There are two national systems of schooling in South Africa which are governed by the South African Schools Act 84 of 1996 (the Act). They are the public schools and the independent schools. Public schools are governed by the State whilst independent schools are privately governed and the relationship between the school and parent is largely contractual.
With regards to the independent schools, learners may be contractually excluded from school if they fail to pay for their school fees whilst at a public school a learner may not be excluded for this failure to pay their school fees. As much as an independent school may act autonomously there are certain limitations to this autonomy in so far as it impacts on the learners right to education.
This limitation was illustrated in the case of NM v John Wesley School & Another (4594/2016)  ZAKZDHC64;2019 (2) SA 557 (KZD) (19 December 2018). The Applicant was the parent of a learner who was enrolled at the first Respondent, John Wesley School, an independent school registered in terms of the Act.
Section 28(2) of the Constitution states that a child’s best interests are of paramount importance in every matter concerning the child however this does not mean that this right cannot be limited in terms of Section 36 of the Constitution. Section 29(3)(c) of the Constitution states as follows:
“29. Everyone has a right to establish and maintain, at their own expense, independent educations institutions that –
(c) maintain standards that are not inferior to standards at comparable public educational institutions”
The policy document of the Department of Basic Education recognizes two broad areas for exclusions in independent schools, they are where the learner contravenes the school code and exclusions relating to the contract between the parents and the school, i.e. in respect of non-payment of school fees. The best interest of the child should always be adhered to when considering the exclusions. Independent schools must act in a manner that minimises any harm on the learners right to basic education. The Department of Basic Education and National Alliance of Independent School Associations (NAISA) signed a protocol in 20018 which dealt with exclusions and other considerations. The protocol identifies the right of independent schools to exclude learners that contravene the schools code of conduct in instances where the contract between the school and parents have broken usually due to non-payment of fees. This exclusion however must only be implemented after following a fair procedure and the school must have regard to the child’s best interest.
The court held that “independent schools must act in a manner that minimises the negative impact of their actions on the ability of learners to attend school.” Since expelling or excluding a learner for unpaid school fees invariably impacts on this, the learner’s circumstances must be considered. “While the Act does not prohibit independent schools from suspending or expelling learners whose parents have failed to pay school fees in time, this need not be the case in all circumstances. Therefore, any decision to suspend or expel a learner during school term must satisfy due process.
These include adequate warning prior to suspension or exclusion, provision to make arrangements to settle fees or opportunity to make arrangements to enrol a learner at a new school. These must precede the suspension or expulsion of the learner.”
The court distinguished this case from that of Mlawuli v St Francis’ College (1102//2016)  ZAKZDHC 17 (20 April 2016), where “the decision sought to be challenged in that matter was that relating to a refusal to admit a learner in a different schooling year”, while this case dealt with exclusion from the school in the current just before examinations. The court also held that the learner, an innocent party, had been victimised in the manner he was dealt with.
In its correspondence to the parents during February to May 2016, the school saw it as an option to deprive ZM of his term report. This was a lesser harm than to subject ZM to such victimisation and humiliation by making him sit in the art room while other learners were writing their examination.
The Act provides for the exclusion policy provided it is reasonably applied in accordance with the provisions of the Act. This does not include humiliating and punishing a learner as a result of his parents conduct. Refusing the learner to sit for his examinations and making him sit in the art hall can surely not be in compliance with the Act and with the provisions of the Constitution.”
The court held that there is nothing to stop parents from enrolling their children in independent schools when they are willing and able to do so, however the fact that their personal circumstances changed subsequently should also be considered and it would be unreasonable for the school to refuse to consider the change.
Ultimately the court found that the behaviour of the independent school, in this case, was “clearly contrary to public policy and is aimed at humiliating, degrading and victimising learners as was the case with ZM. The suggestion that it was a reasonable and justifiable means for the limitation of the rights in ss 28 and 29 of the Constitution is devoid of any merit. It is unjustifiable and infringes on the rights in both ss 28(2) and 29(3) of the Bill of Rights. It is thus unconstitutional and falls to be declared as invalid.”
So, whilst independent schools are entitled to invoke their authority to exclude learners, they must follow a fair procedure. The fair procedure further needs to take into consideration the best interests of the child. So, whilst the independent schools enjoy a fair amount of autonomy and freedom of contract, they are still subjected to the Constitution and the Act.