(Updated 15 March 2021)
One of the common misconceptions of divorced or separated parents at public schools is the issue of the effect of a divorce or maintenance order, where there is a court order ordering the one parent to be responsible for school fees. So when the school asks the parent who is not the party responsible for the fees in terms of the court order to make payment, they say no the court has ordered the other parent to be responsible and that is binding on the school. In this way, many a school has been drawn into the ugly feud of separated parents.
It is our firm opinion that these parents are wrong in their understanding of the nature of divorce and maintenance orders and this article will reference the case law supporting this opinion. Divorce and maintenance orders are not binding on third parties but only between the parties or parents, unless such third party have been cited in the legal proceedings. The legal authority upon which we rely is the Supreme Court of Appeal decision of OLD MUTUAL LIFE ASSURANCE CO (SA) LTD AND ANOTHER v SWEMMER 2004 (5) SA 373 (SCA), which at 24 the court held that, as the appellants were not parties to the proceedings in which the order was made, the order was a nullity as far as they were concerned and that they could legitimately disregard it without having it set aside.
In the Supreme Court of Appeal case of HEAD OF DEPARTMENT : WESTERN CAPE EDUCATION DEPARTMENT & ANOTHER V SAFFER (1209/2016)  ZASCA it was held that in terms of S40(1) of the South African Schools Act, parents are jointly and severally liable for payment of their child’s school fees.
Moreover, the South African Schools Act’s wide definition of parent in terms of Section 1 is designed to ensure that the net for public school fee liability is cast as wide as possible and not simply confined to the custodian parent. In this regard, we refer to the Supreme Court of Appeal authority of FISH HOEK PRIMARY SCHOOL v GW 2010 (2) SA 141 (SCA).
In the unreported case of of Meeding v Hoer Tegniese Skool Sasolburg case no: A134/2011 the Free State High Court dealt specifically with this situation of public school fees and a divorce order to the effect that a specific parent was liable for the school fees. The court, at page 46-47, held that::
“Al wat hierde bevel doen is dat dit ‘n verhaalsreg van persoonlike aard aan die appellante verleen en geen saaklike reg nie. Hierde bevel is bloot ‘n persoonlike vorderingsreg wat nie teenoor die res van die wêreld geld en spesifiek nie ten opsigte van enigiemand wat nie ‘n party tot die egskeidingsgeding was nie.
Wat meer is dit voorsien uitdruklik dat uitgawes wat aangegaan is ook betaal moet word deur die tweede verweeder of dan die appellante se vorige eggenoot. Dit voorsien met ander woorde by noodwendige implikasie dat sy reeds uitgawes aangegaan het en moontlik uitgawes kan aangaan wat sy van hom kan verhaal. Daar is geen ruimte vir ‘n bevinding dat hierdie bevel die bepalings van die Skolewet wysig of inperk in enige opsig nie. Daar is geen manier waarop so ‘n bevel die wet kan wysig of ‘n inperking op die regte van die respondent kan daarstel wat nie ‘n party daartoe was nie.
Dit is eintlik die einde van die saak in die sin dat uit hoofde van die bepalings van die Skolewet die landdros tereg geregtig was om ‘n bevinding te maak soos hy gedoen het, naamlik dat beide die ouers, synde die appellante en die tweede verweerder, gesamentlik en afsonderlik aanspreeklik is vir betaling van die skoolfooie.”
Translated into English:
“All that this order does is that it gives the appellant a right of recourse of a personal nature and no real right. This order is purely a personal right of action which is not effective against the rest of the world and specifically not in relation to anyone who is not a party to the divorce suit.
What is more, it explicitly states that expenses incurred must also be paid by the second defendant or the appellant’s previous spouse. It provides, in other words, with the necessary implication that she has already incurred expenses and may incur expenses she can recover from him. There is no room for a finding that this order changes or limits the provisions of the Schools Act in any way. There is no way in which such an order could amend the law or create a restriction on the rights of the respondent who was not a party to it.
It is actually the end of the case in the sense that under the provisions of the Schools Act the magistrate was entitled to make a finding as he did, namely that both the parents, being the appellants and the second defendant, jointly and severally liable for payment of school fees.”
From the above cases is quite clear that:
- any divorce or maintenance order is only binding between the divorced or separated parents.
- Divorce or maintenance orders do not affect a public school, which at law is entitled to proceed against both parents joint and severally.