THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT

Reportable
Case No: 1134/2017
In the matter between:
AB                                                                                                 FIRST APPELLANT
CB                                                                                            SECOND APPELLANT
and
PRIDWIN PREPARATORY SCHOOL                                       FIRST
RESPONDENT
SELWYN MARX                                                                  SECOND RESPONDENT
THE BOARD OF PRIDWIN PREPARATORY SCHOOL         THIRD RESPONDENT
THE MEMBER OF THE EXECUTIVE COUNCIL
FOR EDUCATION, GAUTENG                                            FOURTH RESPONDENT
THE INDEPENDENT SCHOOLS ASSOCIATION
OF SOUTHERN AFRICA                                                          FIFTH RESPONDENT
EQUAL EDUCATION                                                                       AMICUS CURIAE
Neutral citation: A B v Pridwin Preparatory School (1134/2017) [2018] ZASCA 150
(01 November 2018)
Coram:
Shongwe ADP, Cachalia, Mocumie, Schippers JJA and Mothle AJA
Heard:
12 September 2018
Delivered:
01 November 2018

Summary:   Contract – Termination of parent contracts between independent
school and parents – whether parents entitled to hearing – whether school has a
duty to act reasonably – whether s 28(2) and s 29(1) of the Constitution applies –
whether reciprocal termination clauses in contracts contrary to public policy.

____________________________________________________________________
ORDER

On appeal from: Gauteng Division of the High Court, Johannesburg (Hartford AJ
sitting as court of first instance):

The appeal is dismissed with costs, including the costs of two counsel.

___________________________________________________________________
JUDGMENT

Cachalia JA (Shongwe ADP, Schippers JA and Mothle AJA concurring)

Introduction
[1] This appeal concerns the right of a private school to terminate contracts
between it and the parents of two children. The School exercised that right by
invoking a termination clause in the contracts.1 The consequence of the termination
is that the parents will have to find another school for their children.

[2] The parents dispute the School’s right to cancel the contracts by using the
termination clause, without more. They say that the Constitution imposes an
obligation on the School to hear them and to act reasonably before cancelling the
contracts. They also contend that the Promotion of Administrative Justice Act 3 of
2000 (PAJA) gives them a right to be heard. In addition, there is constitutional
challenge to the termination clause on public policy grounds.

[3] The parents accordingly instituted review proceedings in the High Court,
Gauteng, before Hartford AJ, to set aside the cancellation of the contract. In a
comprehensive and closely reasoned judgment, the learned judge dismissed each of

1 Clause 9.3 para 7 below.

the parents’ contentions and upheld the School’s right to cancel the contract.2 She
also granted the parents leave to appeal to this court on 5 October 2017, after they
had failed to obtain direct access to the Constitutional Court.3

The Parties
[4] In the high court the parents were referred to as AB (the father) and CB (the
mother), and their children as DB and EB. I shall adopt this nomenclature. It shall be
convenient to refer to the parents together as the appellants. The School, Pridwin
Preparatory School (Pridwin or the School) is the first respondent and, Mr Selwyn
Marx, the Principal, the second respondent. The third and fourth respondents are the
School Board and the Member of the Executive Council for Education, Gauteng, who
is not party to the dispute. The Independent Schools Association of Southern Africa
(ISASA) is an intervening party. It is an umbrella body representing the interests of
private schools, including Pridwin. Equal Education was admitted as amicus curiae in
the high court, but withdrew from the appeal. The Centre for Child Law applied
belatedly to be admitted as amicus curiae in this court. Its application was refused.

The terms of the contract
[5] There were two contracts, in identical terms, styled the ‘parent contract’,
concluded on 8 March 2011 on 9 March and 2015 for DB and EB respectively. I shall
set out the terms of the contract that bear on this appeal. The document containing
the contract has the following heading: ‘Parent . . . Declaration and Contract of
Enrolment’. It is followed by this statement: ‘. . . The rights and obligations contained
in this Contract are binding . . . and must be carried out in order for the Child to be
successfully enrolled and retained at the School’.

[6] What follows is an ‘Important Notice’ whose contents read thus: ‘By . . .
entering into this Contract you agree to the conditions contained in this document as
well as any terms and conditions contained in the Policies of the School, which forms
part of this Contract. It is important that you read and understand these Policies
as they have important legal consequences for you. If there is any provision in

2 AB & another v Pridwin Preparatory School & others (38670/2016) [2017] ZAGPJHC 186 (3 July
2017).
3 Case CCT 191/17 (30 August 2017).

this Contract that you do not fully understand, please ask for an explanation
before signing . . . This contract contains clauses which appear in similar text to this
notice, which have also been highlighted…’

[7] The highlighted clauses include the following:
‘GENERAL OBLIGATIONS OF THE SCHOOL
2.1
. . . The Head may, at his/her sole discretion, cancel enrolment in
accordance with the Rules.
2.2
For the sake of clarity, this Agreement regulates the enrolment and admission
of your child to the school and also regulates the relationship between the School,
your Child, yourself and/or a Third party once your child is admitted and enrolled with
the School.’
‘PARENT’S GENERAL OBLIGATIONS
4.2
In order to fulfil our obligations, we need your co-operation. Without detracting
from any specific obligations contained in this contract, you are required to: fulfil
your own obligations under these terms and conditions; . . . maintain a
courteous and constructive relationship with School staff.
4.3
The Head may in his or her discretion require you to remove or may suspend
or expel your child if your behaviour is in the reasonable opinion of the Head so
unreasonable as to affect or likely to affect the progress of your child or another child
(or other children) at the School or the well-being of the School Staff or to bring the
School into disrepute.
…
‘TERMINATION AND NOTICE REQUIREMENTS
9.2
You have the right to cancel this Contract at any time, for any reason,
provided that you give the School a full term’s notice, in writing, of this
intention before the withdrawal of the Child from the School . . . .
9.3
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 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.

9.4
This is without prejudice to the School’s other remedies: the School may
cancel this Contract immediately and has no obligation to return any Deposit or
pre-paid fees to you if you are in material breach of any of your obligations and
have not (in the case of a breach which is capable of remedy) remedied the
material breach within twenty (20) business days of a notice from the School
requiring you to remedy the breach, . . . .
9.5
For purposes of this Contract, a material breach is considered to exist
where you or your Child (as the case may be) –
9.5.1 fail to uphold the Policies and/or Rules of the School; . . . .
9.5.5 act in such a way that you or the Child become seriously and
unreasonably uncooperative with the School and in the opinion of the Head,
your or your Child’s behaviour negatively affects your Child’s or other children’s
progress at the School, the well-being of School staff, or brings the School into
disrepute.
In clause 1.13 ‘Policies’ is defined as:
‘The rules and principles adopted by the School, as published by the School from
time to time, which are used to regulate the day-to-day running of the School. These
Policies may include (but need not be limited to) the School rules; Schedule of Fees;
Debtor’s Policy; Terms and Conditions of the School; as well as the Code of Conduct
and the School’s Cautionary and Grievance Procedures for Parents and are
available on request free of charge, or on the School’s website’ (emphasis added).

[8] In cancelling the contract the School invoked clause 9.3 (the termination and
notice provision). It is important to point out that even though this clause entitles the
School to ‘terminate for any reason’ it accepts that the termination is subject to
constitutional scrutiny. It also acknowledges its constitutional obligation to apply the
‘best interests of the child’ principle when terminating a contract, and maintains that it
did so. I explore this issue later in the judgment.

Circumstances leading to and reason for the termination
[9] Mr Marx explains the circumstances leading to the cancellation in the School’s
affidavits. The appellants elide the facts described here; no doubt because they
catalogue a sorry tale of misconduct on their part spanning eight months. But, before
us, counsel properly accepted that they were bound by these facts in motion

proceedings, as the high court had found. This narrative shows that the School
would have been entitled to cancel the contract summarily for breach. Instead, it
opted to terminate on notice, allowing the parents adequate time to find another
school for their children.

[10] The earliest event occurred in October 2015, during the under-9 tennis trials.
In the course of a meeting with a young intern in charge of tennis, Ms Migliore, AB
rudely and aggressively accused her of incompetence, demoralising the children and
damaging their enthusiasm for tennis. It left her in tears feeling threatened and
traumatised. It also diminished her self-confidence, and took her a long time to
recover from.

[11] This episode forms part of the matrix of AB’s persistent harassment of
Pridwin’s staff members. Initially, this was reflected in his obsession with match
statistics, his displeasure with team selection and the batting line-up for the Under-9
cricket team. This fixation included:
(i)
Making detailed comparisons between hard copy cricket results produced by
the School, and the electronically published versions, and producing a barrage of
email complaints, pertaining to DB, who was just 8 years’ old at the time;
(ii)
Tendering his services as a cricket coach over a fortnight in order to
demonstrate how poor the School’s coaching standards were, while refusing to
comply with its standard coaching procedures and etiquette, and
(iii)
Demanding an apology from the head of sport, Mr Joubert, on the groundless
allegation that the latter had defamed him.

[12] Although most of the events relate to AB’s conduct, CB, his wife, was
complicit. Regarding the alleged defamation of AB, CB, a practising psychiatrist,
wrote to Mr Marx, saying ‘I am not sure if JP’s (Joubert’s) behaviour emanates from
a low IQ or obvious malice’ and ‘I don’t think JP realises the calibre of people he is
choosing to take on’.

[13] These episodes were followed by three significant incidents. The first
occurred on 10 November 2015, during a cricket game against Crawford College at
Trinity House School. AB was watching his son, DB, playing in the Under-9 team.

The child was given out leg before wicket. In response AB shouted abuse at the
umpire, Mr Mokoela, from the side of the field. Shortly afterwards, when the children
came off the field, he accosted Mr Mokoele with a cricket-bat in his hand, saying:
‘you fat . . . (expletive omitted), you don’t respect parents’, and threatened to wait for
him after the match and kill him.4

[14] Mr Joubert contacted Mr Marx and requested his immediate attendance at
Trinity House to deal with the problem. When he arrived there he confronted AB over
his reported behaviour. AB showed no sign of contrition, insisting instead that he
would talk to umpires in any manner he chose, as they were not gods. When Mr
Marx intimated that he would have to exclude AB or his son from sport matches in
future if AB was not willing to comply with the School’s code of conduct, AB retorted
that where he came from, an umpire would be stabbed with a stump from the wicket
for having made a bad decision.

[15] The second incident occurred on 27 January 2016. DB had been given out
(caught behind) in an under-10 cricket match, prompting AB to shout from the side of
the field that it was ‘a useless decision’. After the match, AB confronted the coach,
Mr Broderick, and accused him of being a ‘. . .  (expletive omitted)’ coach. AB also
made disparaging remarks about other boys in the team, which appears to have
been a pattern of his behaviour at these matches. Mrs Till, a parent, reported this to
Mr Marx and expressed her disquiet at AB’s behaviour, which was having an
adverse effect on her son.

[16] The following morning, Mr Marx wrote to the Chairman of the School Board
and two other board members, Ms Patel and Ms Theunissen, about this incident and
recommended that a hearing be held. The Board approved his recommendation.

4 It is a matter of concern that against the advice of his own legal representatives, AB approached
Mr Mokoele, after the high court had delivered its judgment, and secured his agreement to retract this
allegation. The appellants’ attorneys then obtained an affidavit from Mr Mokoela in which he did
precisely this. The affidavit formed part of an application to introduce further evidence at the appeal,
which included a different version of the Migliore and Joubert incidents. The evidence pertaining to
the Migliore and Joubert incidents was not tendered in their replying affidavits on the advice of their
legal representatives, they say. The appellants also considered it necessary to change their counsel
shortly before the appeal. However, in a letter to the registrar dated 5 September 2018, the
appellants’ attorneys informed the court that: ‘Upon further advice and in the interests of justice’ the
application to introduce further evidence is withdrawn. Pursuant thereto a ‘Notice of Withdrawal’
together with a tender to pay the respondents’ costs was delivered.

Later that morning AB and CB arrived at Mr Marx’s office to discuss the previous
day’s events. During the meeting, Mr Marx informed them that he had approached
the Board.

[17] The idea of holding a hearing was abandoned. Instead, Mr Marx reached an
agreement with the appellants on 28 January 2016 to the following effect:
(i)
AB would refrain from coaching or offering advice or giving his opinion to any
boys at sporting activities, including his own children; he would not sit with or near
the boys at sporting activities; he would not publicly criticise referees and would
abide by coaching, refereeing and selection decisions. He would also not do
anything to bring the School into disrepute.
(ii)
In return, Mr Marx undertook to ensure that the appellants’ children would not
be victimised by the staff and that their efforts to find a place for them at another
school would not be impeded. Shortly after the conclusion of the agreement, on 3
February 2016, Mr Marx penned a letter to support their application to move their
boys to another private school in Johannesburg, St John’s. But for reasons not
explained in the papers, the children were not moved.

[18] The agreement seems to have had no effect on AB. Because, on 27 June
2016, Mr Marx was once again called to a sporting event: this time it was to the
soccer-field. On his arrival he found a soccer-coach, Mr Mosoana, who is not
associated with the School, there at AB’s behest. Mr Mosoana was attempting to
give unsolicited – and unwelcome – advice to the School’s soccer-coach, Mr
Prinsloo, while the under-10 soccer trials were in progress.

[19] Mr Marx approached Mr Mosoana, imploring him to leave the field and told AB
that it was unacceptable for him to interrupt the sports program by bringing his own
coach to the School without an appointment. He also objected to AB’s interference
with the coaching as he no longer wanted his children to be at the School. AB’s retort
was that sport at the School was pathetic and that he did not want to be there. He
would leave because the School did not know what it was doing, he added. He then
left with Mr Mosoana.

[20] Shortly afterwards AB arrived at Mr Marx’s office and insisted on explaining
his actions that day. Mr Marx said that it was unacceptable for him to have brought
an outsider onto the school’s premises, uninvited, and for them to then disrupt the
sporting session. He made it clear that this was a breach of the 28 January 2016
agreement. The meeting ended on this note.

[21] On 23 February 2016, the Board met with the appellants to hear their
grievances regarding the head of sport, Mr Joubert, who they claimed, had defamed
AB during the Trinity School incident. They were offered an independent lawyer to
hear the grievances of both sides and make recommendations to the School. The
offer came to naught.

[22] From the School’s perspective, the behaviour of AB and CB had created a
toxic and intolerable atmosphere. The School had had enough. On 30 June 2016, Mr
Marx despatched a carefully written letter to AB. In summary he said the following:
(i)
The contracts could immediately be terminated in terms of clause 4.3, as read
with clause 9.5, of the parent contracts for material breach. He explained that a
material breach exists ‘where you act in such a way that you become seriously and
unreasonably uncooperative with the School and in the opinion of the Head, your
behaviour negatively affects your child’s or other children’s progress at the School,
the well-being of School staff, or brings the School into disrepute.’
(ii)
There had been breaches as the incidents mentioned above showed;
(iii)
That ‘in the interests only of your sons, I have instead, in my sole discretion,
elected to invoke clause 9.3 of the Contract’; (emphasis added) and
(iv)
That he was giving a full term’s notice to cancel the parent contracts at the
end of the third term of 2016, which meant that the children’s last day at school
would be 9 December 2016. In effect, the appellants were given five months’ notice,
which is more than the clause required.

The Appellants’ case
[23] The appellants enrolled their children at Pridwin by concluding the two parent
contracts four years apart. They were aware that these contracts contained a
highlighted warning that ‘If there is any provision in this Contract that you do not fully
understand, please ask for an explanation before signing’. They signed both

contracts freely, without question. They thereby accepted, explicitly, to be bound by
its terms for their children to remain at the School. And they understood, too, the
standard of conduct expected of them as parents for the right of their children to be
and to remain at the School.

[24] They accept too, as they must, that the contracts do not provide – expressly
or tacitly – for a hearing or require the School to consider lesser sanctions before
termination. Their contention that the principles of natural justice afford them these
rights was properly rejected by the high court,5 as was an attempt to find them in the
School’s policies.6 These arguments were abandoned in this court, for good reason.

[25] Knowing all of this the appellants sought to have the termination of the
contracts declared unconstitutional, invalid and unlawful, and reviewed and set
aside. They rely, mainly, upon two constitutional provisions, namely s 28(2), that the
child’s best interests are of paramount importance in every matter concerning the
child, and s 29(1)(a), the right to a basic education, to achieve this. They thus seek a
finding that the School’s decision violated these provisions.

[26] Their second ground of attack flows from a latterly introduced prayer, after
Pridwin had filed its answering papers, that the termination clause (clause 9.3) be
declared unconstitutional, contrary to public policy and unenforceable ‘to the extent
that it purports to allow Pridwin to cancel the parent contracts without following a fair
procedure and/or without taking a reasonable decision’.

Private Contracts and Public Policy
[27] The relationship between private contracts and their control by the courts
through the instrument of public policy, underpinned by the Constitution, is now
clearly established. It is unnecessary to rehash all the learning from our courts on
this topic. It suffices to set out the most important principles to be gleaned from them:
(i)
Public policy demands that contracts freely and consciously entered into must
be honoured;7

5 Judgment fn 2 paras [95]-[97].
6 Ibid [98]-[101].
7 Barkhuizen V Napier 2007 (5) SA 323 (CC) paras 57 and 87.

(ii)
A court will declare invalid a contract that is prima facie inimical to a
constitutional value or principle, or otherwise contrary to public policy;8
(iii)
Where a contract is not prima facie contrary to public policy, but its
enforcement in particular circumstances is, a court will not enforce it;9
(iv)
The party who attacks the contract or its enforcement bears the onus to
establish the facts;10
(v)
A court will use the power to invalidate a contract or not to enforce it,
sparingly, and only in the clearest of cases in which harm to the public is
substantially incontestable and does not depend on the idiosyncratic inferences of a
few judicial minds;11
(vi)
A court will decline to use this power where a party relies directly on abstract
values of fairness and reasonableness to escape the consequences of a contract
because they are not substantive rules that may be used for this purpose.12

[28] I shall return to the public policy challenge later. At this stage I point out only
that the appellants do not attack the enforcement of the contracts by relying directly
upon the School’s failure to act fairly and reasonably. What they do, instead, is
attempt to import this duty through ss 28(2) and 29(1)(a) of the Constitution. I
examine how they do this and whether there are proper legal grounds for doing so.
First, s 28(2).

The s 28(2) challenge
[29] Pridwin’s business is to run a private school to educate children, and it has
done so since 1923. So, it is hardly surprising that the School embraces the idea that
the best interests of the children is paramount in whatever it does. Further, it quite
properly accepts that s 28(2), which embodies this principle, binds it, in the language
of s 8(2) of the Bill of rights: ‘…to the extent that, it is applicable, taking into account

8 Barkhuizen Ibid para 28; Bredenkamp & others v Standard Bank of South Africa Ltd 2010 (4) SA
468 (SCA) paras 46 and 47.
9 Bredenkamp Ibid para 47.
10 Ibid para 49.
11 Sasfin (Pty) Ltd v Beukes 1989 (1) SA (A) 1 at 9C-D; Verolin Spence, et al. v. BMO Trust Company,
2016 CanLII 34005 (SCC) at para 41.This was a judgment of the Court of Appeal for Ontario in
Canada. An application for leave to appeal to the Canadian Supreme Court was dismissed. The
dispute was over the disherison by a testator (a black man) of one of his daughters (Verolin) because
she had borne a child from a white man and the question was whether the disherison was contrary to
public policy. The Court held that it was not.
12 Potgieter & another v Potgieter NO & others 2012 (1) SA 637 (SCA) paras 32-34.

the nature of the right and the nature of the duty imposed by the right’. I shall
henceforth refer to it as the ‘best interests principle’.

[30] The Constitutional Court has said that s 28 (2) ‘must be interpreted so as to
promote the foundational values of human dignity, equality and freedom’.13 It has
also said that it is unnecessary to determine the content of this right because it
provides an adequate benchmark for the treatment and protection of children in its
present form.14 It bears emphasis that the application of the right must take into
account its relationship with other rights, which might limit its ambit. Otherwise, taken
literally, it could cover virtually every field of human endeavour – public and private –
that has some direct or indirect impact on children, thereby rendering the right
meaningless.15 In each case what is required, therefore, is for a court to weigh the
interests protected by the right against any countervailing interests protected by
other rights to produce a legally sensible outcome. It follows that there would be
instances where s 28(2) requires a hearing before a decision having an impact on a
child is made, but not in others. What is clear, however, is that there is no general
requirement for a hearing.

[31] There is no dispute that Pridwin applied the best interests principle when it
terminated the contracts. In his termination letter to the appellants, Mr Marx said that
he had exercised his discretion to invoke the termination clause, which provided for a
notice period, solely in the interests of the two children, instead of summarily
cancelling the contracts because of the appellants’ repeated breaches, as he was
entitled to do. In addition, he said, he had balanced their rights against those of all
the other children as well as other stakeholders, in coming to his decision. He was
particularly mindful of the deleterious effect that AB’s behaviour was having on the
other children.

[32] The approach of the appellants in demanding a hearing before the contracts
were cancelled, however, is to focus on the interests of their children to the exclusion
of all others. It is not only the dignity of DB and EB that needs protection, but also the

13 Director of Public Prosecutions, Transvaal v Minister of Justice and Constitutional Development, &
others 2009 (4) SA 222 (CC) para 72.
14 Ibid para 73.
15 S v M (Centre for Child Law as Amicus Curiae) 2008 (3) SA 232 (CC) para 26.

dignity of every other child and every other person at the School. This means that
every person’s rights are worthy of equal consideration. This includes the right of the
School to enter into and terminate contracts freely in accordance with their terms,
and the freedom to associate and to disassociate with whomsoever it wishes.16

[33] Bearing this in mind the argument that s 28(2) gives rise to an implied right to
be heard before a parent contract is terminated, falls flat. It is not a right that arises
generally from s 28(2), and it cannot be deployed to limit a party’s rights to terminate
a contract on notice.

[34] If it were otherwise this would entitle a lessee to a prior hearing whenever a
lessor wishes to terminate a lease, if there are children on the property. It would also
mean, as counsel for the appellants was constrained to accept, that if the appellants
themselves wished to terminate the contract, in accordance with clause 9.2, they
would first have to give the School a hearing. Even more preposterous is the idea
that the School or a lessor would not be able to rely on a breach clause before
cancelling a contract, without affording a hearing to the aggrieved party, which is the
unavoidable consequence of the appellants’ stance.

[35] The appellants call in aid three cases in attempt to buttress their case for a
hearing flowing from s 28(2). They are C v Department of Health and Social
Development;17 J v NDPP18 and Centre for Child Law v Hoërskool Fochville.19 In the
first matter the court found that before children are removed from their families under
the Children’s Act 38 of 2005, the family and children should have the right make
representations as to whether their removal was in their best interests. The second
matter (J v NDPP) had to decide the constitutional validity of a provision placing child
offenders on the sex-offenders’ registry, and again, the court held that this could not
be done without affording the right of the child ‘to make representations and to be
heard’.

16 Section 18 of the Constitution says that everyone has the right to freedom of association.
17 C & others v Department of Health and Social Development, Gauteng & others 2012 (2) SA 208
(CC) para 27.
18 J v National Director of Public Prosecutions & another (Childline South Africa & others as Amici
Curiae) 2014 (7) BCLR 764 (CC) para 40.
19 Centre for Child Law v Hoërskool Fochville & another 2016 (2) SA 121 (SCA) para 20.

[36] In Hoërskool Fochville, this court was dealing with an application under
Uniform rule 30 A to compel the production of documents in which children had
made statements regarding the School. One of the questions considered was
whether it was appropriate for an intervening party – a public interest body
representing the interests of children – to assist the children in the litigation. During
the course of its judgment this court referred to a passage in Christian Education
South Africa v Minister of Education20, in which the Constitutional Court said in a
postscript, after deciding that case, that it would have been of assistance to the court
had a curator ad litem been appointed to represent the children in order to hear their
views.

[37] None of these cases helps us answer the question with which we are
concerned: whether a right to a hearing, derived from s 28(2), may be imported into
a termination clause in a private contract between parents and a school. In fact, they
are wholly inapplicable to this case. This brings me to what the appellants contend is
the second source of the right to a hearing, namely, s 29(1)(a) of the Constitution.

Section 29(1)(a)
[38] Section 29 (1)(a) guarantees the right of everyone to a ‘basic education’. This
is an obligation on the State, not one imposed on private institutions. But, the
appellants contend, Pridwin provides a basic education and is thus performing a
constitutional function. It therefore bears a negative duty not to unreasonably
diminish a learner’s access to an education. The obligation to act reasonably,
therefore, requires the School to afford the opportunity to make representations
before a contract is terminated. And also to consider alternative sanctions available
to it before taking this step. There is little merit in the point.

[39] Section 29(3) expressly recognises the right to establish and maintain
independent schools, which is what Pridwin is. And though it provides a standard of
education not inferior to a public school21 it is not providing a basic education as
envisaged s 29(1)(a). It would only be doing so if it was contracted by the State for

20 Christian Education South Africa v Minister of Education 2000 (4) SA 757 CC para 53.
21 Section 29(3)(c).

this purpose, as explained in Allpay v SASSA.22 It would then be under a positive
duty to do so because it was performing a constitutional function. Section 29(1)(a)
cannot therefore be used to impose a duty on a private school, not provided for in a
parent contract, to grant a hearing before it terminates a contract on notice.

[40] It is thus difficult to understand the appellants’ contention that Pridwin is
performing a constitutional function (which would ordinarily impose a positive duty on
it), but is saddled, instead, with a negative duty not to impede the right of the
appellants’ children to a basic education. If the appellants were correct that Pridwin,
a non-subsidised independent educational institution, is providing a basic education,
it would lead to remarkable consequences.23 It would mean that a private security
company contracted to provide safety and security to a community is discharging a
constitutional function.24 So too would a private clinic that renders treatment to a
patient, since the provision of health care services is also a state obligation.25 The
proposition simply cannot withstand the most basic scrutiny.

[41] It is apparent from the authorities that interference with a negatively
protectable right occurs when the wrong-doing party is not itself under an obligation
to provide the service – basic education, here – but its actions indirectly have that
effect. Juma Musjid26 is a case in point. The owner of a private property (a trust)
obtained an eviction order against Juma Musjid School, after notifying it that it was
terminating the school’s occupancy. Juma Musjid was a public school and the
responsible public authority – the MEC for Education – had failed to enter into a
lease with the Trust.

22 Allpay Consolidated Investment Holdings (Pty) Ltd & others v Chief Executive Officer, South African
Social Security Agency & others 2014 (4) SA 179 (CC) para 51-53.
23 Compare KwaZulu-Natal Joint Liaison Committee v MEC Department of Education, KwaZulu-Natal
& others 2013 (4) SA 202 (CC) paras 39 and 45. The Court held that where the state pays a subsidy
to an independent school, it does so in accordance with its duty to fulfil the right to basic education
and therefore attracts a negative duty not to impair the right by removing the subsidy without hearing
the school.
24 See the policing function in s 205 of the Constitution read with read with s 12(1) of the Bill of Rights.
25 Section 27(1)(a) imposes an obligation of the state to provide access to health care services.
26 Governing Body of the Juma Musjid Primary School & others v Essay NO & others (Centre for Child
Law & another as amici curiae) 2011 (8) BCLR 761 (CC).

[42] The Trust, like Pridwin, had no positive obligation to provide a basic
education; that duty, as I have said, rests on the state.27 There was no constitutional
obligation on Pridwin to admit the appellants’ children. The children also had no
constitutional right to attend this School. They were admitted after their parents had
signed contracts with the School, subject to the limited provisions in the South
African Schools Act 84 of 1996 not here relevant. And their right to remain at the
School flowed from these contracts.

[43] While s 8(2) of the Constitution provides that the Bill of Rights applies
horizontally, it was pertinently pointed out in Juma Musjid that its purpose is not to
obstruct private autonomy or to impose the duties of the state on private parties.
Rather, it is to oblige private parties not to impede, interfere with or diminish the
enjoyment of a right.28 A private party would thus breach the obligation directly if it
failed to respect the right, and indirectly if there was a failure to prevent its direct
infringement by another; or to take steps to avoid its diminution.29

[44] In Juma Musjid, the Trust permitted the School to occupy its premises and
paid for certain expenses, which the Department undertook to repay, but failed to do
so. In seeking to evict the School from its property, the Trust’s action negatively
impacted upon the School’s duty to provide a basic education to its learners. That is
not the case here. Pridwin has done nothing to prevent the appellants’ children from
obtaining a basic education at a public school. As the high court pointed out, there
are three public schools in the area that would be obliged to take them.30 There has
simply been no breach of the right, in any way.

[45] Another case on which the appellants place much store is Daniels v
Scribante.31 There the court had to determine whether a domestic worker, who had
occupied land with the owner’s consent, under the Extension of Security of Tenure
Act 62 of 1997 (ESTA) was entitled to make improvements to her dwelling. Among
the questions the court had to deal with was whether the owner was under an

27 Ibid para 57.
28 Ibid para 58.
29 Ibid.
30 Judgment fn 2 para 43.
31 Daniels v Scribante & another 2017 (4) SA 341 (CC).

obligation to permit this right, under s 25(6) of the Constitution,32 where she had not
obtained the owner’s permission in terms of s 6 of ESTA. She contended that s 13 of
ESTA imposed a positive obligation on the owner to allow this.33

[46] The court had little difficulty finding in her favour.34 It held that by its very
nature s 25(6) read with ESTA imposes both a positive and a negative duty on
private persons to protect security of land tenure. The positive duty on the landowner
is to accommodate persons of insecure tenure on their land. And the negative
obligation is not to improperly invade that right.35 The appellants invoke this
judgment to support the contention that there is no requirement for a contractual
nexus between the state and a private person for a positive or negative duty to be
imposed, as the high court had found.36

[47] The contention is stillborn. What is clear from this case is that the obligations
– in both their positive and negative guises – were imposed on the private land
owner in the first instance by s 25(6) and secondly through ESTA. But, as I have
pointed out earlier, the fact that s 29(3) of the Constitution, read with the Schools
Act, specifically permits independent educational institutions to be established does
not mean that they perform a constitutional function to provide basic education as
envisaged in s 29(1)(a).

32 ‘Property
(6) A person or community whose tenure of land is legally insecure as a result of past racially
discriminatory laws or practices is entitled, to the extent provided by an Act of Parliament, either to
tenure which is legally secure or to comparable redress.’
33 Section 6 Rights and duties of occupier
‘(1) Subject to the provisions of this Act, an occupier shall have the right to reside on and use the land
on which he or she resided and which he or she used on or after 4 February 1997, and to have
access to such services as had been agreed upon with the owner or person in charge, whether
expressly or tacitly.
(2) Without prejudice to the generality of the provisions of section 5 and subsection (1), and balanced
with the rights of the owner or person in charge, an occupier shall have the right-
(a)   to security of tenure;
. . . .’
Section 13 Effect of order for eviction
‘(1) If a court makes an order for eviction in terms of this Act-
(a)   the court shall order the owner or person in charge to pay compensation for structures erected
and improvements made by the occupier and any standing crops planted by the occupier, to the
extent that it is just and equitable with due regard to all relevant factors . . . .’
34 Ibid para 37.
35 Ibid para 49.
36 Judgment fn 2 para 27.

[48] It follows that the appellants’ attempt to source the right to a hearing from a
negative duty to act fairly arising from s 29(1)(a) of the Constitution must also fail, as
must its attempt to impose a duty on the School to act reasonably, an issue to which
I shall return. Suffice to say at this stage that even if there was a duty on Pridwin to
act reasonably in terminating the contracts, it did so adequately.

PAJA
[49] The appellants last and perhaps least meritorious attempt to insist that they
had a right to be heard is their reliance on PAJA. The short answer is that in
cancelling the contracts Pridwin was not exercising a public power or performing a
public function. It was exercising a contractual right that did not constitute
administrative action. The high court dismissed their argument.37

[50] In this court, counsel for the appellants made another attempt to rescue the
PAJA argument; they contended that there is a ‘governmental’ interest in the
decision to cancel the contracts, derived from this court’s adoption of the test for
judicial review in Calibre Clinical Consultants.38 Nugent JA explained in that case
that the courts tend to seek out features that are governmental in kind to decide
whether conduct is reviewable.39 What needs to be considered, he said:
‘is the extent to which the functions concerned are “woven into a system of governmental
control”, or “integrated into a system of statutory regulation”, or that the government
“regulates, supervises and inspects the performance of the function”, or it is “a task for which
the public, in the shape of the state, have assumed responsibility”, or it is “linked to the
functions and powers of government”, or it constitutes “a privatisation of the business of
government itself”, or it is publicly funded, or there is “potentially a governmental interest in
the decision-making power in question”, or the body concerned is “taking the place of central
government or local authorities”, and so on.’40

[51] The appellants say that the ‘governmental interest’, which would make the
termination of the parent contracts an exercise of public power, is apparent from a

37 See judgment fn 2 paras 29, 30 and 96. See also Khan v Ansur NO & others 2009 (3) SA 258 (D)
para 32.
38 Calibre Clinical Consultants (Pty) Ltd & another v National Bargaining Council for the Road Freight
Industry & another 2010 (5) SA 457 (SCA) para 38.
39 Ibid para 39.
40 Ibid.

document signed by the Department of Education and the National Association of
Independent Schools (NAISA) (of which ISASA is a part) styled the ‘Rights and
Responsibilities of Independent Schools’ (R & R document). Clause 8 of this
document deals with the exclusion of learners and provides:
‘Exclusions fall into two broad areas:
 Exclusion on grounds of contravention of the rules contained in the School’s Code of
Conduct and grievance procedure, drafted in line with the relevant legislation and
good practice.
 Exclusion on the grounds that the contract between the parents and the school has
been broken, usually because the parents have failed to pay fees.
Independent schools may exclude a learner on the basis of any of the above grounds
provided that a fair procedure has been followed. (emphasis added)
The best interests of the child should always be adhered to.’

[52] The appellants appear to have obtained the R & R document from the internet
and served it on the respondents on 24 May 2017, with a supplementary affidavit, a
day before the hearing in the high court. Both Pridwin and ISASA took the view at
the time that they would not respond to it because of its lateness and also because it
was not binding on them. I should add that NAISA was not joined in the proceedings
and the MEC for Education, who is, did not file any affidavit. So we have no idea
what their views on the purpose or effect of the document are.

[53] In the high court, the appellants conceded that the document was not binding
on the School but argued that it must nevertheless be part of the context of matters
present in the mind of the parties when they contracted. That was of course not true
because the document had only belatedly become part of their case.41

[54] As a result of the uncertainty regarding the status of the document, at the
hearing of the appeal, the presiding judge directed the parties to file further affidavits
on this point. They did so. In Pridwin’s supplementary affidavit, Mr Marx confirms that
the document is not binding on the School and that he had not been aware of it
before it was filed in court. ISASA’s affidavit further confirms that the document is not

41 Judgment fn 2 para 103.

binding on it or on Pridwin. It explains that it is no more than a communications
protocol, which is clear from the document itself.

[55] The high court correctly rejected the appellants’ attempt to use this document
as a basis for attempting to secure a right to be heard before the contracts were
cancelled. The learned judge put it thus:
‘This document was simply plucked from the internet and provided to this Court without
further information. There is neither a date that it was signed or placed before the court, nor
any evidence provided to show that it was part of the context in which the parent contracts
were drawn up. In any event, clause 8 of the document refers to a termination for breach, but
does not refer to a termination on notice, as was the case here.’42

[56] CB has also filed a further supplementary affidavit. The appellants now realise
that their contention in the high court that the document was part of the context,
which must have been in the minds of the contracting parties when they contracted,
is not sustainable. Undeterred, they now say that it is irrelevant whether or not it is
binding; it is nonetheless ‘indicative of a strong governmental interest in independent
schools’ decisions to exclude learners, they assert.

[57] In this court the appellants found another ground to impute a governmental
interest in order to justify a right to a hearing under PAJA: Regulations 6(1)(i) and
6(2) of the Gauteng Regulations.43 They cannot do so; the regulations were not
specifically part of their case in the founding or supplementary affidavits in the high
court and the respondents had no opportunity to respond to them. I shall
nonetheless deal with them. They provide:
‘Post-registration obligations of an independent school
6.(1)
Once an independent school has been registered with the Department, the following
post registration requirements must be adhered to:
. . .
(h)
allow unannounced visits by the Department for the purpose of monitoring the
leadership, management, curriculum delivery and governance of the school; and

42 Judgment fn 2 para 104.
43 Registration and Subsidy of Independent Schools, Notice 2919 of 2013, Gauteng Provincial
Gazette No 303, 25 October 2013. This notice was promulgated by the Gauteng MEC for Education,
pursuant to his powers under sections 46(2) and 50(1)(d) of the South African Schools Act 84 of
1996.

(i)
not expel or suspend a learner during an academic year or withhold the learner’s
progress report due to non-adherence to contractual obligations between the parent
and the school.
(2)
Where the board of an independent school and the parent cannot reach an
agreement on contractual obligation as contemplated in subparagraph 6(1)(i) the
board must escalate the matter to the Directorate responsible for independent
schools in the Department.’

[58] The appellants say that the R&R document and the regulations show that
independent schools are, to extract some features from the governmental interest
test expounded in Calibre Clinical, woven into a system of governmental control
under the Constitution and the statutory scheme governing school education.
Government inspects the performance of these schools and subjects them to
exacting standards failing which their registration may be withdrawn. The provision of
an education, they continue, is also a task for which the public, in the shape of the
state, has assumed responsibility and education is inextricably linked to the functions
and powers of government.

[59] Before I deal with the governmental interest test, it is evident that there is a
difference between clause 8 of the R & R document and the regulations now sought
to be relied upon to justify a hearing. The former says that there should be a fair
procedure before a learner is excluded following a ‘broken contract’, which
presumably means a breach of the contract by the parents. The regulations, which
were promulgated long after the communication protocol, say nothing of the sort.
Regulation 6(1)(i) is mainly concerned that the child’s academic year must not be
disrupted as a result of ‘non-adherence to contractual obligations’. It does purport to
prescribe what the content of the terms of a parent contract should be, much less
prescribe a fair procedure for termination. The regulations have the force of law but
the R & R document does not.

[60] Furthermore, neither the R & R document, nor the regulations deal with
termination of contracts on notice. In so far as there is any governmental interest in
the exclusion of a learner on any ground it goes no further than to impose an
obligation on a school to ensure that it complies with the regulations. It bears

mentioning that Pridwin met any potential governmental concern in the exclusion of
the children by allowing them to remain until the end of the academic year after the
contracts had been cancelled.
[61] In any event the appellants misuse the ‘governmental interest’ test. In Calibre
Clinical Consultants Nugent JA made clear that the question whether there was a
‘governmental interest in the decision making power in question’ was not of universal
application to determine whether PAJA applies.44 As Hoexter points out ‘[o]ther
considerations . . . include the source of the power, whether it is exercised
consensually or coercively and its effect on the public . . . [A] mere interest in the
activity on the part of the public is unlikely to play a decisive role’.45 And citing De
Smith’s Judicial Review, she adds that a broad and flexible approach is indicated
rather than mechanical or formulaic reliance on one or more of these criteria.46 Here,
the power to terminate the contracts – concluded consensually – arises from the
contracts themselves, not from the coercive power of the School or the state. The
termination also has no effect on the broader public.

[62] Importantly, as Nugent JA emphasised, the utility of the inquiry is aimed at
determining whether or not the decision-maker is accountable to the public for its
actions, as this is what PAJA is concerned with. It is, he explained:
‘…[a]bout accountability to those with whom the functionary or body has no special
relationship other than that they are adversely affected by its conduct and the question in
each case will be whether it can properly be said to be accountable notwithstanding the
absence of any special relationship.’47

[63] Pridwin is not accountable to the public for a decision to terminate a parent
contract. Neither is it answerable to any public authority for the manner in which it
terminates its parent contracts. Its accountability is limited only to those with whom it
has a ‘special relationship’ by virtue of the contracts: the appellants in this case (and
perhaps the other parents, who have contracts with the School). It follows that there
are simply no grounds for the appellants’ contention that either the R & R document

44 Calibre Clinical Consultants (Pty) Ltd & another v National Bargaining Council for the Road Freight
Industry & another 2010 (5) SA 457 (SCA) para 40.
45 Cora Hoexter Administrative Law in South Africa 2 ed (2012) 4-5.
46 Ibid p 5.
47 Calibre Clinical Consultants (Pty) Ltd & another v National Bargaining Council for the Road Freight
Industry & another 2010 (5) SA 457 (SCA) para 40.

or the regulations are indicative of a governmental interest in the cancellation of the
contracts, which constitutes an exercise of a public power, as envisaged in PAJA.

Substantive breaches.
[64] Apart from the appellants’ complaint that Pridwin breached their procedural
right to fairness, they also say that the cancellation was substantively unlawful. They
ground this claim in what the Constitutional Court said in S v M48 about the effect of
the best interests principle as presupposing that ‘the sins and traumas of fathers and
mothers should not be visited on their children’.49 Relying on this case, they contend
that because the two children are innocent, they should not be excluded from the
School only because of their parents’ misconduct. There would have to be, they say,
‘extraordinary circumstances’ before a school would be entitled to do this.

[65] The School therefore had a duty, they say, to act reasonably before
terminating the contracts, not only arising from the best interests principle in s 28(2),
but also from the negative duty imposed upon it by s 29(1)(a). This entailed, they
continue, an obligation on the School to act to consider ‘alternative sanctions’ before
taking the drastic action that it did.

[66] It is apposite to remind ourselves what the Constitutional Court said about the
best interests principle in S v M: if ‘spread too thin it risks being transformed from an
effective instrument of child protection into an empty rhetorical phrase of weak
application’.50 This caution is even more pertinent to an attempt to elevate the idea of
the ‘sins of the father’, which has biblical resonance, to a legal rule of general
application.

[67] S v M concerned the sentencing of a mother for fraud. She was the primary
care-giver of her three dependent children. The question was whether a custodial
sentence imposed by the lower courts under s 276(1)(i) of the Criminal Procedure
Act 51 of 1977, (the CPA) in terms of which she would be eligible for release after
serving eight months’ imprisonment, should stand. Having regard to the best

48 S v M (Centre for Child Law as Amicus Curiae) 2008 (3) SA 232 (CC).
49 Ibid para 18.
50 Ibid para 25.

interests of her children, the court, in a split decision, ordered that she be placed
under correctional supervision in terms of s 276(1)(h) of the CPA.51 It is, however,
quite clear that the court would have arrived at this conclusion by simply relying on
the ‘best interests’ principle without referring to the ‘sins of the (mother)’. It is equally
clear that where the nature of the crime is so serious as to warrant a lengthy prison
sentence, the best interests principle has little utility, if any.

[68] In the same vein, when a parent contract is terminated a school is obliged to
consider the best interests principle, but it cannot be precluded from cancelling a
contract only for fear of visiting the indiscretions of the parents on the children. This
brings me to the complaint that the duty to act reasonably required Pridwin to have
considered alternative sanctions before the cancellation.

[69] I have already concluded that the duty to act fairly or reasonably cannot be
imported into the terms of the contracts. So that is really the end of the fairness and
reasonableness challenges. But assuming, in favour of the appellants, that there is
such a duty arising from the failure of Mr Marx to comply with the best interests
principle, or from s 29(1), the simple test to be applied on review is whether the
decision is one that a reasonable decision-maker could not reach. Among the factors
the courts consider in this exercise are:
‘[T]he nature of the decision, the identity and expertise of the decision-maker, the range of
factors relevant to the decision, the reasons given for the decision, the nature of the
competing interests involved and the impact of the decision on the lives and well-being of
those affected.’52

[70] Against the factual background I have described earlier the high court
concluded that Mr Marx had acted ‘eminently reasonably’ in terminating the contract.
The learned judge continued:
‘[D]espite being entitled to terminate DB and EB’s attendance at the school immediately for
the first applicant’s material breach in terms of clause 9.4, specifically taking the children’s
interests in the school, he decided not only not to terminate forthwith, but rather to allow the

51 Moseneke DCJ, Mokgoro J, Ngcobo J, O’Regan J, Skweyiya J and Van der Westhuizen J,
concurred in the judgment of Sachs J. Nkabinde J and Navsa AJ concurred in the judgment of Madala
J.
52 Bato Star Fishing (Pty) Ltd v Minister of Environmental Affairs 2004 (4) SA 490 (CC) para 45; See
generally Hoexter pp 346-350.

children to remain longer than even the term’s notice set out in clause 9.3, namely until the
end of the year.’53

[71] I concur with her reasoning. She need not have gone further. But she
proceeded to deal with the argument relating to the failure to consider other
alternatives. She reasoned thus:
‘[The appellants] . . . stated that Marx had at least four options open to him, including issuing
a final written warning, banning the first applicant from attending sport practices, banning
him from addressing or conversing with the staff members and barring his children from the
sporting programme at Pridwin.
However, Marx had already attempted to impose a lesser sanction by entering into the
agreement with the first applicant on 28 January 2016 which the first applicant subsequently
breached. He had accordingly already given the first applicant a full opportunity to desist in
his behaviour. Furthermore, the suggestion by the applicants that their children should have
been barred from the sporting programme at Pridwin is surprising as, in my view, that option
would have caused ongoing distress and harm to their children on a daily basis whenever
their friends went off to engage in sporting activities whilst they were not permitted to do so.
This suggestion is accordingly rejected.’54

[72] Here too, her reasoning cannot be faulted. I accordingly find that the attack on
the substantive lawfulness of the termination is also ill-founded.

[73] One would have thought that the judgment of the high court would have had a
salutary effect on the appellants’ conduct. Alas, this was not to be. Two further
incidents occurred after the judgment, which resulted in Pridwin obtaining an interdict
against them in the Gauteng Division of the High Court, Johannesburg, on 19
February 2018.55 In the first, on 6 October 2017, CB wrote to Mr Marx following a
regular newsletter he distributed to parents to which she had taken umbrage. She
accused him, astonishingly, of being ‘a sociopath and narcissist’ who had failed her
children, which was reminiscent of similar unbecoming remarks she had made about
Mr Joubert, earlier. The second incident on, 22 January 2018, resulted in a verbal
confrontation between AB and Mr Marx. The court found that AB’s conduct was

53 Judgment fn 2 para 138.
54 Judgment fn 2 paras 140-141.
55 Case No 38670/2016.

‘aggressive . . . and seeking out conflict’. The facts pertaining to both incidents are
described in the judgment of the high court, and need not be repeated here.56

[74] In granting the interdict against the appellants the court found that both CB
and AB had breached their contractual obligations to maintain a constructive and
courteous relationship with the School, and specifically with the principal.57 The
evidence of these subsequent events that resulted in the interdict is of course not
relevant to determine the lawfulness of the termination. But, as the appellants have
framed their case as a constitutional matter, involving as it does the applications of
s 28 and s 29 to parent contracts, the subsequent events are relevant to determine
any ‘just and equitable’ relief that may be appropriate in terms of s 172(1)(b) of the
Constitution.

The Public Policy Challenge.
[75] I return to the appellants’ public policy challenge to the termination clause, the
legal principles of which I have set out earlier.58 In the high court the appellants
sought a declaration that both the clause itself and its enforcement are contrary to
public policy because the clause does not provide for a fair procedure or reasonable
decision. This was also the stance adopted in their written submissions to this court
prepared by their previous counsel. However, I did not understand their newly
appointed counsel, Mr Marcus, to persist with the attack on the terms of the clause;
his submissions focussed on the enforcement of the clause. In other words it is not
the clause itself that is impugned, but the fact that it was enforced, without a prior
hearing or reasonably, which is said to be inimical to public policy.

[76] Now I have already found that there are no grounds for importing a duty to act
fairly or reasonably into the termination clause from s 28(2) and s 29(1) of the
Constitution, or from PAJA. And, because fairness and reasonableness are not free
standing grounds to impugn the terms of a contract the attempt to invalidate the
terms of the contract has no merit. There is nothing on the face of clause, or
intrinsically, that offends any constitutional value or principle or is otherwise contrary

56 Ibid paras 10-17.
57 Ibid para 34.
58 Above para 27.

to public policy. It is certainly not immoral. No facts have been placed before us to
suggest otherwise.

[77] As the high court pointed out this type of clause is a common feature of
commercial contracts. Many may affect children, for example an ordinary lease, as
alluded to earlier. The consequence of a finding that such clauses are invalid
because of some indirect effect they may have on children would be catastrophic.59
Mr Marcus rightly did not persist with this line.

[78] Instead, he concentrated his attack on the enforcement of the contracts as
being contrary to public policy, the argument being that public policy, as determined
by the legal convictions of the ‘legal policy makers community of the community’
imposed a duty on Pridwin to hear the appellants and to act reasonably before
terminating the contracts. Once again the R & R document was enlisted to support
this argument. However, I have earlier dealt with the fact that it is a mere
communications protocol. It is not a policy document that independent schools
affiliated to ISASA, such as Pridwin are obliged to apply. It can, therefore, form no
basis for public policy. And as I have also pointed out earlier, reg 6(1)(i), incorrectly
relied upon to support a right to hearing under PAJA, contains no injunction for
independent schools to apply a fair procedure before terminating a parent contract.

[79] The appellants provide no other facts to support their case that the
enforcement of the termination clause offends public policy in the circumstances of
this case, much less showing that any substantial harm to the public or the children
will result from the cancellation. The facts show the contrary. Mr Marx’s conduct, in
contrast to the appellants’, was exemplary. He allowed the two children to remain for
five months, until the end of the academic year. There are several other public
schools at which they may be enrolled. The truth, however, is that the appellants
wish to send their children to another private school of equivalent standard to
Pridwin, as the facts show, but also to keep their children there until they achieve
this. There are no public policy grounds for indulging this need.

59 See judgment fn 2 para 122.

[80] The facts also show that the appellants concluded these contracts in which
their attention was specifically drawn to certain clauses, including those that set out
the standard of conduct expected of them, the consequences for breach and the
mutual right to terminate on notice. The contracts are not one sided or unduly
onerous on one of the parties. The appellants concluded the contracts freely, as
autonomous individuals, alive to the consequences of what they were signing. Public
policy demands that they be held to their terms.

Conclusion
[81] The appellants sought, in the main, to make a case that they ought to have
been heard before the termination clauses were invoked. There were no
constitutional or other public policy grounds to justify this. Nor was their attempt to
find a basis in PAJA for it. The challenge to clause 9.3 of the contracts on public
policy grounds was also unmeritorious.   The School, on the other hand, was acutely
aware of its constitutional duties not only to the appellants’ children but to all the
affected parties in cancelling the contracts.  Its reason for doing so, though not
relevant, was unimpeachable, given the extraordinary behaviour of the appellants.
The high court correctly dismissed their application. Furthermore, having regard to
their subsequent behaviour, which another court has again found to have been in
breach of their contracts, it can hardly be in the best interests of all concerned for
this family to remain at the School.

[82] In the result the following order is made:
The appeal is dismissed with costs, including those of two counsel.

_______________
A Cachalia
Judge of Appeal

Mocumie JA (dissenting)
[83] I have read the well-crafted judgment of my colleague, Cachalia JA. I am
grateful for his narration of the background, with which I agree. He would dismiss the
appeal and confirm the judgment and order of the high court upholding the common
law principle of pacta sunt servanda. I am in respectful disagreement with this
outcome

[84] In my view clause 9.3 of the Parents Contracts (the contracts) on which
Pridwin Preparatory School (the School) relied when on 30 June 2016 it terminated
the contracts of the parents of the two young learners(the appellants), aged 11 and 9
(DB and EB), is unconstitutional, contrary to public policy and unenforceable to the
extent that it purports to allow the School to terminate the contracts without following
fair procedure; and without the views of DB and EB being given due and appropriate
consideration. Accordingly, I would uphold the appeal with costs and set aside the
order of the high court. What follows are my reasons for reaching this conclusion.

[85] For purposes of the conclusion I reach, it is convenient that I only highlight,
very briefly, two aspects of this litigation: the conduct of the appellants on the one
hand and that of the School on the other. As detailed in the main judgment60, there
were several incidents by the father (AB) of DB and EB which were considered by
the School as threatening and intimidating to educators and coaches of sports and
not in the best interests of all learners enrolled at the School including DB and EB.
The conduct of AB, the School complained, also brought disrepute to the School
which has been in existence since 1923. Several attempts were embarked upon to
resolve this conduct including intervention by the School Board and interdictory
proceedings. All these attempts came to naught for reasons which I will traverse later
in this judgment. When an amicable solution could not be reached, the School opted
to terminate the contracts. This, inevitably and as provided for in the contracts, led to
the expulsion of DB and EB

60 Paras 17-26.

[86] The appellants approached the high court on an urgent basis to review and
set aside the decision of the School on the basis that the termination of the contracts
under the circumstances was unconstitutional and contrary to public policy as they
were not given a hearing prior to the termination of the contracts. This was more so,
it was argued before us, because the termination of the contracts led to the
expulsion of DB and EB without them as learners at the School affected adversely by
the decision, without being given a hearing prior to the termination of the contracts.61
The School stuck to its guns. It relied on the wording of clause 9.3 of the contracts. It
cited what the main judgment describe in several paragraphs as ‘. . .a sorry tale of
misconduct on their part spanning eight months. . . .’ which ‘. . . created a toxic and
intolerable atmosphere.’ The School insisted that the appellants knew when they
signed the contracts what they were agreeing to. The decision to expel DB and EB
flowed from a breach of the contracts by AB. It maintained that it also took into
consideration the best interests of DB and EB by not expelling them immediately as
it was entitled to in terms of the contracts but by allowing them to remain in the
School until the end of the term in December 2016. The Principal (Mr Marx) assisted
the appellants to look for alternative accommodation at a school of a similar status
as Pridwin, namely, St John. He even engaged with a Member of the Executive
Council of Education, Gauteng (the MEC), who assured him that DB and EB could
be accommodated at any of three public schools in the vicinity of their residential
area in the next academic year.

[87] Having considered the submissions by the parties, the high court found in
favour of the School. It held that ‘on the facts both parties contracted freely and
voluntarily. The plain language of clause 9.3 is clear. Prima facie, the notice given by
Pridwin under clause 9.3 is valid.’ The high court pointed to the fact that the

61 It is appropriate to mention that this argument was made in its expanded form including reference to
judgments of this Court, the Constitutional Court and the United Nations Convention on the Rights of
the Child, 1989 only in this Court. Counsel for the School diligently responded to this argument in this
Court when it was raised – although maintaining the case for the School ie upholding the principle of
pacta sunt servanda being a moral principle consistent with the constitutional values and principles as
enunciated in cases such as Sasfin (Pty) Ltd vs Beukes 1989 (1) SA 1 (A). The issue was raised by
the court and both counsel addressed this as it happened in Brooks and another v National Director of
Public Prosecutions [2017] ZASCA 42; 2017 (1) SACR 701 (SCA); [2017] 2 All SA 690 (SCA) where
this Court mero motu raised the issue of ‘the best interests of the children’ which both parties did not
raise in the high court or in their heads of argument before this Court.

contracts made no provision for a hearing prior to the termination. With reference to
the best interests of DB and EB under s 28(2) of the Constitution, the high court
reasoned that the School, represented by Mr Marx, acted in the best interests of DB
and EB as indicated in the letter of termination of the contracts and also took into
consideration the best interests of other learners enrolled at the same School.
Relying on the judgment of this court in Bredenkamp v Standard Bank of South
Africa Ltd,62 it concluded that the sanctity of a contract between parties had to
prevail.63

[88] In this Court, counsel for the appellants did not attack the general validity and
applicability of the time-honoured contractual doctrine that agreements solemnly
entered into should be honoured and enforced (pacta sunt servanda). Nor did he
raise the issue of the development of the common law under s 39(2) of the
Constitution, correctly so, as this case is not about the development of the common
law principle that agreements are binding in the strict sense; where the appellants
would have been expected to have pleaded s 39(2) of the Constitution and
accordingly afforded the School the opportunity to rebut that case as made out in the
papers (see Barkhuizen and Everfresh Market Virginia (Pty) Ltd v Shoprite Checkers
(Pty) Ltd).64 He however submitted, that when taking into account the spirit, purport
and object of the Constitution when interpreting contracts and legislation, the School
acted unreasonably and contrary to its duty and responsibility not only to hear the
appellants before the expulsions of DB and EB but also to hear DB and EB who, he
contended, were to be treated as separate individuals from their parents. These two,
he argued, had the right to be heard before any decision which affects them is taken
by anyone as provided in the Children’s Act 38, 2005 (the Children’s Act) – premised
on the United Nations Convention on the Rights of the Child, 1989 (the UN
Convention on the Rights of the Child).65 Relying on the Governing Body of the Juma
Musjid Primary School & others v Essay N.O. and others,66 he argued that s 29(1) of
the Constitution imposed a negative duty on the School not to diminish the

62 Bredenkamp v Standard Bank of South Africa Ltd [2010] ZASCA 75; 2010 (4) SA 468 (SCA); 2010
(9) BCLR 892 (SCA); [2010] 4 All SA 113 (SCA).
63 Bredenkamp paras 27-28 and 50-54.
64 Everfresh Market Virginia (Pty) Ltd v Shoprite Checkers (Pty) Ltd [2011] ZACC 30.
65 Article 12 of the United Nations Convention on the Rights of the Child, 1989.
66 Governing Body of the Juma Musjid Primary School & others v Essay N.O. and others [2011] ZACC
13; 2011 (8) BCLR 761 (CC).

constitutionally entrenched right to basic education of DB and EB.67 Its decision
which led to the expulsion of the two impacted negatively on that right.

[89] Counsel for the School submitted that although it admitted the import of s
28(2) of the Constitution and its applicability on these facts, the best interests of a
child are not absolute against the interests of others. In this instance, he argued, the
School took into consideration the best interests of not only DB and EB but the
interests of the four hundred-plus other learners enrolled in the same school. Those
interests and those of other stakeholders had to be taken into consideration in the
balancing of the conflicting interests. He submitted further that to that extent the
Constitutional Court has warned in S v M68 that:
‘This Court, far from holding that section 28 [of the Constitution] acts as an overbearing and
unrealistic trump of other rights, has declared that the best interests injunction is capable of
limitation. In Fitzpatrick this Court found that no persuasive justifications under section 36 of
the Constitution were put forward to support the ban on foreign persons adopting South
African-born children, which was contrary to the best interests of the child. In De Reuck, in
the context of deciding whether the definition and criminalisation of child pornography was
constitutional, this Court determined that section 28(2) cannot be said to assume dominance
over other constitutional rights. It emphasised that

“. . . constitutional rights are mutually interrelated and interdependent and form a
single constitutional value system. This Court has held that s 28(2), like the other
rights enshrined in the Bill of Rights, is subject to limitations that are reasonable and
justifiable in compliance with s 36.”

Accordingly, the fact that the best interests of the child are paramount does not mean that
they are absolute. Like all rights in the Bill of Rights their operation has to take account of
their relationship to other rights, which might require that their ambit be limited.’ (Footnotes
omitted)

The law
[90] In South Africa, the principle of sanctity of contracts, pacta sunt servanda, is
one of the fundamental ideas that underpin the modern law of contract. Freedom of

67 See footnote 2 above.
68 S v M [2007] ZACC 18; 2008 (3) SA 232 (CC); 2007 (12) BCLR 1312 (CC) paras 25-26.

contract and the concept of good faith are other fundamental concepts of contract
law.69 Authors in the field have begun to reflect on the extended definition of good
faith which, they argue, include components of fairness and equity influenced by the
values underpinning the Constitution.70

[91] The infusion of constitutional values when interpreting a contract, inevitably
constitutes a limitation of the right of the parties to freely contract with each other,
which is protected by the values of equality before the law in s 9 of the Constitution,
freedom of human dignity in s 10 of the Constitution in conjunction with the right to
freedom of association under s 18 of the Constitution. Over and above deciding
whether Mr Marx was obliged to give the parties a hearing prior to terminating the
contracts, the crucial issue to keep in mind is whether the limitation sought is
reasonable and justifiable in terms of s 36 of the Constitution – in line with the
proportionality analysis. Section 36 of the Constitution provides as follows:
‘(1) The rights in the Bill of Rights may be limited only in terms of law of general application
to the extent that the limitation is reasonable and justifiable in an open and democratic
society based on human dignity, equality and freedom, taking into account all relevant
factors, including –
(a) the nature of the right;
(b) the importance of the purpose of the limitation;
(c) the nature and extent of the limitation;
(d) the relation between the limitation and its purpose; and
(e) less restrictive means to achieve the purpose.
(2) Except as provided in subsection (1) or in any other provision of the Constitution, no law
may limit any right entrenched in the Bill of Rights.’

Application of the law to the facts
[92] I accept that agreements solemnly made should be honoured and enforced. In
my view, it would however be contrary to widely accepted jurisprudence to look at
the contracts in issue exclusively on the basis of the old-age sanctity of contract as

69 Dale Hutchison & Chris – James Pretorius (eds) The Law of Contract in South Africa 2 ed (2012)
para 1.8.
70 See Brand FDC, ‘The role of good faith, equity and fairness in the South African law of contract: the
influence of the common law and the Constitution’ (2009) 126 SALJ 1 at 73 where he makes the point
in support of the doctrine of pacta sunt servanda – that good faith is not an independent basis to
invalidate contracts. This is the position this Court has adopted in the clearest of terms in a number of
its judgments referred to in this judgment.

the high court did without the proportionality analysis embarked upon in S v
Makwanyane71 in the context of ‘the best interests of a child.’ 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. Having said that, I however must still consider whether the clause
indeed infringed upon s 28(2) and s 29(1) of the Constitution as I do hereafter. For
the conclusion that I reach premised on s 28(2) and s 29(1), it is not necessary to
make any conclusive finding on whether the decision made by Mr Marx was
administrative in nature under the Promotion of Access to Justice Act 3 of 2000.

Whether the termination of the contracts infringed section 29(1) of the Constitution
[93] Section 29(1) of the Constitution stipulates that the State must provide each
child with basic education. Section 29(3) obliges independent schools to ‘maintain
standards that are not inferior to standards at comparable public educational
institutions.’ The high court, relying on Musjid and KwaZulu Natal Joint Liaison
Committee v MEC Department of Education, KwaZulu Natal and others72 and other
cases of local divisions, found that ‘whilst everyone is entitled to basic education in
terms of section 29(1) of the Constitution, this basic education must be provided by
the State either through public schools or independent schools subsidised by the
State.’ It sought to distinguish this case from KwaZulu Natal Joint Liaison Committee
and Musjid on the narrow distinction between independent schools which are
subsidised by the State on the one hand and those not subsidised on the other. On
that basis it found ‘that Pridwin receives no subsidies from the State at all …I cannot
find that Pridwin, as a wholly independent school, has the obligation to provide a
basic education…’

[94] That is the fallacy that ran through this litigation in the high court and in this
Court, which I do not deem necessary to traverse at length in this judgment for the
reason that the appellants’ case is distinctly and deeply embedded in section 28(2)

71 S v Makwanyane and another [1995] ZACC 3; 1995 (6) BCLR 665; 1995 (3) SA 391; [1996] 2
CHRLD 164; 1995 (2) SACR 1.
72 KwaZulu Natal Joint Liaison Committee v MEC Department of Education, Kwazulu Natal and others
2013 (4) SA 202 (CC).

and public policy. Suffice to say the following. Section 29(1) of the Constitution
indeed places a positive obligation on the State to provide basic education. In 2013
the Centre for Child Law, University of Pretoria conducted a research on obligations
of independent schools in respect of children’s right to basic education. In its
conclusion, it made the submission that:
‘In Juma Musjid, the [Constitutional] Court emphasised that the primary duty to provide a
basic education falls on the state:

It is clear that there is no primary positive obligation on the Trust to provide basic education
to the learners. That primary positive obligation rests on the MEC.

As a result, it stressed that the Trust was not obliged to continue to make its land available to
the public school for all time. However, the Court recognised that the Trust was subject to a
duty to minimise the impact of an eviction order on the learners:

At most, the Trust‘s constitutional obligation, once it had allowed the school to be conducted
on its property, was to minimise the potential impairment of the learners’ right to a basic
education.’73(Emphasis added)

[95] This research strengthens my resolute view that the underlying tone of the
Constitutional Court in Musjid, read within the framework of the South African
Schools Act, 84 of 1996 (the Schools Act) and taking into account the values
underpinning our Constitution which not only promotes but protects equality of all
under s 9; s29 (1), imposes a negative obligation on independent schools not to
diminish the right to basic education. Noel Zaal & Ann Skelton74, make the point
persuasively that there is a constitutional distinction between ‘basic’ and ‘further’
education, which makes school attendance compulsory for learners from the age of
seven years until the age of 15 years or until the learner reaches the ninth grade,
whichever occurs first.75 Their informed opinion, which I share, is that basic
education is widely accepted as compulsory education.76 This much was accepted

73 Oxford Pro Bono Publico of Independent Schools in South Africa page 10.
74Noel Zaal & Ann Skelton ‘Providing effective representation for children in a new constitutional era:
Lawyers in the criminal and children’s courts’ (1998) 14 SAJHR 539 at 554.
75 Section 3(1) of the Schools Act makes school attendance compulsory for learners from the age of
seven years until the age of 15 years or until the learner reaches the ninth grade, whichever occurs
first.
76 Musjid para 58.

by the high court in its judgment when it stated that ‘even if Pridwin does have a
negative constitutional obligation not to impair DB and EB’s right to basic education
by terminating the contract[s], Pridwin did not breach this obligation on the facts’
because ‘[a]fter terminating the contract[s] Pridwin wrote to the Department of
Education and secured a written undertaking from the Chief Director, School
Management, that both DB and EB would be guaranteed at a public school in 2017,
immediately after the children were to leave Pridwin.’ This, however does not detract
from the fact that once a school, independent as Pridwin, had taken the responsibility
of providing ‘an environment in which each child may develop a lively, enquiring
mind and positive attitudes towards learning’, as well as promoting ‘in each child
respect and empathy for others and the environment through the encouragement of
good manners, discipline, responsibility, leadership and service’,77 it cannot diminish
that right because of the wrong doings of their father. The main judgment recognises
in para [41] – that ‘interference with a negatively protectable right occurs when the
wrong doing party itself is not under an obligation to provide service – basic
education, here – but its actions indirectly have that effect…’

I am led, inescapably, to come to the conclusion that the actions of the School
indirectly had that negative effect on DB and EB. As a result, it indeed acted
unreasonably in terminating the contracts.

Whether the termination of the contracts infringed section 28(2) of the Constitution,
1996.
[96] Section 28(2) of the Constitution provides that in every matter that affects the
child, the best interests of the child must be taken into consideration. Our
Constitution is unique and amongst the best in the world. Distinct from other
progressive Constitutions around the world is the fact that it holds the best interests
of the child to be of paramountcy in every matter that affects the child; separate from
all other protective rights in the Bill of Rights. The basic principle laid down in
determining what ‘taking into consideration the best interest of the child’ entails is

77 See the Mission and Values Statement of Pridwin Independent School.

emphatically stated by the Constitutional Court in C v Department of Health78 albeit
in the context of medical treatment as follows:
‘Section 28(2) of the Constitution requires an appropriate degree of consideration of the best
interests of the child. Removal of a child from family care, therefore, requires adequate
consideration. As a minimum, the family and particularly the child concerned, must be given
an opportunity to make representations on whether removal is in the child’s best interests.’
(Emphasis added)

[97] Subsequently in J v NDPP79 the Constitutional Court emphasised three
principles which arise when considering ‘the best interests of the child’ under s 28(2)
of the Constitution. The court stated:
‘A third principle is that the child or her representative must be afforded an appropriate and
adequate opportunity to make representations and to be heard at every stage of the justice
process, giving due weight to the age and maturity of the child’. (Emphasis added.)
One common thread that can be discerned from these two judgments is the
appropriate and adequate opportunity to be heard and make representation before
any decision affecting a child can be taken. It is noteworthy that the Constitutional
Court did not make any distinction when it made these pronouncements on these
two occasions and others not referred to in this judgment.

[98] As in Christian Education South Africa v Minister of Education,80 both in the
high court and this Court if we have had the assistance of a curator ad litem to
represent the interests of the children, the curator could have made sensitive
enquiries so as to enable their voices to be heard. As the Constitutional Court stated
‘[t]heir actual experiences and opinions would not necessarily have been decisive,
but they would have enriched the dialogue, and the factual and experiential
foundations for the balancing exercise in this difficult matter would have been more
secure.’ The School, admittedly, on their case, did not afford DB and EB appropriate
and adequate opportunity to be heard and make representations before terminating
the contracts which led to their expulsion. Courts are encouraged to be wiser and

78 C and others v Department of Health and Social Development, Gauteng and others [2012] ZACC 1;
2012 (2) SA 208 (CC); 2012 (4) BCLR 329 (CC) para 27.
79 J v National Director of Public Prosecutions and another [2014] ZACC 13; 2014 (2) SACR 1 (CC);
2014 (7) BCLR 764 (CC) para 40.
80 Christian Education South Africa v Minister of Education [2000] ZACC 11; 2000 (4) SA 757; 2000
(10) BCLR 1051 para 53.

have a curator ad litem appointed in all matters of this nature and magnitude even
where the parties do not make an application to that effect.

[99] On the value of affording people procedural fairness, the Constitutional Court
stated in Joseph and others v City of Johannesburg and others81 as follows:
‘Procedural fairness. . . is concerned with giving people an opportunity to participate in the
decision that will affect them, and – crucially – a chance of influencing the outcome of those
decisions. Such participation is a safe guard that not only signals respect for the dignity and
worth of the participants, but also likely to improve the quality and rationality of administrative
decision making and to enhance its legitimacy.’
As my colleague correctly points out, these cases are distinguishable on their facts
from the facts of this matter before us. But the overarching principle derived from
them remains ie that ‘the best interests of the child’ are to be of paramountcy in
every matter that affects the child. And flowing from that, that a child of appropriate
age must be given an appropriate and adequate opportunity to be heard and to
make representations before any decision affecting him or her can be taken.

[100] To indicate that Mr Marx took into consideration the best interests of DB and
EB and balanced them against those of the other four hundred-plus learners enrolled
at the same School, he simply stated that he did so in the letter of termination of the
contracts and repeated same in his answering affidavit. He added that he also took
into consideration the parents of the four hundred-plus learners as well as the long
standing and prestigious reputation of the School in the context of the circumstances
prevailing at the time. It is only his ipse dixit that he indeed took the best interests of
DB and EB into consideration when he terminated the contracts. In the light of the
arguments raised by the appellants in this Court, I find that such assertion is not
supported by any evidence. It therefore begs the question, on these facts, what did
he do that points to such an exercise been undertaken?

[101] I appreciate that this could not have been an easy task due to the
unprecedented conduct of a parent at such a school. At best, in this case, Mr Marx
did not expel DB and EB summarily but extended their stay until end of term ‘in the

81 Joseph and Others v City of Johannesburg and Others [2009] ZACC 30; 2010 (3) BCLR 212 (CC);
2010 (4) SA 55 (CC) para 42.

interests only of your sons’ who he regarded as model learners. This is later
repeated in the answering affidavit. But considering the drastic results of the
termination of the contracts on DB and EB, his say so alone would not be sufficient.
A prudent and considerate Principal, who has the best interests of all his learners, as
Mr Marx portrayed himself to be, would have taken into consideration many other
relevant factors which I will allude to hereafter. Instead, the record is replete only
with the incidents of the unacceptable conduct of AB. What is obviously lacking in his
purported balancing of interests of the two against four hundred-plus learners, shorn
off all extras (the prestigious reputation of 95 years of the School and the rights of
other parents and stakeholders) is the following:
a) Mr Marx makes no reference to when such exercise was undertaken. For
instance, did the School Board take part or not? If not, why, when AB had
suggested the intervention by the School Board which inexplicably did not
happen. There are no minutes of a meeting of the School Board where the best
interests of the set of interests were considered and a decision was taken to
sacrifice them and why this was in their best interests. The minutes would have
been filed with the papers when the appellants attacked the process that the
School followed.
b) Who participated in the exercise? – ie of the four hundred-plus learners;
c) Whether the continued presence of DB and EB threatened the lives of the other
four hundred-plus learners, made them uncomfortable or had any bad impact on
their safety, education and development at the School;
d) Whether DB and EB were disrespectful to him as the Principal, educators who
taught them or any other persons in a position of authority or even the same four
hundred-plus learners including their leaders, Representatives of Learners
Council members or a body of similar stature.

[102] To the contrary, it is on record that DB and EB are model learners. The eldest
of the two, the 11 year old, will be completing his preparatory phase at the School in
2019. One can safely assume that from the time they were enrolled at the School,
they have never been disciplined for any serious infraction in general, against Mr
Marx, educators at the School and against their peers.

[103] In contrast the impact of what Mr Marx terms, in his strange wisdom, ‘in the
best interests’ of DB and EB is the opposite and not in the least in their best
interests. The results are that amongst all advantages of independents schools as
the appellant irrefutably lamented in their founding affidavit inter alia:
‘85.1 he effectively expelled two model students with deep attachment to the staff, learners
and culture of Pridwin;
85.2 he was not appraised of DB’s or EB’s feelings and or attachments towards Pridwin;
85.3 he did not consider the emotional and psychological impact that being removed from
the school would have on DB or EB;
85.4 …
85.5 …’
This is against the background that none of the four hundred-plus learners nor their
parents for that matter, except an odd parent, have said anything adverse about DB
and EB. Otherwise the School would have filed confirmatory affidavits of all those
who disapproved strongly of the appellants’ conduct to the extent that they would
condone the expulsion of two innocent children for ‘the sins of the father.’

[104] On these facts, it is clear that Mr Marx did not undertake the above exercise.
What he did is an afterthought and a ruse to justify terminating the contracts which
had the devastating effect of the expulsion of DB and EB without taking into
consideration their best interests or their views. There is no indication that available
legal processes at the disposal of the School which were initiated against AB were
followed through. One instance where the court did not find him in contempt of the
court order, cannot be the answer to expel DB and EB from the School.
Proportionally, the nature of the rights at stake, ‘the best interests of the child’, are
just too important to be limited unjustifiably under s 36 (1) of the Constitution by the
right of the parties to freely contract with each other or even resile from such contract
when any one of them failed to comply with any of the terms and conditions. I say
proportionally, to make the point that, as much as the bests interests of the other four
hundred –plus learners at the School are just as important and of paramountcy in
every matter that affects them, on these facts, the rights of DB and EB were more at
stake than theirs. As I have demonstrated in the preceding paragraphs, the impact of
the decision to terminate the contracts had a more devastating effect on the two as

opposed to retaining them at the School, than on the four hundred – plus other
learners.

[105] This Court in Centre for Child Law v Governing Body of Hoërskool Fochville82
with reference to authors in the area of child justice83 dedicated six paragraphs on
‘the best interests of the child’ to illustrate and emphatically make the point that in
every weighing up of rights and interests and any value judgment, the best interests
of the child would have to be the paramount consideration. In my view, this approach
cannot be overemphasised enough because that is how fair procedure and
processes operate in any civil and democratic society. It would be astonishing that
any institution – no matter how independent – in a democratic society such as South
Africa with its recent history of abuse of power by institutions as it happened in not
so far a past, would be allowed to operate unchecked even when it affected the
rights of the most vulnerable of our society, children. To do otherwise would amount
to an arbitrary injunction on the rights of DB and EB to compulsory education (s29
(1) and s 3(1) of the Schools Act).84

[106] Looking at other jurisdictions, in Re D [2007] 1 AC 619, Baroness Hale in the
UK provide the following seminal articulation of the importance of listening to children
in the context of litigation that touches and concerns their lives which we should take
to heart:
‘There is a growing understanding of the importance of listening to children involved in
children’s cases, it is the child, more than anyone else, who will have to live with what the
court decides. Those who do listen to children understand that they often have a point of
view which is quite distinct from that of the person looking after them. They are quite capable
of being moral actors in their own right. Just as the adults may have to do what the court
decides whether they like it or not, so may the child. But that is no more reason for failing to
hear what the child has to say than that it is for refusing to hear the parents view.’

82 Centre for Child Law v The Governing Body of Hoërskool Fochville [2015] ZASCA 155; [2015] 4 All
SA 571 (SCA); 2016 (2) SA 121 (SCA) para 19-25.
83 Noel Zaal & Ann Skelton ‘Providing effective representation for children in a new constitutional era:
Lawyers in the criminal and children’s courts’ (1998) 14 SAJHR 539 at 554.
84 The Act came into operation on 1 January 1997. Section 3(1) makes school attendance compulsory
for learners from the age of seven years until the age of 15 years or until the learner reaches the ninth
grade, whichever occurs first:

[107] It is on this basis that I find that clause 9.3 is unconstitutional as it is conflict
with s 28(2) and s 29(1) of the Constitution to the extent that it entitled the School to
terminate the contracts without affording DB and EB appropriate opportunity to make
representations and be heard before it took the decision to terminate the contracts
which led to their expulsion from the School.

Public policy
[108] The appellant’s prayer which remains is the question whether clause 9.3 of
the contracts is unlawful, contrary to public policy and unenforceable to the extent
that it purports to allow Pridwin to cancel the parents contracts without following a
fair procedure and/or without a reasonable decision.’

[109] At para 27 of the main judgment, my colleague sets out important ‘learning
from our courts’ on the jurisprudence of private contracts and public policy which I
embrace and will not repeat for the sake of brevity. I however deem it necessary to
state the following as a starting point. Over three decades ago in Magna Alloys85 this
Court held that the mere fact that an agreement operated in an unfair or
unreasonable manner would not ordinarily constitute a ground on which to challenge
such an agreement.86 As expressed in the recent judgment of Maphango and others
v Aengus Lifestyle Properties (Pty) Ltd87 twenty seven years later that unless and
until the Constitutional Court holds otherwise, the law is therefore as stated by this
Court, for example, in South African Forestry Co88, Brisley89, and Bredenkamp90.
Accordingly, ‘a court cannot refuse to give effect to the implementation of a contract
simply because that implementation is regarded by the individual judge to be
unreasonable and unfair’.

[110] In its wisdom to align the interpretation of contracts with the constitutional
values underpinning our Constitution, the Constitutional Court, Ngcobo J, writing for

85 Magna Allloys & Research (SA) (Pty) Ltd v Ellis 1984 (4) SA 874 (A).
86 Magna Alloys para 893H.
87 Maphango and others v Aengus Lifestyle Properties (Pty) Ltd [2012] ZACC 2; 2012 (3) SA 531
(CC); 2012 (5) BCLR 449 (CC).
88 South African Forestry Company Ltd v York Timbers Ltd [2004] ZASCA 72; [2004] 4 All SA 168
(SCA).
89 Brisley v Drotsky [2002] ZASCA 35.
90 Bredenkamp above.

the majority in Barkhuizen, stated that ‘. . . the proper approach to the constitutional
challenges to contractual terms is to determine whether the term challenged is
contrary to public policy as evidenced by the constitutional values, in particular,
those found in the Bill of Rights.’91 He warned that although this left ‘space for the
doctrine of pacta sunt servanda to operate . . . [it] allows courts to decline to enforce
contractual terms that are in conflict with the constitutional values even though
parties may have consented to them.’92 He reasoned that the concept of fairness,
justice, equity and reasonableness could not be isolated from public policy and that
the concept of ubuntu would play a role.93 The Constitutional Court recently
reiterated this nuanced development of the jurisprudence of contract law in Everfresh
Green Market Virginia (Pty Ltd) v Shoprite Checkers (Pty) Ltd94 where, Moseneke
DCJ, writing for the majority, stated ‘[i]ndeed, it is highly desirable and in fact
necessary to infuse the law of contract with constitutional values, including values of
ubuntu, which inspire much of our constitutional compact. On a number of occasions
in the past this Court has had regard to the meaning and content of the concept of
ubuntu. It emphasises the communal nature of society and “carries in it the ideas of
humaneness, social justice and fairness” and envelopes “the key values of group
solidarity, compassion, respect, human dignity, conformity to basic norms and
collective unity.”’

[111] In Barkhuizen the Constitutional court stated that to determine whether
contract is fair, a two pronged enquiry had to be embarked upon.95 It held:
‘There are two questions to be asked in determining fairness. The first is whether the clause
itself is unreasonable. Secondly, if the clause is reasonable, whether it should be enforced in
the light of the circumstances which prevented compliance with the time limitation clause.
The first question involves the weighing-up of two considerations. On the one hand, public
policy, as informed by the Constitution, requires, in general, that parties should comply with
contractual obligations that have been freely and voluntarily undertaken. This consideration
is expressed in the maxim pacta sunt servanda which, as the Supreme Court of Appeal has
repeatedly noted, gives effect to the central constitutional values of freedom and dignity.
Self-autonomy, or the ability to regulate one’s own affairs, even to one’s own detriment, is

91 Barkhuizen para 30.
92 Barkhuizen para 30.
93 Barkhuizen para 51.
94 Everfresh above para 71.
95 The two staged enquiry was recently restated in Bredenkamp above para 44.

the very essence of freedom and a vital part of dignity. The extent to which the contract was
freely and voluntarily concluded is clearly a vital factor as it will determine the weight that
should be afforded to the values of freedom and dignity. The other consideration is that all
persons have a right to seek judicial redress. These considerations express the
constitutional values which must now inform all laws, including the common law principles of
contract.

The second question involves an inquiry into the circumstances that prevented compliance
with the clause. It was unreasonable to insist on compliance with the clause or impossible for
the person to comply with the time limitation clause. Naturally, the onus is upon the party
seeking to avoid the enforcement of the time limitation clause. What this means in practical
terms is that once it is accepted that the clause does not violate public policy and non-
compliance with it is established, the claimant is required to show that, in the circumstances
of the case there was a good reason why there was a failure to comply.’96

[112] Applying this two staged enquiry to this case, the first enquiry is whether the
notice clause in the contracts is in itself unconstitutional; and if not the second
enquiry is whether the termination on notice is unconstitutional in the light of the
circumstances prevailing at the time.

[113] As a starting point, the first enquiry must be directed at the objective terms of
the contract. If it is found that the objective terms are not inconsistent with public
policy on their face, the further question will then arise, which is, whether the terms
are contrary to public policy in the light of the prevailing circumstances then.

Is clause 9.3 unconstitutional and contrary to public policy?
[114] Clause 9.3 of the Contracts reads:
‘The school 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 refund to you the amount to you of any fees pre-paid for a period after the end of
the term less anything owing to the school by you.’97 (Emphasis added)

96 Barkhuizen paras 56, 57 and 58.
97 Annexure Q Record Vol 1, page 133.

[115] The first flaw with this provision is that the contracts are clearly between
private individuals and the School. Despite the context in which they were concluded
ie the values underpinning our Constitution (the other consideration is that all
persons have a right to seek judicial redress)98 and in particular the best interests of
DB and EB, ex facie it makes no provision for a hearing before the School terminates
the contracts. It makes no provision for a child to be heard before he or she is
expelled in conflict with the Children’s Act, the UN Convention of the Right of the
Child as well as the African Charter on the Rights and Welfare of the Child,1990
(ACRWC)99. It makes no provision for any fair procedure to be adopted before the
decision to expel is taken and implemented.

[116] The second flaw is, the terms of the contracts are overbroad ie termination for
‘any reason’. I take cognisance of the fact that although this is a common provision in
commercial contracts, the appellants’ case is that the enforcement of the clause is
unlawful and contrary to the mores of our society and natural justice. My view is that
these overbroad terms and the enforcement thereof infringe on the right of the child
to basic education (s 29(1) of the Constitution) in the context of independent schools
which as the Constitutional Court held in Musjid100 have a negative obligation not to
diminish a child’s basic right to education. The right to basic education is accepted
universally as a right to compulsory education which any institution which has taken
the responsibility of the State whether private and partly subsidised or independent
cannot diminish as I have found earlier. It is different from further education. What is
of extreme concern is that a decision of such serious implications was taken by Mr
Marx on his own, without the wisdom of the broadly representative School Board
which would in most likelihood have the capacity, expertise, objective and untainted
responsibility to deal with a disciplinary action of this magnitude and conflicting
interests. The hearing by the School Board which I dealt with earlier, related to a
request by AB for its intervention on the very decision to expel DB and EB. Such
intervention never materialised. The intervention which the School Board was

98 Barkhuizen above.
99 The African Charter on the Rights and Welfare of the Child, 1990 article 4(1) provides:
‘In all judicial or administrative proceedings affecting a child who is capable of communicating his/her
own views, an opportunity shall be provided for the views of the child to be heard either directly or
through an impartial representative as a party to the proceedings, and those views shall be taken into
consideration by the relevant authority in accordance with the provisions of appropriate law.’
100 Musjid above.

involved in, was in connection with a complaint laid by AB against a Mr Fourie who
he alleged had defamed him and CB, which is obviously not relevant for the
determination of whether cause 9.3 of the contracts is against public policy.

[117] The third and most critical flaw - the approach of the School on the best
interests of DB and EB. The submission on behalf of the School that it took the best
interests of DB and EB in issue into consideration is not borne out by the facts. In the
letter of termination of the contracts and expulsion of DB and EB, Mr Marx explains
why he was supposedly constrained to take this drastic step. He cites all the
incidents including the incident which AB allegedly physically threatened a coach
hardly a day after he had made another undertaking on 27 June 2016 to refrain from
unbecoming conduct. In his answering affidavit, Mr Marx states that he took the best
interests of DB and EB into consideration. It was argued that, in terms of the clear
provisions of the contracts, he could have invoked the summary expulsion stipulation
in the light of the repeated unbecoming conduct of AB. But, he opted to give the
appellants notice until the end of the year to find alternative accommodation at
another school and that ‘in the interests only of your sons, I have instead, in my sole
discretion, elected to invoke clause 9.3 of the Contract.’ This is so, in my view,
because he regarded DB and EB as model learners.’ He even asked the Chief
Director to give an undertaking, as the high court observed, that DB and EB will be
accommodated in public schools in their area in the next academic year. In my view,
contrary to what the high court and my colleague found in the main judgment at para
[31] that ‘…he (referring to Mr Marx) said, he had balanced their rights against those
of all other children as well as other stake holders, in coming to his decision… ’, in
my view, is only his ipse dixet – which is not supported by any other evidence
despite being repeated.

[118] Reverting to the issue before us, considering that the provision makes no
room for a hearing before a decision to terminate the contracts which results in the
expulsion of children from the School, the contracts are manifestly unconstitutional,
unfair and offends public policy. It would be unlikely even in these circumstances, to
imagine that a society such as ours, protective of its children, would approve of a
clause in a contract between parents and a school, which expels a child from a
school out of no wrongdoing on his or her part but that of their parents. It can never

be in the best interests of a child where the school fails to use all measures available
to deal decisively with parents, to resort to such unconscionable intrusion into the
right to compulsory education of a child, under the guise of the ‘sanctity of a
contract’. In the worst case scenario, even in the law of contracts the appellants
cannot be heard to have waived the rights of DB and EB to compulsory education or
to be heard on the basis which is clearly contrary to their best interests and public
policy This Court in Bafana Finance Mabopane v Makwakwa101 ,Cachalia JA writing
for the majority, albeit in different circumstances and in the context of a piece of
legislation, stated ‘an agreement whereby a party purports to waive the benefits
conferred upon him or her by statute will be contra bonos mores, and therefore not
enforceable, if it can be shown that such agreement would deprive the party of
protection which the legislature considered it should as a matter of policy be afforded
by law. An agreement is contrary to public policy, according to Wille:
“. . .if it is opposed to the interests of the state ,or justice, or of the public.”’

[119] For the reasons set out in the preceding paras, clause 9.3 of the contracts
stands to be declared unconstitutional, contrary to public policy and unenforceable to
the extent that it does not make provision for a hearing or representations prior to
expelling any child on the basis of a breach of the contracts on the part of the
parents. The Children’s Act 38 of 2005102 demands this. The Schools Act demands
this. The UN Convention on the Rights of the Child entrenches the right of the child
to participate makes it obligatory on all States Parties to assure to the child that his
or her views shall be given due weight according to the age and maturity of the child.
The School is left with the option to correct itself by infusing fair processes into the
contract. This is a less restrictive means to achieve the purpose of ensuring that the
best interests of DB and EB in these circumstances are protected and are of
paramountcy in all matters affecting them.

[120] Lest I be misunderstood, I appreciate that independent schools somewhat like
public schools emphasise the best interests of the schools (s 20(1) of the Schools
Act). But they must realise that they are evolving and not static or insular entities.

101 Bafana Finance Mabopane v Makwakwa and another [2006] ZASCA 46; 2006 (4) SA 581 (SCA);
[2006] 4 All SA 1 (SCA) para 10.
102 Sections 10, 14 and 15.

They cannot be cocooned from the fair processes specifically provided for under the
Schools Act which governs them. Nor can they operate outside the obligations
imposed by the Constitution on any institution, be it public or private to uphold the
best interests of the child. That is why the Department of Education and relevant
stakeholders including the National Alliance of Independent Schools (NAISA),
Independent Schools Association of South Africa (ISASA) which is a member of
NAISA to which the School in this matter is affiliated, deemed it necessary to
conclude the Rights and Responsibilities of Independent Schools document which
provides guidance to all parties on how to go about when they deal with expulsion of
learners. Clause 8 thereof provides that ‘whenever an independent school seeks to
exclude a learner.’ I must add in my view, even if it refers to ‘on the basis of failure to
pay fees’- the same is applicable to expulsion on any other reason- ‘a fair procedure
must be followed and the best interests of the child should always be adhered to.’
(Emphasis added.)

[121] My colleague in the main judgment holds as the School argued strenuously
that the document is not binding on all the parties as it is unsigned and was pulled
from the internet the day before the hearing in the high court. And it is irrelevant to
determine a basis for public policy. I do not declare that this document is binding on
the parties. Nor do I declare that it is relevant for the purpose alluded to. I refer to it
to demonstrate the commitment of the Department of Education and all concerned to
strive to ensure that the Constitution is not undermined in the process of protecting
and promoting the independence and autonomy of independent schools – and that
the best interests of the child are promoted and protected in all matters which affect
them, especially expulsion.

[122] This is in line with the approach adopted by this Court in interpreting
legislations and contracts in this era as evidenced in Malcolm v Premier, Western
Cape Government N.O.103 where it is stated:
‘There is obvious sense in this approach when a court is confronted with a novel situation
that could not have been in the contemplation of the legislature at the time the legislation
was enacted. Courts can then, in the light of the broad purpose of the legislation, current

103 Malcolm v Premier, Western Cape Government N.O.103 (207/2013) [2014] ZASCA 9; 2014 (3) SA
177 (SCA); [2014] 2 All SA 251 (SCA) (14 March 2014) para 11-12.

social conditions and technological development, determine whether the new situation can
properly, as a matter of interpretation, be encompassed by the language. But, as Lord
Bingham pointed out in Quintavalle, by way of example, they cannot use the principle to
extend legislation relating to dogs to cats, however desirable such an extension may seem.
In other words the principle has limits, but subject to that qualification and the case by case
working out of those limits, I see no reason why, in appropriate cases, South African courts
should not invoke it, particularly in the light of our present constitutional order in terms of
which statutes are to be construed in the light of constitutional values.
The Constitution enjoins us to interpret legislation in accordance with the spirit, purport and
objects of the Bill of Rights. Where a previous interpretation of a statute is no longer
consistent with those values then we are obliged to depart from it. In this case there are
relevant provisions of the Constitution, to some extent those relating to children, but in
particular s 10, which guarantees the right to dignity and provides that everyone is entitled to
have their dignity protected and respected. This is a core value of our Constitution.’
(Footnotes omitted.)

[123] In conclusion, the world has changed dramatically in line with international
trends and international instruments on how it treats children in matters which affect
them. South Africa as a signatory to many such instruments, in particular the UN
Convention on the Rights of the Child, is no exception that is why the legislature
chose to use the words of the Convention when it promulgated the Children’s Act
with reference to the right of the child to be heard in matters that affect him or her. As
the Constitutional Court held in Christian Schools104 in the context of religion, ‘Courts
throughout the world have shown special solicitude for protecting children from what
they have regarded as the potentially injurious consequences of their parents’
religious practices. It is now widely accepted that in every matter concerning the
child, the child’s best interests must be of paramount importance. This Court has
recently reaffirmed the significance of this right which every child has. The principle
is not excluded in cases where the religious rights of the parent are involved. As
L’Heureux-Dube J pointed out in the Canadian case of P v S:105
‘[I]n ruling on a child’s best interests, a court is not putting religion on trial nor its exercise by
a parent for himself or herself, but is merely examining the way in which the exercise of a

104 Christian Schools above para 41.
105 P v S 4 (1993) SCR 141.

given religion by a parent throughout his or her right to access affects the child’s best
interests.’
So too, by analogy, the right of the appellants to conclude contracts freely with the
School are not put on trial in this matter, but courts are bound to examine the way in
which the exercise of such freedom to contract with each other affects the best
interests of DB and EB. Such right cannot trump the best interests of DB and EB in
these circumstances. Simply put, the right to be heard before any decision which
affects the child is taken, is more precious in the context of our Constitution than the
right to freedom of contract, more so when it amounts to expulsion of young learners
on no wrong doing on their part.

[124] To hold otherwise – in the context of this case and its facts – the values
underpinning our Constitution – particularly ‘the best interests of the child’– would be
too formalistic and against the provisions of s 31(2) of the Constitution which
provides that ‘the rights in subsection (1) may not be exercised in a manner
inconsistent with any provision of the Bill of Rights’. It will also not be in line with the
constitutional obligation on courts to develop the principles of, in this instance, the
law of contract so as to promote the values that underpin our Constitution as courts
are obligated by the Constitution to do in s 39(2).

[125] Having found that clause 9.3 of the contracts is not reasonable and justifiable
under s 36(1), I find that the specific clause, not the common law principle that
agreement are binding (pacta sunt servanda), falls foul of ss 28(2) and 29(1) of the
Constitution as I have interpreted both sections in this judgment, but in particular s
28(2).

[126] In the result, I would have made the following order.
1 The appeal is upheld with costs, including the costs of two counsel.

B C Mocumie
Judge of Appeal

Appearances:

For Appellant:

G Marcus SC (With him C McConnachie)

Instructed by:

Knowles Husain Lindsay Inc, Sandton

Lovius Block, Bloemfontein

For First to Third Respondents:
A E Franklin SC (with him A Bishop)

Instructed by:

Webber Wentzel, Johannesburg

Honey Attorneys, Bloemfontein

For Fifth Respondent:

Instructed by:

Bowman Gilfillan Inc, Johannesburg

McIntyre & Van der Post, Bloemfontein

Amicus Curiae:

Equal Education Law Centre, Khayelitsha

Webbers Attorneys, Bloemfontein