Court Declares Withholding Students’ Results Over Fees Unconstitutional

The High Court has declared unconstitutional the refusal by
Ihlathi High School in Bulawayo to release results of an Ordinary
Level candidate over outstanding fees and referred the matter to
the Constitutional Court (ConCourt).

The pupil, Prudence Moyo from Ihlathi High School through her
lawyer Mr Bruce Masamvu of Dube-Tachiona and Tsvangirai Legal
Practitioners asked the court to refer the matter to the
Constitutional Court for a constitutional declaration.

The school has since February 2016 been refusing to release the
results demanding to be paid the outstanding fees.

In papers filed at the Bulawayo High Court, the headmaster of
Ihlathi High school and the Minister of Primary and Secondary
Education Professor Paul Mavima were cited as respondents.

Justice Nicholas Mathonsi ruled that the conduct of the
respondents was inconsistent with the Constitution of Zimbabwe.

“The conduct of the respondents to withhold applicant’s Ordinary
Level results on the basis of non-payment of school fees is
inconsistent with the Constitution of Zimbabwe and is invalid to
the extent of its inconsistency,” ruled the judge.

He said the actions of the respondents were unlawful and an
infringement on the applicant’s right to education in terms of
section 75 (1) (a) as read with section 81(1) (f) of the
constitution.

“The matter is hereby referred to the ConCourt in terms of
section 175 (1) and (5) of the Constitution of Zimbabwe,” ruled
Justice Mathonsi.

Prudence did Form One to Four at Ihlathi High School in
Tshabalala.

“Having completed her Ordinary Level examination, the results
were released by the Zimbabwe Schools Examination Council to the
school in 2016,” said Mr Masamvu.

At the time the Ordinary Level results were released, Prudence
owed Ihlathi High School $412.

Mr Masamvu said the applicant’s basis for the application was
for the court to make a declaratory order.

“From the date results were released the respondents have
refused to release the said Ordinary Level results to the applicant
until payment of full school fees arrears. I seek an order that the
refusal by the respondents to release the applicant’s Ordinary
Level results on the basis of failing to pay school fees is
unconstitutional as it violates the constitutional right to
education and rights of children,” he argued.

“Furthermore, the respondents’ actions are also unlawful as they
are not provided for by any law. There are lawful ways upon which
the respondents can recover their unpaid fees”.

Mr Masamvu said the respondents’ conduct has infringed on the
pupil’s fundamental right to education as she has failed to
progress with her education without the O-Level results.

“The Constitution of Zimbabwe guarantees a right to basic adult
education which is State funded and as such the respondents have no
right to infringe on the minor child’s rights on the basis of
failing to pay school fees. The conduct of the respondents further
does not in any way advance the best interest of the minor child,”
he said.

Mr Masamvu said the conduct of the respondents was an abuse and
deprivation of the applicant’s education.

“I submit that the provisions of Section 6 and Section 21 of the
Education Act (25:04) which provide for payment of school fees do
not give the powers to withhold examination results where school
fees are not paid,” he said.

In 2011, the Bulawayo High Court ruled that it is parents who
undertake to pay all fees for their children when they bring them
to school and failure to do so should result in legal proceedings
being instituted against them.

The court ruled that school fees payment obligation was a
contract entered into between a parent or guardian and the school
concerned and not the pupil. It said the said contract can either
be express or implied.

The court also made it clear that it was improper to use pupils
as pawns to enforce payment by either turning them away or
withholding examination results.

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