HUNGWE
J: The applicant filed an urgent chamber
application seeking a provisional order couched in the following terms:
"Pending the
final determination of this matter the applicant is granted the following
relief: -
The respondent
shall forthwith and without conditions, but in any event within five hours of
the service of this Provisional Order on Joseph Goromonzi release Chiedza
Chirinda's full 'O' level results failing which the said Joseph Goromonzi shall
be held in contempt of Court and be imprisoned until there is compliance with
this order".
The
application is based on the following facts which appear to be common cause.
Watershed College
("the college") is a trust school or private school operated by a trust in
terms of the laws of Zimbabwe.
All
parents with children attending the college are invited to debate issues
regarding the running of the institution as required by the Education Act [Cap 25:04] and the regulations made
thereunder.
A
meeting was held on 7 August 2008 to set fees for the third school term. The
minutes of the meeting reflect that one parent asked for a clarification on the
use of Watershed Units. Parents present were reminded that fees were payable in
Zimbabwe
dollars and that the unit was simply an administrative tool and that after 22
August 2008 the units will be revalued daily. What this meant was that parents
paying after this date would have to contact the school bursar first and be
given the ruling rate for that day before making payment in cash on that date.
The college adopted the Old Mutual Implied Rate to convert the units to Zimbabwe
dollars. There was a meeting held at the school on 16 October 2008 where it was
resolved to raise a supplementary fee for third term. The minutes of another
meeting of parents on 28 November 2008 show that some parents did not pay the
agreed fees on time others did not pay at all. As a result the parents' body
resolved that those pupils whose fees for 2008 remained uncleared will not be
admitted in the new term of 2009 and those that sat for exams will not have
their results released till they made good their previous obligations.
The
applicant, it is clear from the register of attendance attached to the
respondent's papers, never attended any of these meetings. She however was
aware of the need to first contact the bursar before making any payments in
order to get the day's prevailing rate before making payment. She states in her
founding affidavit that she did this on each occasion prior to making payment.
She therefore disputes that she owes the school anything besides the 4.24 units
for postage. She claims that the college has no lawful right to withhold her
son's Cambridge Examinations results. She claims the apparent debt is a result
of the college unlawfully recalculating the value of the Zimbabwe dollar at the actual time
the cheque payments were presented and met against the value of the Watershed
Unit.
From
the minutes of the meetings held between the college and the parents, it is
apparent that early payment was encouraged in order to avoid the position where
the college would have to borrow in order to keep afloat. The college would
also benefit from bulk purchases if all payments were made in time. In this way
the college will get value for the Zimbabwe dollar and beat inflation.
Parents were made aware of this. "Top-ups" were necessitated by late payments
and erosion of value of the Zimbabwe
dollar due to inflation. Even payments made through the Real Time Gross
Payments System ("RTGS") were affected. Thus parents agreed to use units in
order to cushion late payments against the vagaries of inflation. The minutes
are clear on this.
The
applicant claims that this is unlawful. If her contention is to be upheld I
still find myself unable to come to her assistance. She agreed to be bound by
such decisions as the college authorities may make on her behalf. In any event
she contracted herself to abide by the rules and regulations of the college.
This is reflected in the manner in which she up till this dispute had been
conducting herself. She is a party to an illegality she now complains of. The
principle of our law is generally that no cause of action can arise from an
illegal contract as expressed in the maxim ex
turpi causa non oritur actio. (See Brits
v Van Heerden 2001 (3) SA 257)
The
applicant enrolled her son and in that regard entered into a contract with the
college. That contract is titled "Watershed College Entry Form." It is dated 14 January 2006 by the applicant
and is Annexure "C" to the respondent's opposing papers.
Paragraph (d) of
that contract provides:
". that I
understand and agree that I will pay the fees to the school for any term
(including the pupil's first term) by the beginning of that term, unless
written notice that the place is not required has been given to the headmaster
by me or on my behalf by the first day of the previous term not withstanding
that the pupil may not attend school for the whole or part of any term. I also
acknowledge that the headmaster has the right to refuse to allow a student to
return in any term at the beginning of which the previous term's fees have not
been fully paid up without prejudice to the school's right to claim and enforce
payment of the fees for any term in accordance with this declaration. I further
agree that even if the headmaster has not exercised the right set out above he
shall nevertheless still have (the) further right to refuse to allow any pupil
to sit for a Public Examination at the school if his account for the current
term is not completely cleared."
In
view of this declaration, which I hold amounts to the terms of the contract
between the parties, applicant bound herself to the decisions taken by the
headmaster. In any event the decision to withhold applicant's son's examination
results was arrived at by consensus of the other stake-holders, the parent
body, which body includes the applicant. It is a sensible method of enforcing
payment. To my mind it does not infringe on the International Convention on the
Rights of the Child recognized under the United Nations Charter nor does it infringe on the domestic
laws. Her son was allowed to sit for examinations when at that point the
headmaster was entitled to exclude him provided, of course, that he gave the
parent of the affected pupil due notice.
Even
if I were wrong to hold that this maxim applied in the instant case, I would
still arrive at the same conclusion on another basis.
The
applicant was quite aware of the need to pay school fees punctually. A decision
was made that payments would attract rates to be decided on the date of actual
payment. A payment by cheque is not payment till it is cleared. This is why she
acknowledges the debt of 4.24 units for which a cheque was dishonored. Therefore all
her late payments were lawfully subjected to the valuation against the rate
prevailing on the date on which such cheques were cleared. Consequently it
cannot be seriously argued that she paid the values which she unilaterally
fixed. In short the applicant is indebted to the college for the sums reflected
on the invoice produced during the hearing.
Schools
are entitled to institute systems which enhance their service delivery and
functionality. Their core business is to provide an education. But this comes
at a cost to both the parents whose children benefit from the services offered
by the institution and the Trustees who have been trusted with the running of
the school. Although they have to operate like a business unit they in practice
do not do so principally for profit. Private colleges are known to operate for
profit. If colleges like the respondent do make such a profit it would be more
of an exception than the rule. Therefore it seems to me that in delivering on
their mandate schools (and non-profit colleges) where the parent body has
democratically elected to adopt such a method for debt collection, as here,
ought to be permitted to use such less formal methods of debt collection as
withholding examination results. This practice is however by no means
comparable to the commercial lien.
Further
Ms Mapanzure pointed out that the
applicant cannot succeed in view of the fact that the order sought is against
the chairman of the respondent personally when it is the college that is being
sued. I agree. I did not hear Mr Mutizwa
to adequately address this deficiency on the form of the order. The respondent
is the college; Mr Goromonzi is its chairman. He cannot be held in contempt in
a representative capacity.
I
am therefore satisfied for the above reasons that this application cannot
succeed. It is dismissed with costs.
Chihambakwe, Mutizwa &Partners, applicant's legal practitioners
Kantor and Immerman, respondent's legal
practitioners
