Charles Chinyama v Lorraine Bhebhe & Others

The applicant enrolled his two sons at The Heritage School, a private school, in January 2017. He signed a standard term contract obligating him to pay fees and levies on or before the first day of term, with provisions allowing the school to send children home for non-payment or terminate enrollment if fees remained unpaid. The applicant fell into arrears for school fees for term 2 of 2020, term 3 of 2020 and term 1 of 2021, totaling USD 8,408.00. On 29 January 2021, he signed an acknowledgement of debt promising to pay the entire amount by 28 February 2021. He failed to pay by that date or by his alternative deadline of 15 March 2021. The school initially notified the applicant on 16 March 2021 that his son Tendai would be excluded from classes for non-payment. When challenged based on s 68C of the Education Act (which prohibits exclusion for non-payment of fees), the school retracted this position on 18 March 2021, but instead declared that the applicant had repudiated the contract through his continued non-payment and accepted the repudiation, discontinuing the enrollment of both children with immediate effect. The applicant then brought an urgent application seeking to have his children readmitted and to stop the school from charging fees at black market exchange rates.

• Whether section 68C of the Education Act, which prohibits exclusion of pupils for non-payment of school fees, applies where a school has terminated a contract of learnership on the basis of repudiation through continued non-payment
• Whether the applicant had a prima facie right to an interdict compelling the school to readmit his children
• Whether the school's termination of the contract of learnership constituted an impermissible exclusion for non-payment of fees contrary to s 68C of the Education Act
• Whether the constitutional right to education in s 75 of the Constitution applies to private, non-state-funded schools
• Whether the school demanded payment at unlawful black market exchange rates

The application was dismissed with costs.

Section 68C of the Education Act prohibits exclusion of pupils from school only for the two specific reasons expressly stated therein: non-payment of school fees and pregnancy. It does not prohibit exclusion where a contract of learnership has been lawfully terminated on other grounds, including acceptance of repudiation through continued material breach. The provision presupposes the existence of a subsisting contract of learnership between the school and parent/guardian. Once that contract is validly terminated, s 68C no longer applies. The constitutional right to education in s 75 of the Constitution of Zimbabwe applies to state-funded education and does not impose obligations on private, independent schools. For an interim interdict, an applicant must demonstrate a prima facie right and the absence of alternative effective remedies. A party in material breach of a synallagmatic contract cannot demand specific performance from the other party where they have not performed or tendered performance of their own obligations.

The court noted that the contractual provision allowing the school to send children home for non-payment predated the introduction of s 68C (the contract was signed in January 2017, while s 68C came into force on 6 March 2020), so at the time of signing there was nothing wrong with such a stipulation. The court also observed that the first respondent (Ms Bhebhe, the school's Legal Officer) had been improperly joined as a party, as she had no personal liability and no relief was sought against her personally - the applicant conceded this misjoinder at the hearing. The court noted that the joinder appeared spiteful and malicious. The court commented that ordinarily, but for s 68C, it would not lie in the mouth of any parent to insist on inclusion of their children at a school when they have not paid the required fees or negotiated acceptable arrangements.

This case clarifies the scope and limitations of section 68C of the Education Act in Zimbabwe, which prohibits exclusion of pupils for non-payment of school fees. The judgment establishes that this protection does not extend to situations where the underlying contract of learnership has been lawfully terminated for breach. It distinguishes between exclusion based on non-payment (prohibited) and exclusion based on termination of contract for continued breach (not prohibited). The case also confirms that the constitutional right to education in section 75 applies to state-funded education and does not impose obligations on private schools to continue providing education where parents fail to meet their contractual payment obligations. The judgment reinforces general contract law principles that one party cannot demand specific performance while in material breach of their own obligations (the exceptio non adimpleti contractus principle).