GARWE
JA
[1] The
appellant, as applicant, filed an application before the High Court in which he
sought certain declarators and other ancillary relief against the first
respondent. After considering the papers
filed of record and submissions by counsel, the High Court dismissed the
application with costs. Against that
order the appellant now appeals to this court.
BACKGROUND
[2] The
appellant is a senior practitioner with a law firm in Bulawayo, whilst the
first respondent is the authority charged with the responsibility of running
the affairs of Christian Brothers College, a private educational
institution. The second and third
respondents were cited owing to the fact that it is their responsibility to
approve school fee and levy increases by private educational institutions.
[3] Christian
Brothers College (“the school”) is, as already noted, a private school,
situated in Bulawayo. It was established
in 1954 as a private college. In the
court a quo it was common cause that,
right from the time of its establishment, the school, whilst charging school
and other fees, has never supplied textbooks and/or stationery to pupils
undertaking studies on its premises. The
practice over the years has been for the school to provide, annually, a list of
textbooks and stationery that parents would be required to provide for their
children.
[4] The
appellant has had two sons enrolled at the school. The elder son completed his 'A' level studies
at the institution in 2011. At the time
of institution of the court application in January 2014, he had a minor son who
had just completed his Form 3 and was due to commence Form 4 studies during
that year. In both cases, the appellant,
like all other parents, had been required to sign a contract with the school to
enable admission of his children into the institution. Paragraph 3 of the contract provided as
follows:-
“The
parent further undertakes to supply the pupil with all uniforms, equipment and
other requirements as may be stipulated by the school from time to time and to
replace same as and when necessary.”
[5] The
appellant was, during the period of nine (9) years when his two sons attended
school at the institution, required, over and above the school fees, to
purchase textbooks and other items of stationery. He considered the school fees charged by the
school to be not only substantial but exorbitant and formed the view that the
school should, from these fees, be able to purchase and provide textbooks and
stationery items required as part of a child's education. In January 2012 he raised the issue with the
school. Despite an exchange of
correspondence, nothing came out of this engagement. Consequently, he filed a court application
with the High Court at Bulawayo seeking the declarators and other relief
already referred to.
PROCEEDINGS
BEFORE THE HIGH COURT
[6] The
appellant's main complaint before the High Court was this. He has had to spend an average of US$400
annually in order to purchase books and stationery required by the school. He believes that the substantial school fees
that parents with children at this institution pay should cater for items such
as stationery, textbooks and other extracurricular activities. Instead of purchasing these items, the school
spends over eighty per cent of its budget on teachers' salaries. He considers this conduct a violation of a
child's right to education and a breach of the implied term in the contract entered
into by the school and parents that the school would provide these essential
items. The implied term is so obvious as
not to require express provision. Further,
the requirement that parents purchase these items amounts to an unauthorised
levy or school fee. He is aware that
other private schools like The Dominican Convent, Girls' College and Petra High
School charge lower school fees but are able to provide textbooks and
stationery.
[7] He
has two other complaints against the school. The first is that when the school
increases fees, it does not give a full term's notice and yet parents are
required to give a full term's notice when they intend to withdraw their
children from the school. Secondly, the
school is in the habit of barring children who would have failed to pay school
fees, a practice he believes in unlawful for violating s 7 of the Children's
Act [Chapter 5:06] (“the Children's
Act).
[8] In
the result, he sought the following before the court a quo:-
- a declaratur that the failure by the
school to provide textbooks and stationery amounts to a violation of a child's
right to a proper education and a breach of the implied term of the contract
signed by the school and the parents.
- a
declaratur that the requirement by the school that parents buy textbooks and
stationery, in addition to payment of school fees, amounts to an unauthorised
and illegal fee or levy, contrary to the Education Act [Chapter 25:04] (“the Education Act”) and Regulations made
thereunder.
- an
order that the school is to provide textbooks and stationery for all children
attending lessons at the institution.
- an
order that the school shall not increase school fees unless parents are given
at least one term's notice of such increase, which increase should in any event
be approved by the government in terms of relevant legislation.
- an
order that the practice of barring students from attending classes owing to
non-payment of fees be declared a violation of the Children's Act.
- an
order that where a parent consistently fails to pay school fees, the school
shall not bar the child from attending lessons but should terminate the
contract only upon giving at least one term's notice.
[9] The
school opposed the application. It
stated as follows. Since its inception in the 1950's, it has never provided
textbooks and stationery. The school fees
paid by the parents do not include a provision for text books and stationery
and, if the school were to provide these, it would have to increase school fees
by $50 per term per pupil. The school
provides a wide range of syllabi and
it is therefore impossible for the school to buy a textbook that covers an entire
subject. An exercise carried out by the
school has determined that the cost of purchasing new textbooks is less than
$170 per year per child. The school further
denied that school fees payable by parents necessarily include a fee for textbooks
and stationery or that eighty per cent of the school budget goes towards
teachers' salaries. It further argued
that in terms of the Constitution, whilst every person has a right to a basic
State funded education, no person has a right to education at a private
institution.
[10] The
school further denied that there is a tacit term in the contract that requires
the school to provide textbooks and stationery.
The school provides more hours of tuition than the other schools cited
by the appellant. One should not
therefore compare the quantum of
school fees charged by different schools without taking into account the
facilities offered by the individual schools.
[11] On
whether a full term's notice should be given before increasing fees and levies,
the school submitted that this suggestion is unreasonable and impractical. On the subject of barring non-paying students,
the school submitted that the appellant had no locus standi to raise this issue, as his child had not been barred
by the school for non-payment of fees.
[12] In
supplementary heads filed with the court a
quo, the appellant submitted that, in view of the fact that the contract
that is the subject of this dispute is a consumer contract, the court had the
power, under the Consumer Contracts Act, [Chapter 8:03]
(“the Consumer Contracts Act”) to do a number of things including cancellation,
variation, and so forth.
FINDINGS
BY THE COURT A QUO
[13] In
its judgment, the court a quo found
that the applicant, being the parent of a minor child enrolled at the school,
had the locus standi to bring the
application. However, it also found that
the appellant, having signed the contract with the school, was bound by the
terms and conditions contained therein and that a court of law, in the absence
of an alleged breach of the rules of natural justice or conduct that is ultra vires the contract, cannot
interfere, as it is essential that freedom of contract be respected. Consequently the court concluded that the
relief sought by the appellant constituted an invitation to the court to
re-write the terms of the contract by imposing a new and specific obligation on
the part of the school to provide text books for the pupils.
[14] On
the appellant's submission that the court should have proceeded in terms of the
Consumer Contracts Act, the court found that this aspect had not been raised in
either the founding or answering affidavits and had surfaced for the first time
in supplementary heads of argument filed by the appellant, a mere four days
before the hearing of the matter.
[15] Lastly
the court found that the allegation that the provision of textbooks and
stationery was an implied term of the contract had not been proved.
Consequently the
court dismissed the application with costs.
Hence the present appeal.
THE
GROUNDS OF APPEAL
[16] The
appellant has filed a number of grounds of appeal. These are:-
- That
the court a quo misdirected itself in
dismissing the application on the basis that a court does not ordinarily
interfere with the terms of a contract when legislation, such as s 4 of the
Consumer Contracts Act, empowers a court to do so.
- That
the court a quo erred in not making a
determination whether or not the supply of text books and stationery by the
school was an implied term of the contract.
- That
the court erred in not determining the question whether forcing parents to buy textbooks
for their children amounted to an unauthorised fee or levy contrary to s 2 of
the Education Act.
- That
the court erred in holding that the failure by the respondent to provide textbooks
and stationery was not a violation of a child's right to a proper education.
- That
the court a quo misdirected itself in
not determining the following issues:-
(a) that
barring children from attending classes on account of non-payment of school fees
violated s 7 of the Children's Act.
(b) that
where a parent consistently fails to pay school fees, the school shall not bar
the child from class but may terminate the contract on giving at least one
term's notice of such termination.
(c) that
the school should not increase school fees without giving parents a term's
notice of such increase.
- That
the court a quo erred in rejecting
the argument based on the Consumer Contracts Act.
APPELLANT'S
SUBMISSIONS ON APPEAL
[17] In
his heads of argument, the appellant submitted that parents pay, not just
tuition, but other fees to the school.
School fees include not only instruction but also the provision of
teaching material.
17.1 Other
schools in the same league as the respondent provide textbooks for its learners. Government schools do the same.
17.2 The
contract does not exclude the school from supplying the textbooks but neither
does it say it should provide them.
17.3 Therefore
the contract, impliedly, includes the provision of textbooks.
17.4 The
book list that parents are forced to purchase is an unauthorised levy on
parents.
[18] The
appellant further submitted that the court erred in declining to make a ruling
on the other issues raised when it was apparent that the school had sent out
school fee invoices containing an increase and in light of the fact that the
agreement between the school and the parents expressly authorises the school to
bar defaulting pupils from attending classes.
[19] Lastly,
he submitted that since the Consumer Contracts Act allows a court, whether on
application or mero motu, to grant
relief, the court should have exercised such powers and therefore misdirected
itself in declining to invoke the provisions of the Act. The contract was unreasonably oppressive,
firstly, in requiring parents to give a term's notice of the removal of a pupil
from the school and yet the same contract does not require the school to give a
term's notice in the event of an increase in school fees; secondly, the
contract was oppressive in requiring parents to buy textbooks; thirdly, in
giving the respondent the right to exclude non-paying pupils from school.
FIRST
RESPONDENT'S SUBMISSIONS ON APPEAL
[20] In
its heads of argument, the school has taken two points in limine. Firstly, that the
appellant failed to timeously serve the notice of appeal on the Registrar of
the High Court and, secondly, that the grounds of appeal are not clear and
concise.
In oral
submissions, however, the school advised that it was no longer pursuing these
points in limine. These two issues therefore merit no further
consideration.
[21] On
the merits, the school has made the following submissions:-
(a) That
in terms of the contract, parents were required to supply “other requirements”
as stipulated by the school from time to time.
Since its establishment, the school had never provided textbooks. The courts should not lightly interfere with
a contract nor re-write its terms.
(b) The
appellant failed to substantiate his submission that provision of textbooks was
an implied term. Was it a term necessary
to give commercial efficacy to the contract or was it implied by custom or
trade usage? The existence of such trade
usage was not proved.
(c) Further,
in ordinary parlance, a levy would be payable to the institution itself. What is complained of in the present matter
is the cost of textbooks and stationery purchased by a parent for his own
children and which items do not, at the end of the day, accrue to the school.
(d) No
factual basis has been provided for the Consumer Contracts Act to be invoked
and, in particular, the suggestion that the contract was onerous and
oppressive.
ISSUES
FOR DETERMINATION
[22] The
issues that emerge from a consideration of the heads of argument and the oral
submissions are the following.
Firstly, what is
an implied term and, flowing therefrom, whether the payment of school fees
necessarily obliges an educational institution to provide, in addition to
tuition, textbooks and stationery.
Incidental to this issue is whether asking parents to purchase textbooks
and stationery for their children is an unauthorised levy which would require
government approval.
Secondly, whether
the court a quo failed to make a
determination on the relief sought by the appellant barring the respondent
from:-
(a) Increasing
school fees except on giving a term's notice
(b) Turning
away pupils on account of the non-payment of fees, and
(c) Terminating
a contract, in the case of non-paying pupils, except on giving at least a term's
notice of such cancellation.
Thirdly, whether
the provisions of the Consumer Contracts Act apply and, if so, whether the
court improperly found that the appellant could not rely on the same.
I
deal with the above issues in turn.
WHAT
IS AN IMPLIED TERM
[23] In
general, the courts are reluctant to imply terms into a contract at common
law. It is the contracting parties' role
to agree the terms of their particular agreement. It is generally not considered to be the role
of the courts to re-write a contract for the parties. Freedom of contract prevails. The limited circumstances where a court will
imply a term into a contract at common law relate to (a) terms implied through
custom or trade usage (where a particular term is prevalent in a trade) (b) tacit
terms or terms implied from the facts which include the business efficacy test
(i.e. would the contract make business sense without it?) and the officious
bystander test (i.e. would the parties have been agreed on the matter had they
thought about it?) and (c) terms implied by law in contracts of a defined
type. The third category clearly has no
application to this case.
TACIT
TERM OR TERMS IMPLIED FROM THE FACTS
[24] The
Law on what constitutes a tacit term is now well settled.
24.1 In
Douglas v Baynes [1908] TS 1207, the
court cited with approval remarks in Hamlyn
& Co. v Wood & Co. [1891] 2 QB, 494 that:-
“The
court ought not to imply a term in a contract unless there arises from the
language of the contract itself, and in the circumstances under which it is
entered into, such an inference that the parties must have intended the
stipulation in question that the court is necessarily driven to the conclusion
that it must be implied.”
24.2 In
Reigate v Union Manufacturing Co.
(Ramsbottom Ltd & Another), [1918] 1 KB 592, 605 the court remarked:-
“A term can only be implied if it is
necessary in the business sense to give efficacy to the contract; that is, if
it is such a term that it can confidently be said that if at the time the
contract was being negotiated some one had said to the parties, “What will
happen in such a case,” they would both have replied, “Of course, so and so
will happen; we did not say that; it is too clear.”
24.3 In
Discovery Life Limited v Barthram
(71989/2013) [2015] ZAGPPHC 110 (6 March 2015) the court remarked:-
“The test for inferring a tacit term
is whether the parties, if asked whether their agreement contains the term,
would immediately say: “yes of course that is what we agreed.” Similarly, an implied term is used to denote
an unexpressed provision of the contract which derives from the common
intention of the parties as inferred by the court from the express terms of the
contract and the surrounding circumstances …
A tacit term can be
imported into a written contract where there are expressed terms. When that happens, the tacit term supplements
the expressed terms in the contract and it thus forms much part of the contract
as its express terms. Such a tacit term
for it to be imported should not amend, contradict or vary the contract,
instead it must form part of the contract with its expressed terms.”
24.4 In
Standard Bank of South Africa Ltd &
Another vs Ocean Commodities Inc & Others 1983 (1) SA 276A, 292B-C, the
court remarked:-
“In order to establish a tacit
contract, it is necessary to show, by a preponderance of probabilities,
unequivocal conduct which is capable of no other reasonable interpretation than
that the parties intended to, and did in fact, contract on the terms
alleged. It must be proved that there
was in fact consensus ad idem ….
It appears to be
generally accepted that a term may not be tacitly imported into a contract
unless the implication is a necessary one in the business sense to give
efficacy to the contract.”
TRADE
USAGE
[25] In
respect of terms implied by trade usage, the case of Golden Cape Fruits (Pty) Ltd v Fotoplate (Pty) Ltd 1973 (2) SA (c)
642, is authority for the proposition that the parties to a contract would be
bound by – and the contract in question would be subject to – an alleged trade
usage:
“provided
that it is shown to be universally and uniformly observed within the particular
trade concerned, long-established, notorious, reasonable and certain, and does
not conflict with positive law (in the sense of endeavouring to alter a rule of
law which the parties could not alter by their agreement) or with the clear provisions
of the contract.” (at page 645 H).
[26] The
above case further emphasized the need for the person alleging a usage to prove
it. At p 646, the court cited with
approval remarks in Crook v Pedersen Ltd
1927 WLD 62, 70 that:
“The
evidence must amount to something more than mere opinion; it must establish the
fact of the existence of the usage, and provide instances of the usage having
been acted upon, otherwise the testimony will be of little weight.”
[27] English
law adopts a similar approach. The
Golden Cape Fruits case (supra) at p
646 E-G cites Halsbury, vol. II,
secs. 367 and 369. Halsbury states:-
“A
usage is proved by the oral evidence of persons who become cognizant of its
existence by reason of their occupation, trade, or position. The evidence must be clear and convincing; it
must also be consistent … The evidence of witnesses, in order to prove the
existence of a usage, must amount to something more than mere opinion; it must
establish the fact of the existence of the usage, and provide instances of the
usage having been acted upon ….”
BASIS
FOR IMPLIED TERM MUST BE ESTABLISHED
[28] It
is a requirement that a person relying on an implied term must prove the
circumstances from which he maintains it should be implied – Christie, Business Law in Zimbabwe, p
61; Christie, The Law of Contract in
South Africa 3rd Ed p 185.
See also the Golden Cape Fruits case
(supra) at page 646. Further the party relying on an implied term
must set out in his pleadings the circumstances from which he maintains it
should be implied – Christie, Business Law in Zimbabwe, (supra) at p 61.
[29] The
point that needs to be made therefore is that, for one to rely on trade usage
clear, convincing and consistent evidence which amounts to something more than
opinion must be led to establish the existence of such trade usage. In the case of a tacit term, it is necessary
to prove, on a balance of probabilities, conduct and circumstances which are so
unequivocal that the parties must have been satisfied they were in agreement on
the tacit term – Christie, The Law of Contract in South Africa – (supra), at p 191.
WHAT
ARE SCHOOL FEES
[30] It
is important, for a proper determination of the issues raised before this
court, that the term “school fees” be defined.
I say this because, as the present case reveals, the term might mean
different things to people in different places.
[31] The
School Fee Abolition Initiative (SFAI) was launched by Unicef and the World
Bank in 2005. In its Operational Guide: Six Steps to Abolishing
Primary School Fees, at page 28, it is stated:-
“It is
often hard to define school fees precisely, because what constitutes them
varies from place to place and time to time.
In addition, there is frequently a difference between the official
definition of school fees (what the governments indicate should or can be
collected) and what is actually collected.”
[32] The
Collins English Dictionary defines school fees as the money paid for a person
to go to school. School fees can be
broken down into direct fees and other private expenses.
[33] The
SFAI Operational Guide (supra)
further states:-
“Direct
fees include fees paid directly to the school or school system (tuition,
examination fees, activity or sports fees, building or building maintenance fees,
school development fees, boarding fees).
Other fees include those that involve payments to commercial entities
for books, supplies, uniforms, transportation and meals/snacks and “voluntary”
contributions made to PTAs. The types of
fees charged vary across countries and regions …. In some cases children pay
schools directly for books and uniforms; in others PTAs' collect funds that
cover basic school expenses, such as teacher salaries or parts thereof …. Some schools or teachers may collect fees
that are unauthorised or even illegal, such as fees for end-of-year parties,
teachers' gardens, or extra – tutoring or private lessons.”
[34] The
authors Kattan RB & Burnett N in their article User Fees in Primary Education, 'Education Sector, Human
Development Network' - World Bank July 2004, state as follows:-
“General
discussion of user fees is often explicitly or implicitly about tuition
fees. In practice however, there are a
large number of different “fees” that private households sometimes have to pay
for publicly provided primary education, including tuition fees, textbook fees
or costs and/or rental payments, compulsory uniforms, Parent Teacher
Association (PTA) dues, and various special fees such as exam fees, community
contributions to district education boards, and the like.”
[35] The
Education Act, in s 13, provides that the Minister shall prescribe the fees
which shall be payable in government schools, for instruction, accommodation
and additional fees for instruction in special subjects or special educational
courses. In addition, in terms of s 14,
Government School Heads are required to establish a general purpose fund in aid
of extra curricular activities and facilities and into which moneys received by
the school not constituting tuition or boarding shall be paid into. Tuition and boarding fees are required to be
paid into the School Services Fund in terms of s 30 of the Audit and Exchequer
Act [Chapter 22:03].
[36] In
terms of the same Act, non-governmental schools are allowed to charge fees and
levies and to increase them subject to approval by the National Incomes &
Pricing Commission. Like government
schools, they are also required to establish a School Services Fund into which
all monies paid as fees or levies shall be deposited. In determining whether to approve a fee or
levy of a private school, the Commission will consider, inter alia, the costs of operating and maintaining the school as
well as any programme for improving the facilities at the school.
[37] The
Education Act does not provide a definition of what constitutes school fees or
levies. What is clear is that tuition
and boarding fees are remitted to the government whilst the remaining fees or
levies are deposited into a school fund.
It would appear that what is sometimes termed a levy is in fact a fee
that is not remitted to the government but is retained to sustain other day to
day operations of the school. The
distinction between levy and fee therefore appears to be blurred, particularly
in the case of a private school.
[38] From
the above, it is clear that there is no set definition of what constitutes
school fees or even school levy. A
sports fee in one school may be termed a sports levy, particularly in
government institutions.
WHETHER
SCHOOL FEES IMPLICITLY INCLUDE TEXTBOOKS AND STATIONERY
[39] It
is therefore clear, from the aforegoing, that school fees charged by different
schools do not necessarily include a textbook and stationery fee. The onus
was on the appellant to prove, a quo,
that the provision of textbooks and stationery is an implied term of the
contract. The fact that some schools
include textbooks and stationery in the school fees that they charge does not
necessarily mean that the same applies to all schools. Nor does it constitute
an implied term that a school is obliged to supply textbooks and stationery
once a pupil has paid the school fees charged by the school.
[40] The
Education Act acknowledges that one of the factors to be taken into account in
determining the quantum of school fees
to be charged by a private school is the cost of operating and maintaining the
school or the cost of improving the facilities provided at a school. Such costs would obviously vary from school
to school. A new school might find it
necessary to charge higher fees than an old, established school, in order to
put up necessary infrastructure. In the
case of established schools, the fees have to be related to the quality of the
facilities at the school. It follows
from this that a comparison of the school on the one hand, and other private
schools on the other, does not assist in resolving the issue whether the
provision of textbooks and stationery is an implied term in a contract between
a parent and the school.
[41] The
appellant did not, either a quo or
before this court, clarify whether his cause of action was based on a trade
usage or a tacit term. On the facts of this case, the argument on trade usage
(if such was the argument) could not have been successfully relied upon by the
appellant for two reasons. Firstly, no
evidence of such usage was led a quo. There was an attempt only during oral
submissions before this court to show that there was such usage. In the court a quo the attitude of the appellant was that the usage was so
obvious that it need not have been proven.
Secondly, as earlier highlighted, what constitutes school fees differs
from place to place. In short, therefore, appellant did not prove that the decision
by some schools to provide textbooks and stationery is universally and
uniformly observed by all private schools in Zimbabwe. On that basis therefore, the appellant's
argument on trade usage is without merit.
[42] As
regards the question whether there was a tacit term, it is clear from the facts
that the school has never provided textbooks and stationery since its inception
and each parent is required to purchase such items for his child. The standard contract signed by the parent
makes it clear that parents will be required to meet, over and above the school
fees they pay, other expenses. The
contract makes it clear that the parent is required to supply uniforms,
equipment and other requirements as may be stipulated by the school from time
to time. The school has always made it
clear that parents should provide textbooks and stationery. In these circumstances, a tacit term cannot
be imported into the contract in contradiction to the express term in the
contract requiring parents to meet other expenses as may be determined by the
school from time to time. We are not told how, on the facts, either the
business efficacy test or officious bystander test, would be applicable.
FREEDOM
OF CONTRACT MUST BE RESPECTED
[43] The
principle is now well established that the courts should not interfere in
private contractual relationship except in a few circumscribed situations. In this case, the contract made it clear that
parents would be required to provide other
requirements as may be stipulated by the school from time to time.
[44] In
finding that the court was not entitled to interfere with the contract, the
learned judge a quo remarked at page
6-7 of the cyclostyled judgment:-
“It is
a settled principle that the courts will not interfere in private contractual
relationships. Such relationships
include the relationship between a voluntary association and its members, which
relationship is based on contract. The
applicant and respondent entered into a contractual relationship, which the
courts will be reluctant to interfere with, in the absence of any alleged
breach or rules of natural justice or any perceived conduct which is ultra vires. In the present case, the applicant has not
alleged any breach of any rules of natural justice and the case involves a
private contractual relationship, and there is, therefore no basis for the
court to interfere. See the case of Jockey Club of South Africa and others v
Feldman 1942 AD 340. In any event the courts have always respected the
freedom of contract, and have been loath to reformulate, or formulate,
contractual terms for the parties, nor alter the express terms of a contract,
nor act as registries for the registration of such contracts…”
[45] I
agree entirely with the above remarks which accord with principle.
THE
CONSUMER CONTRACTS ACT
[46] The
appellant correctly submits that in terms of the Consumer Contracts Act, a
court, on being satisfied that a contract is unfair or that any exercise or
non-exercise of power is unfair or that such a contract contains a scheduled
provision, may make an order cancelling the whole or part of the contract,
varying the contract, enforcing part only of the contract, declaring the
contract to be enforceable for a particular purpose only, ordering restitution
or awarding compensation to a purchaser or user or annulling the exercise of
any power, right or discretion under the Act.
Relief under s 4 of the Act may follow an application made to it or
given by the court mero motu.
[47] In
s 5, the Consumer Contracts Act attempts to define when a consumer contract is
unfair for its purposes. A contract may
be regarded to be unfair if, as a whole, it results in an unreasonably unequal
exchange of values and benefits, if it is unreasonably oppressive in the
circumstances, if it imposes obligations on a party that are not reasonably
necessary to protect the interests of any other party, if the contract excludes
or limits the liability of a party to an extent not reasonably necessary, if
the contract is contrary to commonly accepted standards of fair dealing and, lastly,
if the contract is cast in language not readily understood by the party.
[48] Subsection
2 of s 5 of the Act however makes it clear that a contract shall not be found
to be unfair solely because it imposes onerous obligations on a party, that it
does not result in substantial or real benefit to a party or that a party may
have been able to conclude a similar contract with a different party on more
favourable terms or conditions. Subsection
3 thereof also makes it clear that in determining whether or not a contract is
unfair, a court shall have regard to the interests of both parties and shall
take into account, where appropriate, any prices, charges, costs or other
expenses that might reasonably be expected to have been incurred if the
contract had been concluded on terms and conditions other than those on which
it was concluded.
[49] It
is clear from the foregoing provisions that the facts in any given case need to
be properly articulated and proved before a court can be called upon to make a
finding whether or not a contract is unfair.
Whether a contract results in an unreasonably unequal exchange of values
or benefits or whether such contract is unreasonably oppressive in all the circumstances
are issues that involve the making of a value judgment, which judgment can only
be made on full facts. A court would
also need to engage in a balancing act by taking into account the interests of
both parties before coming to a conclusion one way or the other.
[50] The
difficulty that the appellant faced in the court a quo was that he did not timeously lay a factual basis upon which
the court could exercise its discretion in terms of the Act. Whether the contract was unfair was not an
issue that the appellant canvassed both in his founding and answering papers. It
was not an issue that the school was called upon to respond to. It was only in
supplementary heads of argument filed a mere four days before the hearing of
the application that the appellant sought to rely on the provisions of the
Act. Clearly, this was belated and
obviously prejudicial to the respondent who, if the matter had been raised
timeously, would have been given the opportunity to prove facts to show that
the contract was not unfair, as defined.
Indeed the respondent vehemently opposed the attempt to introduce new
argument based on the Consumer Contracts Act.
[51] In
dismissing the attempt to rely on the Act, the court a quo remarked:-
“… I
have no doubt that his additional ground came as an afterthought and as such I
do not intend to detain myself on that argument in great deal (sic).
The founding affidavit does not raise this issue and accordingly the
application falls or stands on its papers.
The aspect of the contract being a consumer contract … only surfaced in
the supplementary heads of argument.
This is inappropriate.”
I agree entirely
with the above remarks.
WHETHER
THE COURT A QUO FAILED TO DEAL WITH ISSUES RAISED
[52] The
appellant argues that the court a quo
failed to deal with three issues he had raised.
These issues were (a) that the school should not increase school fees
except upon giving parents a term's notice of such increase (b) that the
practice of barring learners from attending classes on account of non-payment
of school fee is a violation of s 7 of the Children's Act and (c) that where a
parent consistently fails to pay
school fees, the school shall not bar the pupils from attending class but may
only terminate the contract upon giving the parent at least one term's notice
of termination.
[53] It
is not correct, as the appellant argues, that the court a quo did not deal with the above issues. It did.
Aware that those aspects were part of the contract, the court remarked
at pages 6-7 of the cyclostyled judgment:-
“… The
applicant signed a contract with the school on the terms and conditions agreed
between himself and the school …
… The
applicant invites the court to interfere on the basis that there has been a
violation of the learner's right to education and further, a breach of a tacit
term in the parties' contract ….
… There
is no good ground for the court to review the respondents' long standing
policies on school fees and their relationship with the parents. I have not
made any specific finding on the issues raised in paragraphs 4, 5 and 6 of the
draft order as there is no live controversy regarding the exclusion of pupils
from school by reason of non-payment of school fees. The applicant confirmed at the hearing that
his child was up to date with school fees.
There was therefore no need to consider that issue.”
[54] The
appellant may not agree with the above conclusion that there was no live
controversy necessitating a resolution of the three issues he had raised. The fact is that the court dealt with
them. The contract signed by the
appellant allowed the school to bar non-paying pupils and further did not
require the school to give a term's notice of school fee increases. In para 2 of the contract every parent
undertakes to pay all fees and charges which the school, in its sole discretion, shall impose from time to time, termly in
advance, for each term that a child remains at the school. Para 7.4 gives the Headmaster the discretion
to refuse entry to a pupil who fails to pay.
Having found that these terms bound the appellant, the court a quo further found that the issues were
in any event academic. The court a quo cannot be blamed for reaching that
conclusion.
[55] The
barring of students and increase in school fees were terms of the contract
signed by both parties. The appellant
accepted those terms and conditions. To
order a school not to increase school fees except upon giving a terms notice or
to prohibit a private school from barring a pupil on account of non-payment of
fees would be to interfere, in the absence of lawful cause or a statutory
provision justifying such interference, in the private contractual relationship
of parties.
[56] Moreover,
as the court a quo noted, the
appellant's child was up to date in the payment of school fees. The order that the appellant sought was not
predicated on an event that had happened to him personally. It was speculative. Appellant was acting as torchbearer for
parents who might fail to pay school
fees.
[57] The
role of the courts is to deal with real issues and not to pronounce on hypothetical
situations. As stated by INNES CJ in Geldenhuys and Neethling v Beuthin 1918
AD 426, 441
“… Courts of Law
exist for the settlement of concrete controversies and actual infringements of
rights, not to pronounce upon abstract questions, or to advise upon differing
contentions, however important.”
[58] In
any event, the Education Act makes it clear that a child can be refused
admission to a government school for non-payment of fees. In this regard see s 13(4).
[59] Lastly
the basis upon which it is suggested that the respondent's conduct violates s 7
of the Children's Act remains unclear.
Section 7 criminalises the ill-treatment, neglect, abandonment, assault
of a young person by a parent or guardian of a child. Allowing, causing or procuring the child to
be ill-treated or exposing him to such ill-treatment is also a criminal
offence. Subsection 2 deems a parent or
guardian to have ill-treated a child if he engages in behaviour stipulated in
that subsection. Subsection 3 provides
that it is not necessary that the child actually suffers any injury. Subsection 4 deals with possible defences by
an accused person. Subsection 5 makes
provision for the penalty consequent upon a conviction.
[60] In
the present case, the Board of Governors of the school is not the “parent” of a
student engaged in studies on its premises. But is it a guardian? The Act defines a
guardian to include any person who has the custody, charge or care of a child,
whether permanently or temporarily. Prima facie the word “any person” may be
wide enough to include an institution or other artificial person. In terms of s 7 of the Act, if a parent
neglects or fails to pay schools fees for his child, he exposes the child to
possible exclusion from class and is liable to criminal prosecution. In such a situation, can the board of
governors of a private institution be said to have also violated s 7? In my
view, probably not. However in the
absence of full argument on the matter, the basis of the suggestion that the
board is guilty of contravening s 7 remains unclear and unsubstantiated. Whether an institution would be guilty in
these circumstances is a matter I prefer to leave for consideration on another
day.
DISPOSITION
[61] No
proper basis has been shown upon which the decision of the court a quo can be impugned.
[62] Consequently
it is ordered as follows:-
The
appeal be and is hereby dismissed with costs.
GOWORA JA: I agree
HLATSHWAYO JA: I agree
Calderwood,
Bryce Hendrie & Partners, appellant's legal practitioners
Messrs Webb, Low & Barry, respondents' legal
practitioners
