No, parents, school won't return R41,000 deposit
Row over contract and giving notice ends badly for emigrant family
Parents who remove their children from private schools without giving proper notice will lose their deposit.
Shaun and Natalie Cochrane learnt this the hard way after the National Consumer Tribunal recently rejected their application for an order forcing their children’s school, Heronbridge College in Johannesburg, to refund their deposit of R40,808.
The Cochranes, who are now living in Australia, paid the deposit when they enrolled their two children at the school in Fourways in January 2011. They informed the National Consumer Commission (NCC) in August 2016 of the college’s refusal to refund the full deposit they paid.
The college offered a 25% ex gratia refund, which the Cochranes refused.
The tribunal, headed by Nomfundo Maseti, found there was no fixed-term contract between Heronbridge and the Cochranes, which would have entitled them to end the contract by giving the school 20 business days’ termination notice.
In September 2015, at beginning of the third school term, Natalie Cochrane gave notice to her child’s class teacher that she and her husband had been granted visas and that her family would therefore be emigrating to Australia.
On December 4 2015, Shaun Cochrane received an offer of employment in Australia and had to start in February 2016. On December 7 2015, the Cochranes informed the college that their two children would be leaving. Heronbridge College replied that because a full term’s notice had not been given they were entitled to charge the full term's fees.
This year’s fee for grades 10 to 12, if paid over 10 months, was R105,020. Joseph Selolo, the NCC’s director of prosecutions, told the tribunal during the hearing early last month that the contract entered into by the complainant and the college was a fixed-term contract regulated by the Consumer Protection Act (CPA), and that the notice period required was 20 days.
“It is our submission that the actual notice that was given by the complainant was sufficient in terms of the CPA. It [the deposit] must be refunded in its entirety because the specific term had been completed.”
The Cochranes, through the NCC, argued there was a fixed-term verbal agreement between them and the school. But the panel disagreed, saying a clause in the school’s contract makes it clear that the deposit will be refunded on completion of a child’s final term at Heronbridge.
“The uncertainty around a child’s final term at Heronbridge militates against the argument that the enrolment contract is a fixed-term contract.
“In any event, the applicant [NCC] failed to present any evidence of a verbal fixed-term agreement between the Cochranes and Heronbridge.”
Timothy Irving, executive head of HeronBridge College, denied in his answering affidavit that the contract was for a fixed period of time.
He said the contract was entered into when a child was first enrolled at the college and remained in place until the child stopped attending classes.
“It is common cause that the notice given by the Cochranes was late,” wrote Irving.
It had to be given by September 11 2015, but was only given in December. “The Cochranes were not and are not contractually entitled to the return of the deposit.”
He said the absence of even one child from a class in the college in any year can have a significant impact on its profit margin and its ability to render services.
“If the college is under capacity and revenue is too low, this jeopardises the quality of services for all children,” wrote Irving.
Lebogang Montjane, executive director of the Independent Schools Association of Southern Africa (Isasa), welcomed the ruling of the tribunal.
“We are deeply gratified that school contracts are not fixed-term contracts because the nature of the relationship between the school and the parents is by its nature a non-fixed term relationship.”
Montjane said he was disappointed though that the tribunal refused to allow Isasa to make a submission at last month’s hearing in support of Heronbridge’s case.
“Overall, the conduct of this case was rather peculiar. For the NCC to have brought this case to hearing was a significant waste of resources for them and, more importantly, for Heronbridge whose mission is educating children.”