Separated and Non-Cooperative Parents and Public School Fee Exemptions

What are Public School Fee Exemptions?

In terms of the South African Schools Act No. 84 of 1996 read with the Exemption Regulations, a parent at a fee-paying public school is entitled to apply for an exemption from paying their school fees or part of the fees. This fee exemption, in most instances, is determined by the school using a formula in which the annual fees are measured as a proportion of the “combined annual gross income of parents”, with certain allowances for multiple children at fee-paying public schools.


The Challenge with Separated Parents and Exemptions

Unfortunately, the Exemption Regulations are not a beacon of clear legislative drafting. With the liability to pay for school fees being joint and several between parents and the exemptions requiring combined annual gross income of parents, one of the failings of the Exemption Regulations is to not clearly deal with the scenario of separated parents’ cooperation in applying for an exemption together. In many instances, separated parents are alienated from one another. In some of these situations, one parent is willing to provide the requisite financial information to process the exemption, while the other is not.


The Supreme Court Case that Dealt with the Issue

This was the case for Mrs. Saffer in the matter of  Head of Department: Western Cape Education Department & another v S (Women’s Legal Centre as Amicus Curiae) (1209/2016) [2017] ZASCA 187 (13 December 2017). The solution found by the Supreme Court of Appeal to deal with this scenario was to use the conditional exemption provisions of the Exemption Regulations, in dare we say, a very creative manner.

The criteria for a conditional exemption laid down to apply to separated parents in the case can be summarized as follows:

  1. Two living parents of a learner at a fee-paying school
  2. One applies for an Exemption
  3. The applying parent gives the particulars of their annual gross income
  4. There are no particulars of the other parent’s income because the other parent has refused or failed to provide the particulars to the parent applying or the school
  5. Having regard to the applying parent’s income alone, they would qualify for a full or partial exemption

The case held that if these 5 criteria are met, then the applying parent is entitled to a conditional exemption. This conditional exemption is then granted on the following conditions:

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

  • 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;
  • 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;
  • 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.”

            (Quoted from the judgment order)


News Article Misinterprets the Case

Furthermore be aware that there is an article on News24 giving incorrect legal advice entitled, “School fee exemptions made easier for single parents”,  which states:

“According to Michelle Dickens, managing director of TPN, a registered credit bureau that specializes in assisting schools in collecting their outstanding fees, “Until late last year the legal position was that divorced parents were always jointly and severally liable for public school fees.” This meant that both parents needed to be involved as a unit, which you can imagine, is not always that simple.

“The Supreme Court of Appeal has now ruled that single parents may have their application for exemption of school fees assessed on their own financial means and not on combined income,” says Michelle.

The effect of this is that a school can claim a portion of the fees from each parent and that both parents cannot separately be held liable for the full amount where an exemption has been applied for.”

 This is not what the Supreme Court of Appeal in the Head of Department: Western Cape Education Department said. While the Western Cape High Court below had held that parents were jointly liable for public school fees, the order of the Supreme Court of Appeal was categoric this was not the case when it held in order 3 that:

It is declared that in terms of s 40(1) of the Act the Applicant and her former husband are jointly and severally liable for their child’s school fees. “

The relief that Ms. Saffer got in the case was a result of the father of the learner not cooperating in the exemption application and not simply by virtue of her being a “single parent”.

 

Changes to the SA School Act

A further development that resulted from this case was that there is a proposed amendment to the SA Schools Act contacted in clause 32 of the Basic Education Laws Amendment Bill (B2-2022). This proposed amendment, when passed into law, will specify what documents have to be produced by a separated parent dealing when the other parent is not cooperating in the exemption application.

“Section 41 of the South African Schools Act, 1996, is hereby amended by the insertion after subsection (2) of the following subsections: ‘‘(2A) Notwithstanding subsection (2), a parent may submit to the governing body an affidavit, as proof that the other parent of the learner—

 (a) is untraceable;

(b) is unwilling to provide the first-mentioned parent with particulars of his or her total annual gross income;

(c) has failed to provide the first-mentioned parent with particulars of his or her total annual gross income despite the lapse of a reasonable time after a request by or on behalf of the first-mentioned parent that he or she do so; or

(d) has provided the first-mentioned parent with incomplete or inaccurate particulars about his or her total annual gross income and has refused to rectify the deficiency or has failed to do so despite the lapse of a reasonable time after a request by or on behalf of the first-mentioned parent that he or she do so.

 (2B) Although the affidavit contemplated in subsection (2A) constitutes sufficient proof, a parent may also submit to the governing body a court order or any other documentary evidence that would support the proof contemplated in subsection (2A).’


Further Suggestions for Schools

From the public schools’ perspective, it is suggested that:

  1. a further condition be that if at any time in the future the non-cooperative parent becomes cooperative, that the exemption be recalculated at that point with the combined income of the parents. The reason being is that there is no justification that parents in this scenario should be treated preferentially to the scenario where both parents cooperate.
  2. The school pursue the non-cooperative parent as provided for in the judgment for the outstanding school fees

Brett Bentley

BENTLEY ATTORNEYS