A Guide to Education Law in Zimbabwe

A Guide to Education Law in Zimbabwe

Zimbabwe has one of the best education systems in Africa. There are countless nursery schools, local authority and government schools, faith-based schools, colleges and universities one can choose from. The school system in Zimbabwe is therefore large and dynamic and is governed by Acts, regulations and policies.

What is education law?

The law on education deals with government regulations and judgments by the superior courts in Zimbabwe with the purpose of understanding the legal framework governing primary and secondary education as well as higher and tertiary education in Zimbabwe.

Education law in Zimbabwe is designed to address issues to do with:

Primary school educational law;

Secondary school educational law; and

Higher tertiary educational law.

Education law in Zimbabwe allows the multiple stakeholders, which include the educators i.e., teachers and lecturers, schools, school development associations, students, parents and guardians to have knowledge of their rights and responsibilities.

Notwithstanding the significant number of laws and regulations regulating schools, colleges and universities in Zimbabwe and the legal precedents on education in general, education law remains a niche practice of law in Zimbabwe and specialist law firms offer education law advice, review and draft policies and represent clients in resolving disputes.

It is rare to come across rules, regulations and law on education in Zimbabwe not withstanding their availability. Equally concerning is the fact that there appears to be little or no information in the country concerning the interaction of the law with education.

The issue of education is an integral part of the society and a matter of national importance. The superior courts in Zimbabwe have had occasion to deal with numerous cases. In Ex Parte Courteney Selous School Parent Teachers Association 1957 (1) SA 256 (SR) the court held that where in terms of a Last Will and Testament a bequest had been made to a specific school, the bequest was to be maintained for the practice purposes.

In Springvale Ltd v Edwards 1969 (1) SA 464 (RA) the court held that when a parent or legal guardian secures a place for enrolment of a child at a school or tertiary institution, a contractual relationship between the school and parent or legal guardian is formed. The contract can be either express or implied. The parent or legal guardian undertakes to pay the fees which the school levies against the student from time to time. It was also held that one is able to claim for school fees in lieu of a term’s notice.

In Matthee v MacGregor Auld & Another 1981 (4) SA 637 (Z) the Supreme Court held that in terms of the common law in Zimbabwe a custodial parent has the right and duty to regulate the life of the child and to choose and establish his or her residence.

In S v Mangwarira 1988 (2) ZLR 372 (S) it was held that, the right to discipline a child, especially in modern times, is a right of a schoolmaster i.e., head of school in both private or non – governmental schools, which is restrict to the internal regulations governing punishment at the school.

In S v A Juvenile 1989 (2) ZLR 61 (S), the Supreme Court sitting as a Constitutional Court, held by a majority decision that ‘moderate corporal punishment’ inflicted on a male juvenile was inhuman and degrading punishment. This decision was followed in S v Ncube 1987 (2) ZLR 246 (S) in which case the Supreme Court, held by a unanimous decision that corporal punishment inflicted in execution of a sentence imposed by a court on an adult made person convicted of any offence was an inhuman and degrading punishment.

The Constitutional Court in S v C (A Juvenile) (Justice for Children’s Trust and Zimbabwe Lawyers for Human Rights Intervening as Amici Curiae) 2019 (2) ZLR 12 (CC) also added its voice and held that corporal punishment is inhuman and degrading punishment.

The High Court in St George’s College Parent Teachers Association v Minister of Education & Others 2004 (1) ZLR 417 (H) had to decide on whether the Minister or Permanent Secretary in the Minister of Primary and Secondary Education had the authority to close a non – government school concerning an issue of fees.

The Supreme Court in Dzvova v Minister of Education & Others 2007 (2) ZLR 195 (S) had to deal with the issue of what constitutes religion and whether a Rastafarian child was required to cut their hair contrary to their religious belief so as to attend a government school.

It is apposite at this juncture to know that the superior courts have also had occasion to deal with cases concerning the labour and employment of teaching staff and non – teaching staff at both non – government schools and at private schools. Some of the leading labour cases involving staff include Bishi v Secretary for Education 1989 (2) ZLR 240 (HC) which dealt with the right to a fair hearing. Taylor v Minister of Education & Another 1996 (2) ZLR 772 (S) dealt with the transfer of a teacher.

In Chisipite School Trust (Pvt) Ltd v Clarke 1999 (2) ZLR 324 (S) the court held that pending the removal of suspension of a member of staff, that staff member was not entitled to continued enjoyment of the benefits which included free occupation of the headmistress’s house and use of a motor vehicle. Similarly in Arundel School Trust v Pettigrew 2014 (1) ZLR 596 (H) the court held that an employee does not have the right to retain assets forming part of the conditions of his or her service upon termination.

There have also been criminal cases involving minors. In S v K (A Juvenile) 2010 (2) ZLR 35 (H) it was held that it was undesirable to keep minors in a remand prison where a remand home is available. In S v Ncube & Others 2011 (1) ZLR 608 (H) the High Court noted that it is desirable when dealing with juvenile offenders to obtain a Probation Officer’s Report. In S v M (A Juvenile) 2013 (1) ZLR 121 (H) the High Court established general principles in respect of sexual offences committed by juvenile offenders.

In H v St John’s College 2013 (2) ZLR 621 (H) the High Court held that attendance by a pupil at a leaver’s dance was a privilege and not a right.

In B (A Juvenile) v Minister of Primary and Secondary Education & Others 2014 (2) ZLR 341 (H) the High Court expressed itself with regards school discipline and expulsion of a pupil. One of the requirements before a child is expelled from a school, is that the rules of natural justice must be followed.

In AS School & Others v Commissioner – General Zimbabwe Revenue Authority 2016 (1) ZLR 58 (H) the High Court had occasion to consider issues of income tax and benefits arising out of employment concerning teachers at private schools.

The Constitutional Court has also expressed itself in respect of child rights. In Mudzuru & Another v Minister of Justice, Legal and Parliamentary Affairs & Others 2016 (1) ZLR 101 (CC) the apex court outlawed child marriages in Zimbabwe.

In Makani & Others v Arundel School & Others 2016 (1) ZLR 1080 (CC) the Constitutional Court had to decide a case concerning freedom of conscience and religion. Similarly, in Sogolani v Minister of Primary and Secondary Education & Others 2020 (2) ZLR 1312 (CC), the Constitutional Court had to decide a case concerning freedom of conscience and religion and whether it was a violation of one’s rights to take part in daily pledge of allegiance involving saluting the national flag.

Many schools in Zimbabwe have their own ethos which every student has to abide by. It is important to select a school which aligns with one’s beliefs and school mores. The Supreme Court in Ismail v St Johns College & Others 2019 (2) ZLR 134 (S) cautioned by making reference to an old adage, that, ‘when in Rome, do as the Romans do.’

In Chikiwa & Another v St George’s College 2020 (2) ZLR 587 (H) the High Court held that the right of education envisaged in section 75 of the Constitution of Zimbabwe Amendment (No. 20) Act, 2013 does not extend to private education and / or private schools, but is limited to government schools.

In Chinyama v Bhebhe & Others 2021 (1) ZLR 523 (H) the High Court had to decide a case on whether a student could be excluded from school due to failure to pay school fees at a private school.

It is clear from the above that the Zimbabwean courts have had occasion to deal with numerous issues. In dealing with schools, parents and legal guardians must remember that by enrolling their children into a particular school they enter into a contractual relationship with the school. Education institutions are now home to children of different or multiple race, tribe, ethnic origin, nationality, gender, and religious background.