December 2, 2020

Unpaid school fees. Can a private school suspend a learner?

Mandy's daughter attends a private school and has been suspended due to non-payment of school fees. Mandy wants to know if this is allowed and what rights they have.

The South African Schools Act 84 of 1996 ("Act") recognises both public schools and independent ("private") schools. Public schools are controlled by the Government and private schools, on the other hand, are privately controlled. This means that what applies for public schools, will not necessarily apply for private schools and may cause some confusion (especially in respect of suspension for failing to pay school fees).

The Act specifically prohibits public schools from taking action against learners for non-payment of school fees, including suspension from class or withholding of school reports. However, this part of the Act does not prohibit private schools from suspending learners due to the failure to pay school fees. This means that private schools may refuse to admit learners and may suspend learners whose parents are unable to pay the schools fees.

 The difference between public and private schools is that there is a commercial relationship between the parents and the private school that is governed by the agreement they entered into. This agreement must be carefully looked at to establish whether the private school is allowed to suspend the learner for non-payment of school fees. This might be set out in specific wording in the agreement, alternatively it can form part of the cancellation remedies allowed to the private school in the event of breach by the parents. A breach of the agreement can occur where terms and conditions of the agreement are not followed, for example, failure to pay school fees.

The agreement may also include certain procedures that must be complied with before a decision can be made to suspend a learner. These procedures include rights that parents have under the agreement, for example, that parents must receive sufficient warning prior to the suspension (such as a written letter of demand). This will give parents time to find a way of possibly settling the outstanding school fees or to make arrangements for the learner to be enrolled in a new school.

The Constitution provides that everyone has a right to basic education and this applies to public schools. A recent Constitutional Court judgment stated that a private school cannot be forced to provide a basic education, but a private school should not unreasonably impair the basic education it provides to its learners. This confirms that before a private school decides to suspend a learner for failing to pay school fees, a reasonable procedure must be followed to ensure that all circumstances are taken into account.

During the COVID-19 pandemic, private schools are encouraged to enquire into the reason for the failure to pay school fees and make a reasonable decision. If the parents are not satisfied with the results, they can approach the governing body of the school. If, after approaching the governing body, the parents are still unsatisfied with the outcome, they can approach the Independent Schools Association of Southern Africa ("ISASA") or the Department of Education.

Did you know…Private schools can suspend learners for the failure to pay school fees based on the agreement between the school and the parents.