Caveat magister! The expulsion of boarders from public school hostels due to non-payment of hostel fees

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A number of public schools in South Africa indicate on their websites, on application forms and in letters to parents that a learner will be expelled from the school’s hostel if the hostel fees are not paid. In this article the legality of such expulsion is considered in view of national and provincial legislation as well as judgments of the Constitutional Court and the Supreme Court of Appeal. The legality issue is not a mere academic exercise, as is clear from media reports on the expulsion of boarders as well as a letter quoted in the article which warns parents that their children will not be readmitted to the hostel unless all arrear hostel fees have been paid.

In terms of the South African Schools Act 84 of 1996 (SASA) the administration and control of school hostels vest in the school’s governing body (SGB), which is considered to be an organ of state and is also empowered to levy school fees. However, neither the SASA nor the National guidelines for the provision of boarding facilities in public ordinary schools refers to the levying of hostel fees or the consequences of non-payment. Thus, to ascertain whether a school may legally expel a non-paying boarder, provincial legislation and court rulings must be considered.

With regard to provincial legislation, North-West regulations promulgated in 2012 deal with hostel fees and the expulsion of boarders due to non-payment. The legality of these regulations was questioned, but the Supreme Court of Appeal found in MEC: Department of Education Northwest Province v Fedsas 2016-12-1 case no.021/2016 (SCA) that they were valid. In this judgment the court referred, inter alia, to previous judgments of the Constitutional Court, including Fedsas v MEC for Education, Gauteng 2016 4 SA 546 (CC) and Governing Body of the Juma Musjid Primary School v Essay 2011 8 BCLR 761 (CC), and came to the conclusion that the right to basic education enshrined in the Constitution also includes the right to school hostels. It further held that a provincial legislature and the member of the Executive Council were entitled to regulate school hostels in their province as education is a functional area of concurrent national and provincial legislative competence.

The effect of the ruling of the Supreme Court of Appeal is that schools in North-West are explicitly prohibited from expelling boarders due to the non-payment of hostel fees, meaning that public schools that expel learners are acting illegally. With regard to the other provinces, the position is not clear. In Gauteng the provincial schools act determines that any expulsion from a school hostel must be done in accordance with legal requirements. However, both the act and regulations promulgated in terms thereof are silent on the question of non-payment of hostel fees. Although some of the other seven provinces refer (either in the provincial education acts or in regulations) to hostel fees, none deals with the issue of expulsion due to non-payment of such fees. In both the Northern Cape and the Western Cape the practice seems to be that the provincial department will engage with the SGB to come to an agreement. However, this practice is not founded on any existing legal measures.

Since, except for North-West, no provincial measures exist with regard to the expulsion of boarders due to non-payment of hostel fees, it is necessary to consider judgments to find an answer.

South African courts consider the constitutional right to a basic education as an important right which is “immediately realisable”. This right also includes the right to a hostel if necessary. Another important aspect when dealing with children is the “best interest of a child” principle which any organ of state dealing with children should always take into consideration. As an SGB is an organ of state, it follows that the best interest of the learner to be expelled from a hostel due to non-payment of hostel fees should be taken into account. Thus in Head of Department, Department of Education, Free State Province v Welkom High School 2014 4 SA 228 (CC) the court held that both the provincial department and SGB should serve the educational needs of the children involved. A further factor is the courts’ dealings with evictions in terms of the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act (PIE) where children are involved. Thus in the Juma Musjid matter the Constitutional Court held that an eviction order should not be granted if the best interest of the children involved had not been canvassed.

In view of the aforementioned it seems that the expulsion of a boarder due to non-payment of hostel fees in provinces where no explicit legislation exists should not be considered, as the combination of the abovementioned rights will make it practically impossible to evict the learner.

This raises the question as to alternatives available to SGBs to recover outstanding hostel fees or to ensure that funds are available to keep non-paying learners in hostels.

In North-West, the Western Cape and Eastern Cape an SGB may apply to the provincial department for a hostel subsidy to obtain some measure of relief. However, provincial legislation in the other six provinces does not deal with this, meaning that it is not clear how the right to a hostel subsidy referred to in the Norms and standards for school funding would be realised in those provinces. A second alternative is to settle issues of outstanding hostel fees through negotiation between the school and provincial departments of education. However, this alternative is probably doomed, as the law reports contain a number of cases which indicate that there is little goodwill between schools and officials of the various departments of education. This tendency is underlined by judgments like the Welkom High School matter, where the Constitutional Court held that the “overly aggressive communication” between the parties and their losing patience with each other was not in the best interest of the children involved. A third alternative is legal action against the non-paying parent. As with the previous alternatives, this route is fraught with obstacles, with provisions of SASA and provincial legislation allowing legal action only once it has been found that the parent is able (but not willing) to pay and, in the case of North-West, a resolution to approve the school fees has been resolved through a secret ballot. These difficulties with recovery will force schools to consider other options, such as public-private partnerships, utilising the school’s property to raise funds or to obtain indemnity insurance for non-payment.

Finally, the consequences for SGBs that do proceed with expulsions should be considered. The legal position in North-West is explicit and as is evident from the discussion, in the other provinces it would probably also be illegal. Should an SGB thus proceed with expulsion it may find itself at the wrong end of a claim for damages. Although the SASA provides that the state is liable for any damage or loss caused by a public school, it has a right of recovery against the SGB or a member. Furthermore, an SGB cannot plead ignorance as it is the duty of the school principal to inform the SGB about policy and legislation. Secondly, the SGB will most probably be held to have the same duty of care towards learners that is applicable to teachers. This duty is more onerous than merely to act reasonably. Finally, the Supreme Court of Appeal held that “ignorance of the law” is indeed “no excuse” and that a person who engages in a regulated activity (like an SGB) can be expected to keep abreast of the law in that particular field.

In conclusion it is clear that schools and SGBs should appraise themselves of the legality and consequences of the practice of expelling learners due to the non-payment of hostel fees. Thus SGBs should heed the motto: Caveat magister! – Beware before you act, Master!

Keywords: best interest of the child; boarders; expulsion; hostels; public schools; right to basic education

Lees die volledige artikel in Afrikaans: Caveat magister! Die uitsetting van kosgangers uit koshuise van openbare skole weens onbetaalde koshuisgeld

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