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Private schools appeal to Supreme Court over fees
The Herald (Zimbabwe)
November 28, 2006

http://www1.herald.co.zw/inside.aspx?sectid=11872&cat=1&livedate=11/28/2006

PRIVATE trust schools, which last week lost a bid to have the Ministry of Education, Sport and Culture compelled to allow them to increase fees fully in line with inflation, have lodged an appeal with the Supreme Court and are preparing for a constitutional case over the legality of fixing fee rises.

The Association of Trust Schools, Ariel School Trust, Chisipite Junior School Trust and 27 other private schools filed the application.

The association represents 61 schools but not all schools have yet had a reply to their applications for fee rises in line with inflation.

High Court judge Justice Antonia Guvava last week dismissed the schools’ application, saying they had adopted a wrong procedure by approaching the court before appealing to the Minister of Education, Sport and Culture for redress against the decision by the Secretary for the Ministry as provided by the Education Act.

In her ruling, Justice Guvava said the relief sought by the schools required the court to usurp the powers of the Minister as provided in the Education Act and the schools had not exhausted all the domestic channels available to them in terms of the Act.

The schools have approached the court after they were told they could increase day-school fees by only 40 percent of the actual percentage rise in the cost of living and they had to backdate this formula to the third term of last year.

In their appeal, filed by Harare law firm Atherstone and Cook, the schools cited misdirection on the part of Justice Guvava and cited both the Secretary, Dr Stephen Mahere, and Minister, Cde Aeneas Chigwedere, as respondents.

The schools want the Supreme Court to set aside the High Court decision, arguing that the High Court erred in deciding that Parliament had given the Minister an appellate role in this particular case since they believe the Secretary acted "outside the law".

The schools argue that an administrative remedy cannot oust the jurisdiction of the courts to enforce a law. The High Court, said the appeal, failed to recognise that the Minister had already taken a clear stand on the matter.

The dispute between the parties was a dispute of law, and "thus properly one to be determined by the courts, particularly as resolution of this dispute is acknowledged to be urgent", the schools argued.

The Secretary for Education had refused approval, said the schools, in those cases where the Act mandated him to give his automatic approval for fee increases that did not exceed the official increase in the cost of living.

The schools also argue that other decisions by the acting Secretary were not in accordance with the law, particularly as the record showed he had failed to consider the factors which the Act required him to consider in those other cases where he may have had a discretion whether to approve an application.

At the same time, the chairman of the Association of Trust Schools, Mr Jameson Timba, has written to all parents at trust schools, explaining its case and seeking formal support for the legal action being taken from the elected parents’ body at each school and from the individual parents themselves.

The association has told parents that all Zimbabwean parents have a constitutional right to run and maintain non-Government schools and to send their children to these schools if they so wish.

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