M S v Head of Department, Western Cape Education Department and Others (18775/2013) [2016] ZAWCHC 119; [2016] 4 All SA 578 (WCC); 2017 (4) SA 465 (WCC) (15 September 2016)

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[2016] ZAWCHC 119
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M S v Head of Department, Western Cape Education Department and Others (18775/2013) [2016] ZAWCHC 119; [2016] 4 All SA 578 (WCC); 2017 (4) SA 465 (WCC) (15 September 2016)

SAFLII
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Certain
personal/private details of parties or witnesses have been
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SAFLII
Policy
Republic
of South Africa
IN
THE HIGH COURT OF SOUTH AFRICA
[WESTERN
CAPE DIVISION, CAPE TOWN]
[Reportable]
Case
No: 18775/2013
In
the matter between:
M
S
.............................................................................................................................................
Applicant
And
HEAD
OF DEPARTMENT, WESTERN CAPE
EDUCATION
DEPARTMEN
......................................................................................
First
Respondent
THE
SCHOOL GOVERNING BODY, FISH HOEK
HIGH
SCHOOL
.......................................................................................................
Second
Respondent
FISH
HOEK HIGH
SCHOOL
..................................................................................
Third
Respondent
MEMBER
OF THE EXECUTIVE COUNCIL
FOR
EDUCATION IN THE WESTERN CAPE
PROVINCIAL
GOVERNMENT
.............................................................................
Fourth
Respondent
MINISTER
OF BASIC
EDUCATION
.......................................................................
Fifth
Respondent
MATTHEW
GRAY
......................................................................................................
Sixth
Respondent
JUDGMENT
DELIVERED: 15 SEPTEMBER 2016
LE
GRANGE, J
:
Introduction:
[1]
The Applicant (“MS”) is the biological mother and
custodian parent of ZG. In 2013 and at the time of launching these

proceedings, ZG was a grade 10 learner at Fish Hoek High School (“the
school”). MS is seeking a variety of
relief
against the Respondents. Most of the relief sought concerns the
liability of parents to pay to their children’s annual
school
fees as determined by the schools’ governing bodies (SGB’s),
at fee-charging public schools in the Western Cape,
in terms of
section 39
of the
South African Schools Act 84 of 1996
(‘SASA’).
By all accounts, despite the issues raised in this matter by MS, the
learner ZG successfully matriculated
and is presently pursuing her
tertiary education at the University of Cape Town.
[2]
The First, Fourth and Fifth Respondents (“the Respondents”)
are the only parties opposing the relief sought by the
Applicant.
The
relief:
[3]
T
he orders sought by MS are both in her own and representative
capacities. The relief sought by MS can be categorized as follows:
[4]
First,
the review and setting aside the decision of the First
Respondent, dismissing the Applicant’s appeal against the
Second Respondent’s
decision to refuse her a partial exemption
from the payment of the 2013 school fees during September 2013 in
terms of
section 40(2)
of SASA.
[5]
Second
, declaring that, MS and the Sixth Respondent (“MG”),
and all other divorced or separated biological parents, are jointly,

rather than jointly and severally liable for the payment of the
school fees of their children attending state schools.
[6]
Third
, declaring that
Regulation 6(2)
, read together with the
definition of the phrase “combined annual gross income of
parents” in
Regulation 1
, of the regulations relating to the
exemption of parents from the payment of schools in public school,
promulgated in GN 1052 of
Government Gazette 29311 of 18 October 2006
(“the regulations”), is inconsistent with the
Constitution and invalid;
[7]
Fourth
, declaring, in so far as is necessary, s 40(1) of SASA
inconsistent with the constitution and invalid;
[8]
Fifth,
declaring that MS qualifies for a fee-exemption for the
2013 academic year, together with a determination of the amount of
the
exemption for which she qualifies;
[9]
Sixth
, declaring that MS had been subjected to repeated
violations of her constitutional and statutory rights in the course
of the processing
of her 2011, 2012 and 2013 applications for
exemptions from the payment of school fees;
[10]
Seven
, declaring that the Respondents have failed to comply
with their constitutional and statutory obligations to ensure that
fee charging
public schools in the Western Cape comply with the
requirements of SASA and the Regulations in relation to fee
exemptions. In this
regard, MS has enumerated a number of instances
in paragraph 6 of her Amended Notice of Motion where the Respondents,
according
to her, failed in their constitutional and statutory
obligations.
[11]
The Applicant did not persist with the structural interdict it sought
in its Amended Notice of Motion.
Counsel:
[12]
Mr. P Hathorn, SC assisted by Ms N Mayosi appeared for MS.
Mr.
A Breitenbach, SC assisted by D Pillay and M Davis appeared for the
Respondents. Ms. J Williams instructed by the Women’s
Legal
Resources Centre appeared on behalf of the Amicus Curiae. I wish to
express my gratitude to counsel for their comprehensive
heads of
argument. It greatly assisted in preparing my judgment.
The
Factual Background:
[13]
The background facts underpinning the application are largely not in
dispute. Briefly stated the facts are the following:
[14]
MS, is a reporter and at all relevant times worked at a local
community newspaper in Fish Hoek. According to MS, she became aware

of obtaining an exemption from the payment of school fees when the
said newspaper ran a series of articles about school budgets,
fees
and how to apply for fee exemptions. The article was apparently in
the paper a year and a half before she applied for ZG to
be admitted
to the school.
[15] At the time,
according to MS, she earned an annual salary of R160 284 per
year. She also received maintenance payments
from MG which amounted
to R33 540 per year. MS expressed the view that the school fees
for the 2011 year in the amount of
R 13 250, were substantial.
[16] MS also
attached her divorce consent paper of 1999 which dealt with the
proprietary rights including maintenance and the liability
of both
parents regarding school fees including an Addendum of 2010 to the
Founding Affidavit. In 2010, MS and MG, further regulated
their
parental rights and obligations towards ZG and consented to an
addendum to the original consent paper which was made an order
of
court. According to the 1999 consent paper, MG was liable to pay
inter alia maintenance for ZG in the amount of R 600 pm. MG
was also
liable to pay 50% of ZG’s school fees, school uniforms, tuition
costs, books, stationery, equipment and extramural
costs reasonably
incurred. In the 2010 addendum to the consent paper, the parties
deleted and substituted paragraph 1 of the original
consent paper
with an extensive recordal of their co-parental responsibilities and
rights in respect of ZG. To this end, paragraph
1.3 records the
following: “
the parties agree that it is in the best
interest of ZG for both parents to remain involved in all aspects of
ZG’s life, including
her schooling and extramural activities in
and general welfare
”. It was also agreed by MS in paragraph
3.1.2 that she will ‘
furnish MG with copies of ZG’s
school reports and any corresponding documentation received by her
which relates to ZG’s
progress at school or any problems that
she may be experiencing
’. It was also agreed by both
parties that in the event of a dispute arising from them exercising
their parental responsibilities
and rights a facilitator will be
appointed with immediate effect. It appears, according to the papers
filed of record, the full
extent of the consent paper and Addendum
thereto only became known during court proceedings.
[17] According
MS, the school annually provides children with forms for their
parents to inform the school how they will be paying
for the fees.
The parents applying for fee exemptions receive a numbered form for
which they are required to sign for at the school.
MS expressed the
view that the relevant form rather discourages parents from applying
for exemption as it stresses that exemptions
are financed by other
parents.
[18]
MS expressed the view that the exemption form did not apply to her
circumstances as the last page contained a section that
both parents
were required to fill in. MS holds the view that as the custodian
parent receiving maintenance from MG, and the difficult
history with
him, she regarded it as unreasonable of the school to expect her
exemption application to be confidential upon securing
the
co-operation of MG.
[19]
In February 2011, MS wrote a letter to the school. In the letter it
was recorded that she would apply for a fee exemption and
that she
experienced some difficulty in getting the information required. MS
then decided as an interim measure to enclose a cheque
for an amount
of R1 200.
[20]
MS, in March 2011, submitted her exemption application. In support of
the application she decided to attach an affidavit with
the necessary
Regulations, to inform the school that both parents need not sign the
relevant form as requested by them. MS also
inform the school that
she receives a monthly maintenance payment, out of which all ZG’s
expenses needs to be paid. Furthermore,
that her financial position
should be considered separately from that of MG.
[21]
In March 2011, the school responded to MS’s application and
stated that the gross combined income of both biological
parents will
be taken into account when applying for financial assistance. The
school further informed MS that in order to process
the application,
the SGB required MG to furnish the school with his income. It further
informed MS that upon receipt of the necessary
information from MG,
the SGB would consider the application and in due course advise her
accordingly.
[22]
The school, in May 2011, send a further letter to MS reiterating its
position and recorded therein that a financial assistance
application
form had been sent to MG, but that no response had been received from
him. It was also recorded that the SGB would
not be in a position to
consider the application without the required information from both
parents.
[23]
MS responded to the school’s letter. According to her, she
furnished all the relevant information relating to the request
for
financial assistance and also drew the school’s attention to
Regulation 9(3) which provided that:
“
No
applicant may be disqualified on the grounds that his or her
application form is either incomplete or incorrectly completed.”
[24]
It was also recorded in the letter that she was not in a position to
provide the financial particulars of MG as required by
the school and
that it was unreasonable of the school to expect her to obtain this
information. According to MS, the failure of
the school to provide
her with at least a confidential exemption, until it had obtained the
information from MG, is a callous disregard
for her financial
position as the sole breadwinner in her family. She also noted that
according to her calculations, she would
qualify for a discount of R
9 673 on the school fees.
[25]
In June 2011, the school responded in a letter stating that both
parents are equally responsible for the payment of school
fees, that
the SGB does not deem it appropriate to get involved in a dispute
between the parents and requested MS to direct all
further
communication relating to the matter to the school’s attorney.
[26]
MS responded advising the school, that there was no dispute between
her and MG, and that she received maintenance on a monthly
basis
which she disclosed in her application to the school. She also
requested the school clarify where it was in the application
process
and state whether her application had been approved, declined or
conditionally approved.
[27]
The school, in July 2011, send a further letter to MS wherein it
recorded that as the school did not receive the full co-operation
of
both biological parents, it had been unable to finalize MS’s
application. It also recorded that MG informed the school,
that his
payments made to MS include the school fees.
[28]
In August 2011, MS in a letter to the school, recorded that she had
given her full co-operation and provided all the information

available to her. Furthermore, the co-operation of MG was a matter
beyond her control. MS also recorded that as far as she is concerned

the approach adopted by the school made the exemption process almost
unworkable. She moreover, recorded that no part of the maintenance

payments that she received from MG were ring-fenced and specifically
set aside for school fees and that the school should make
a ruling on
her exemption application.
[29]
In November 2011, the school addressed a letter to MS and MG,
informing both parents that the SGB  was not in a position
to
provide MS with a fee exemption, as the school was unable to
determine the income of both parents. It also stated that, from
the
information it had, it did not appear that their income as a family
unit entitled MS to an exemption. The letter concluded
that the
school would hand the matter over to their attorney to recover the
outstanding school fees unless both parents complete
the exemption
form or settle the outstanding fees.
[30]
MS took exception to the school’s letter and objected to what
she regarded as ‘the bullying tone of its letter’.
MS
further informed the school that it failed to comply with its
obligation to process her original application within 30 days,
and
stated that:
“
I am in
no way a family unit with my daughter’s biological father. I
divorced him soon after she was born. Divorced is another
way of
saying: we are separated. I know very little about his life. I do not
have the kind of relationship which would enable me
to do financial
calculations as a ‘family unit’.”
[31]
MS further put on record that she and MG lead separate lives and that
it was preposterous for the school to demand that they
complete a
joint exemption application. MS also requested that the school make a
ruling on the application. According to MS, she
regarded the school’s
insistence that she and MG be treated as a “family unit”,
and that the outcome of her fee
exemption application was dependent
on his co-operation, as deeply offensive and humiliating.
[32]
The school advised MS and MG that should they not consult the
school’s attorney or make a payment plan with regard to
school
fees, it would have no alternative but to follow the advice of its
attorney on the appropriate way forward.
[33]
MS, in a letter to the school, expressed her disappointment at being
expected to pay all outstanding fees within two days or
to present
the school with a payment plan, despite having spent the whole year
trying to apply for a subsidy. After writing the
letter, MS attended
the meeting with the school’s attorney. According to MS, the
meeting with the attorney was not constructive.
The attorney
apparently suggested MS and MG were working in cahoots not to pay the
full outstanding amount of the school fees.
[34]
MS, in March 2012 received a letter of demand from the school’s
attorneys to the sum of R7 250 in respect of arrear
school, and
related, fees for 2011. In May 2012, MS received a summons, issued
out of the Simon’s Town Magistrate’s
Court claiming
R7 250 for the outstanding 2011 school fees from MS and MG,
jointly and severally.
[35]
MS’s attorney in June 2012, filed a Special Plea, together with
a Plea on the merits, to the summons.
[36]
MS, in February 2012, again applied for a fee exemption. In support
of the application MS recorded her annual salary as R151 369
and
the maintenance payments as R34 956 per annum. Her total income
per annum was recorded as R186 325. MS further recorded
that the
school fees were R14 510.
[37]
In February 2012, the school informed MS that as a result of the
dispute between her and MG, and given the ‘
impasse’
relating to her 2011 exemption application, the school could not
under the circumstances grant a fee exemption for 2012.
[38]
In March 2012 the school sent MS a further letter, requesting her to
submit a financial assistance application form for the
2012 school
fees. The school also stated that a separate application form would
be sent to MG.
[39]
According to MS, she feared the school would again continuously
request information that she was unable to provide and therefore

approached the Equal Education Law Centre (“EELC”) for
assistance.
[40]
In March 2012, the Law Centre apparently wrote to the school,
requesting it to confirm that its letter of February 2012 and
its
subsequent letter of demand for the 2011 school fees should be deemed
as a refusal to grant an exemption for both 2011 and
2012. The letter
also noted MS’s intention to appeal to the Head of Department
in respect of both decisions.
[41]
According to MS, in March 2012, her attorneys noted an appeal to the
Head of Department in terms of section 40(2) of SASA,
against the
refusal of her exemption applications for the years 2011 and 2012.
[42]
In April 2012, the Head of Department sent a letter to the school
requesting it to furnish certain particulars in respect of
MS’s
exemption application for the 2012 school year. The school replied to
the request for information from the Head of Department
and
reiterated its position that it could not consider the exemption
application until it was in possession of all the prescribed

documentation and proof of income in respect of both biological
parents.
[43]
In May 2012 the Head of Department sent MS a letter in which it was
recorded that MS’s appeal in respect of the 2011
school year
could not be considered as it was received outside of the prescribed
30 day time period, and the appeal in respect
of the 2012 school fees
was upheld. According to MS, the fees constituted 7.71% of her annual
gross income and qualified her for
an 83% exemption from school fees
for the 2012 school year.
[44]
MS expressed the view that the Head of Department must have
determined the matter on the basis that the school fees amounted
to
R14 510,00, which is 7.7% of her 2012 salary (R151 369,00)
plus the maintenance payments she received (R34 956,00).

According to MS, in terms of the table in Regulation 6, she was
accordingly entitled to an exemption of 83% of the school fees.
[45]
According to MS, she never received any further communication from
the school concerning her successful appeal and for the
remainder of
the year paid school fees in accordance with the exemption that had
been awarded to her.
[46]
However, in August of 2012, MS received a letter of demand from the
school stating that she owed the school an amount of R10 910.

The letter of demand claimed that MS failed to apply or qualify for
an exemption or partial exemption from school fees and that,
should
the fees demanded not be paid within 90 days, the school would be
entitled to institute legal action for recovery of the
outstanding
amount. The letter of demand recorded an outstanding amount of
R7 250.
[47]
In September 2012, MS advised the school that it may have sent the
demand in error, and that her appeal had been successful.
Moreover,
that she was up to date with the payment of the school fees.
[48]
MS, in March 2013, submitted her 2013 fee exemption application to
the school. According to MS her annual salary was R185 640
and
her maintenance payments from MG was R36 000 per annum, giving
her a total income of approximately R221 640 per annum.
[49]
According to MS, the 2013 school fees amounted to R15 800 which
amounted to 7.1% of her annual income. MS expressed the
view that in
terms of the table in Regulation 6, she would again be entitled to an
83% exemption from school fees on the basis
of the method used in
2012 by the Head of Department to determine her exemption.
[50]
MS stated that, despite Regulation 6(1) stipulating that the SGB must
make a decision on an application within 30 days of receipt
thereof,
she never received any response to her 2013 exemption application but
was hopeful that the school would take into consideration
that she
had received an exemption in 2012.
[51]
In May 2013, however, she received a letter of demand from the
school, stating that she owed R12 800 in respect of the
2013
school fees. Moreover, according to the school she failed to apply,
or qualify, for an exemption and that should the fees
not be paid
within 90 days, the school would be entitled to institute legal
action for their recovery.
[52]
The attorneys of MS appealed to the Head of Department against the
school’s failure to grant her a fee exemption for
the 2013
school year.
[53]
The Head of Department acknowledged receipt of MS’s appeal and
the school was requested to consider her fee exemption
application
and to advise accordingly of its decision.
[54]
It is evident from the further correspondence between the relevant
parties, that the school adopted the stance that it cannot
consider
MS’s application for exemption on the financial information of
only one parent and that such consideration, according
to the school,
may be outside the law.
[55]
The attorneys of MS regarded the school’s stance as
unreasonable. It suggested the exemption application by MS be
processed
with the information provided by her and that any
outstanding balance be enforced against MG.
[56]
The Head of Department expressed the view in August 2013 that absent
of a decision by the school it could not exercise its
powers as an
appeal body.
[57]
In September 2013, MS’s attorneys demanded the SGB make a
decision on her exemption application within 14 days.
[58]
In the same month, MS received a letter of demand from the school’s
attorney for R11 653,80 in respect of what was
stated to be
arrear school and related fees for 2013. Further correspondence took
place between the various parties and in the
same month the
Chairperson of the SGB advised MS that her application for an
exemption had been declined.
[59]
The letter also referred to a registered letter that had been sent in
July 2013 wherein it was noted that her application had
been
declined. The letter further recorded that her account had been
handed over for collection.
[60]
On 13 September 2013, following receipt of the SGB’s email, MS
attorneys addressed a letter to the Head of Department
in respect of
her appeal. The Head of Department was accordingly requested to
decide MS’s appeal. The letter also advised
the Head of
Department that the SGB had claimed to have made a decision on her
exemption application in July, but that this decision
had not been
communicated to her.
[61]
It is now common cause that the letter of 16 July 2013 had been sent
to an incorrect address. The Chairperson of the SGB acknowledged
the
school’s administrative error. Furthermore, in September 2013,
the Head of Department advised MS attorneys that her right
to appeal
in terms of the Act had been forfeited, as she failed to institute
the appeal within the prescribed period of 30 days
after receipt of
the Governing Body’s notice of its decision dated 16 July 2013.
The Head of Department also stated that
since the governing body had
instituted legal proceedings against her, the Department cannot
intervene in the matter.
[62]
It is also common cause that the school had issued a summons against
both parents for payment of school fees in the amount
of R7 383,30
, jointly and severally, in respect of the 2013 school fees.
[63]
The Respondents in their answering affidavits have addressed the
issues raised by MS and will I deal with it later.
The
Legal Framework:
[64]
T
he right to education is a fundamental right that
is entrenched
in
s29(1) of our
Constitution. Moreover, unlike most of the other socio-economic
rights, the right to basic education is immediately
realisable and
can only be limited by a law of general application in terms of
s 36(1) of the Constitution.  In this
regard see:
Governing
Body of the Juma Musjid Primary School and Others v Essay NO and
Others
2011(8) BCLR 761 (CC) at 774
para [37].
The
Funding of Public Schools:
[65] The ultimate
obligation to fund public schools falls squarely on the State. In
terms of s34 (1) of SASA, public schools must
be funded from public
revenue. SASA also requires that such funding needs to be done on an
equitable basis to ensure that learners
are able to exercise their
right to education and to redress past inequalities.
[66] The Fifth
Respondent (‘the National Minister’) annually determines
the national quintiles for public schools which
may not charge school
fees. These quintiles must be used by the relevant Member of the
Executive Council of a province who is responsible
for education in
that province (‘the MEC’), in terms of   s39
(7) - (16) of SASA to identify schools in their
provinces that may
not charge school fees.
[67]
The
criteria to identify no fee schools are generally based on
the economic level of the community around a school.  It is
accepted
that at all times material to this matter, the National
Minister has determined in terms of s39 (7) of SASA that all schools
ranked
in quintiles 1, 2 and 3 must be identified as no-fee schools.
The no-fee schools in each province are then published in the

Government Gazette.  The no-fee schools are entitled to receive
sufficient funding from their provincial education departments
so as
to enable them to function effectively without charging school fees
(‘the no-fee threshold’) and if they receive
less funding
than the no-fee threshold they may charge school fees to make up the
difference.
[68]
In addition, the provincial MECs may, after consultation with the
relevant SGB’s, annually by notice in the Provincial
Gazette
identify additional public schools within their provinces not
included in the list of schools published in the Government
Gazette,
but which are the poorest schools in that province falling outside
the list and which consequently also may not charge
school fees. In
that event, those schools are entitled to receive additional funding
and may only charge school fees if they receive
less than the funding
to which they are entitled.
[69]
The school in question is, and has always been, a fee-paying school.
[70]
At fee-paying schools at all times material to this matter, quintile
4 and 5 schools, the school fees are determined in terms
of section
39(1) of SASA. The school fees are determine by the parents at an
annual general meeting of parents that must be held
in terms of
section 38(2) of SASA. The majority of the parents present and voting
at the meeting must approve a resolution determining
the school fees
to be charged by the school.
[71] Section 39(2)
of SASA provides that the relevant resolution must provide for the
following: the amount of school fees to be
charged; equitable
criteria and procedures for the total, partial or conditional
exemption of parents who are unable to pay school
fees; and a school
budget that reflects the estimated cumulative effect of the
established trends of non-payment of school fees
and the total,
partial or conditional exemptions granted to parents in terms of the
Regulations relating to the Exemption of Parents
from the Payment of
School Fees in Public Schools made in terms of section 39(4) of SASA
and published in Government Notice 1052
in Government Gazette 29311
of 18 October 2006 as amended by Government Notice 1149 in Government
Gazette 29392 of 17 November
2006 (“the Regulations”).
[72]
The Regulations provide for five categories or types of exemptions,
namely automatic exemption, total exemption, partial exemption,

conditional exemption and no exemption.
[73]
According to s 40(1) of SASA: “
A parent is liable to pay the
school fees determined in terms of section 39 unless or to the extent
that he or she has been exempted
from payment in terms of this Act”
.
At issue is whether MS was entitled to a partial and or a conditional
exemption.
[74]
In terms of Regulation 6(4) and 6(6) a partial exemption ranging
between 7% and 97% is granted to the parents if the learner’s

school fees plus any additional monetary contributions to be paid to
the school are 3.5% or more, but less than 10% of the combined
annual
gross income of the learner’s parents.  Parents with more
than one child at fee-paying schools are given a different
range of
partial exemptions if the last-mentioned percentages are 3% or lower,
depending on the number of such children. Regulation
1 defines the
term ‘
combined annual gross income of parents
’ as
meaning ‘
the annual gross income of the parents, calculated
together, or, if a learner has only one parent, the total annual
gross income
of such parent
’.
[75] Regulation 1
provides that a conditional exemption may be granted to a parent who
qualifies for a partial exemption but, owing
to personal
circumstances beyond his or her control, cannot pay the reduced
amount. It also applies to a parent who does not qualify
for any
exemption, but supplies information indicating his or her inability
to pay school fees owing to personal circumstances
beyond his or her
control.  A conditional exemption is granted with the proviso
that the parent agrees to conditions for the
payment of the school
fees.  Regulation 6(7) adds that when attaching any condition
the governing body is limited to conditions
it considers reasonable.
[76]
In terms of Regulations 6(5) and (6) no exemption is granted to the
parents if the school fees plus any additional monetary
contributions
to be paid to the school are less than 2.0% of the combined annual
gross income of the learner’s parents (in
the case of parents
with fewer than five children at fee-paying schools).
[77]
Regulation 3(1) requires that when a child is admitted to a
fee-paying public school, the principal must notify the parent
of the
amount of the annual school fees to be paid and procedures for
applying for exemption; as well as to the fact that the parent
is
liable for the payment of school fees unless he or she has been
exempted from payment.  The parent must complete the form

contained in Annexure A of the Regulations, and both the principal
and the parent must sign it indicating that the parent has been

informed of those matters.
[78]
If a parent is in arrears by one month, or more, the principal must
notify that parent that the governing body will investigate
whether
the parent qualifies for exemption before acting in terms of section
41(1) of SASA, i.e. by process of law enforcing the
payment of school
fees by the parent.
[79]
Regulation 4(1) provides that to obtain an exemption a parent must
apply annually to the chairperson of the SGB by completing
the form
contained in Annexure B of the Regulations.  The form requires
that the parent state the learner’s parents’
combined
annual gross income.  Regulation 4(2) adds that the applicant
must furnish any relevant further particulars requested
by the
governing body.  Provision is also made that if an applicant
requests an opportunity to present his or her application
in person
or through a designated representative, he or she is entitled to do
so.  Regulation 6(9) states that the governing
body must, within
seven days after determining the application, notify the applicant of
its decision and the reason for it.
[80]
Regulation 8 lays down the following procedure for an appeal. If a
parent is not satisfied with the governing body’s
decision he
or she may appeal in writing to the head of the relevant provincial
education department within 30 days after receiving
the decision.
The parent must furnish the Head of Department with the reasons for
the appeal and all relevant information
pertaining to the appeal.
Within 14 days after receiving the appeal, the Head of Department
must notify the chairperson of
the SGB of the lodging of the appeal;
furnish the chairperson with a copy of the reasons for the appeal;
and request the chairperson
to furnish the Head of Department, within
14 days, with a copy of the relevant minutes of the meeting of the
school governing body,
any comments on the appeal the governing body
wishes to make and any other information relevant to the appeal.
The Head of
Department must determine the appeal within 14 days after
receiving the information from the school governing body and, within
7 days after deciding the appeal, notify the parent and the
chairperson in writing of his or her decision.
[81]
MS also relied on a report by the EELC that was submitted to the
First Respondent in 2013.
[82]
Against this background, I now turn to deal with the various relief
sought by MS.
The
Review:
[83]
The review is against a decision made by the First Respondent to
dismiss MS’s appeal in terms of section 40(2) of SASA,
against
the decision made by the SGB of the school on 18 September 2013,
whereby it refused to grant MS a partial exemption from
the payment
of school fees.
[84]
It is not in dispute that MS was informed in a letter dated
19 September 2013 that her right to appeal in terms of section

40(2) of SASA against the Second Respondent’s refusal of her
2013 fee exemption application, had been forfeited as a result
of her
failure to institute the appeal within the prescribed period.
[85]
According to the Respondents, a material mistake had been made as it
was assumed by the First Respondent that MS had been notified
of the
Second Respondent’s decision to reject her 2013 fee exemption
application by way of a letter dated 16 July 2013. The
said letter,
however, was forwarded to an incorrect address. The Second Respondent
in a letter dated 18 September 2013 acknowledged
its error to MS.
[86]
The Respondents, on 2 December 2013, conceded the relief sought in
the review application.
[87]
On these stated facts, the concession by the Respondents was
correctly made. It follows
that the
decision of the First Respondent during September 2013, dismissing
MS’s appeal against the Second Respondent’s
decision to
refuse her a partial exemption from the payment of 2013 school fees
in terms of section 40(2) of the Act, needs to
be reviewed and set
aside.
The
liability (jointly or jointly and severally) of all divorced or
separated biological parents:
[88]
The issue for determination is whether the provisions of s 40(1) in
respect of all divorced or separated biological parents
should be
interpreted as imposing joint, rather than jointly and severally
liability for the payment of the school fees, where
their children
attend state schools.
Joint liability in this context means
that each parent would only be liable for their proportionate share
of the fees; joint and
several liability means that each parent is
liable to the school for the full amount of the fees and if one
parent pays the full
amount, she or he will have a right of recovery
against the other parent.
[89]
The argument advanced by counsel for MS is that in our law there is a
strong presumption for an interpretation in favour of
joint, rather
than joint and several, liability. For this proposition, reliance was
placed on “
The Law of Contract in South Africa
” by
RH Christie at 290 and the cases referred therein. Namely, that in
our law of contracts there is a strong presumption
that the liability
of co-obligators and the rights of co-obligees, unless otherwise
agreed upon, is joint and not joint and severally.
Accordingly, it
was contented that given the presumption against joint and several
liability in our law, and in the absence of
the Legislature expressly
stating so in SASA, an interpretation of joint liability should be
preferred.
[90]
It was further argued by MS’s counsel that the words “
A
parent”
in s 40(1), is a strong indicator to an intention
by the Legislator to impose joint, rather than joint and several,
liability on
parents. It was further contended that such conclusion
is also supported by paragraph 168 of the Amended National Norms and
Standards
for school funding, which provides the following:
“
Parents
may be fully or partially exempted from the payment of school fees …
it is principally the income of individual parents
and households,
relative to school fees and other education expenses that is used to
determine eligibility to such total or partial
exemptions.”
[91]
According to counsel for MS, if s 40(1) were to be interpreted as
imposing joint and several liability on
divorced or separated
parents, it continues to treat them as a “household unit”,
thereby violating the parents’
rights to dignity and equal
protection of the law. It was further argued that an interpretation
of legislation which renders it
constitutionally compliant should be
preferred and that s 40(1) should be interpreted as imposing joint
liability on biological
parents who are divorced or separated, and
not living in the same household.
[92]
Counsel for the Respondents argued that on a proper
reading of ss 39 and 40 of SASA, each biological parent of
a learner
is liable to pay school fees. Accordingly, it was argued that if the
Legislature had intended joint liability, with the
result that each
parent would be limited to a portion of the total amount of the fees
apportioned, it would have said so and specified
the basis of the
apportionment. It was further contended that the reason the
Legislature had not done so is as a result of its
impracticality to
expect fee-paying schools to determine such apportionments between
all parents who are not persons married in
community of property, and
as a result s 40(1) of SASA imposes the full liability on each
parent.
[93]
Accordingly, it was contended that if one parent pays or is compelled
to pay the full amount of the said
fees then such parent has a
common-law right of recourse against the other parent. Furthermore,
s
15(2)
of the
Maintenance Act 99 of 1998
stipulates that there is a
duty on both parents to maintain their children, which includes
reasonable support in the provision
of education.
[94]
It was also argued that MG‘s undertaking in the divorce Consent
Paper to pay half of the school fees
incurred at Government Schools
in respect of ZG means he is responsible, as between him and MS, for
half of the school fees at
the school. And the arrangement between MS
and MG does not alter the school’s right to recover the full
amount of the fees
from either one of them, leaving it up to the one
who pays to exercise a right of recourse against the other.
[95]
Submissions by counsel for the Amicus,
concentrated
mainly on the adverse impact the current fee exemption scheme have on
women.  Accordingly, it was argued that
the fee exemption scheme
should be viewed in the context of a society where, inter alia, women
experience multiple and intersecting
forms of discrimination
resulting in them being socially and economically disadvantaged; that
mothers ordinarily bear more responsibilities
for child-rearing than
fathers; that the failure by fathers to shoulder their fair share of
the financial and social burden of
child-rearing results in mothers
bearing the financial responsibility for childcare
disproportionately; the insufficiencies in
the maintenance system;
the high levels of domestic violence affecting the mothers’
ability to communicate with and enforce
fathers’ obligations to
their children.
[96]
Furthermore, the fee exemption scheme indirectly discriminates
against women on grounds of their sex and or gender, and violates

their right to dignity by effectively excluding them from obtaining
fee exemptions in the absence of the non-custodian parent’s

financial information.
[97]
It was contended that the fee exemption scheme is inconsistent with
South Africa’s international obligations in relation
to the
equality and dignity of women, and that the fee exemption scheme
violates women’s rights to be free from domestic
violence
insofar as the onus is on them to obtain the signature and or
financial information from the non-custodian parent in order
to apply
for an exemption from school fees. Moreover, the fee exemption scheme
should be declared to be unconstitutional and the
Minister (Fifth
Respondent) should be ordered to amend the regulations and or SASA to
provide for exceptions in the case of custodial
parents who are not
in a position to obtain the financial information of non-custodian
parents; and to place an obligation on the
school to enforce
compliance of the uncooperative non-custodian parent.
[98]
In conclusion, it was suggested that pending the amendment of the fee
exemption scheme, the custodian parent should be entitled
to an
exemption based on her income alone, which absolves her of any joint
and several liability for the fees. And that the school
may then
recover the balance of the fees from the uncooperative non-custodian
parent unless that parent applies for an exemption
and provides the
relevant financial information.
Discussion:
[99]
It is now accepted in our law that the words ‘
A
parent
’
as contemplated in
s 40(1)
of SASA
burdens
both parents with the responsibility to pay school fees, and that
such an interpretation is consistent with s 28(2) of the
Constitution
which provides that ‘
a child's
best interests are of paramount importance in every matter concerning
the child’
. Moreover, with regard
to the interest of the child ‘
[i]t
unquestionably is in the best interests of a child that a
non-custodian parent, who is unwilling, yet has the means, to pay
his
child's school fees, should be made to do so, if necessary by the
injunction of an order of a competent court.’
In this regard see
Fish Hoek Primary
School v GW
2010 (2) SA 141
(SCA) at
para [14]. (For ease of reference this matter will be referred to as
“GW”.)
[100]
There can be no debate that mothers, historically and presently,
ordinarily become custodial parents and have to care
for children on
divorce or breakdown of other significant relationships. These
circumstances as a result, ‘
places
an additional financial burden on them and … [d]ivorced or
separated mothers accordingly face the double disadvantage
of being
overburdened in terms of responsibilities and under-resourced in
terms of means
. See
Bannatyne
v Bannatyne (Commission for Gender Equality, as Amicus Curiae)
[2002] ZACC 31
;
2003 (2) SA 363
(CC) at para
[29]
.
[101]
In GW supra at para [14] it was stated that ‘
[a]t common law
both parents of a dependent child are under a duty to support such
child in accordance with their respective means.
That duty must
undoubtedly embrace the educational needs of the child as well,
particularly as the Act
[section 3]
creates a system of
compulsory schooling.’
The SCA in GW further made the point
at para [13], and correctly so, that: ‘
Despite our
constitutional promise of equality, the division of parenting roles
continues to remain largely gender-based. It is
thus important to
heed the caution sounded by this court in F v F
[2006 (3) SA 42
(SCA)
at para 12] that courts should be acutely sensitive to the
possibility that the differential treatment of custodian parents
and
their non-custodian counterparts often can and does constitute unfair
gender discrimination.’
[102]
The cardinal rule of construction of the statute as Stratford JA put
it in Bhyat v Commissioner for Immigration
1932 AD 125
at 129 ‘
is
to endeavour to arrive at the intention of the lawgiver from the
language employed in the enactment … in construing a
provision
of an Act of Parliament the plain meaning of its language must be
adopted unless it leads to some absurdity, inconsistency,
hardship or
anomaly which from a consideration of the enactment as a whole a
court of law is satisfied the Legislator could not
have intended.’
[103]
The effect of that formulation, ‘
is that the court does not
impose its notion of what is absurd on the legislature’s
judgement as to what is fitting, but uses
absurdity as a means of
divining what the legislator could not have intended and therefore
did not intend, thus arriving at what
it did actually intend.’
In this regard see
Poswa v Member of the Executive Council for
Economic Affairs, Environment and Tourism, Eastern Cape
2001 (3)
SA 582
(SCA) at para [11].
[104]
In this instance the joint and several liability is not stipulated in
s 40(1). There are also no indicators in the said
provisions to infer
that the liability to pay by parents as co-debtors are jointly and
severally. To presume otherwise would definitely
impose an
unnecessary heavy burden on parents like MS and is irreconcilable
with the paramountcy that must be afforded to the best
interest of
the child as a principle in our Constitution.  In my view, on a
proper construction of the provisions of s 40(1)
the liability of a
parent (as in this instance) to pay school fees must be regarded as
jointly and not jointly and severally. I
am referring here to the
liability of the parent to the school in terms of s 40(1), not the
liability for school fees
inter se
(between parents), which
may be effective by private arrangements. Such an interpretation is
in accordance with the general principle
in our law that
co-obligators are liable only jointly unless an intention to impose
joint and several liability is plainly expressed
or can be clearly
inferred. (See “
The Law of Contract in South Africa
”
by RH Christie at page 290).
[105]
As a result of the above mentioned, the constitutionality challenge
by MS on s 40 (1) of SASA is unwarranted.
Constitutionality
of Regulation 6(2):
[106]
In this regard MS seeks a declaration that regulation 6 (2), read
together with the definition of the phrase “
combined annual
gross income of parents”
in Regulation 1, is inconsistent
with the Constitution and invalid on the grounds that it infringes,
amongst other things, her right
to equal protection and benefit of
the law and dignity in terms of ss 9 and 10 of the Constitution.

To this end, MS relies heavily
on her own experience with MG to demonstrate how degrading and
humiliating it has been for her fee
exemption application to be
dependent on her ex-husband providing particulars concerning his
income. Furthermore, that the respondents
treated her ex-husband and
her as a “family unit” for the purposes of the
application.
[107]
The Minister concedes that the regulation creates practical
difficulties for parents like MS who struggle to get the
requisite
financial information from the other parent, and records that
legislative amendments to address this difficulty are being
prepared
for consideration by the Minister and the Council of Education
Ministers as established by the
National Education Policy Act 27 of
1996
. To this end, it was recorded by the Minister that these
difficulties do not give rise to the unconstitutionality as alleged
by
MS. Furthermore, the proposed amendments to
section 41
of SASA
were filed as part of the record and the following was proposed:
[108]
“
Amendment of
section 41
of Act 84 of 1996, as amended by
section 5 of Act 24 of 2005
22.
Section 41
of the
South African Schools Act, 1996
, is hereby amended–
(a)
By the substitution for subsection (2) with the following subsection:
“
(2)
The exemption from payment of school fees must be calculated
according to the regulations contemplated in
section 39(4)
and the
governing body may only consider the following documentation when
deciding on the application:
(a)
A salary advice of both parents, where applicable;
(b)
profits received from investments or other forms of business;
(c)
a divorce agreement or court order, where applicable;
(d)
an affidavit where the parent is unemployed; and
(e)
proof of all children registered at a public school; and
(b)
By the insertion after subsection (2) of the following subsection:
“
(2A)
Notwithstanding subsection (2), a parent may submit to the governing
body documentary evidence in the form of an affidavit
supported by a
confirmatory affidavit from a social worker or another competent
authority, or a court order, which constitutes
sufficient 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.”
[109]
According to MS, the proposed amendments to
section 40
(1) will be
insufficient to eliminate practical difficulties faced by
single-parent households and, more importantly, do not address
the
unconstitutionality of the definition of
regulation 6
(2) read
together with the definition of “
combined annual gross
income of parents”
which require the income of both
biological parents for the purposes of determining fee exemption. MS
is adamant that the proposed
amendments fails to provide for divorced
or separated parents to be treated differently to parents still
living together in the
same household.
[110]
MS’s constitutional attack on
Regulation 6
(2), read together
with the definition of the phrase “
combined annual gross
income of parents”
in
Regulation 1
, is tenuous.  It
appears that MS alleged the said regulations differentiate between
persons like her who are single or divorced
parents, and those who
share a joint household because
regulation 6
(2) takes into account
the income of the learner’s non-custodian parent in determining
whether the custodian parent qualifies
for an exemption from school
fees. It is now accepted in our law that both parents of a dependent
child are under a duty to support
such child in accordance with their
respective means.
[111]
In GW supra at para [14] the SCA held that the duty to support such a
child must undoubtedly embrace the educational
needs of the child as
SASA creates a system of compulsory schooling. Both parents are
therefore liable to pay the school fees for
their children at
fee-paying public schools. It was also stated in GW that parents are
so liable because imposing such a liability
on both will promote the
achievement of gender equality. This is also consistent with the best
interest of the child principle
as enunciated in our Constitution.
[112]
SASA does provide that the parent body of a fee-paying school
determines the annual school fees payable by all parents of
learners
at the school. This determination is based on the budget required to
operate the school effectively and the school’s
income from the
State and any other sources.
[113]
According to the Respondents the ‘
combined annual gross
income of parents’
is included in the formula in Regulation
6(2) to ensure equitable and generic calculations for all types of
parental structures.
It follows that in accordance with SASA, the
Regulations do not distinguish between the married or unmarried
status of parents
but concentrate on the parental responsibility and
duty towards a child.
[114]
Furthermore, according to the Respondents the formula in Regulation
6(2) has been framed in the way it has (i.e. including
the income of
both parents, including any non-custodian parent), so as to ensure
that school fee exemptions are calculated on a
basis which encourages
both parents to comply with their legal duty to support their
children; and, conversely, discourages non-custodian
parents in
particular from shifting the financial cost of their children’s
education at fee-paying schools onto the parents
of other children at
such schools (or, where there are compensation schemes, the
fiscus
).
[115]
On a proper consideration, the differentiation complaint by MS,
cannot be construed as irrational. The ‘combined
annual gross
income of parents’ must unquestionably be in the best interest
of the child. It is also to encourage both parents
to comply with
their legal duty to support their children. The differentiation is
therefore rationally connected to a legitimate
government purpose.
See
Prinsloo v Van der Linde and Another
1997 (3) SA 1012
(CC)
paras [24]-[26];
Law Society of South Africa and Others v Minister
for Transport and Another
2011 (1) SA 400
(CC) para [32].
[116]
Turning to the dignity-based attack. MS,
alleges
that being compelled to regard her ex-husband, MG, as part of her
family unit and to request financial information from
him in order to
complete the application forms for the school fee exemption (i.e. to
request his annual gross income so as to be
able to apply the formula
for the ‘
combined annual gross
income of parents’
), infringes
her right to human dignity because doing so is degrading and
humiliating.
[117]
According to the Respondents, the words ‘
family
unit’
in its 11 November 2011
correspondence to MS, were in reference to ‘
your
income as a family unit
’,
thereby, meaning the combined annual gross income of both parents as
the Respondents knew at the time the parties were
divorced. The
Second and Third Respondents have further acknowledged that the
expression ‘
your income as a
family unit’
was a poor choice of
words and that the relevant sentence should have read ‘
from
information gleaned to date it does not appear that the ‘combined
annual gross income' of the parents entitles you to
such an
exemption.
[118]
In this instance, the infraction claimed does not justify the relief
sought. MS and MG are the biological parents of
ZG. Both bear a
common-law and statutory duty to support her. In fact, in 2010, MS
consented that paragraph 1 of the original consent
paper be
substituted with an extensive recordal of the co-parental
responsibilities and rights of both parents in respect of ZG.
This
addendum to the consent paper was made an order of court. In the
addendum, both parents undertook to remain involved in all
aspects of
ZG’s life, including her schooling, extramural activities and
general welfare. It was also agreed by MS that she
will ‘
furnish
MG with copies of ZG’s school reports and any correspondence or
documentation received by her which relates to the
ZG’s
progress at school or any problems that she may be experiencing
’. In the event of a dispute, the role of a facilitator was
contemplated and provided for.
[119]
In terms of s41(2)  the exemption from payment of school fees
must be calculated according to the Regulations contemplated
in
section 39(4), i.e. the regulations regarding the equitable criteria
and procedures for the total, partial or conditional exemption
of
parents who are unable to pay school fees referred to in section
39(2)(b). One of the requirements, imposed by the Regulations,
is
that an application for exemption must be made by completing a form,
one of the parts of which is a statement of the combined
annual gross
income of both parents (regulation 4(1), read with Annexure B).
Another of those requirements is when considering
and determining the
application, the SGB of the school must apply a formula, one of the
elements of which is the combined annual
gross income of both parents
(regulation 6(2)(a)).
[120]
It follows that any custodial parent applying for exemption from
school fees is obliged to obtain from the other parent
particulars of
his or her gross income, in order that the SGB may apply the
prescribed formula to his or her application for exemption.
I will
accept that there may be circumstances where obtaining the prescribed
information may be extremely difficult in cases where
the parents are
estranged from one another. But in the present instance, given the
fact that both parents undertook in 2010 to
remain involved in all
aspects of ZG’s life, including her schooling and general
welfare, t
he suggestion by MS that she was deeply
offended with the Respondents to regard MG as part of her family unit
and to insist that
she request financial information from him in
order to complete the application forms for the school fee exemption,
is rather surprising.
In fact MS accepted and agreed that she is
under a legal obligation to forward school correspondence relating to
ZG to MG when
the addendum to the consent paper was made an order of
court.  Moreover, she and MG accepted to remain co-holders of
parental
responsibilities and rights in terms of the Children’s
Act, 38 of 2005. The relief sought by MS in this regard is therefore

unsustainable and legally untenable.
Declaring
that MS qualifies for a fee-exemption for the 2013 academic year,
together with a determination of the amount of the exemption
for
which she qualifies
:
[121]
The First and Second Respondents have conceded the review relief in
relation to First Respondent’s decision on
the appeal by MS
against the Second Respondent’s rejection of her 2013 fee
exemption application.
[122]
According to the First Respondent, it instructed the Second and Third
Respondent’s to reconsider the application
or invite MS to
lodge a new application in respect of 2013.  On the papers filed
of record, the Second Respondent thereafter
reconsidered the
application and concluded it could not make a determination, as the
information for both parents had not been
provided.  According
to the Second Respondent, it offered to provide fee exemption
application forms to both parents and to
reassess any new
applications for 2013.  The First Respondent has also given an
undertaking that if MS appeals against the
Second Respondent’s
decision, it will consider and determine the appeal and communicate
its decision to MS within 7 days
of the appeal decision being
made.
[123]
MS however declined to make a new application or to appeal on several
grounds. One of grounds upon which MS relies is
that the First and
Second Respondents are
functus officio
.
The Second and Third Respondent was also severely criticised for
their conduct in relation to MS’s 2013 fee exemption
application.
[124]
On the papers filed of record, prior to the Second Respondent’s
decision to decline the application because it
did not contain
particulars of MG’s annual gross salary, the steps taken by the
Second and Third Respondents to assist MS
with the completion of the
application can hardly be regarded as unreasonable or degrading.
[125]
In 2013, the exemption application by MS was received on 21 March
2013. A few days later on 27 March 2013 the Second
Respondent advised
MS by letter that the income of both parents must be declared in the
application and until same is received,
the application would remain
pending. On 6 April 2013, the Second Respondent sent a letter and an
application form by registered
mail to MG at two different addresses.
MG was requested to complete and return the application form. MS was
informed of the correspondence
to MG and that he failed to respond.
On 26 April 2013, the Third Respondent’s attorney informed the
school that he personally
handed the form to MG and again he failed
to respond. Moreover, in terms of regulations 9(3) and 9(4) of the
Regulations, the annual
gross income of both parents needs to be
reflected on the application form as the combined annual gross income
of parents is required
for purposes of the application of the
formula.
[126]
On these stated facts, it is evident that MG was showing an obstinate
attitude towards his co-parent responsibility
in respect of his
obligation towards ZG’s school fees. According to the divorce
settlement agreement he is liable for 50%
of the school fees of ZG.
It surprising that MS did not rely on the provisions of the 2010
addendum to ensure that MG indeed
comply with his co-parental
responsibilities, which both of them legally undertook to do. In the
present circumstances, the best
interest of the child demanded that
both parents adhere to the addendum to the divorce consent paper and
to do all things necessary
to provide the required information that
was lacking. It is equally surprising that MS did not persist with
invoking the right
to appoint a facilitator to ensure that MG comply
with his responsibility of paying 50% of the school fees or to
provide the information
required by the school. A failure by MG to
comply with the provisions in the addendum to the consent paper may
at least have resulted
in contempt of court proceedings.
[127]
With regard to the
functus
officio
argument advanced by MS, I am
not convinced that in the circumstances of this case, the First and
Second Respondent are
functus officio
.
In the present circumstances, no real decision has been made by the
relevant authorities, due to lack of pertinent information
provided
by MS to them. Moreover, I agree with counsel for the Respondents’
that, the
functus officio
principle does not operate in instances where the decision-maker and
the person adversely affected by it, agree that the initial
decision
may be disregarded. (See: Baxter
Administrative
Law
(1984) at 373 s.v. ‘
Unfavourable
Decisions
’; Cf. Hoexter
Administrative Law in South Africa
2ed (2012) at 280-281).
MS has, therefore,
an effective internal remedy.
[128]
Furthermore, the
Second Respondent or First
Respondent (may still on appeal)
grant
the Applicant a conditional exemption
as MS’s 2013
application for exemption did not contain all the information needed
to perform the exemption calculation.
[129]
Recently our higher courts have repeatedly stated that a case
implicating an order of substitution requires courts to
be mindful of
the need for judicial deference and the obligations under the
Constitution. In this regard see
Trencon
Construction (Pty) Ltd v Industrial Development Corporation of South
Africa Ltd and Another
2015 (5) SA 245
(CC) at paras [42- 47]. In the administrative review
context substitution remains an extraordinary remedy. Remittal is
still almost
always the prudent and proper course. It is only in
exceptional circumstances that the court will grant an order of
substitution.
In the present instance, taking into account all the
relevant factors, it will not be just and equitable to grant an order
of substitution
in respect of the 2013 application for exemption.
In
these circumstances, MS should submit a fresh application for fee
exemption for the 2013 year.
Declaring
that MS had been subjected to repeated violations of her
constitutional and statutory rights in the course of the processing

of her 2011, 2012 and 2013 school fees exemption applications:
[130]  The
bulk of the
allegations under this heading are
mainly directed against the Second and Third Respondents. The
complaints by MS are largely against
the manner in which the
Respondents dealt with her exemption applications. In addition, MS
claims that the school infringed her
right to dignity by, inter alia,
characterising her inability to provide the financial information of
her ex-husband as a dispute
between parents; applying the fee
exemption procedure in a manner that rendered it unworkable;
referring to her and MG as a family
unit; attempting to compel her to
reopen problematic interactions she had experienced with MG, and
suggesting, through its attorney,
that she was working in cahoots
with MG to defraud the school.
[131]
The complaint by MS that she has been subjected to repeated
violations of her constitutional and statutory rights in
the course
of the processing of her 2011, 2012 and 2013 applications for
exemptions from the payment of school fees, does not endure
scrutiny.
At the heart of this matter is what is in the best interest of the
child. In fact, in 2010, both parents committed themselves
legally to
remain co-holders of parental responsibilities and rights in respect
of ZG. Moreover, both undertook to act as co-guardians
as
contemplated for in s 18 (2)(c), 18 (3) and 18(5) of the Children’s
Act, 38 of 2005.
[132]
In respect of 2011, MS alleges that the Third Respondent refused to
accept MS’s application as result of her not
signing the
undertaking to pay the full school fees. According to the First
Respondent, the Department has no record of MS reporting
this issue
to them. The Second and Third Respondents’ agree that MS did
not sign Annexure A to the prescribed form. However,
the Second and
Third Respondents’ acknowledge that the Applicant did sign the
payment forms sent to all parents, which include
the terminology from
Annexure A.  According to the Second and Third Respondent both
forms declare the amount of school fees
for the year, that parents
are liable for school fees, that parents may apply for assistance in
regard to school fees and indicate
where the fee exemption
application forms are obtained. Both forms apparently request a
signature from the parent declaring that
they understand the content
of the correspondence.  According to the Second and Third
Respondent, MS completed and signed
the school payment forms for the
years 2011 to 2015.
[133]
The First Respondent records it noted that MS further alleged that
Third Respondent’s fee exemption form discourages
parents from
applying for an exemption, but states that MS failed to report this
issue to the Department.
[134]
MS further alleges that the Third Respondent’s exemption
application form was not applicable to her because the
last page
contained a section which both parents had to fill in. MS regards
this as unreasonable because it was conditional on
her securing the
co-operation of MG.
[135]
According to the Fifth Respondent, the form in question is in
conformity with the Regulations which require the financial

information from both parents.  The Fifth Respondent further
states that the information required is not unreasonable as there
is
a legal duty on both parents to support their children, irrespective
of whether they are married or divorced which includes
the paying of
school fees.
[136]
The Fifth Respondent also took issue with MS where she recorded
that
‘
[in] terms of a court order
relating to my divorce, I get a monthly payment out of which all my
daughter’s expenses are to
be paid. My finances should
therefore be considered entirely separately from those of her
ex-husband
’.  According to
the Fifth Respondent, MS was incorrect in stating that all ZG’s
expenses were paid from the monthly
maintenance, as it appears from
the consent paper that her school fees were a separate expense for
which both parents were liable.
Accordingly, MS’s view
that her financial position should be considered separately from that
of MG was held by the Fifth
Respondent as misguided, as the fee
exemption application must be considered and determined with
reference to the aggregate annual
gross income of both parents.
[137]
MS also drew the Third Respondent’s attention to Regulation
9(3) which states that no application may be disqualified
on the
ground that it is incomplete or incorrectly completed.
[138]
According to the Fifth Respondent, Regulation 9(3) must be read with
Regulation 9(4), and as a result, if an application
form is either
incomplete or incorrectly completed, the principal or an educator who
is a member of the SGB concerned must help
the parents complete the
form properly.  In the present instance, the Third Respondent
did sent the form to MG to obtain the
missing financial information.
According to the Fifth Respondent, as the legally required
information was not provided by the parents
it was not possible to do
the exemption calculation.
[139]
As to the legal proceedings instituted against MS for the recovery of
the 2011 school fees, MS is not remediless.
[140]
In respect of the 2012 exemption application, the Third Respondent
informed MS that she could send a financial assistance
application
form, and a separate form would be sent to MG
[141]
In March 2012, MS appealed the 2011 and 2012 fee exemption
applications to First Respondent on the basis that an earlier
letter
from the Third Respondent, dated 23 February 2012, amounted to a
refusal to grant both exemptions for 2011 and 2012.
In the said
letter, the Third Respondent referred to the dispute between the
parents as to who was responsible to pay for ZG’s
education and
indicated, based on the impasse between the parents in 2011, it was
not possible for the Second Respondent to grant
an exemption for
2012.
[142]
The First Respondent refused the 2011 appeal on the basis that it was
received outside of the 30 day time period. In
respect of the 2012
appeal, the First Respondent granted MS an 83% exemption from school
fees.
[143]
In her answering affidavit, the First Respondent states that she now
believes that her decision in relation to the 2012
fee exemption
application was incorrect.  She should not have granted the
Applicant a partial exemption because, like the
Second Respondent,
she too did not have the financial information of MG needed for the
calculation in terms of Regulation 6(2)
to   6(6).
Instead, the First Respondent said, she should have granted MS a
conditional exemption of that part
of the school fees, with the
proviso that MS agrees to pay the balance by a specified date far
enough in the future.
[144]
The First Respondent has, however, added that because 2012 is now
history by the time she made her answering affidavit,
she does not
intend to take any steps aimed at the reversal of her decision.
The First Respondent also noted that the Third
Respondent did not
apply for fee exemption compensation in respect of the 2012 exemption
that she had granted.  The Fifth
Respondent’s deponent
also said that despite his misgivings about the correctness of the
First Respondent’s determination
of  MS’s appeal in
respect of the 2012 exemption for school fees, that unless and until
it is set aside in proceedings
for judicial review it stands and must
be given effect to by the Second and Third Respondents.
[145]
The 2013 fee exemption was already discussed in para [48]-[62]
[146]
In considering what is in the best interests of the child, there can
be no debate that a co-guardian and co-holder of
parental
responsibilities and rights, as in this instance, who is unwilling
yet has the means to pay his child’s school fees,
should be
made to do so, and if necessary, by the an order of a competent
court. As stated in GW supra at para [14], were the schools
are not
to have the right to recover school fees from such a parent, it will
either have to shoulder that loss or mulct other parents
with
additional charges, which in either event would be detrimental to
other learners.
[147]
The attitude adopted by MS that the Respondents should only look at
her financial circumstances as a divorced individual,
and who only
receives monthly maintenance payments from MG, is not only
inconsistent with what is in the best interest of the child
but it
also undermines the very parental rights and responsibilities she and
MG legally undertook in 2010. It is also at variance
with the divorce
order of 1999 which stipulates that MG is liable to pay 50% of ZG’s
school fees.
[148]
The complaint by MS that she has been subjected to repeated
violations of her constitutional and statutory rights in the course
of the processing of her 2011, 2012 and 2013 applications for
exemptions from the payment of school fees, is therefore unfounded.
The
Respondents alleged failure to comply with their constitutional and
statutory obligations to ensure that fee charging public
schools in
the Western Cape comply with the requirements of the Act and
Regulations in relation to fee exemptions:
[149]
In this regard, MS has enumerated a number of instances in paragraph
6 of her Amended Notice of Motion where the Respondents,
according to
her, failed in their constitutional and statutory obligations. As a
result, MS seeks
a general declaratory order that
First, Fourth and Fifth Respondents failed to comply with their
constitutional and statutory obligations
in ensuring that fee
charging schools comply with SASA and the Regulations in relation to
fee-exemptions.
[150]
MS also placed heavy reliance on a report regarding fee exemption by
the Equal Education Law Centre.
In summary, the report records
that schools seldom inform parents of the exemption policies, and if
they do so, it done in such
a way that it has the effect of
discouraging their use or shaming parents into not applying for
exemptions. Schools frequently
sift poor learners during the
application process to ensure that only parents who can guarantee
full payment of fees are admitted.
Furthermore, in some application
forms it  states that only parents who reside in the feeder area
of the school may apply
for exemptions from school fees, and that at
certain schools parents are advised that they may apply for fee
exemptions, but do
so in such a way that emphasises the additional
financial burden that this will place on other parents.
[151]
According to the First and Fourth Respondent t
he Fee Exemption
Regulations has placed added responsibilities and duties on
fee-paying schools and their SGBs to ensure that parents
are afforded
the opportunity to qualify for exemptions if their financial
circumstances so demand.  Accordingly, on 9 November
2006 the
WCED issued circular 0058/2006 to the eight districts of the Western
Cape informing all concerned of the new Regulations.
The imperfection
and the various difficulties that arise out of the interpretation and
implementation of the fee exemption regulations
by certain schools
are not denied by the Respondents.
[152]
The First Respondent however disputes MS’s allegation that the
Departments monitoring and compliance system with
regard to fee
exemption queries is not reasonable and rational. According to the
First Respondent, the Department’s monitoring
and compliance
information system creates and ensures greater transparency, control
and reporting.
[153]
The First Respondent also recorded that due to
the
fact that fee exemptions result in the exempted portions of the fees
being paid by the other parents and that in some instances
may even
detrimentally affect the financial viability of fee paying schools,
the Provincial Government of the Western Cape has
allocated
substantial sums for fee exemption compensation from its budget.
In this regard:
1.1
On 22 June 2011, the WCED issued circular
017/2011 setting out the procedure to be followed by fee paying
schools in obtaining compensation
for fee exemptions.
1.2
On 14 November 2013, the Fourth Respondent
issued a statement to the media outlining that in 2011 R20 million
had been allocated
as fee exemption compensation for fee paying
schools which had granted exemptions during 2010; in 2012 R30 million
had been allocated
as fee exemption compensation for exemptions
granted during 2011; and in 2013 R42 million had been allocated as
fee exemption compensation
for exemptions granted during 2012.
1.3
In 2012, the Department upgraded and
automated the process whereby schools can make online applications
for fee exemption compensation.
1.4
In her main answering affidavit, which was
made in 2014, the First Respondent further
stated
that in about November of that year a determination would be made
whether an amount would be allocated as fee exemption compensation

for exemptions granted during 2013.
[154]
According to the First Respondent, the Department has between 2010
and 2011 allocated the highest compensation in the
country for fee
exemption, and in 2015 approved the budget of R39 322 000
for compensation for the 2014 school year.
The total claims amounted
to R43 650 026.00, and an additional balance of
R4 328 028.00 was requested to address
the shortfall, which
was approved. According to the First Respondent the Department in
2016, approved a budget of R 46 356 000
for the 2015 school
year.
[155]
According to the First and Fourth Respondent’s, the figures
demonstrate the Department’s commitment to providing
full
compensation for school claims.
[156]
In terms of the EELC report, the First Respondent records that
although it is stated that the EELC is handling many
cases of abuse
of the fee-exemption and fee-recovery processes, the seven cases
referred to do not constitute a statistically defensible
sample that
shows that there is indeed a widespread pattern of abuse.
According to the First Respondent, the inferences drawn
from the
limited number of cases referred to by the EELC is unjustifiable.
[157]
According to the First and Fourth Respondents, at the time of filing
the affidavit there was more than 570 fee-paying
schools in the
Western Cape Province, and that only 32 appeals relating to fee
exemptions were initiated in 2015.
2.
Furthermore, the First Respondent has
requested and received an update from the seven schools referred to
in the EELC report and
what emerged is the following:
2.1
Table View Primary School
advised the First Respondent that in 2013 it
received 199 fee exemption applications, of which 183 were granted
partial exemption,
15 were granted full exemption and 1 was rejected.
In 2014, the school received 247 fee exemption applications, of which
230 were
granted partial exemption, 9 were granted full exemption and
8 were rejected/disqualified. In 2015, the school received 407 fee

exemption applications, of which 385 were granted partial exemption,
21 were granted full exemption and 1 was rejected/disqualified.
2.2
De Hoop Primary School
confirmed that the school has a system for dealing
responsibly with every fee exemption application. The SGB amended a
clause in
the school’s financial form to comply with current
policy and as a result no parent has been negatively affected by the
clause.
The principal supplied a list of the 2014 and 2015 fee
exemption applications as proof of their compliance with the
Regulations.
2.3
Wynberg Girls High School
advised that in 2013, 65 fee exemption forms were
issued, in relation to which, 43 were granted partial exemption, 6
were granted
full exemption and 16 forms were not returned or lost.
In 2014, 58 fee exemption forms were issued, in relation to which, 41
were
granted partial exemption, 8 were granted full exemption and 9
forms were not returned or lost. In 2015, 51 fee exemption forms
were
issued, in relation to which, 36 were granted partial exemption, 7
were granted full exemption and 8 forms were not returned
or lost.
2.4
Rondebosch Boys High School
advised that in 2013, 25 applications for fee
exemptions were made by parents, 24 full and partial exemptions were
granted and 1
was rejected. In 2014, 29 applications for fee
exemptions were made by parents and full and partial exemptions were
granted in
all cases. In 2015, 38 applications for fee exemptions
were made by parents and once again full and partial exemptions were
granted
in all cases.
2.5
Fish Hoek High School
advised
that in 2013, 209 application forms for fee exemptions were issued to
parents, resulting in 156 full and partial exemptions
being granted
and 3 being rejected.  In 2014, 194 application forms for fee
exemptions were issued to parents, resulting in
151 full and partial
exemptions being granted and 8 being rejected. In 2015, 201
application forms for fee exemptions were issued
to parents,
resulting in 170 full and partial exemptions being granted and 3
being rejected.
2.6
Edgemead High School
advised
that it registers each fee exemption application form by numbering
and dating it and by requesting a signature. In 2013,
113 fee
exemption forms were issued, resulting in 64 being granted full
exemption, 49 being granted partial exemption and none
being
rejected. In 2014, 111 fee exemption forms were issued, resulting in
60 being granted full exemption, 50 being granted partial
exemption
and one being rejected on the basis of being over the threshold. In
2015, 108 fee exemption forms were issued, resulting
in 55 being
granted full exemption, 53 being granted partial exemption and none
being rejected.
[158]
It is evident from the facts put up by the Respondents, that schools
in the Western Cape Province grants hundreds of fee exemption

applications every year without significant problems being
experienced.
[159]
With regard to the specific declaratory orders sought in the
sub-paragraphs of paragraph 6 of Applicant’s amended Notice
of
Motion, with which MS is persisting, I am in agreement with counsel
for the Respondents that it is not the task of this Court
to become
engaged in what amounts to the micro-management of the relationship
between the First and Fourth Respondents, on the
one hand, and all
principals of fee-paying public schools in the Western Cape Province,
on the other hand.
[160]
In my view the granting of the declaratory orders sought by the
Applicant in this regard will infringe the constitutional
separation
of powers between the Judiciary and the Executive.
Moreover
on a proper consideration of all the complaints no evidence is
advanced of systematic infringement of the said Regulations.
[161]
For these reasons, the relief sought in paragraph 6 and its
sub-paragraphs of the Amended Notice of Motion, and the relief
sought
in paragraph 7, thereof cannot be granted.
Costs:
[162]
The Respondents accept that MS is entitled to the costs of the
preparation of the part of her founding papers relating to
the
application for judicial review of the First Respondent’s
September 2013 decision concerning her application for a partial
fee
exemption for 2013.
The Respondents further
accept that MS succeeds with a material portion of the other
substantive relief she is seeking, and she
is entitled to her costs,
including the costs of two counsel. It is noted that the WLC is not
asking for costs. The Applicant was
to some extent successful.
Therefore, it will only be just and equitable that costs should be
awarded in her favour.
[163]
In the result, the following order is made:
1.
The decision of the First Respondent, in
the appeal in terms of s 40 (2) of SASA made on the 19 September 2013
dismissing the Applicant’s
appeal against the Second
Respondent’s decision to refuse the Applicant a partial
exemption from the payment of the school
fees as a result of her
failure to institute the appeal within the prescribed period of 30
days after receipt of the notification
of the Second’s
Respondents decision, is reviewed and set aside.
2.
Declaring that the Applicant (MS) and Sixth
Respondent (MG) are jointly and not jointly and severally liable for
the school fees
as contemplated in s 40(1) of SASA.
3.
The remaining relief sought in the Amended
Notice of Motion is dismissed.
4.
The Respondents to pay the Applicant’s
costs, including the costs occasioned by the employment of two
counsel.
5.
In respect of the WLC no order is made as
to costs.
LE
GRANGE, J