Hilary Muza 
A recent High Court judgment in the case of Chikiwa v St George’s College brought to the fore the issue of children’s rights viz-a-viz educational institutions’ right to receive school fees.
Educational contracts were seriously scrutinised in this detailed judgment, whose cause of action was heard on an urgent basis.
The young student and his parent were unfortunate as the court ruled against them and it is this ruling that this week’s contribution seeks to place under the microscope.
The facts of the matter were largely common cause. The student was due to write his Cambridge ‘A’ level examinations in November 2020.
On August 28, 2020 and in the morning, his father received an invoice from the school for him to pay Cambridge examination fees by noon of the same day.
As a responsible parent he proceeded to the school’s offices to make the payments. Unfortunately, the school refused to accept the examination fees because part of the school fees was still outstanding.
The question that the court had to rule on was, whether or not the school’s conduct of refusing to accept examination fees for a student who had arrears in his school fees account, was legal.
Having listened to various arguments from the contesting sides, some of them based on the Education Act [Chapter 25:04] as well as the Constitution and the law of contract, the court ruled in favour of the school.
Its reasoning being that the supremacy of the contract between the parties had to be honored.
The parent had violated terms that he had agreed to (the timeous payment of school fees), and hence, the law could not protect him. His child had to suffer the consequences of his failure to adhere to contractual terms.
I need not stress on the emotional havoc and trauma that the young man could have gone through as a result of failure to register for his final Cambridge examinations.
He would have invested a lot of time and effort in attending classes and extra remedial lessons to sharpen himself for examinations, only to be hit with the unfortunate news of his inability to tackle the examinations on account of his parents’ failures.
Back to the law, Section 4 of the Education Act [Chapter 25:04] is instructive. It provides that, “notwithstanding anything to the contrary contained in any other enactment but subject to this act, every child in Zimbabwe shall have the right to school education”.
Section 4 sub-section 2 goes on further to categorically state that, “no child in Zimbabwe shall be refused admission to any school”.
The use of the word ‘shall’ in this clause, points to the peremptoriness of the provision. It is a mandatory rule that cannot be escaped by any educational institution. By refusing to accept a child’s examination fees, it cannot be argued that such a school was not refusing a child admission.
The mere conduct of turning away a student on account of failure to pay school fees falls fowl of this statutory provision. To refuse to admit a student for school fees default is in other words, to refuse to admit a student. I cannot put the argument in any other mundane form than this.
The unfairness of the school’s conduct is quite apparent. A breach of contract and more particularly, a failure to pay fees has a clear remedy for the school. Summons can always be issued to recover the outstanding fees and such legal action is instituted against the parent because it is the parent who is obligated towards the school.
Now, if the school is to recover fees at a later date for a service that it turned the child away from, where will be the fairness?
The student always becomes the loser in circumstances similar to the case under discussion. The school will benefit but the child would have lost time and educational services that he would have duly deserved.
The better approach and as guided by Section 4 of the Education Act is for schools to enforce school fees’ recovery mechanisms instead of turning away students, some who may be due for crucial examinations.
In any event, the Education Act must be read together with the Children’s Act that also provides protection against any forms of abuse of minor children.
No child should be treated in a cruel, inhumane and degrading manner. To refuse admission to a student who is due to write a crucial international examination where such student would have invested a lot of time in preparation, is definitely cruel, in addition to it being inhumane and degrading.
The real intention of the legislature as gleaned from the two statutes referred to above, is to lean heavily in favour of protection of the student.
This is more in line with the modern jurisprudential thrust to respect and protect minor children’s rights across the gender lines.
It would appear therefore, and with utmost due respect, that the High Court erred when it gave the thumbs up to the school to turn away a student based on his father’s failure to honour a contract.
Any clause in an educational contract that allows for the turning away of a student for school fees arrears, is null and void and of no force or effect. No school should be allowed to rely on such a clause to violate children’s rights.
The parent could still try his luck with the Supreme Court where I think he may get better justice, although such a course of action could be more academic as in real terms, since the child would have lost out on time and effort.
Muza is a Harare-based legal practitioner. He writes in his personal capacity.
