School Fees vs Children’s Rights

The Coronavirus effect has without a doubt dealt everyone a low blow and it has taken many parents by surprise, not only did we not know what lockdown, social distancing and many other first that Coronavirus forced on us because we wanted to survive the pandemic wave. With the country at a standstill, no income being generated and expenditure on basics being exponentially high, we saw and experienced the trauma of seeing loved ones infected and some succumbing to the virus and departing from this life. A new way of mourning loved ones at times new mothers did not see their newborn babies, nurse them or even bond with them.

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But all of this was just the tip of the iceberg. The aftermath is set to be felt for years to come economically all over the world plus the cure or vaccine of the virus in trials meaning no one can say for certain that they are Corona free because there is always a chance of it lurking somewhere. Lockdown levels were eased and with the easing of the lockdown levels life slowly got back to normality. But that meant expenses have been there from the beginning and companies were letting go of employees left, right and center.

Children also went back to school and it took co-operation of all to make the transition as smooth as possible. This also meant children had to catch up lessons to do and teachers were active in their job post. With so much time spent out of the norm, the last thing you would expect is that a child is taken out of class during exam time in 2020.

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This is what has been happening at Bophelong Independent Community School in Mamelodi township east of Pretoria and Kwamhlanga. The director of the school, Pastor Titus Sithole, decided that because the school is an independent school, he alone took the decision to take children out of class during this very crucial time of the year. He stated that by law he is well within his right to dissolve the relationship but the law states the following:

The rights and responsibility of Independent Schools state:

8. Exclusions:
Exclusions fall into the two broad areas:
• Exclusion on grounds of contravention of the rules contained in the school’s Code of Conduct and grievance procedure, drafted in line with relevant legislation and good practice.
• Exclusion on the grounds that the contract between the parents and the school has been broken, usually because the parents have failed to pay fees. Independent schools may exclude a learner on the basis of any of the above grounds provided that fair procedure has been followed.

The best interest of the child should always be adhered to. The above clearly states that any action taken by an independent school should be in the interest of the child, the decision of the director to pull children out of class is clearly a violation of their right to basic education covered under the Bill of Rights is contained in Chapter 2 of the Constitution.

Section 7(2) of the Constitution tells us that the state has a duty to ‘respect, protect, promote and fulfill the rights in the Bill of Rights’.

It is however important to note that exclusions are the right and responsibility of independent school do grant the director the right to break the relationship between the parent by the expulsion of a child from school, but the correct procedure has to be followed.

In this case, it was not followed and the interest of the child was not considered because of the timing of this decision:
• Which institution will make provision for the learner to right exams and not lose the entire year?
• Why would they now register a learner to write exams in their institution without having taught the child the entire year?
• Was it not the parent teaching these children during the lockdown period we experienced? In some cases, enlisting tutors where they failed to explain to the learner? Meaning this expense came from parent’s pockets, not the schools.

Being independent in a democratic country has lines that are too thin and treading carefully not to infringe on other people’s rights is important, after all this school is established in the communities of Mamelodi and Kwamhlanga. Consideration of the communities is also important in fostering good relations. The last thing the community does not like is to been seen as cash cows with our children suffering in the process of monetary gain.

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The effect of this virus has placed so much pressure on the department because as custodians and the governing authority the department of education is obligated to respect, protect, promote and fulfill the rights in the Bill of Rights? But there has been a lack of their presence at school to inspect such occurrences. Thus far no one contacted from the provincial department has responded positively to our complaint as parents.

The below are laws that can be used for a referral.

Section 36(1) of the Constitution permits limitations of rights, provided that these limitations are authorized by law and that they are reasonable and justifiable

Communications Protocol agreement signed between the Department of Basic Education (DBE) and the National Alliance of Independent School Associations (NAISA) in 2008. This document, like the Communication Protocol, applies to the Provincial Education Departments (PEDs).

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The right of independent schools to exist:

Maintain standards that are not inferior to standards at comparable public educational institutions. Section 46, (3)(a) of the South African Schools Act, 1996 as amended; provides that: the standards to be maintained by such school will not be inferior to the standards in comparable public schools
Any independent school that is registered with the PED and fulfills the requirements stipulated in the Norms and Standards for School Funding, 2006, is eligible for a state subsidy.

Provincial Education Department All schools are bound by the provincial grounds for registration, by the South African Schools Act (SASA), general law, and by any legislation that protects the best interest of the child.

6.2 Monitoring of Independent Schools by the PED: Schools that receive a subsidy have greater accountability to a PED than nonsubsidized independent schools. The areas for monitoring should ideally be specified in the management checklist which is drawn up by each province in accordance with the Amended National Norms and Standards for Funding (2008) as well as national guidelines and after consultation with representatives of independent schools. The PED has a right to make unannounced visits and to audit various aspects of the school’s records, largely in the area of:

Section 46, (3)(a) of the South African Schools Act, 1996 as amended; provides that: the standards to be maintained by such school will not be inferior to the standards in comparable public schools.

Course of Action

In the case of Bophelong Independent Community School, the parents of both schools joined forces to raised and have the Department of Education take notice. The greatest wish of parents is that the school be taken over by the department or be placed under administration.

If when this remedial action is taken it will benefit the community at large and not only learners at school. The power of togetherness has to prevail and fix the school for future generations.

Written By Grace Sethlabane