Article by Durban Lawyer - Fawzia Kahn
This is the question which the Supreme Court of Appeal in Bloemfontein had to answer when it delivered judgment on 1 November 2018. An independent private school in Gauteng, Pridwin School, terminated the contract of parents who signed the document with the school when their children were being admitted to the school.
The father of the children concerned was accused of behaving in an aggressive and intolerant manner. He was accused of bullying, harassing, hurling insults and making threats of violence to staff and other persons associated with the school. The mother, a practising psychiatrist, was seen by the court as being complicit with her husband.
Examples of the father’s misconduct included the father accusing a young tennis intern of incompetence, which had the effect of demoralising the children and damaging their enthusiasm for tennis. It also left the intern feeling threatened and traumatised and diminished her self-confidence. The father would not hesitate to voice his displeasure with the team selection and the batting line-up for the Under-9 cricket team. He was accused of hurling abuse from the side after his son was given leg out before wicket. Later he accosted the umpire with a cricket bat, swore obscenities at the umpire and threatened to kill him after the match.
Other parents also complained about the detrimental effect that father’s conduct was having on the other children. There were later other instances of verbal abuse by the father which occurred at other cricket games and even defamation of the school soccer coach.
Eventually this led to the school terminating the contract it had with that particular set of parents. The parents took the matter to the High Court and lost. They then appealed to the Supreme Court of Appeal. The parents accepted that they entered the contract with the school freely and voluntarily. However they argued that the termination of the contract was invalid and should be declared unconstitutional. They also argued that the termination clause of the contract be declared unconstitutional, contrary to public policy and unenforceable ‘to the extent that it purports to allow the school to cancel the parent contracts without following a fair procedure and/or without taking a reasonable decision.
The Supreme Court of Appeal did not agree, (although there was one dissenting judgment) and held that the contracts which the parents concluded were not one sided nor was it unduly onerous on one of the parties. The court said that the parents concluded the contracts freely as autonomous individuals and therefore were alive to the consequences of what they were signing. Public policy demanded that they be held to their terms. The court further found that there were no constitutional or other public policy grounds to justify the setting aside of the contract. The court accordingly dismissed the parents’ application to appeal the decision of the Gauteng High Court.
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