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Public Schools withholding learners’ school reports or matric certificates due to non-payment of school fees is illegal

It is not uncommon for some schools, particularly public schools, to inform parents that their children would not get their school reports or matric certificates (collectively “report cards”) as a result of such parent/s failing to pay school fees or being in arrears at the end of the school year.

This brief article addresses whether this conduct of withholding report cards by schools management or governing bodies is lawful.
At the outset, the primary law that governs public schools, amongst others, is the South African Schools Act 84 of 1996 (“Schools Act”), as amended, as well as the National Protocol for Assessment Grades R – 12, Government Notice No. 1115, No. 1116, and Government Gazette No. 36042 of 28 December 2012 (“hereinafter referred to as the“ National Protocol on Assessment”).

The Schools Act recognizes the injustices of the past, racial inequality, and segregation of education as well as the oppressive system in which education was offered. In so doing, it made certain changes post-1994 and gave certain authorities to implement certain policies and protocols aimed at redressing the past. At the heart of this recognition of the past injustices, is access to basic education by all South Africans without any form of discrimination.

Additionally, Section 25 of the National Protocol on Assessment, provides that:
(1) A report card is an official document that is used to give feedback to parents on the achievement of learners.

(12) The parents or guardians have the right of access to report cards of their children.
(13) Schools may not withhold report cards from learners for any reason whatsoever.

In simple terms, a public school may not withhold a report card for outstanding school fees, unpaid fundraising, or even missing textbooks as leverage of ensuring that parents make the necessary payments due to the school. There are certain steps and procedures a public school would have to undertake in terms of the Schools Act and its regulations prior to enforcing the payment of outstanding school fees but withholding access to report cards is none of those.

It is further advisable for parents who may be finding it difficult or unable to pay school fees to apply for a full exemption or partial exemption from paying school fees in terms of the Schools Act and its regulations.

However, the payment of school fees in private or independent schools and withholding of report cards is treated different. The law applicable to such schools is the Private Schools Act 104 of 1986, as amended and its regulations.

Most often parents who send their children to private schools would, on behalf of their children, conclude a contract or agreement with the relevant private or independent school. In general terms, such a contract regulates the overall relationship between the parent and the private or independent school.

For instance, in St Charles College v Du Hecquet De Rauville and Others [2017] 3 All SA 358 (KZP), the High Court had ruled in favor of St Charles College allowing the private school to attach and sell the home of two of its learners’ parents to settle their unpaid school fees which were more than R600 000.00 (six hundred thousand Rand) in value.

The High Court held that unlike public schools, private schools are contracted to provide a service in exchange for fees, whilst on the other hand public schools operations are of a public nature and available to the public in general – It is a public service and government function. This case makes a clear distinction of how parents of learners in private and independent schools are treated differently to those in public schools.

In conclusion, the law does not allow the withholding of report cards by public schools management from the parents of and learners of such schools. In the event a public school refuses to provide a parent or learner with a report card, it is advisable to seek legal assistance. Additionally, parents are encouraged to make proper assessment as to which school is best suited for their children with due consideration being given to the above legal implications and the financial position of the household. Options are available and should be explored by parents. In the end, everyone should have access to basic education, and this is a right protected by our laws in the country.

Tshepiso Makgale
Litigation & Dispute Resolution
24 June 2022

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