Ndabezinhle Mazibuko v The Board of Governors, Christian Brothers College & Others

The appellant was a legal practitioner whose two sons attended Christian Brothers College, a private school in Bulawayo established in 1954. Upon enrollment, the appellant signed a contract requiring him to pay school fees and to supply his children with uniforms, equipment and other requirements as stipulated by the school. Since its establishment, the school had never provided textbooks or stationery to students, instead providing annual lists of required items for parents to purchase. The appellant paid approximately US$400 annually for these items in addition to school fees. In January 2012, after nine years of his children attending the school, the appellant raised concerns that the school fees should cover textbooks and stationery, as he believed other private schools with lower fees provided these items. After unsuccessful correspondence with the school, he filed a High Court application seeking declaratory relief that the school must provide textbooks and stationery, that requiring parents to purchase these items constituted an unauthorized levy, that the school must give one term's notice before fee increases, and that the practice of barring students for non-payment of fees violated the Children's Act.

• Whether the provision of textbooks and stationery was an implied term of the contract between parents and the school
• Whether requiring parents to purchase textbooks and stationery constituted an unauthorized levy contrary to the Education Act
• Whether a court could interfere with the express terms of a private contract in the absence of breach of natural justice or ultra vires conduct
• Whether the Consumer Contracts Act applied and empowered the court to vary the contract as unfair or oppressive
• Whether the school's practice of barring students for non-payment violated section 7 of the Children's Act
• Whether the school was required to give one term's notice before increasing fees or terminating contracts

The appeal was dismissed with costs.

A term will only be implied into a contract where: (1) it is implied by trade usage that is proven to be universally and uniformly observed, long-established, notorious, reasonable and certain, and does not conflict with positive law or clear contract provisions; or (2) it is a tacit term necessary to give business efficacy to the contract such that parties would immediately agree "yes of course that is what we agreed" if asked about it, and the tacit term must supplement rather than contradict or vary express terms. The onus is on the party alleging an implied term to prove the circumstances from which it should be implied. Courts will not interfere with private contractual relationships in the absence of breach of natural justice or ultra vires conduct. Freedom of contract must be respected and courts should not rewrite contracts for parties. An express term requiring parents to provide "other requirements as stipulated by the school from time to time" is inconsistent with any implied obligation on the school to provide textbooks and stationery. School fees do not as a matter of law necessarily include provision of textbooks and stationery, as what constitutes school fees varies between institutions. New legal arguments based on statutes like the Consumer Contracts Act must be raised timeously with proper factual foundation to allow the opposing party to respond; they cannot be introduced belatedly in supplementary heads of argument.

The court made several obiter observations: (1) The definition of school fees varies from place to place and time to time, and there is often a difference between official definitions and what is actually collected. School fees can include tuition, examination fees, activity fees, building fees, and may or may not include textbooks and stationery. (2) The Education Act acknowledges that fees for private schools must relate to costs of operating and maintaining the school or improving facilities, which would vary between schools. New schools might charge higher fees than established schools to build infrastructure. (3) Whether an institution could be held criminally liable under section 7 of the Children's Act for barring students for non-payment of fees is unclear. While "guardian" is defined broadly to include "any person" with custody, charge or care of a child, whether this extends to institutional entities was left for determination on another day. (4) Courts exist to settle concrete controversies and actual infringements of rights, not to pronounce upon abstract questions or hypothetical situations. The role of courts is to deal with real issues affecting the parties before them. (5) Under the Education Act, even government schools may refuse admission for non-payment of fees (section 13(4)), suggesting that private schools would have similar or greater latitude.

This case establishes important principles regarding implied terms in contracts under Zimbabwean law, particularly in the context of private educational institutions. It affirms the sanctity of freedom of contract and the reluctance of courts to interfere with express contractual terms or imply terms absent proper proof. The judgment clarifies that school fees do not necessarily include textbooks and stationery as a matter of law or implied term, and that what constitutes school fees varies between institutions. It reinforces the requirement that parties seeking to rely on implied terms must properly plead and prove either trade usage (with clear, convincing and consistent evidence of universal and uniform practice) or tacit terms (meeting business efficacy or officious bystander tests). The case also demonstrates proper procedure for raising new legal arguments, holding that the Consumer Contracts Act could not be invoked belatedly without proper factual foundation. While the case is Zimbabwean, its principles on implied terms, freedom of contract, and judicial non-interference in private contracts are consistent with South African contract law principles and would be persuasive in South African courts dealing with similar issues in educational contracts.