Mubeena Ebrahim Primary School v Portifa Mwendera & Others

Four consolidated appeals involving Mubeena Ebrahim Primary School (appellant) and various parents (respondents) regarding unpaid school fees during the COVID-19 lockdown in 2020. The school had introduced online lessons during the second and third terms of 2020 when schools were closed by government due to COVID-19. The school claimed fees for online lessons ranging from US$1,100 to US$2,200 per respondent, plus fees in lieu of notice for withdrawal of children. The original enrolment contracts required fees to be paid in advance of each term and one full term's notice for withdrawal. The school increased fees from US$300 to US$700 per term, citing costs of online learning. Parents disputed liability, arguing they had not consented to online lessons, their children did not participate in them, and the fee increase was illegal. The school excluded children from online lessons when parents failed to pay the increased fees.

• Whether the original enrolment contracts covered online lessons or whether online learning constituted a new contractual arrangement requiring separate consent
• Whether the respondent parents consented to online lessons either expressly or impliedly
• Whether the school's fee increase was illegal despite claimed substantial compliance with the Education Act
• Whether parents were liable to pay one term's fees in lieu of notice when withdrawing children from the school
• Whether the principle of reciprocity in contract law justified the school withholding online lessons from children whose parents had not paid fees
• Whether parents could be held liable for fees for services (online lessons) that were not actually rendered to their children

Case 1 (CIV 'A' 144/21): Appeal succeeded in part. Respondent ordered to pay US$1,400.00 being one term's total fees in lieu of notice of withdrawal for two children, plus interest from 6 November 2020 at prescribed rate and costs on higher scale. Each party to pay own costs of appeal. Case 2 (CIV 'A' 145/21): Appeal dismissed with no order as to costs. Respondent's cross-appeal dismissed with no order as to costs. Case 3 (CIV 'A' 146/21): Appeal dismissed with each party paying own costs. Case 4 (CIV 'A' 183/21): Appeal dismissed with no order as to costs.

1. Where a contract for educational services does not specify the mode of delivery, and one party introduces a materially different method of performance (such as online learning instead of physical attendance) that imposes significant additional costs and obligations on the other party, this constitutes a new contractual arrangement requiring separate consent from the parties. 2. The principle of reciprocity in contract law, which allows a party to withhold counter-performance when the other has not fulfilled its bargain, must be applied contextually and fairly. A party cannot withhold performance to compel payment for new terms that were not part of the original contract and to which the other party has not consented. 3. A party cannot claim payment for services that were offered but not actually rendered or accessed by the other party, particularly where access was denied by the party now claiming payment. 4. Contractual obligations regarding notice of withdrawal survive even during force majeure events such as a pandemic, where nothing prevents a party from giving the requisite notice as stipulated in the contract.

The court noted that from a public policy perspective, it would set a greatly unfair precedent to allow claims for fees when educational services had not been benefitted from during the uncontrollable COVID-19 lockdown. The court also observed that the school should be commended rather than condemned for attempting to continue education through online means during the pandemic, though this did not override the need for proper contractual consent to the new arrangements. The court remarked that term's fees are inclusive of various services beyond just education, including sporting activities, medical facilities, levies and other matters. The judgment also commented on the school's lack of complete candor in linking the general fee increase (which predated COVID-19 and was discussed in 2019) to online learning costs in its application to education authorities.

This case is significant in South African jurisprudence as it addresses the novel legal issues arising from COVID-19 pandemic school closures and the shift to online learning. It establishes important principles about when material changes to contractual arrangements require fresh consent, even where the underlying purpose (provision of education) remains the same. The judgment clarifies that significant changes in the mode of performance, especially those imposing additional financial burdens and obligations on one party, constitute new contractual terms requiring express or properly implied consent. It demonstrates judicial sensitivity to contextual fairness in applying contract law principles during unprecedented circumstances like a pandemic. The case also provides guidance on the limits of the reciprocity principle in contract law, emphasizing that withholding performance must be contextually justified and fair inter partes. It reinforces that parties cannot use self-help mechanisms to enforce payment for materially altered services that were not part of the original bargain. The judgment is important for the education sector in understanding contractual obligations during force majeure events and the limits of unilateral variation of service delivery methods.