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 ...
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
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.
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.
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.”
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
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.
He has two other complaints against the school.
(i) 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.
(ii) 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 section 7 of the Children's Act [Chapter 5:06] (“the
Children's Act).
In the result, he sought the following before the court a
quo:-
(i) 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.
(ii) 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.
(iii) An order that the school is to provide textbooks and
stationery for all children attending lessons at the institution.
(iv) 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.
(v) 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.
(vi) 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.
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.
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.
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.
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
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 textbooks for the pupils.
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.
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
The appellant has filed a number of grounds of appeal.
These are:-
(i) 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 section 4 of the Consumer
Contracts Act [Chapter 8:03] empowers a court to do so.
(ii) 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.
(iii) 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 section 2 of the Education Act [Chapter
25:04].
(iv) That the court erred in holding that the failure by
the respondent to provide tex tbooks and stationery was not a violation of a
child's right to a proper education.
(v) 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 section 7 of the Children's Act [Chapter
5:06].
(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.
(vi) That the court a
quo erred in rejecting the argument based on the Consumer Contracts Act.
APPELLANT'S SUBMISSIONS
ON APPEAL
In his heads of argument, the appellant submitted that;
(i) Parents pay, not just tuition, but other fees to the
school. School fees include not only instruction but also the provision of
teaching material.
(ii) Other schools in the same league as the respondent
provide textbooks for its learners. Government schools do the same.
(iii) The contract does not exclude the school from
supplying the text books but neither does it say it should provide them. Therefore,
the contract, impliedly, includes the provision of textbooks.
(iv) The book list that parents are forced to purchase is
an unauthorised levy on parents.
(v) 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.
(vi) 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;
(a) 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;
(b) Secondly, the contract was oppressive in requiring
parents to buy textbooks;
(c) Thirdly, in giving the respondent the right to exclude
non-paying pupils from school.
FIRST RESPONDENT'S
SUBMISSIONS ON APPEAL
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 text books 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
The issues that emerge from a consideration of the heads of
argument and the oral submissions are the following;
(i) 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 text
books and stationery for their children is an unauthorised levy which would
require Government approval.
(ii) 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.
(iii) 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.
