It is unfortunately an all too common occurrence that when partners separate, and spouses divorce, one parent is granted custody of the children, while the other parent shows no further interest in their children’s welfare. Under such circumstances, custodian parents are often unable to afford their children’s public-school fees, with the only available option being to apply for an exemption from paying school fees. Common practice was that the custodian parent, upon obtaining an exemption application form from the school, would be informed that the non-custodian parent is also obliged to complete the exemption form, and that the exemption application would only be considered based on both parents’ annual gross income. As it frequently transpires, the non-custodian parent would then refuse to cooperate in the exemption application, with the result that the custodian parent’s application for exemption is declined. As a consequence, the custodian parent is, more often than not, held liable for school fees which he or she cannot afford.
The cause of the dilemma
The South African Schools Act (“the Act”) holds both parents jointly and severally liable for the payment of school fees, with the result that the income of both parents is required before a public school would consider a parent’s application for exemption from paying school fees. The Act, however, fails to make provision for parents who find themselves in the above dilemma.
Resolving the dilemma
On 13 December 2017, after hearing a case with facts similar to those described above, the Supreme Court of Appeal (“SCA”) acknowledged that the current interpretation of the Act fails to make provision for separated or divorced parents who seek to apply for an exemption from paying school fees, should the non-custodial parent refuse to cooperate in the exemption application.
The SCA ordered that the governing body of a public school shall grant conditional exemption from the payment of school fees to a parent who, in his or her application for exemption, gives particulars of his or her total annual gross income, but cannot give particulars of the total annual gross income of the other parent, because the other parent refuses to cooperate in the exemption application. If in such a case the custodian parent, on the basis of his or her total annual gross income, would qualify for a total or partial exemption if he or she were the only parent of the learner concerned, the appropriate conditional exemption should be granted.
The SCA also confirmed that both parents remain jointly and severally liable for the payment of school fees, and declared that the granting of a conditional exemption shall not preclude the public school from taking legal steps to enforce payment of the school fees or the balance of the school fees by the other parent, in terms of the Act.
The effect of the SCA’s judgment is that public schools are now obliged to consider a single parent’s exemption application, in circumstances where the other parent refused to cooperate in the exemption application. The parent applying for the exemption will, however, still need to qualify for the exemption, based on his or her annual gross income.
Please contact our Family Law Department, should you have queries about conditional exemptions or whether you will qualify for a conditional exemption.
Head of Department: Western Cape Education Department & another v S (Women’s Legal Centre as Amicus Curiae) (1209/2016)  ZASCA 187
This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE)