News / Local
Expelling pupils due to non-payment of fees, an offence rules Judge
18 Jan 2011 at 20:54hrs | Views
SCHOOL heads who expel, suspend or withhold pupils' results on the basis of non-payment of fees and levies are committing an offence under the Children's Act, a Bulawayo High Court judge has ruled.
Setting aside a sentence imposed on the headmistress and deputy head of Cecil John Rhodes Primary School in Gweru, Bulawayo High Court judge Justice Maphios Cheda, with Justice Nicholas Ndou agreeing, said parents whose children were subjected to this type of punishment should report such practice to the police.
"The issue of tuition or levy fees has been a topical issue for a number of years. It is, therefore, necessary to deal with it at this point once and for all.
"In my opinion the issue of fees directly relates to the law of contract.
"When a parent or guardian secures a place for a child at a school or tertiary institution, a contract is entered between the said institution and the parent with regards to the payment of fees.
"The said contract can either be express or implied.
"The parent undertakes to pay all fees, which the institution levies against the student from time to time.
"Failure by a parent to do so results in the institution of legal proceedings against a minor who has no contract with the institution to pay fees, to do so is an abuse of authority on the part of the institution, which is an undue pressure to enforce payment of fees using pupils as pawns. This is, therefore, unlawful," he said.
The court took judicial notice that for some time now, pupils continued to be shut out of school premises, forced to do manual work and have their school results withheld in order to force parents to pay outstanding fees.
Such action, it said, was illegal as it contravened Section 7 (1) of the Children's Protection and Adoption Act.
While authorities were entitled to their fees, the court said they should resort to a legal way of recovering fees from the pupils or students, through their parents.
Idah Nyabeza, the headmistress, and her deputy Munyaradzi Murenga, last year approached the Appeal Court arguing that their conviction was not proper.
They were charged with contravening Section 7 (1) of the Children's Protection and Adoption Act (Chapter 5:06) (ill-treatment or neglect of children and young persons).
They pleaded not guilty to the charge but were convicted and sentenced to 24 months in prison, which was wholly suspended on condition that they each performed 840 hours of community service.
The Appeal Court ruled that the conviction, which they were challenging was proper but agreed that the sentence was harsh.
It confirmed the conviction and set aside the sentence substituting it with each US$250 (or six months in prison).
The State case was that on 6 March 2009, at 8am, all pupils, teachers and the headmistress were at the assembly point when she announced that all pupils who had not paid levy fees were going to learn while standing.
She went further and declared that a pupil was only going to be allowed to sit on a chair after paying the levy and fees.
On that day, pupils started their lessons sitting on chairs.
However, at about 11 am, Murenga moved around classrooms inquiring as to how many pupils had not paid their levy fees. She then adopted the slogan "no levy no chair".
She flushed out 239 pupils from Grades One to Seven classrooms and ordered them to stand in front of the classroom while those who had paid the levy fees were sitting on chairs at the back.
The following day, Murenga came back again in all the classrooms and ordered all those who were in default of payment to take their chairs outside the classrooms.
The pupils complied and the chairs were taken away by the caretaker. All the 239 pupils spent the whole day attending their lessons while standing.
He instructed class teachers to only allow pupils to sit on chairs upon production of a receipt to the caretaker who would then issue out a chair.
This continued up to 13 March 2009 when the police received information about the unlawful conduct of the headmistress and her deputy and this led to their arrest.
The Appeal Court found that the three pupils who were called to testify during the trial corroborated each other on the material facts in that the headmistress announced that all those who had not paid fees would learn while standing and that her deputy carried out this order thereafter. They all testified that they endured pain as a result of this action by the headmistress and her deputy.
"I find that the trial magistrate's finding that appellants' defence could not be sustained in view of the overwhelming evidence led, proper. I am surprised that respondent (State) finds fault in his finding while all the essential elements have been proved and they are there for everyone to see. In fact, the facts are so clear so much that even he who runs can read them. The State witnesses corroborated each other in all material respects.
"I find no fault on the part of the magistrate in making this finding of fact. In my view, it would have been a misdirection to find otherwise," ruled Justice Cheda.
He found that this was a clear intention to punish those who had not paid and that the process was selective with a desire to ill-treat those who had not paid.
Setting aside a sentence imposed on the headmistress and deputy head of Cecil John Rhodes Primary School in Gweru, Bulawayo High Court judge Justice Maphios Cheda, with Justice Nicholas Ndou agreeing, said parents whose children were subjected to this type of punishment should report such practice to the police.
"The issue of tuition or levy fees has been a topical issue for a number of years. It is, therefore, necessary to deal with it at this point once and for all.
"In my opinion the issue of fees directly relates to the law of contract.
"When a parent or guardian secures a place for a child at a school or tertiary institution, a contract is entered between the said institution and the parent with regards to the payment of fees.
"The said contract can either be express or implied.
"The parent undertakes to pay all fees, which the institution levies against the student from time to time.
"Failure by a parent to do so results in the institution of legal proceedings against a minor who has no contract with the institution to pay fees, to do so is an abuse of authority on the part of the institution, which is an undue pressure to enforce payment of fees using pupils as pawns. This is, therefore, unlawful," he said.
The court took judicial notice that for some time now, pupils continued to be shut out of school premises, forced to do manual work and have their school results withheld in order to force parents to pay outstanding fees.
Such action, it said, was illegal as it contravened Section 7 (1) of the Children's Protection and Adoption Act.
While authorities were entitled to their fees, the court said they should resort to a legal way of recovering fees from the pupils or students, through their parents.
Idah Nyabeza, the headmistress, and her deputy Munyaradzi Murenga, last year approached the Appeal Court arguing that their conviction was not proper.
They were charged with contravening Section 7 (1) of the Children's Protection and Adoption Act (Chapter 5:06) (ill-treatment or neglect of children and young persons).
They pleaded not guilty to the charge but were convicted and sentenced to 24 months in prison, which was wholly suspended on condition that they each performed 840 hours of community service.
The Appeal Court ruled that the conviction, which they were challenging was proper but agreed that the sentence was harsh.
It confirmed the conviction and set aside the sentence substituting it with each US$250 (or six months in prison).
The State case was that on 6 March 2009, at 8am, all pupils, teachers and the headmistress were at the assembly point when she announced that all pupils who had not paid levy fees were going to learn while standing.
She went further and declared that a pupil was only going to be allowed to sit on a chair after paying the levy and fees.
On that day, pupils started their lessons sitting on chairs.
However, at about 11 am, Murenga moved around classrooms inquiring as to how many pupils had not paid their levy fees. She then adopted the slogan "no levy no chair".
She flushed out 239 pupils from Grades One to Seven classrooms and ordered them to stand in front of the classroom while those who had paid the levy fees were sitting on chairs at the back.
The following day, Murenga came back again in all the classrooms and ordered all those who were in default of payment to take their chairs outside the classrooms.
The pupils complied and the chairs were taken away by the caretaker. All the 239 pupils spent the whole day attending their lessons while standing.
He instructed class teachers to only allow pupils to sit on chairs upon production of a receipt to the caretaker who would then issue out a chair.
This continued up to 13 March 2009 when the police received information about the unlawful conduct of the headmistress and her deputy and this led to their arrest.
The Appeal Court found that the three pupils who were called to testify during the trial corroborated each other on the material facts in that the headmistress announced that all those who had not paid fees would learn while standing and that her deputy carried out this order thereafter. They all testified that they endured pain as a result of this action by the headmistress and her deputy.
"I find that the trial magistrate's finding that appellants' defence could not be sustained in view of the overwhelming evidence led, proper. I am surprised that respondent (State) finds fault in his finding while all the essential elements have been proved and they are there for everyone to see. In fact, the facts are so clear so much that even he who runs can read them. The State witnesses corroborated each other in all material respects.
"I find no fault on the part of the magistrate in making this finding of fact. In my view, it would have been a misdirection to find otherwise," ruled Justice Cheda.
He found that this was a clear intention to punish those who had not paid and that the process was selective with a desire to ill-treat those who had not paid.
Source - Byo24NEWS
