The judgment from a school perspective, it is a bit of a mixed bag.

Mostly importantly the court has held that parents are jointly and severally liable for their child’s school fee, as opposed to jointly liable, which is what the court below had held. If parties are joint liability, then they cannot be sued separately for the full obligation, which they can in the case of jointly and severally liable.

The negative part of the judgment is that in the situation of exemption applications by separated parents, the court ordered that:

“(a) The governing body of a public school shall grant a conditional exemption from payment of school fees, referred to in Regulation 1 of the Regulations, to a parent who:

(i) in his or her application for exemption:

(aa) gives particulars for his or her total annual gross income; and

(bb) does not give particulars of the total annual gross income of the other parent of the learner concerned because the other parent has refused or failed to provide such particulars to the parent applying for the exemption; and

(ii) having regard solely to his or her total annual gross income, would qualify for a total or partial exemption in terms of the Regulations if he or she were the only parent of the learner concerned.

(b) A conditional exemption shall be the total exemption or the partial exemption to which the applicant would have been entitled if he or she were the only parent of the learner concerned.

(c) When granting such a conditional exemption the governing body shall impose conditions to the effect that the applicant for the exemption:

(i) must report to the school forthwith any increase in his or her gross annual income during the school year in question which, had it been his or her income at the time of making the application for exemption, would have disentitled him or her from receiving the total exemption granted to him or her or from receiving any partial exemption granted to him or her;

(ii) must, on demand from the governing body, pay on reasonable terms to be determined by the governing body after giving him or her the opportunity to make representations, the school fees or the portion of the school fees for which he or she would have been liable in terms of the Regulations based on his or her increased gross annual income;

(iii) shall not be liable to make any such payment unless, during the school year in question, his or her gross annual income increases to such an extent that, had it been his or her income at the time of making the application for exemption, he or she would have been disentitled from receiving the total exemption granted to him or her or from receiving any partial exemption or he or she would have been entitled only to a lesser partial exemption than the one granted to him or her.”

This aspect of the judgment was redeemed to a certain extent by the court holding:

“It is declared that the granting of such a conditional exemption shall not preclude the public school from taking legal steps to enforce payment, by the other parent of the learner concerned, of the school fees or the balance of the school fees, as the case may be, in terms of section 41(1) of the Act.”

The judgment is not ideal for public schools and does not take into account a number of practical situations like the situation where the co-operative parent is granted a conditional exemption on the grounds set out above and then the non-cooperative parent is sued only to reveal that the combined income exceeds the exemption limit. Does that then give the school the right to withdraw the conditional exemption granted to the other parent?

However on the whole the judgment is a vast improvement on the judgment given by the court below and gives the schools certainty on how to deal with the majority of situations involving a co-operative and non-co-operative parent in an exemption application.

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