court unanimously upended the approach
of the courts a quo. Although both the minority and majority judgments applied section 8(2)
####### of the Constitution through different routes, all the judges agreed that Pridwin was bound by
####### obligations in relation to the right to basic education and the paramountcy of best interests
####### of the child.
####### In the analysis that follows, we welcome the Court's reversal of the approach of the courts
####### below and the assessment of Pridwin's obligations under section 8(2) of the Constitution. In
####### doing so, the Court has developed the substantive content of rights in an education context
####### and the obligations of private schools. However, by failing to follow the schema of section 8 in
####### its entirety, the Court missed an opportunity to fully realise the transformative potential of the
####### horizontal application of rights under section 8 of the Constitution in contractual relationships.
####### 2 Pridwin SCA (note 4 above) at paras 29, 31, Pridwin CC (note 1 above) at para 145.
25 Heads of argument for the first to third respondents in Pridwin CC (18 April 2019) at paras 69-78, heads of argument for ISASA in Pridwin CC (29 April 2019) at paras 15-20. 26 Mocumie JA wrote a dissenting judgment in the Supreme Court of Appeal. 27 In Barkhuizen (note 2 above) at para 87, the Court describedpactasuntservandamaxim as 'a profoundly moral principle, on which the coherence of any society relies' and as 'a universally recognised legal principle.'
PRIDWIN: PRIVATE SCHOOL CONTRACTS AND THE BILL OF RIGHTS
####### III THE COURT GETS IT RIGHT: PRIVATE SCHOOLS ARE BOUND BY THE
####### BILL OF RIGHTS
####### A Private schools are bound by section 28(2) of the Constitution
####### Pridwin and the courts below accepted that private schools are bound by section 28(2) of the
####### Constitution and are thus required to consider the best interests of the child as paramount
####### in matters concerning them. Nonetheless, even though the High Court and Supreme Court
####### of Appeal recognised that an assessment of the best interests of the child may necessitate a
####### fair hearing in some circumstances, they also stressed that the paramountcy of a child's best
####### interests is not necessarily a trump against all other interests. The courts were unwilling to hold
####### that private schools have a general obligation to receive representations on the childrens' best
####### interests before terminating a parent contract. They were also satisfied that, in this case, the
####### principal of the school had (despite not obtaining specific representations) taken the interests
####### of the two boys into account and properly balanced this against the interests of all the other
####### learners at Pridwin. 28
####### The Constitutional Court held that the courts below had erred in their assessment of whether
####### the duty under section 28(2) had, in fact, been met in this case. The majority held that in the
####### circumstances of the case 's 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.' 2
####### Significantly, an oral hearing is not necessarily required in all circumstances in order to satisfy
the requirements of a fair process. 30 Justice Khampepe considered it necessary, in a concurring
####### opinion, to emphasise that it is the child who has an independent and self-standing right (apart
####### from their parents) to a fair process in the circumstances of a case as this one. 31
The minority opinion of Nicholls AJ (with Mogoeng CJ, Cameron and Froneman JJ
####### concurring), whilst not necessarily in disagreement with the majority, was more explicit in
####### underscoring that the procedural right to a fair process when a private school contract is
####### terminated does not hinge on section 28(2) by itself. Rather, it is because the decision or
####### termination affects the right of a child to basic education that the obligation of private schools
####### to solicit specific representations when terminating a parent contract is crystallized. As Nicholls
AJ put it: If the Supreme Court of Appeal is correct that independent schools have no 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. 32
####### We appreciate Nicholls AJ's emphasis on this point. The paramountcy of best interests under
section 28(2), whilst significant, is not the only right grounding the necessity of a fair process in
####### the circumstances of the case. Indeed, stretching the right in this way runs the risk of diluting
the effectiveness of the principle itself. As Sachs J warned in S v M:
28 Pridwin HCat para 77, Pridwin SCA (note 4 above) at paras 31-33.
####### 29 Pridwin CC (note 1 above) at para 153.
3 Ibid at para 151.
3 Ibid at para 221. Khampepe J (at para 226) states: 'the procedural right 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.'
####### 32 Pridwin CC (note 1 above) at para 75.
PRIDWIN: PRIVATE SCHOOL CONTRACTS AND THE BILL OF RIGHTS a constitutional function. So too would a private clinic that renders treatment to a patient, since the provision of health care services is also a state obligation. 38 This proposition, said the majority of the Supreme Court of Appeal, 'simply cannot withstand
####### the most basic scrutiny'. 39 In contrast, the Constitutional Court embraced the implications
####### of private entities involved in the provision of a constitutionally guaranteed right attracting
obligations under the Bill of Rights. Indeed, Theron J cautioned that the 'aversion to
####### constitutional obligations' demonstrated by Pridwin and ISASA '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.' 40
####### Referring to the effect of section 8(2) as a 'transformation of private relations', 41 both the
####### majority and minority of the Court impressed upon private entities such as Pridwin that they
####### are not immune from constitutional obligations, and the Court was ultimately unanimous that
####### private entities in the position of Pridwin are at least under an obligation not to interfere with
or diminish the right which forms the subject of their services without appropriate justification.
####### It is notable that the Court framed this obligation as a purely 'negative' one when, in fact, the
substance of the Court's finding is that Pridwin bears an obligation, once it has enrolled a child,
####### to ensure that the child's education is not diminished. 42
####### The recognition that a private school has, at the very least, an obligation not to impede the
####### education of a child at that school without appropriate justification is not novel. In KwaZulu-
####### NatalJoint Liaison Committee, 43 the Constitutional Court recognised that the right to basic
####### education extends to all learners, including learners at independent schools. 44 In that case the
####### reduction of state subsidies to independent schools was held to involve 'the negative rights
####### of those learners - the right not to have their right to a basic education impaired'. 45 In Juma
####### Musjid, 46 the Constitutional Court recognised that a private trust that was not even involved
####### in providing basic education had an obligation not to diminish the right to education of
####### children attending school on the trust's property. In Pridwin HC the court sought to narrow
####### the import of KwaZulu-Nataljoint Liaison Committee by contending that section 29(1)(a)
applies to learners in state-subsidised independent schools. 47 The Supreme Court of Appeal
####### sought to side-step Juma Musjid as distinguishable on the basis that the children were attending
####### a public school, and the obligations attendant on the Trust injuma Musjid were therefore not
####### 38 Pridwin SCA (note 4 above) at para 40.
39 Ibid.
####### * Pridwin CC (note 1 above) at para 120.
' Ibid at para 131. 42 M Finn 'Befriending the Bogeyman: Direct Horizontal Application in AB v Pridwin' (2020) 137 South African Law Journal591, 602-604 argues that the differentiation between negative and positive obligations in Pridwin is unhelpful and suggests that '[t]he sharp, and seemingly normatively significant, distinction between negative and positive duties should be abandoned.' See also Lowenthal (note 18 above) at 269.
4 KwaZulu-NatalJoint Liaison Committee v MEC Department of Education, Kwazulu-Natal & Others [2013]
ZACC 10, 2013 (6) BCLR 615 (CC), 2013 (4) SA 262 (CC). " Ibid at paras 38, 45. 4 Ibid at para 45. 4 Governing Body of the Juma Musjid Primary School & Others v Essay NO & Others [2011] ZACC 13, 2011 JDR 0343 (CC)(jumaMusjid') 47 Pridwin HC (note 4 above) at paras 31-32.
NURINA ALLY & DANIEL LINDE
####### at all relevant to Pridwin - since Pridwin had not interfered with the children's attendance at
a public school."
In our view the Court was correct in rejecting these approaches. Taking into consideration
####### the scope of the duties imposed on private schools by the right to basic education in terms of
####### section 8(2), the Court unanimously rejected the view that the right refers only to state-provided,
####### state-subsidised, or state-contracted education. The Court diagnosed that this conclusion was
####### based on the 'misconceived' premise that a person only provides a basic education where they
have a positive constitutional duty to do so, 49 thereby conflating the 'content of basic education
####### with the duty to provide it'. 50 As Nicholls AJ pointed out, this approach failed to recognise
####### that the right to basic education contains both positive and negative obligations, which do not
####### necessarily apply in the same way to all providers." Aptly highlighting the flawed foundations
to the reasoning of the courts below, Theron J stated that: '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.' 5
####### The lower courts' conflation of the identity of the provider of a basic right and the content of
####### that right is also reflected in the hinging of whether a basic education is provided (or received)
####### on a 'contractual nexus' with the state. Here, the respondents and courts below relied on the
Constitutional Court's judgment in AllPay, 53 as authority for the proposition that private
####### actors can only be considered as providers of a constitutional right when there is a contractual
relationship with the state. We agree with Theron J that this reliance was 'misplaced'. 4 In
####### AllPay, the Court held that a company, Cash Paymaster Services, had specifically undertaken
####### constitutional obligations by virtue of its contract with the South African Social Security
####### Agency. Having done so, it could not 'simply walk away' when that contract was declared
####### invalid." At no point does the AllPay judgment suggest that the only means by which a private
####### entity may incur constitutional obligations is where there is a contractual relationship with the
####### state. Instead, the case merely demonstrates that one of the ways in which private entities can
####### assume constitutional obligations is through such a contract. 56 Similarly, the suggestion that
####### constitutional obligations are assumed only when there is a state subsidy cannot be sustained.
####### As Nicholls AJ highlighted, this reasoning would lead to the untenable conclusion that once
####### the state stops payment of a subsidy, a child is no longer receiving a basic education. 57
####### Pridwin and ISASA also sought to rely on section 29(3) of the Constitution to ground the
####### argument that privately-provided education does not fall within the scope of section 29(1)
####### (a). Section 29(3) expressly provides for the right of any person to establish and maintain
4 PridwinSCA (note 4 above) at paras 41-44. 49 Pridwin CC (note 1 above) at para 177. " Ibid at para 178. " Ibid at para 86. 5 Ibid at para 178. 3 Al pay ConsolidatedInvestment Holdings (Pty) Ltd & Others v ChiefExecutive Officer of the South African Social
Security Agency & Others (No 2) [2014] ZACC 12, 2014 (4) SA 179 (CC)(AllPay').
4 Pridwin CC (note 1 above) at para 177.
- Allpay (note 53 above) at para 66. 56 It is worth noting that in AllPay, the Constitutional Court considered Cash Paymaster Services to be an organ of state under s 239 of the Constitution and was not concerned with the application of s 8. For a thorough analysis of this aspect of the AllPay judgment, see M Finn (2015) 31 'Organs of State: An Anatomy' South African Journal on Human Rights 631. 57 Pridwin CC (note 1 above) at para 83.
NURINA ALLY & DANIEL LINDE
####### suggested that basic education may be coterminous with primary schooling, 66 but this is
debatable (indeed doubtful). 67 By contrast, and preferably, Theron J adopted a more expansive
####### and flexible understanding of the concept of basic education. She resisted equating basic
####### education with primary schooling and specifically noted that international instruments have
####### shifted away from the use of the terms 'primary' or 'elementary' education to the broader notion
####### of 'basic education'. 68 The general thrust of Theron J's judgment endorses an understanding of
####### basic education as '[i]n its broadest and most general sense' pertaining to that which is required
####### in order to have 'one's basic learning needs met.' 6
####### Notably, in Moko 70 (handed down after Pridwin CC), the Constitutional Court sought
####### to clarify its approach to the scope of basic education under section 29(1)(a). Writing for a
unanimous court, Khampepe J, in Moko, suggested that the thrust of Nicholls AJ's minority
####### judgment in Pridwin CC was to indicate that 'primary school education most certainly falls
within the definition of basic education' (emphasis in original). 71 In Moko Khampepe J held
####### that a basic education is effectively school education until Grade 12 and that to limit basic
####### education 'to only primary school education or education up until Grade nine or the age of
####### 15' would be an 'an unduly narrow interpretation of the term'. 72
####### A full critical assessment of the Court's approach to the right to basic education is beyond the
####### scope of this article. 73 However, the point we have sought to highlight here is that, by directly
####### addressing whether and to what extent private schools are bound by the right to basic education
(under section 8(2) of the Constitution), the Constitutional Court provided important content
####### and definitional scope to the right and, as Lowenthal noted, offers a 'welcome clarion call
####### for the centrality and normative priority of the right of children to quality education'. 74 The
Court confirmed that private schools can indeed be providers of basic education and that when
####### they undertake to do so they are, at the very least, bound by the obligation not to interfere or
####### diminish that right without appropriate justification. Together with the obligations arising
####### from the paramountcy of children's best interests, the Court established that children cannot
####### be excluded from private schools unless the school has met the requirements of substantive and
####### procedural fairness. At a minimum, this requires private schools to receive representations on
####### the best interests of the children who would be so excluded.
" Nicholls AJ is initially tentative on this point stating: '[w]hile it is difficult to establish where the line should be drawn between basic education and further education, it cannot be disputed that basic education includes what is commonly known as primary education.' However, she then goes on to suggest this more definitively when she says that the concept of basic education 'stands in contradistinction not to a superior education, but to a secondary or tertiary education'. Pridwin (note 1 above) at paras 78-79. 67 Indeed, in Juma Musjid (note 46 above) at para 38, the Constitutional Court (with reference to relevant national legislation) recognised that basic education at least includes schooling from seven to 15 years of age or the ninth grade. 68 Pridwin (note 1 above) at para 160. 69 Ibid at para 166. 70 Moko vActing PrincipalofMalusi Secondary School & Others [2020] ZACC 30 (Moko'). 71 Ibid at para 29. 72 Ibid at paras 31-32. 73 For a comprehensive assessment of the approach of courts to interpreting the right to basic education in South Africa, see F Veriava Realising the Right to Basic Education in South Africa: The Role of the Courts and Civil Society (2019). 4 Lowenthal (note 18 above) at 265.
PRIDWIN: PRIVATE SCHOOL CONTRACTS AND THE BILL OF RIGHTS
####### This is of significant practical importance. As noted earlier, the number of private schools
####### in South Africa is growing and these new schools are increasingly more likely to provide
####### education to learners from low-income households. As we argue below, the finding that private
####### schools are bound by constitutional obligations arising from the right to basic education and
####### the paramountcy of the best interests of the child ought to influence the contractual terms
####### those schools are permitted to agree and enforce. Because of this, if private schools, absent
####### agreements with or subsidies from the state, bear no constitutional obligations in respect of
####### the children they enroll, the results would be perverse: a wholly independent private school
####### catering to a poor community would have greater liberty to punish, exclude and expel learners,
####### while its state-subsidised counterpart would be constrained. Learners at low-fee private schools
####### in particular (whether state subsidised or not), who are more likely to struggle to quickly find a
####### new school to attend, be provided with catch up plans, and be counseled through any trauma
####### they might have experienced.
####### In summary then, we welcome the Court's assessment of rights under section 8(2) and its
####### finding that private schools are bound by the right to basic education and the paramountcy of
####### the best interests of the child. However, our enthusiasm for the Court's approach to the 'direct',
####### horizontal application of rights is ultimately curbed. As we discuss below, by avoiding the
contractual relationship between the parties, the Pridwin CC majority missed an opportunity
####### to address the troubled legacy of Barkhuizen and to ensure that the transformative thrust of
####### section 8 is used to develop the common law of contract in line with the Constitution.
####### IV THE COURT MISSES AN OPPORTUNITY: CONSTITUTIONAL
####### CHALLENGES TO CONTRACTUAL DISPUTES AND THE DIRECT
####### APPLICATION OF THE BILL OF RIGHTS
####### The availability of section 8(2) to parties challenging a provision of a contract has been the
####### source of much controversy in South African law, particularly following the judgment of
####### the Constitutional Court in Barkhuizen. It was this issue - whether the impugned school
####### termination clause could be tested through direct application of rights under section 8(2) -
####### that split the Pridwin Court.
####### The parents had cast their claim as a challenge, in the first instance, to the validity of the
####### principal's decision to exercise the termination clause (thereby excluding the two children from
####### Pridwin). This claim was premised on the assumption that the termination clause was capable of
####### a constitutionally compliant construction (that is, one which required any decision to terminate
####### the contract to be taken after having afforded a fair hearing and on a reasonable basis). To
####### the extent that the termination clause was not considered capable of such a construction, the
####### parents relied on their second claim: that the clause fell to be declared contrary to public policy,
####### invalid and unconstitutional (for derogating from the rights contained in sub-sections 29(1)(a)
and 28(2) of the Constitution). 75
####### In light of the two boys having already left Pridwin by the time of the Constitutional
####### Court hearing, Nicholls AJ, for the minority, would have held that the constitutionality of
####### the principal's decision to terminate the contract in the circumstances of this specific case was
####### moot. The question requiring resolution, and which would go 'far beyond the confines of
75 Heads of Argument for the applicants in Pridwin HC (note 14 above)(16 March 2017) at paras 91-93, available at eelawcentre.org/wp-content/uploads/parents-hoa.pdf.
PRIDWIN: PRIVATE SCHOOL CONTRACTS AND THE BILL OF RIGHTS
####### While the Bill of Rights applies to private persons, the distinction between sections 8(1) and
####### 8(2) makes clear that obligations do not bind them in the same way they do to the state. A
provision in the Bill of Rights applies to private persons if it is applicable, and then to the
####### extent that it is applicable. Both those questions - the applicability and the scope - are to be
####### determined by assessing whether the right in question is capable of an interpretation which
####### can ground a cause of action against a private party, 81 and with reference first to the nature of
####### the right and the duty imposed by the right.
####### If a provision in the Bill of Rights binds a private person, we are directed to section 8(3).
####### Section 8(3)(a) says that in order to give effect to a right, and in the absence of legislation that
####### does so, a court must apply, or if necessary, develop the common law. Section 8(3)(b) permits
####### courts to develop common law rules which limit the right, provided that the limitation is
####### justifiable in terms of section 36(1).
####### The process required under section 8(2) was well articulated in Khumalo. 83 There the
####### Constitutional Court was tasked with assessing the applicability of the right of freedom of
expression to private parties. The defendant in a defamation suit, a newspaper, argued that
####### the plaintiff should have been required to allege that the defamatory publication was false, a
####### requirement that was not captured in South African common law at the time. The newspaper
####### submitted that the private law of defamation should be adapted so as to respect the right of
####### media defendants to freedom of expression under section 16 of the Constitution.
With only private parties before her, O'Regan J, writing for the Court's majority, was tasked
####### firstly with assessing whether there was some duty encapsulated in section 16 which applies to
####### a person who is subject to defamatory publication - in other words, was the ifrequirement in
####### section 8(2) satisfied. She noted that the 'print, broadcast and electronic media have a particular
####### role in the protection of freedom of expression in our society. Every citizen has the right to
####### freedom of the press and the media and the right to receive information and ideas'. Turning
to the parties before her, in the context of the right, O'Regan J contended that the media 'are
####### key agents in ensuring that these aspects of the right to freedom of information are respected'.
####### They bear both constitutional rights and constitutional obligations under section 16 In light
####### of the intensity of the right in question and the potential invasion of the right that could be
occasioned by persons other than the state, O'Regan J concluded that freedom of expression
####### found 'direct horizontal application' in the case before her. 85
####### Having made that determination, the overall scheme of section 8 required that O'Regan
J examine the common law of defamation and ask whether it unjustifiably limited the right
####### to freedom of expression. If it did, the Court would be compelled to develop it. Ultimately,
####### the Court held that the rule developed in Bogoshi, 86 recognising the availability of a reasonable
####### publication defense where a publisher is accused of defamation, places the common law in a
####### position which satisfies the section 36 limitations analysis.
81 A Price 'The Influence of Human Rights on Private Common Law' (2012) 129 South African Law Journal330, 335. 82 For an analysis of the process required under s 8(3) see H Cheadle and D Davis 'The Application of the 1996 Constitution in the Private Sphere' (1997) 13(1) South African journalon Human Rights 44, 61-65. 83 Khumalo & Others v Holomisa [2002] ZACC 12, 2002 (5) SA 401 (CC)('Khumalo'). 84 Ibid at Para 22. 85 Ibid at para 33. 86 NationalMedia Ltd & Others v Bogoshi [1998] ZASCA 94, 1998(4) SA 1196 (SCA)('Bogoshi').
NURINA ALLY & DANIEL LINDE
####### In stark contrast to the approach in Khumalo, the majority of the Court in the seminal (and
####### fiercely criticised) decision of Barkhuizen were disinclined to examine the constitutionality of a
####### contractual provision with reference to section 8(2). Barkhuizen's approach - of eschewing the
####### applicability of section 8 and relying exclusively on section 39(2) as the 'portal' 87 through which
####### to assess contractual disputes - is associated with 'indirect' as opposed to 'direct' application of
####### the Bill of Rights. But there has also been considerable debate, indeed confusion, around the
####### use and meanings of the terms 'direct' and 'indirect' horizontal application in South African
####### jurisprudence and scholarship. 88 We do not rehash the nuances of those debates here; nor do
####### we attempt to offer a definitive proposal on how the terms should be utilised. 89 Suffice it to
####### state that for our (limited) purposes, we employ 'direct' application to refer to the resolution of
####### a dispute by the application of constitutional rights via section 8 of the Constitution. Indirect
####### application is used to refer to the application of constitutional values to the common law
####### underlying the dispute via section 39(2) of the Constitution. As we will explain, we do not
####### view these two approaches as necessarily mutually exclusive (which was the unfortunate view
suggested in Barkhuizen and perpetuated in Pridwin CC).
####### While providing an important infusion of constitutional values into the assessment of
public policy under the common law of contract, the majority judgment of Ngcobo J gave
####### insufficient and unconvincing reasons for rejecting the applicability of section 8(2) and the
####### approach adopted in Khumalo. 90 The core of Ngcobo J's discomfort on this score was centred
####### on the concern that a specific contractual provision is not a law of general application, and
####### therefore cannot ever meet the threshold requirement for any justifiable limitation of rights
####### under section 36 of the Constitution. 91 But, as critics have noted, the Court failed to recognise
####### that it is the underlying common law rules of contract (which are undoubtedly of general
####### application) that are ultimately under scrutiny in any constitutional challenge to contractual
####### provisions 2 It follows that the common law rule ofpacta suntservanda subject to public policy
####### can always be developed to say that in particular circumstances certain types of clauses must be
87 D Bhana 'The Horizontal Application of the Bill of Rights: A Reconciliation of ss 8 and 39 of the Constitution' (2013) 29 South African Journal on Human Rights 351, 355. 88 Bhana ibid at 354 notes that 'confusion abounds' in debates about direct and indirect horizontality; Friedman (note 80 above) at 88 argues that current debates on horizontal application 'damagingly conflates several discrete issues, and continues to sow confusion about how horizontality is supposed to work'; M Dafel 'The Directly Enforceable Constitution: Political Parties and the Horizontal Application of the Bill of Rights' (2015) 31 South African LawJournal 56, 57 refers to the 'labyrinth that has come to surround horizontality in South Africa'. 89 For various proposals on this issue see, for example, C J Roederer 'Post-Matrix Legal Reasoning: Horizontality and the Rule of Values in South African law' (2003) 19 South AfricanJournalon Human Rights 57, 70-71; Bhana (note 87 above); Friedman (note 80 above); F Du Bois 'Contractual Obligation and the Journey from Natural Law to Constitutional Law' (2015) 1 Acta Juridica281; and most recently L Boonzaier 'Contractual fairness at the Crossroads' (2021) 11 Constitutional Court Review 229. 90 S Woolman 'The Amazing, Vanishing Bill of Rights' (2007) 124 South African Law Journal 762; Friedman (note 80 above). 9' Barkhuizen (note 2 above) at paras 23-26. 92 For example, see S Woolman and H Botha 'Limitations' in Woolman et al (ed) Constitutional Law of South Africa (2006) para 34(dd), where the authors assert that a rule constitutes a law of general application for the purposes of s 36(1) of the Constitution when it encapsulates 'parity of treatment, non-arbitrariness, precision and accessibility'. See also Woolman (note 90 above) at 774-775 and, more recently, I M Rautenbach 'Constitution and Contract: Indirect and Direct Application of the Bill of Rights on the Same Day and the Meaning of "in terms of law"' (2021) 1 Tydskrifvir die Suid-Afrikaanse Reg 379, 393-394.
NURINA ALLY & DANIEL LINDE
####### of independent schools is encapsulated within the scheme of section 29 As Mocumie JA, the
lone dissenting judge in the Supreme Court of Appeal, put it: The context in which the contracts in issue were concluded between the parties, is distinctly different - not one of the normal day to day contracts in the commercial world. That is what distinguishes the facts of this case from all others referred to by counsel for the School, particularly the judgments of this Court, a distinction the high court seems to have missed. 99
####### Given the 'extraordinary' nature of this type of contract, the Pridwin CC case then offered a
####### particularly good opportunity to reassess the scope for direct application of the Bill of Rights
to contractual questions. In her minority judgment, Nicholls AJ appeared to grasp that the
####### occasion for loosening the conceptual straitjacket placed over section 8(2) by Barkhuizen had
arrived. Seizing on Langa CJ's concurring judgment in Barkhuizen, Nicholls AJ sought to
####### carve out at least some room for embracing section 8(2) as a viable route when assessing the
constitutionality of contractual provisions, especially where the contractual relationship centres
####### particular rights very clearly. Here she asserted:
Barkhuizen clearly viewed the constitutionality of a contractual clause through the prism of public policy. However, where constitutional rights are directly at issue, 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 ss 8(2) and 8(3).
####### Even though Nicholls AJ did not carry through the s-8 analysis to its proper conclusion
####### (a point we return to below) her recognition that contract law need not be immune to the
####### direct application of constitutional rights is to be embraced. Unfortunately, Nicholls AJ did
####### not prevail over the majority of the Court and, despite the opportunity at hand to soften
####### Barkhuizen' uneasy legacy, the majority hardened its edges.
Unlike the minority, Theron J adopted an unimaginatively strict reading of Barkhuizen and
####### uncritically held that there had been no room to subject the contractual relationshipbetween
####### Pridwin and the parents to a direct, horizontal application of rights under section 8(2). If the
####### constitutionality and enforceability of the contractual provision were to have been assessed,
Theron J contended, this had to proceed as a public policy challenge, which could not be
####### housed under section 8. In drawing this distinction, the majority reinforced rather than
####### corrected Barkhuizen' misguided view that there is a dividing line between direct horizontal
####### application of the Bill of Rights and constitutional scrutiny of contracts. If the door to direct
####### application in constitutional challenges to contracts was indeed left open by Barkhuizen
(however slightly), Theron J closed it.
####### While disappointing, followed to its logical conclusion, one would have expected Theron
####### J's reasoning to have led to an assessment of the enforceability of the school's termination
####### clause through the public policy route. But this is where things become particularly perplexing.
Despite her views on Barkhuizen' constraints, Theron J was eager to adopt direct application
under section 8. Citing academic opinion and extra-curial judicial commentary critiquing the
####### Constitutional Court's seeming preference for an 'indirect' application of rights and resultant
####### failure to give 'identifiable content' to those rights (a critique which, notably, was directed
98 Constitution s 29(3); see also Cheadle and Davis (note 82 above) at 59. 99 Pridwin SCA (note 4 above) at para 92.
####### ' Pridwin CC (note 1 above) at para 67.
PRIDWIN: PRIVATE SCHOOL CONTRACTS AND THE BILL OF RIGHTS
in large part at Barkhuizen), 101 Theron J urged that direct horizontal application should be
####### embraced. As she said: 'This Court should not avoid direct horizontal application where it
appears to be the most appropriate means of resolving a constitutional dispute'. Caught in a dilemma of both wanting to respect Barkhuizen and apply section 8(2), Theron
J bypassed the contractual relationship and simply subjected Pridwin's decision to terminate
####### the contract to an analysis under section 8(2). But this effort to de-link the termination clause
from the decision to cancel is unsustainable since, as Theron J acknowledged, the impugned
####### conduct took place in terms of the contract By artificially ignoring the fact that the decision
####### was an instance of the enforcement of a contractual provision, the majority side-stepped any
####### consideration of whether the contractual provision was consistent with a constitutionally-
####### infused understanding of public policy (i. the very approach that Barkhuizen mandated as
####### being appropriate in constitutional challenges to contractual terms). Instead, she said that
####### this exercise was 'rendered superfluous' with the analysis under section 8(2) being viewed as
sufficient to produce the relevant outcome. However, this failed to account for the requirement
####### under section 8(3) that a Court must, in the absence of applicable legislation, engage with
####### the common law underlying the relationship between the parties (in this case, the common
####### law of contract). 1 0 4 Ironically then, the majority's effort to uphold Barkhuizen's conclusion
####### on the applicability of section 8 of the Constitution to contracts leads to avoidance of an
####### assessment of the contract in terms of Barkhuizen altogether - an irony that is especially
deepened when considering that on the same day as handing down Pridwin CC, Theron J
####### authored the majority judgment in Beadica10 5 which seemingly emphasised the importance of
applying Barkhuizen in contractual disputes. 1 0 6
####### Thus, even though we appreciate the majority's analysis of rights under section 8(2), the
approach to direct application by Theron J was misguided and incomplete. At the same time,
####### while Nicholls AJ's approach is preferable, it too is not entirely satisfying. While Nicholls AJ
####### initially seemed on track to aligning the Barkhuizen test of constitutionally infused public
####### policy with a fulsome undertaking of the process mandated by section 8,107 strangely, she too
####### did not follow section 8's schema to its conclusion. After finding that the school was subject
####### to constitutional duties under section 8(2), Nicholls AJ erred by then asserting that those
10' Pridwin CC (note 1 above) at para 130. Theron J referred to 'certain academics' having criticised the Constitutional
Court's 'avoidance of direct application of the rights in the Bill of Rights' and proceeded to cite Woolman's 'The Amazing, Vanishing Bill of Rights' (note 90 above) in the corresponding footnote. However, Woolman's critique in the cited article is, in part, aimed at Barkhuizen's failure to apply section 8(2) in constitutional challenges to
contracts. It is also noteworthy that Theron J cited Moseneke DCJ's extra-curial writing on direct application
(PridwinCC note 1 above at paras 127-129) but failed to recognise that Moseneke DCJ was specifically addressing the implications of direct application on the law of contract. See D Moseneke 'Transformative Constitutionalism: Its Implications for the Law of Contract' (2009) 20 Stellenbosch Law Review 3. 102 Pridwin CC (note 1 above) at para 130. 103 Ibid at para 98.
####### '04 Ibid at para 107 where Theron J stated: 'On this approach, and in light of the outcome reached by applying
s 8(2), a decision in respect of the public policy challenge is rendered superfluous.'
####### '05 Beadica 231 CC & Others v Trusteesfor the time being of the Oregon Trust & Others [2020] ZACC 13, 2020 (5)
SA 247 (CC). 106 For a broader discussion on the Constitutional Court's judgment in Beadica, see Boonzaier (note 89 above). 107 Nicholls AJ recognised that '[a]ll contractual agreements between private parties are governed by the principle ofpacta suntservanda, unless they offend public policy', and that the impugned provision in the parent contract 'must stand up to scrutiny, based on the test set out in Barkhuizen.' Pridwin CC (note 1 above) at para 61.
11Const Ct Rev 275 - Reading
Course: Education law (ONR 420)
University: University of Pretoria
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