The Association of Trust Schools and Others v The Minister of Education, Sport and Culture and Another

The applicants were an association of non-government trust schools in Zimbabwe. Following various court orders in 2005 that declared certain ministerial fee regulations ultra vires, the parties agreed in November 2005 to use the Consumer Price Index (CPI) as a formula for calculating school fee increases. The Permanent Secretary issued guidelines in January 2006 encouraging CPI use. The applicants increased their fees for Terms 1 and 2 of 2006 using CPI calculations based on court-approved 2005 fees, but without seeking the Permanent Secretary's approval. On 12 May 2006, the Education Amendment Act came into force, giving legislative recognition to the CPI formula. Disputes arose regarding the baseline figures for calculating fee increases and interpretation of section 21 of the Education Act. The Minister attempted to set fees for Term 1 of 2007, and threatened school closures and arrests for non-compliance. The applicants obtained two provisional orders (interdicts) to prevent closures, arrests, and ministerial interference, and to compel the Permanent Secretary to process their fee applications according to law.

• Whether the applicants were required to seek approval from the Permanent Secretary for fee increases in Terms 1 and 2 of 2006 under the unamended section 21 of the Education Act
• The correct interpretation of section 21(1)(a) and (b) of the Education Act before the 2006 amendment
• What constituted 'charging' a fee versus 'increasing' a fee under the old section 21
• Whether fee increases were lawful in the absence of a prescribed amount or percentage by the Minister
• What baseline figures should be used for calculating CPI-based fee increases for Terms 3 of 2006 and Term 1 of 2007 under the amended Act
• Whether the Minister had authority to set fees for non-government schools under the amended Education Act
• The interpretation and application of section 21(2)(a), (b) and (c) of the amended Education Act regarding different types of schooling (day-only, boarding, and mixed)
• Whether the prohibitory and mandatory interdicts should be confirmed

Both provisional orders were confirmed with modifications. The court declared the Minister's announcement setting fees for Term 1 of 2007 ultra vires and of no force and effect. The Permanent Secretary was directed to use the Term 2 of 2006 fees as the baseline for CPI calculations, to process applications within 10 working days, and to provide written reasons for any refusals within 48 hours. The Minister was prohibited from interfering with the Permanent Secretary's functions. Excess fees could only be credited to parents, not forfeited to the State. The respondents were ordered to pay costs jointly and severally.

Section 21(1)(a) of the Education Act (before amendment) applies only to initial fee applications by newly registered non-government schools or to new categories of fees introduced by existing schools, not to annual requests for payment of previously approved fees. Section 21(1)(b) qualifies section 21(1)(a), and both subsections must be given effect to co-exist meaningfully. In the absence of a prescribed amount or percentage by the Minister, responsible authorities are not required to seek approval for fee increases under section 21(1)(b). Fee increases implemented using the agreed CPI formula in the absence of ministerial prescription are lawful. Under the amended section 21, the Permanent Secretary must approve fee increases that do not exceed the CPI increase and comply with the prescribed ratios; he has no discretion to reject such applications except to correct arithmetic errors. The correct baseline for CPI calculations under the amended Act is the fees lawfully charged in the preceding term, not fees from an earlier period selected by the respondents. The Minister has no power under the amended Education Act to set fees for non-government schools; such action is ultra vires.

The court observed that the word 'any' in statutory language ordinarily carries a wide meaning (all, whole, entire, every) unless restricted by context, citing Hayne and Company v Kaffrarian Steam Mill Company Ltd 1914 AD 363. The court noted that contextual and purposive approaches to statutory interpretation require consideration of subsequent qualifying clauses and the legislative purpose. The court commented that it would have been desirable for the Permanent Secretary to file his own opposing affidavit, though his failure to do so was not fatal given the convergence of positions with the Minister. The court observed that the respondents failed to comprehend the correct application of section 21(2)(a), (b) and (c) to different school types, having initially suggested illogically that day schools should increase fees at 40% of boarding school rates. The court noted that schools offering both day and boarding options with fee ratios exceeding the statutory limits must make a conscious and deliberate written application under section 21(4) and cannot expect the Secretary to automatically invoke subsections (4) and (5) on his own motion.

This case is significant for establishing principles of statutory interpretation in Zimbabwe, particularly the contextual and purposive approach to understanding legislative provisions. It clarified the legal framework governing non-government school fees and the respective powers of the Minister and Permanent Secretary under the Education Act. The judgment protected non-government schools from arbitrary ministerial interference and established that fee increases based on CPI in the absence of ministerial prescription were lawful. It demonstrated the court's role in supervising administrative action and ensuring compliance with statutory provisions. The case also illustrates the use of mandatory and prohibitory interdicts to enforce administrative law rights and the confirmation procedure for provisional orders in Zimbabwean law.