• Some parents were forced to withdraw their children from school during the pandemic.
• We asked a legal expert, Atisha Ghela, if it is reasonable for schools to charge penalties.
• She says that when making decisions concerning breaching the school contract, the children’s best interests must be considered first.

The Covid-19 pandemic forced some parents to withdraw their children from school, sometimes due to health and safety issues, and some for financial reasons. In some cases, the family may have kept the child at home and not given the school the required term’s notice, or paid the required withdrawal fees.

Now, some schools are threatening to take legal action to force the parents to pay the outstanding fees, but parents want to know if the pandemic, as a state of emergency and force majeure, is enough to release them from this obligation.

News24 sought legal advice from Durban-based Attorney Atisha Ghela of Atisha Ghela and Associates, who told us that first parents must differentiate between public and private school. “There is a clear distinction in what public and private schools can and cannot do. Public schools are regulated by law, and private schools are governed by a body known as ISASA,” she said.

“Whilst private schools are bound by and rely heavily on the contract entered into with parents on behalf of their learners, a recent decision at the Constitutional Court makes decisions regarding a breach of a school contract not entirely favourable to a school,” Ghela added.

She said that the court held that children are individual right holders, and processes that concern them, especially with school contracts, must include them, just like Section 28 clause 2 of the Constitution protects children’s right to be heard and participate in decisions affecting their lives.

For this reason alone, Ghela said that when schools make decisions concerning breaches of contract for payment or the like, the child’s interests must be considered first.

Read | Can a school really charge a penalty fee for moving a child to another school?

“In circumstances where children are already withdrawn from the school, yet the parents do not place proper notices, then one needs to look carefully at the circumstances surrounding that removal,” said Ghela.

If the child was removed from school to attend a different school, then “the previous school must sign off a transfer to another school, so it is likely that the previous school consented to the transfer yet chose to recover the notice period after that,” added Ghela.

Ghela said that one would have to turn to the Consumer Protection Act to establish a fair and reasonable cancellation/penalty for early withdrawal.

But, keep in mind that the service provider’s interest in losing revenue to pay teachers must be balanced with the fact that many parents lost their jobs or their businesses suffered because of the pandemic.

Ghela motivated that one may fail strictly on a full recovery of a full term’s notice, but a month’s notice penalty may be more reasonable.

“The Consumer Ombudsman or court in applying the Consumer Protection Act to a private school’s contract may rule that a full term’s notice is unreasonable and far too onerous,” said Ghela.

She warned that this is not a one-size-fits-all approach, and each matter will be decided on its individual factors before determining what is fair and reasonable.

“The one thing the pandemic has taught us is that in every facet of our lives, clear communication from the beginning is key,” said Ghela.

She added, “Parents and consumers are encouraged to speak to their schools early to make payment arrangements and to always act in the interests of the child in making decisions to withdraw from a school and terminate a school contract.”

She advised that before taking litigious steps to enforce their contractual rights, schools must be mindful of minimising the adverse impact of a pupil’s rights.