St Cyprian’s School v R.V

Tuition fees: St Cyprian’s School v R.V and Another [2024] ZAWCHC 401

In this case, the applicant, St Cyprian’s School, was an independent school. It sought to recover R407,902.15 in unpaid school fees from the first respondent, the father of a learner enrolled at the school. As an independent school, St Cyprian’s relies on tuition fees and donations to operate. It receives limited government funding for Grade R only.

The relationship between the parents and the school was governed by a contract that stipulated the payment of school fees as a condition for continued enrolment. This is typical for most independent schools. Despite multiple payment indulgences and restructuring agreements, the first respondent failed to meet his obligations, citing financial difficulties.
The main issues the court had to consider were the following:

1. Could the school exclude the respondent’s daughter from the school due to the non-payment of fees?
2. Did the respondent have a valid defence against the enforcement of the contractual terms?

In his judgment, Willie J held the following:

Firstly, the respondent breached the contract by failing to pay fees despite several opportunities to restructure the debt. Furthermore, the judge held that the school acted reasonably, providing payment plans and securing an alternative school for the learner.

Regarding the best interests of the child, the court followed the precedent set in AB v Pridwin Preparatory School¹ and NM v John Wesley Schools.² It held that the exclusion of a learner must align with the constitutional duty to ensure basic education. The court held that the applicant fulfilled this duty by offering an alternative school placement and negotiating payment terms.

The court further held that the respondent’s claims of coercion and unrelated arguments concerning consumer law and the National Credit Act³ lacked merit and were unsupported by evidence. Thus, it interdicted the respondents from enrolling their daughter at the applicant school for the next academic year. The respondent was also ordered to pay the arrears with interest.

Author’s Opinion

St Cyprian’s Girls School is an independent school situated in Cape Town, South Africa. Independent schools are sometimes referred to as private schools. Subject to the South African Schools Act (“SASA”)⁴ and any applicable provincial law, any person may, at their own cost, establish and maintain an independent school. The primary difference between independent schools and public schools is that tuition fees fund the former, while the latter can be free (funded by the State) or fee-paying.⁵ There are other differences, but regarding St Cyprian’s School v RV , I will focus only on the fees.

The distinction between the two school systems (independent vs public) becomes evident when school fee commitments are not honoured. In fee-paying public schools, the school may, by process of law, enforce the payment of school fees by parents who are liable to pay in terms of section 40.⁶ However, the school cannot deny a learner participation in any school activities due to unpaid fees. Furthermore, the school cannot victimise the learner in any way, including suspension from classes, abuse (verbal or non-verbal), denial of access to cultural, sporting, or social activities, or denial of a report or transfer certificate.⁷

In contrast, independent schools have a contractual relationship with the learner (or, more specifically, their parent/guardian). Hence, unpaid fees represent a direct breach of that contract. The school thus has the standard contractual remedies available to it: specific performance or cancellation. While a public school cannot exclude a learner from school for unpaid fees, an independent school may do so. However, because the child has a constitutional right to basic education,⁸ and any decision (including exclusion/expulsion) concerning the child must be in their best interests,⁹ there are some requirements that independent schools must satisfy before exclusion. These requirements were clarified in cases such as AB v Pridwin Preparatory School and NM v John Wesley Schools.

In the case AB v Pridwin Preparatory School, the Constitutional Court considered whether private schools, like Pridwin Preparatory School (“Pridwin”), are subject to constitutional obligations, particularly regarding the right to a basic education. The court emphasised that the Bill of Rights applies directly to private entities under section 8(2) of the Constitution of the Republic of South Africa, 1996 (“the Constitution”), including independent schools such as Pridwin. Although the State primarily bears the duty to provide basic education, independent schools must offer a basic education that is not inferior to that of public schools and must not diminish students’ enjoyment of this right without appropriate justification.

In NM v John Wesley Schools, the court held:

‘… any decision to suspend or expel a learner during the school term must satisfy due process. These include adequate warning prior to suspension or exclusion, provision to make arrangements to settle fees, or the opportunity to make arrangements to enrol a learner at a new school.’

Returning to the case in question, it is evident that St Cyprian’s School made sufficient arrangements for the learner’s parents to settle the outstanding fees. Furthermore, the parents were allowed to make arrangements to enrol the learner at a new school. In fact, the learner’s sibling is at a nearby public school, which could admit her. Moreover, the school gave the parents adequate warning before approaching the courts. It thus cannot be said that, by excluding her, the school is unjustifiably interfering with the child’s right to a basic education.

You can read the full St Cyprian’s judgement here.

Written by Theo Tembo

citation: Tembo, T. “Tuition fees at Public Schools: The Case of St Cyprian’s School v R.V.” (19 Dec 2024). The Legal Desk. Available at: https://wp.me/pfvcwT-6a

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1. (CCT294/18) [2020] ZACC 12. ↩︎
2. [2018] ZAKZDHC 64. ↩︎
3. 34 of 2005. ↩︎
4. 84 of 1996. ↩︎
5. S39(1) Act 84 of 1996 states that school fees may be determined and charged at a public school only if a resolution to do so has been adopted by a majority of parents attending the meeting referred to in section 38(2). ↩︎
6. S 41(1) of Act 84 of 1996. ↩︎
7. S 7 of Act 84 of 1996. ↩︎
8. Section 29(1) of the Constitution. ↩︎
9. S 28(2) of the Constitution states that a child’s best interests are of paramount importance in every matter concerning the child. ↩︎