AB and CB v Pridwin Preparatory and Others (Equal Education as amicus curiae)

After arguing with the father of two learners, an elite private school, Pridwin Preparatory, relied on an open-ended clause to terminate its contract with the parents and effectively expel the two learners. The parents challenged this termination in court on the basis that is a violation of the children right to education and to have their best interests be paramount.

Although EE and the EELC’s focus is on ensuring quality and equality in public schools, we recognise that the struggle for education justice requires us to sometimes hold private actors accountable for the protection of the right to education.

In the High Court, the EELC represented Equal Education in intervening as a friend of the court to show that these kinds of contracts give private schools disproportional powers which will have a particularly severe effect on learners from poor and working-class families, who attend low-fee private schools. EE argued that the law should place limitations on these types of contracts in order to protect education as a public good (even when provided by private parties) and to ensure that poor learners and their families are also protected from exploitation. The Independent Schools Association of South Africa (ISASA) joined the case as an intervening party, to argue that these contracts are constitutional. On 6 July 2017 judgment in the High Court was handed down. The judgment upheld the termination of the contracts but recognised that these contracts may not pass Constitutional muster when the families in question are poor and have unequal bargaining power.

EELC represented EE as a friend of the court again when the matter was heard in the Constitutional Court. EE’s submissions highlighted the context and implications of increased privatisation of education in South Africa, and in particular the rise of low-fee independent schools. EE also made submissions on the meaning and relationship between section 29(1)(a) and section 29(3) of the Constitution. The Court’s minority and majority judgments drew on EE’s submissions and ruled that independent schools are required to afford parents and learners a fair opportunity to be heard on whether a decision to terminate a contract with the school is in the best interests of the children concerned.

Current Status:   Judgment handed down from the Constitutional Court.

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