Providence Ayanda Luphahla and Prudence Moyo v The Headmaster – Maranatha High School N.O and The Headmaster – Ihlathi High School N.O and Minister of Primary & Secondary Education N.O

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HB 120/19
HC 3132/18
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PROVIDENCE AYANDA LUPHAHLA

And

PRUDENCE MOYO

Versus

THE HEADMASTER – MARANATHA HIGH SCHOOL N.O

And

THE HEADMASTER – IHLATHI HIGH SCHOOL N.O

And

MINISTER OF PRIMARY & SECONDARY EDUCATION N.O

IN THE HIGH COURT OF ZIMBABWE

MATHONSI J

BULAWAYO 20 DECEMBER 2018 & 8 AUGUST 2019

Unopposed Application

B. Masamvu for the applicants

J. Ndubiwa for the 1st respondent

2nd and 3rd respondents in default

MATHONSI J:	The application for a declaratory order in terms of s85 (1) of the Constitution was placed before me on the unopposed roll, the respondents not having filed opposition.  Although the 1st respondent had also not filed opposition to the 1st applicant’s part of the combined application, Mr Ndubiwa for the 1st respondent was in attendance and counsel advised that they were in the process of achieving an amicable settlement of the matter.  There being no appearance or opposition for the 2nd and 3rd respondents I granted a default judgment in the following:

“It is ordered that (in respect of the 2nd applicant)

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 invalid to the extent of its inconsistency.

The conduct of the respondents infringes applicant’s right to education as provided by section 75 (1) (a) as read with section 81 (1) (f) of the Constitution of Zimbabwe.

Section 6 and section 21 of the Education Act [Chapter 25:04] is declared to be inconsistent with the Constitution of Zimbabwe Amendment No. 20 of 2013 section 75 (1) (a) as far as (they) relate to basic and adult basic education.

The matter is hereby referred to the Constitutional Court in terms of section 175 (1) and (5) of the Constitution of Zimbabwe.

The 1st applicant’s application is removed from the roll.”

The applicant attended secondary school at Ihlathi Secondary School located in the Tshabalala suburb of Bulawayo having enrolled initially in form one.  Her school attendance culminated in her sitting for her ordinary level examinations in 2015.  This occurred at a time when the 2nd applicant was owing school fees and the arrears stood at $412,50 which the school desired to recover from the 2nd applicant.

When the ordinary level examination results were released by the Zimbabwe School Examination Council in early 2016 the 2nd respondent withheld them in consideration of the sum of $412,50 unpaid school fees.  The school fees arrears had to be settled first before the results could be released to the 2nd applicant.  As a result the 2nd applicant could not further her education.  She could not enroll for Advanced Level education without her Ordinary Level results.

Aggrieved, the 2nd applicant teamed up with the 1st applicant and filed this application seeking a declaration that the refusal by the respondents to release their examination results for failure to pay school fees is unconstitutional as it violates their constitutional rights to education and the rights of children apart from the action not being provided for in any law.  The 1st and 2nd applicants took the view that sections of the Education Act [Chapter 25:04] providing for payment of school fees do not entitle school authorities to withhold examination results for non-payment of school fees.

Sections 75 and 81 of the Constitution invoked by the 2nd applicant are contained in Chapter 4 of the Constitution, the declaration of rights, and in particular Part 2 thereof providing for Fundamental Human Rights and Freedoms.  In that regard the rights in question cannot be derogated from.  In terms of s75 (1) (a) every citizen and permanent resident of Zimbabwe has a right to a basic state funded education, including adult basic education.  It is in s81 (1) (f) that the children’s right to education is specifically spelt out.  It reads:

“Every child, that is to say every boy and girl under the age of eighteen years has the right to education, health care services, nutrition and shelter.”

The 2nd applicant’s age was not given in the founding affidavit.  However, this being an unopposed application where the respondents spurned the opportunity to present a contrary case I have no reason to doubt that a girl sitting for her ordinary level examination at a formal school fitted the description of a child as defined in s81 (1) of the Constitution.  For that reason the 2nd applicant had her right to education enshrined in the Constitution infringed by the conduct of the respondents to withhold her examination results thereby thwarting her progression to Advanced Level.  She is entitled to a declaration contained in paragraphs 1 and 2 of the draft order attached to the application.

Section 6 of the Education Act [Chapter 25:04] provides:

“It is the objective that tuition in schools in Zimbabwe be provided for the lowest possible fees consistent with the maintenance of high standards of education and the Minister shall encourage the attainment of this objective by  every appropriate means, including the making of grants and other subsidies to schools.”

It is a section which provides for tuition fees albeit at the lowest possible range.  It does not appear to differentiate between fees for basic education or basic adult education which, by virtue of s75 (1) (a) of the Constitution, is supposed to be state-funded and other forms of education falling outside that ambit and must be subjected to a fee charge.  To the extent that s6 (5) is an umbrella provision permitting fees to be levied even for basic education it is inconsistent with s75 (1) (a) of the Constitution and must be struck down.

Section 21 of the Act provides generally for approval of fees and increase of fees by a Commission established in terms of the National Incomes and Pricing Commission Act [Chapter 14:32] in respect of non-government schools.  In terms of s75 (2) of the Constitution it is the right of every person to establish and maintain independent educational institutions at their own expense.  In my view it is educational institutions established in that way that are targeted for control of fees by s21 of the Act.  Such institutions have no constitutional or indeed legal obligation to provide state-funded basic education envisaged in s75 (1) (a) of the Constitution, they not being the state.  They therefore have a right to levy fees approved in terms of s21.

In view of that there is really nothing unconstitutional about s21.  School authorities who seek to rely on that section to create a lien over examination results cannot possibly be allowed to do so because the section simply does not give such a lien right.  What is unconstitutional is the withholding of examination results and not s21 of the Act.  That section clearly does not relate to state-funded basic education as I have said.  I realise with the benefit of hindsight that paragraph 3 of the court order, to the extent that it relates to s21 of the Act, should not have been granted.

As the order that was made has no force unless it is confirmed by the Constitutional Court, it is necessary, bearing in mind the provisions of s75 (1) to refer the matter to that court for confirmation.  The referral was requested by the 2nd applicant, which request is not frivolous or vexatious in my view.  The referral is made in terms of r24 (2) of the Constitutional Court Rules, 2016.

It is for these reasons that I made the order cited above.

Dube-Tachiona & Tsvangirai, applicants’ legal practitioners

Mashayamombe & Company, 1st respondent’s legal practitioners