By Candice Eve-Friis, Partner in the Child and Family Law department
In terms of Section 40(1) of the South African Schools Act 84 of 1996, both parents are made jointly and severally liable for payment of their children’s school fees at government institutions. There is provision in terms of the Act and the Regulations for a school governing body to grant a complete or partial exemption to a parent in respect of the payment of school fees – however the combined income of both parents is part of what the governing body will consider in such a decision.
More often than not, the mother of a child whose former partner or spouse refuses to co-operate, is called upon to account to the school for issues or problems related to the non-payment of school fees. In the normal course, in the event of joint and several liability being imposed, she would be liable for the full amount of the fees with a right of recovery against the other parent for his / her share. The responsibility for recovery is therefore placed on the custodian parent and not on the school.
In 2011, single mom, Michelle Saffer, applied for an exemption at Fish Hoek High School in the Western Cape, but was refused after the school requested financial statements from her ex-husband which she could not provide. Saffer took the decision to the Western Cape High Court which upheld the school’s decision.
In a victory for single parents, the Supreme Court of Appeal (“SCA”) overturned the Western Cape High Court decision forcing her to obtain the financial details of her ex-spouse and found that, in certain circumstances, parents could have their applications for exemption assessed in relation to their own personal circumstances only and not on a combined income of both parents. The court also declared that in processing and dealing with the applicant’s applications for a fee exemption in 2011, 2012 and 2013, the school and its governing body had subjected her to repeated violations of her constitutional and statutory rights.
The Commission for Gender Equality commented that:
“The effort of Michelle Saffer is not only commendable in challenging the Western Cape High Court judgement, it’s welcoming news to those in the same predicament. Women are in the majority in bearing the brunt of having difficulty in paying school fees due to their socio-economic conditions.”
A vast number of parents find themselves in the same or similar position as Saffer, and this judgment will go a long way in assisting the plight of many single parents, particularly mothers, who struggle to make ends meet and to enforce maintenance orders and orders for support against ex-spouses.
This does not, however, open the door to all single parents to apply for exemption for the payment of school fees. It also does not mean that in every case, a single parent is not obliged to obtain the financial details of the father of the child. If the parties are in a position to pay and to provide details of a combined income, they must do so.
The court only ordered that the parent does not need to give particulars of the total annual gross income of the other parent of the learner concerned if the other parent has refused or failed to provide such particulars to the parent applying for the exemption.
For more information on the above, please contact:
+27 31 575 7506