Liability of divorced or separated parents for fees at fee-paying public school
The South African Schools Act 84 of 1996 (the Act) provides that a parent is liable to pay school fees at fee-paying public schools unless or to the extent that he or she has been exempted from payment.
One of the requirements for exemption from payment of fees is that the applicant must provide the ‘combined annual gross income of parents’.
In MS v Head of Department, Western Cape Education Department and Others 2017 (4) SA 465 (WCC);  4 All SA 578 (WCC) the applicant MS, a divorced mother of the learner at a fee-paying public school, was refused exemption by the school governing body (SGB) of the local school as her application was incomplete in that it did not include the financial position of her former husband that she had since divorced. He was very uncooperative and did not provide his financial position. The first respondent, the Head of the Department of Education in the Western Cape, rejected the applicant’s appeal against the decision of the SGB.
Contending that her liability to pay school fees was joint rather than joint and several, the applicant approached the court for an order reviewing and setting aside the first respondent’s decision regarding her appeal. In other words, her stance was that her application for exemption from payment of fees should be determined on the basis of her financial position alone concerning her share of liability for fees. That meant that for the balance the SGB would have to deal with her divorced husband separately.
Le Grange J granted with costs an order reviewing and setting aside the decision of the first respondent. The matter was remitted to the first respondent for determination of the exemption as the court itself was not a better place to do so. Moreover, doing so would encroach on the doctrine of separation of power between the judiciary and the executive.
It was held that on a proper construction of the provisions of s 40(1) of the Act, liability of a parent to pay school fees had to be regarded as joint and not joint and several. That was reference to the liability of the parent to the school in terms of s 40(1), not the liability for school fees between parents, which could be affected by private arrangement, as was the case in the present matter. Given that back in 2010 both parents undertook to remain involved in all aspects of the learner’s life, including her schooling and general welfare, the suggestion by the applicant that she was offended by the respondents to regard the divorced husband as part of her family and to insist that she requested financial information from him in order to complete the application forms for the school fees was unjustified. In fact, she accepted and agreed that she was under a legal obligation to forward correspondence relating to the learner to the divorced husband. Moreover, both parents accepted to remain co-holders of parental responsibilities and rights in terms of the Children’s Act 38 of 2005. Therefore, the relief sought by the applicant for a declaration to the effect that by requesting her to also submit financial information of her divorced husband, the SGB infringed her right to human dignity by degrading and humiliating her, as alleged, was unsustainable and legally untenable.
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Bertus Preller is a Family Law and Divorce Law Attorney in Cape Town.