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[2011] ZAGPJHC 184
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F v F and Others (6172/2011) [2011] ZAGPJHC 184 (6 December 2011)
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Certain
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NOT REPORTABLE
SOUTH GAUTENG HIGH COURT, JOHANNESBURG
CASE NO
:
6172/2011
DATE:06/12/2011
In the matter between:
B
C
F
....................................................................................................
Applicant
and
M
F
..........................................................................................
First
Respondent
PRETORIA
BOYS HIGH SCHOOL
...................................
Second
Respondent
RIVONIA
PRIMARY SCHOOL
..............................................
Third
Respondent
REASONS FOR
JUDGMENT
On 10 November 2011, having read the documents filed of record and
having heard argument and considered the matter, I ordered
that this
application be dismissed with costs.
On 18 November 2011, the applicant requested full reasons for my
aforementioned judgment.
On 23 November 2011, the
applicant filed a notice of application for leave to appeal in this
matter.
The reasons for my aforementioned order are detailed below.
Relief sought
The applicant initially applied for an order in the following terms:
Declaring the first respondent exempt from the payment of school
fees in respect of the three minor children:
T F, a girl aged 11;
C F, a boy aged 11; and
J M F, a boy aged 14 (the minor children)
In accordance with the provisions
of Regulation 4 of the Regulations to the
South African Schools Act,
84 of 1996
;
Alternatively
to 1 above, that
the first respondent be ordered to complete fully and in all
respects the application for exemption of payment
of school fees in
respect of the three minor children:
T F, a girl aged 11;
C F, a boy aged 11; and
J M F, a boy aged 14 (the minor children), timeously and for each
successive year until the three minor children have completed
their
respective school going years.
Costs of this application;
Further and/or alternatively relief.
The facts
In support of the application, the applicant recorded that he had
been divorced on 4 March 2004. A copy of the divorce order
and deed
of settlement were annexed to the papers. In terms of the deed of
settlement he was ordered to pay maintenance in respect
of the minor
children in the amount of R700,00 per month, including payment of
their Medical Aid.
Subsequent to the divorce, the relationship between the applicant
and first respondent became increasingly acrimonious, resulting
in a
High Court application during 2008 to enforce his rights of access
and two Magistrate’s Court maintenance enquiries
during 2006
and 2009.
On 20 October 2006 the divorce
order was amended in terms of a maintenance order, which provided
that the applicant was ordered
to pay the minor children’s
school fees. A copy of this consent to maintenance order in terms
of
Section 17
of the
Maintenance Act No 99 of 1998
is annexed to the
papers as Annexure “3”.
This was further confirmed on 23
January 2008 in a further consent to maintenance order in terms of
Section 17
of the
Maintenance Act, at
the Randburg Magistrate’s
Court, when it was confirmed yet again that the applicant was
required to pay full school fees
for the three minor children. A
copy of this order appears as Annexure “4” to the
founding papers.
The applicant contends that he has been paying the school fees since
1 November 2006 in accordance with the consent order that
appears as
Annexure “3”. He thus makes the following payments in
respect of school fees for the minor children:
T – R1,410.00 per month;
C - R1,410.00 per month;
J M – R2,000.00 per month;
Totalling R4,820.00 per month for 10 months of the year totalling
R48,200.00 per annum;
Plus deposit, second respondent R4,800.00;
Plus deposit, third respondent R1,750.00
Totalling R54,750.00 per annum.
The applicant further claims
that he is eligible for at least a reduction of 38% of the total
amount, equating to a saving of
R20,805.00 per annum. This would
leave his liability in respect of school fees in the sum of
R33,945.00 per annum, which equates
to a monthly school fee payment
of R3,394.50 as opposed to R5,475.00 per month.
He further states that this exemption would, to the best of his
belief, be available to him for at least the next 7 years, but
lays
no foundation for such contention and belief.
He further states that he is severely prejudiced by the first
respondent’s unreasonable conduct and persistent refusal
to
cooperate by not completing the application forms for such discount,
whereas in truth, according to the applicant, the first
respondent
would not be prejudiced by doing so.
There was an exchange of correspondence between the parties’
respective attorneys relating to this matter.
In response thereto, Antony David Reeler, the Head Master of the
second respondent, filed an affidavit in which it was stated
that
the second respondent would not be opposing the applicant but would
also not be supporting it. It would abide by the outcome.
Mr Reeler however, assisted the
Court by providing the following legal background:
16.1 Both the second and third
respondents were public schools as contemplated in the
South African
Schools Act, No 84 of 1996
(“
SASA
”);
16.2 The determination of payment
of such school fees is governed by the provisions of Chapter 4 of
SASA;
16.3
Sections 40
and
41
of SASA render every parent (i.e. in this
instance both the applicant and the first respondent) liable for
payment of school fees;
16.4 This meant that the applicant and the first respondent are
liable for payment of their children’s school fees,
irrespective
of the arrangement between them as to who is to pay and
in particular irrespective of the terms of the divorce order;
16.5 SASA provides for a system
of exemption (partial or complete) from liability to pay school fees.
This is contained in
Sections 39(4)
and
41
of SASA as read with the
Regulations for the exemption of parents from the payment of school
fees, 2005, published under GNR1052
of 18 October 2006 and amended by
GNR1149 of 17 November 2006 (“
the
Exemption Regulations
”);
The determining factor for
either partial or total exemption was primarily the parents’
combined annual gross income.
This meant “
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.
”;
Thus in order to determine
whether the applicant and first respondent were entitled to any
form of exemption, one had to have
regard, not just to the income
of the applicant, but also to that of the first respondent;
Thus, once one knew the annual gross income of the applicant and
the first respondent, it may be that they were not entitled
to even
partial exemption. This in turn could mean that the first
respondent would have to pay the school fees, even if the
applicant
qualified, and then, an obligation would be cast upon the first
respondent to recover same from the applicant. Alternatively,
if
the applicant was in fact unable to afford to pay those school
fees, he would have to seek a variation of the maintenance
arrangement;
Put crisply, the point to be
made was that the inability of one parent to pay school fees, did
not excuse both, and did not
excuse the other, from that
obligation;
In the premises, and in order for it to be determined whether the
applicant was entitled to partial or complete exemption,
one had to
have regard not only to his gross annual income, but also to that
of the first respondent;
In the circumstances, the applicant did not qualify for relief in
terms of prayer 1 of his notice of motion and exemption (whether
partial or total) from payment of school fees was determined in
accordance with the criteria and procedures outlined in SASA
and in
the Exemption Regulations.
The applicant did not take issue with any of the submissions made by
Mr Reeler.
The first respondent opposed the relief sought on the basis that the
applicant had agreed in 2008 in terms of the settlement
agreement,
which was made an order of Court on 23 January 2008 to be fully
responsible for payment of the school fees for the
three minor
children from 1 February 2008 until their school education was
completed.
Essentially, the first respondent contended that she paid all the
other expenses in respect of the three minor children and she
denied
that the applicant could not afford to pay the schooling fees, he
having consented thereto. Furthermore, she contended
that the
applicant had failed to disclose to the other respondents the
material information relating to his finances and the
existing
maintenance order.
In response thereto, the applicant contended that he was perplexed
by this answer, had not seen his children for at least 3 years,
was
unable to keep up with the school fees and was entitled to apply for
an exemption from school fees but required the first
respondent’s
assistance to do so.
At no stage did the applicant explain to the Court why he qualified
for any type of reduction in school fees. In particular,
he never
disclosed his monthly or annual gross income.
Thereafter the applicant’s
attorney of record, Paul Lategan confirmed that Mr Reeler’s
affidavit was a fair and detailed
exposition of the legal issues
pertaining to this matter and confirmed that this Court was not in a
position (based on the facts
set out in the founding affidavit) to
grant the relief prayed for in prayer 1 of the notice of motion.
During the argument of this matter, it became clear that neither the
applicant nor the first respondent had declared their monthly
or
annual income. This was the most significant factor required in
order to determine whether the applicant qualified for a
reduction
or exemption of school fees.
In the absence of this
information, it was not possible to determine whether the applicant
would be an appropriate candidate and
entitled to apply for and be
granted any form of exemption from the payment of school fees in
respect of the minor children.
The applicant bore the onus of
proof in this matter and in this particular regard, had failed to
satisfy same. Consequently the
matter fell to be dismissed with
costs.
It was on this basis, and having
explained my view in this regard to the applicant’s Counsel,
that I dismissed the matter
with costs.
_____________________________________
L M HODES S.C
ACTING JUDGE OF THE SOUTH GAUTENG
HIGH COURT, JOHANNESBURG
6 December 2011