Introduction

The effects of COVID-19 and the lockdown have not spared public schools, and in some respects public schools have been more severely impacted with the reopening of schools being a controversial topic.

Consequently, a few parents are enquiring why they should be liable for school fees when the school services to their children were interrupted.

Some schools were able to implement online learning programmes. However, others due to financial constraints and the financial circumstances of the learners were not so fortunate. However, most schools are also implementing catch-up programmes to ensure learners catch-up with lost time in the school year.

Department of Education’s Position

The Department of Basic Education, strongly emphasises that parents must continue paying school fees or make suitable arrangements with schools to pay off the fees.

Below is a tweet from the Department’s spokesperson Elijah Mahlangu quoting Basic Education Minister Angie Motshekga in her address to the nation on the 30 April 2020:

Minister Motshekga dealt with the issue of fees when addressing the recovery plan for the reopening of schools and advised that “fees are payable, where the children attend fee-paying schools”. The Minister further advised that reports were received from some schools that parents did not adhere to paying school fees which in turn has affected the salaries of teachers appointed by the governing body.

Most fee-paying schools and the Department of Education empathise with parents situation and particularly those parents financially affected by the Lockdown. This article is not dealing with the inability to pay, but rather the argument that the schools have not fully performed their obligation in terms of providing schooling.

In this regard, parents need to take into account both the legal and moral reasons that they need to pay school fees.

Legal Reason for Paying School Fees

The legal principle of force majeure and its implication in various scenarios arising from COVID-19 and the resultant Lockdown has been the subject of discussion and even debate.

The South African law on impossibility of performance departed from English law more than a century ago, when the court in Peters, Flamman & Co v Kokstad Municipality 1919 AD 427 held that “if a person is prevented from performing his contract by vis major or casus fortuitus…he is discharged from liability”.’ Vis major is the Latin term for the French phrase force majeure and part of South Africa’s Roman-Dutch common law.

However, when one looks at public schools in South Africa where a few parents have tried to argue that they do not have to pay school fees as the school has not performed, this is not legally correct as:

  1. Most schools have or are performing their duty to educate between online programmes and/or catch-up programmes, and in addition, the Government has extended the school terms and shortened the holidays to ensure that learners are making up for schooling lost during the Lockdown; and
  2. Public school fees are a statutory obligation in terms of the SA Schools Act and not the result of a contractual agreement. Therefore, the principles applicable to contractual law, such as force majeure, do not apply to the obligation to pay school fees.

Section 40 as read with Section 39 of the SA School Act creates a duty on person/s who fall within the Section 1 definition of parent, whose child/ren are admitted to a public school to pay school fees. Such a parent’s liability to pay school fees is not dependant on their having entered into an agreement or even having been a party to the admission of the child to the school ( See Fish Hoek Primary School v G W (642/2008) [2009] ZASCA 144 and Head of Department Western Cape Education Department and Others v S (1209/2016) [2017] ZASCA 187).

Therefore any attempts by parents to use a force majeure argument to refuse to pay public school fees must fail.

Moral Reason to Pay School Fees

As the Minister of Basic Education alluded to, in fee-paying schools the fees collected are not for the profit of the schools, as public schools are non-profit. Rather, school fees serve to pay the teachers, other SGB paid staff and maintain the school and the standard of education, which those very parents that are disputing liability demand for their children.

Without school fees being paid for 2020, not only will jobs be lost but the standard of education in the fee-paying schools will drop, probably never to get back to the previous standard. This will be as a result of parents, who have the means to pay school fees, looking at private education as an alternative to the deteriorating standard of education provided if fees are not paid at public schools. This will lead to a vicious cycle of decreasing income for fee-paying schools as more and more fee-paying parents move to private education and further decreases in the quality of education at these schools with the ultimate victims being the children at these schools.

Consequently, parents are encouraged to pay school fees for the 2020 year as in previous years with the best interests of their children’s schooling future in mind. Parents should be mindful that should they fail to pay school fees timeously the quality of their children’s education is likely to be affected, not to mention potentially being hand-over for debt collection.

Therefore, if parents at fee-paying schools can pay schools they should, it is the right thing to do both legally and morally.

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