AB and Another v Pridwin Preparatory School and Others

Two boys, DB (Grade 4) and EB (Grade R), were learners at Pridwin Preparatory School, an elite independent school in Johannesburg charging substantial fees and receiving no state subsidy. Over time, their father (AB) engaged in escalating misconduct at school sports events, including threatening an umpire with a cricket bat and using abusive language. Following a breach of a settlement agreement in June 2016, the headmaster terminated the Parent Contract on 30 June 2016 under clause 9.3, which allowed termination "at any time, for any reason" on one term's notice. No hearing was afforded to the parents or children before this decision. The boys subsequently attended another private school. The parents challenged the constitutional validity of the termination decision and clause 9.3.

• Whether it is in the interests of justice to hear a moot application
• Whether the termination clause (clause 9.3) is constitutionally valid and enforceable without following fair procedure
• Whether independent schools have constitutional obligations towards learners under sections 28(2) and 29(1)(a) of the Constitution
• Whether children at independent schools have a right to basic education and whether the School's decision violated this right
• Whether the best interests of the child require a fair hearing before exclusion from school
• Whether section 8(2) of the Constitution imposes direct horizontal obligations on independent schools

Leave to appeal granted. Appeal upheld. Supreme Court of Appeal order set aside. The decision by Pridwin to cancel the Parent Contract declared invalid and set aside. Each party to pay its own costs in all courts.

Independent schools that provide basic education assume a negative constitutional obligation under sections 28(2) and 29(1)(a) of the Constitution, read with section 8(2), not to unreasonably interfere with or diminish children's right to basic education. The right to basic education in section 29(1)(a) applies to all children, including those at independent schools, as "basic education" is defined by content (primary/preparatory level education) not by the provider or funding source. Section 28(2) requires that the best interests of children be given paramount consideration and incorporates a procedural component requiring fair process before decisions materially affecting children are taken. In the context of excluding children from school, this requires at minimum that: (a) parents be given notice and an opportunity to make representations on the children's best interests; (b) serious consideration be given to hearing the children themselves or through representatives; and (c) there be appropriate justification for the interference with the children's educational rights. A contractual termination clause cannot be enforced in a manner that violates these constitutional obligations. Private power exercised by independent schools in relation to children's education is subject to constitutional scrutiny under section 8(2).

Nicholls AJ: Schools providing basic education are under constitutional duty not to diminish the right to basic education and to act in children's best interests. While there is no general requirement for oral hearing, section 28(2) does not create such specific obligation. However, substantive and procedural fairness is required before any child is excluded from school. The specific application regarding invalidity of the headmaster's particular decision should not be heard as it is moot with no practical effect. Cameron J and Froneman J (concurrence): While Barkhuizen establishes that contracts must be honored, the new common law rule developed under section 8(3)(a) to give effect to children's rights should be subject to limitations analysis under section 36(1) as required by section 8(3)(b), though the result would be the same. Khampepe J (concurrence): Emphasis needed that children have independent, self-standing rights to participate in decisions affecting them, not merely through parents. The default position should be that the child is given opportunity to make representations, though age and maturity must be considered. International law (UN Convention on Rights of Child, African Charter) and Children's Act sections 10 and 31 support that children's participation is integral to best interests standard. Removing a child from school is a "major decision" requiring child's views be heard. The procedural right is held by the child as independent rights-bearer, recognizing their "separate personhood" and dignity.

This is a landmark case establishing that: (1) Children at independent schools enjoy constitutional protection of their right to basic education under section 29(1)(a). (2) Independent schools bear negative constitutional obligations not to unreasonably interfere with learners' right to basic education, even though they bear no positive obligation to provide education. (3) The best interests of the child principle (section 28(2)) binds independent schools and requires procedurally and substantively fair processes before excluding children. (4) Section 8(2) directly applies constitutional obligations to private entities like independent schools in relation to children's rights. (5) Standard termination clauses allowing expulsion "for any reason" without fair process are constitutionally problematic in the education context. (6) Children have independent, self-standing rights to participate in decisions affecting them. The case impacts hundreds of independent schools using similar contractual clauses and clarifies the horizontal application of children's rights in private education settings. It represents important development in balancing contractual freedom (pacta sunt servanda) with constitutional rights of children.