Good morning,

My child's preschool contract (that I signed on 14 Nov 2018) states the following:

"You have the right to cancel this contract at any time, for any reason, provided that you give the School a 3 (three) month notice, in writing, of this intention before withdrawal of the Child from the School. Alternatively, a reasonable cancellation fee will be payable, taking into account the nature of the education services, capacity planning and reasonable potential to fill the vacancy. Such amount is due and payable on the first day of the term which would have been the final term if the approporate notice had been given." 

On 1 Dec 2019 I gave written notice of my child's withdrawal from the school, stating that she will not be returning in 2020. I acknowledged that my notice was for Dec, Jan and Feb but requested that a cancellation fee be calculated based on the premise that her vacancy will be filled when school starts in the new year.

I paid her full school fee for Dec as well as Jan as I felt that the school would be unable to fill her vacancy during the holidays and the staff still needed to be paid. But on 30 Dec and 10 Jan I again requested cancellation figures to be provided and to be informed if the vacancy has been filled since the new year school year started. All I received in response was a statement (on 20 Jan only) showing that I still owed the full school fee for Feb.

In my communication with the princple, I also mentioned that I noticed that the new school contracts (applicable from Jan 2020) now state that only 1 month's notice need to be given when withdrawing a child. I was told that I signed a contract stating a 3 month notice period and that I need to adhere to it. I know this was done because another parent took legal action against the school citing the consumer protection act that states that "consumers are only obliged to give 20 business days notice". 

I have already had to pay double school fees in January for both the old and the new school. I need to know if I am legally obliged to pay the school notice fee for Feb (it is due today) or if I am within my rights to not pay? If I am within my rights, I will also require a legal letter to send to the school as to why I will not be paying as I cannot afford to be prosecuted.

I will appreciate legal advise in this regard.

Thank you in advance,

Crizell

Hi there and thank you for your question,

I am a practicing attorney based in South Africa and I will assist you with your question. Please feel free to ask as many follow up questions in order to clarify your question. If you have a new question, you must please open a new thread.

So the fact that the new school contract requires only 1 months' notice doesn't apply to you, because your relationship with the school is based on the contract that you signed, and the terms which appear in your contract. Therefore, you'll need to give the school 3 months' written notice if you don't want to pay a penalty.

In terms of the Consumer Protection Act, you are entitled to cancel any fixed term contract by giving the supplier at least 20 business days' notice. You can do this for any reason whatsoever. This would apply to a school as well.

So, legally, you can cancel the contract by giving the school 20 business days' notice.

BUT, the school is entitled (as their contract goes on to say) to charge you a "reasonable cancellation penalty". What this reasonable cancellation penalty is, depends on a number of factors - again, just as their contract notes. 

In lease agreements, it is commonly accepted that a reasonable cancellation penalty would be between 1 and 2 months' rental.

I don't see any reason why this should not also be the case with a school... especially taking into account that you gave notice on 1 December - which means that the school would have a much better chance at filling the position compared to if you had given notice on 1 March!

So, I would say that 2 months' school fees is a reasonable cancellation penalty in your circumstances. 

If you've already paid this, you should then tell the school that you have paid, what in your opinion amounts to a reasonable cancellation penalty, and you'll not be forced into paying anything else. Tell them to credit the February fees and leave you alone. Tell them that if they instruct a lawyer to attempt to recover Feb's school fees, you'll defend the summons and your defence will be based on the above!

Explain, in your own words, that the CPA applies to fixed term contracts, and you gave 20 business days' notice, and you paid December and January's fees as a reasonable cancellation penalty, and you think that this is sufficient.

The school will then need to carefully consider whether you are right, or whether the school wants to fight about it and try their luck in court. 

I think that the only negative thing in your situation is that if you gave notice on 1 December, then technically your contract will END 20 business days' after that (let's assume, +- 31 December), so 2 months' penalty might very well be January and February's fees! 

So... if that's the case (which it might actually be!) then you might come unstuck in court if you actually count the days and work it all out...

Otherwise, you'll need to argue that 1 months' school fees is actually (taking into account the end of the year) a reasonable cancellation penalty, and that you've paid that!

If there is a part of the answer which you need more advice on, or clarity please continue in this same thread instead of opening a new question.

Att. Patrick

Please remember this is a dialog if you have follow up questions please use the REPLY button and ask. If I did not answer the question you thought you were asking, please respond with the specific question you wanted answered. I hope you found my answer helpful, and you have finished asking your questions, please click on the GREEN ACCEPT button in order to mark the question as closed.