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[2019] ZAGPJHC 268
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R Z v South African Hellenic Educational and Technical Institute (A3176/2018) [2019] ZAGPJHC 268 (19 August 2019)
SAFLII
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Certain
personal/private details of parties or witnesses have been
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REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG LOCAL DIVISION, JOHANNESBURG
CASE NO: A3176/2018
In the matter between:
Z:
R
Appellant
and
THE
SOUTH AFRICAN HELLENIC
EDUCATIONAL
Respondent
AND TECHNICAL INSTITUTE
J U D G M E N T
MAHALELO,
J
:
[1]
This is an appeal against
the whole of the judgment and order of the Magistrate (Mr Texera)
granted in favour of the respondent
on 17 August 2018 against the
appellant for payment of arrear school fees in the amount of R
615 135.25 together with interest
and costs.
BACKGROUND
[2]
The background culminating
in the litigation in the Magistrate Court is set out hereafter.
[3]
The respondent (plaintiff
in the
court a quo
)
is the South African Hellenic Educational and Technical Institute
(“SAHETI”), an independent school duly registered
as such
in terms of
section 46
of the
South African Schools Act 84 of 1996
.
The first defendant in the court a quo is the biological father of
five children who is married to the second defendant (appellant).
[4]
On 27 January 2009 and 1
February 2010, the respondent and the appellant and the first
defendant entered into written agreements
namely “POC1”,
POC2”, POC 3”, and POC 4” in terms of which the
respondent would supply schooling
services to the appellant and the
first defendant’s children for the school terms during the
periods 2009 until December
2014 (the period). The appellant and the
first defendant bound themselves to effect payment of the school fees
for schooling services
provided by the respondent in respect of their
minor children.
[5]
The first minor child was
enrolled at the respondent in 1995, the second in 1997, the third in
2001, the fourth in 2005 and the
fifth is till attending school. The
first to fourth children have completed their schooling with the
respondent.
[6]
The respondent contended
that it had complied with its obligations in terms of the agreements
and submitted that the appellant and
her husband have breached the
terms of the agreements in that they failed to pay the school fees as
agreed. On or about 15
April 2015 the respondent issued summons
against the appellant and her husband. The summons were served on the
appellant only.
In the summons the respondent prayed for judgment
against the appellant and the first defendant jointly and severally
the one paying
for the other to be absolved. Because of non-service
of the summons on the first defendant the respondent chose to pursue
its claim
against the appellant only and judgment was granted against
her in the amount of R 615 135.25, plus interest and costs.
[7]
The court a quo found in
favour of the respondent and make the following order against the
appellant:
7.1 Payment of the reduced proved sum of R 615 135.25 by the
second defendant to the plaintiff;
7.2 Interest on the sum of R 615 135.25 at the rate of 9% per
annum from the date of service of summons on the second defendant
(as
prayed for in the summons);
7.3 Second defendant to pay the costs of suit.
[8]
The appellant appeals
against the whole of the judgment and order of the court
a
quo
and contends that
the Magistrate erred in the following respects:
1.
Failing to find that the
agreements relied upon by the plaintiff proved that the first
defendant was the sole party responsible
for payment of the school
fees.
2.
Finding that the existence
of the oral agreement was improbable and dismissed the evidence of
the appellant as hearsay evidence,
and
3.
Failing to find that the
settlement agreement concluded between the respondent and the first
defendant discharged the liability
(if any) of the appellant.
[9]
The appellant raised the
following:
1.
She concluded an oral
agreement with the respondent’s representative Mrs Hoffman
whereby it was agreed that the first respondent
would be solely
responsible for the payment of the school fees.
2.
There was no general
undertaking by the appellant to be liable for school fees.
Contractually, in accordance with “POC 2”,
only the first
defendant was responsible for payment of school fees for their
children.
3.
“POC1” was
terminated as a result of performance of the relevant obligation
(payment of the school fees for 2009) further,
“POC1” was
novated by “POC 2”
THE
APPELLANT’S VERSION
[10]
She disputes that she is
jointly and severally liable to pay for her children’s arrear
school fees with the first defendant.
She testified that she stopped
working in 1996 and the first defendant has been the one responsible
for payment of all school fees
for their children. She explained that
she concluded an oral agreement with the respondent’s
representative Mrs Hoffman the
import of which was that the first
defendant would be solely responsible for the payment of school fees
to the respondent. She
stated that the first defendant appended his
signature on “POC 2” rendering himself solely responsible
to make payment
of the school fees. She further said that the
correspondence exchanged between the first defendant and the
respondent clearly indicate
that the first defendant accepted sole
responsibility and the respondents acted in terms of the oral
agreement by addressing invoices
and statements with regard to school
fees to the first defendant only. She added that in any event the
respondent’s claim
had become settled. The settlement agreement
was concluded between the respondent and the first defendant, the
terms of which were
that the first defendant would make an interim
payment of R 3000 per month where after an amount of R 120 000
would be paid
on the sale of the first defendant’s immovable
property. She handed up a letter marked exhibit “A”
written by
the respondent where an interim payment arrangement was
made with the first defendant. The appellant stated therefore that
the
settlement agreement put an end to the dispute between the
respondent and the defendants and the respondent could not seek
relief
based on the original cause of action but could only seek
relief in the event of a breach of the settlement agreement.
THE
RESPONDENT’S VERSION
[11]
The respondent placed
evidence before the court through its only witness Ms Holland, the
current credit controller. She testified
that she took over from Mrs
Hoffman in February 2014. She explained that “POC2” is a
document which merely indicated
a payment plan of the school fees. It
is titled payment option form. It indicates the method of payment of
the school fees. On
the other hand “POC3” is a parent or
guardian declaration. It indicates an undertaking by the signatories
thereof binding
themselves to abide by the policies of the school and
the payment of school fees. According to Ms Holland paragraph 1 of
“POC
3” also indicates that signatories are parents or
legal guardians of the learner(s) whose details appear on the payment
option
form therefore, “POC 2” is clearly a form
ancillary to “POC 3” and not the main agreement. She
stated that
“POC 2” contains no declaration of
liability for payment of school fees as one finds in paragraph 8 of
“POC
3” where it is stated; ”I/we hereby assume
absolute responsibility for the payment of any fees as a result of
the learner(s)
…. attending SAHETI School”.
[12]
With regard to the oral
agreement allegedly concluded between the appellant and Mrs Hoffman,
Ms Holland explained that Mrs Hoffman
could never have absolved the
appellant from her liability to pay school fees as she simply did not
have the authority to do so
as a credit controller and that not even
the Bursar of the school executive head could do so. Only the
school’s board could
on the advice of the finance committee. Ms
Holland testified further that there was no information at all in the
Zatezalo’s
school file which could indicate any such agreement.
Furthermore, the appellant had at no stage indicated to her that she
had an
oral agreement with Mrs Hoffman to the effect that only the
first defendant will be liable for school fees. Ms Holland explained
that in 2009 already, the appellant indicated in “POC4”
that the statements and school fees invoices should be sent
to the
first defendant, the father, and that school reports and
correspondence should be sent to her, and that currently statements
gets generated automatically by their financial system. If the
appellant and first defendant elected the father to receive the
statements and invoices the system would have been programmed
accordingly and it would explain why the statements were addressed
to
the first defendant. Ms Holland stated that despite the fact that the
statements and invoices were addressed to the first defendant,
the
appellant was always copied therefore, she received the statements
and in fact it is her who has discovered the statements
contained in
pages 138 to 191 of the trial bundle.
ISSUE
FOR DETERMINATION
[13]
There are three issues for
determination in this appeal. The first is whether the appellant is
contractually liable for payment
of arrear school fees and whether
“POC 2” together with the alleged oral agreement
superseded “POC 1” and
absolved her from her liability to
pay her children’s school fees, secondly whether there was a
settlement agreement concluded
between the respondent and the first
defendant with regards to the arrear school fees, and thirdly whether
the alleged settlement
novated “POC 3” and absolved her
from paying school fees.
LEGAL
PRINCIPLES
[14]
It is common cause that
the duty to pay school fees is that of the parents. Since independent
schools are autonomous, they do not
exercise a public function and
the relationship they have with the parents is contractual.
[15]
It is
settled law that generally a person who signs a contractual document
thereby signifies his assent to the contents of the document.
In
Burger
v Central South African Railways
1903
TS 571:
Innes CJ stated:-
“
it is a sound principle of law that a
man, when he signs a contract is taken to be bound by the ordinary
meaning and effect of the
words which appear over his signature.”
[16]
Non-payment of independent
school fees is a breach of contractual obligations by the signatory
and is enforceable by law.
[17]
The appellant alleged that
the oral agreement together with “POC 2” supersedes her
obligation to pay school fees in
terms of “POC 1” and
that she signed “POC 3” pursuant to the oral agreement
after she was told to sign
by Mrs Hoffman. She contended that in
terms of the oral agreement only the first defendant would be liable
for school fees by virtue
of signing “POC 2”.
THE
ORAL AGREEMENT
[18]
The appellant testified
that she had concluded an oral agreement with the respondent
represented by Mrs Hoffman on or about February
2010 the details of
which were that:
18.1
The respondent would only
accept the admission of children of the appellant and the first
defendant on condition that both the appellant
and the first
defendant were signatories to “POC 2”, “POC 3”
and “POC 4”;
18.2
The appellant would not be
liable or called upon to pay school fees and that the only person
responsible for such payment would
be the first defendant in
accordance with the contents of “POC 2”;
18.3
Annexure “POC 3”
and “POC 4” were only signed by the appellant pursuant to
the oral agreement;
18.4
Liability for school fees
is solely the responsibility of the first defendant in terms of the
written agreement and/or the oral
agreement since the only signatory
of “POC 2” (payment option form) is the first defendant.
[19]
According to the
appellant, the reason she did not sign “POC 2” was
because it was represented to her that the person
signing same
acknowledged responsibility that he would be the only person liable
for payment of school fees.
[20]
The trial court, correctly
in my view, rejected the appellant’s version regarding the
validity of the oral agreement as highly
doubtful. Even though the
trial court misdirected itself by finding the allegations about the
oral agreement to be hearsay, fact
of the matter is that according to
the appellant the alleged oral agreement was reached between herself
and Mrs Hoffman and it
pertained to the first defendant who was not
party to agreeing to his sole liability towards payment of the school
fees. There
is nothing in writting to confirm the alleged oral
agreement. What is in writing is the appellant’s signature on
“POC
3” assuming responsibility together with the first
defendant for payment of the school fees for their children. The
respondent’s
witness testified that no agreements or
representations pertaining to payment of school fees could be
authorised by a credit controller.
Such decisions ought to have been
decided by the school treasury subcommittee or the school board. In
any event, on the reading
of the correspondence between the
respondent and the appellant entered into over a period, at no stage
did the appellant expressly
state that there was such an oral
agreement in place or state the terms thereof.
[21]
It is important to note
that the written agreement between the parties in particular “POC
3” pertains to the year 2010.
In “POC 3” the
appellant has by her signature, together with the first defendant
accepted responsibility and therefore
liability for the payment of
school fees for 2010. “POC 3” is headed “2010
parent/guardian declaration”.
It briefly reads that:
“
1. I/we am/are the parent/legal guardian(s) of the
learner(s) whose details appear on the ‘payment option’
form. I/we
have read and understood the policies of the school as
published in the SAHETI information booklet….
8. I/we hereby assume absolute responsibility for the payment of
any fees as a result of the learner(s) referred to in point 1 above
attending SAHETI school;
9. I/we acknowledge that school fees are payable in advance and
that facilities exist from termly (3 payments) or monthly payments
over 10 months;
10. I/we acknowledge that should any one instalment payable in
terms hereof not be paid on due date, then the whole balance
outstanding
shall immediately become due and payable by me/us, and no
indulgence or grant of time by SAHETI shall be deemed a waiver
of its rights hereunder….;
11. As a period and method of payment, I/we choose the option as
signed for on ‘payment option’ form attached hereto;”
[22]
At the bottom of “POC
3” the following appears;
“
It is a condition of attendance at SAHETI School that both
parents/legal guardian(s) of relevant learner(s) signs in the space
provided
below. The Board will consider this declaration null and
void if this document is altered in anyway and therefore the pupil/s
will
not be able to register at the School for 2010.”
“POC 3” has been signed by both the first defendant and
the appellant.
[23]
“POC 2”, which
was signed by the first defendant, is headed “Payment option
form for school fees 2010”.
The relevant part thereof reads as
follows:
“I/we G Z (full name of person(s) responsible for payment of
fees), Guardian/parent of D Z (11), N Z (8), L Z (4) and M Z
(play
school).”
It is important to note that no election has been made regarding the
method or option for payment of school fees.
DOES
“POC 2” AND THE ALLEGED ORAL AGREEMENT SUPERSEDE POC 1?
[24]
The appellant
argued that annexure “POC 2” together with the oral
agreement superseded her obligation to pay school
fees in terms of
“POC 1”. I agree with the trial court that there is
no proper substantiation for this argument
”POC 1” was
signed only by the appellant in 2009. “POC 2” and “POC
3” were entered into in
2010. It is correct that “POC
2” and “POC 3” makes no reference to the previous
year. In my view
“POC 1” refers to
a
deposit payable
and
reads as follows:
“
On receipt of confirmation that
my/our child has been accepted at SAHETI, I/we undertake to pay one
term’s fees in advance,
as a deposit. This deposit will be
retained by SAHETI until the child leaves the school and all
financial obligations have been
met”
[25]
It cannot therefore be
said that “POC 2” and the oral agreement (if any)
absolved the appellant from her obligations
to pay school fees in
terms of “POC 1”. “POC1” cannot be
interpreted to be an obligation on the part of
the appellant to pay
for the children’s school fees for the entire schooling period.
HAS
THE RESPONDENT’S CLAIM BECOME SETTLED
[26]
The appellant argued that
the respondent’s claim had become settled. The settlement was
that the first defendant would make
an interim payment of R 3000 per
month where after an amount of R 120 000 would be paid on the
sale of the first defendant’s
immovable property. The appellant
therefore argued that the school entered into a settlement agreement
with the first defendant
to accept a lesser amount in lieu of arrear
school fees and can no longer sue on the original cause of action
because the settlement
agreement put an end to the dispute between
the parties.
[27]
I agree with the trial
court that there is no merit in this argument. The purported
settlement is contained in a letter, Exhibit
“A”, which
was written by the executive head of the respondent dated 08 May
2014. The contents thereof reads as follows;
‘’
To whom it may concern
This serves to confirm that Mr G Z has a
standing interim payment arrangement with the school to pay R 3000
per month. This arrangement
will be reviewed in July 2014 with the
view of establishing a new arrangement based on financial capacity to
meet the payment requirements
of the full school fees.
In addition, there is an undertaking by Mr
G Z to pay an amount of R 120 000 on transfer of the sale of his
property.
Yours faithfully
W Taylor
Executive Head”
[28]
The letter clearly states
that the arrangement was interim and would be reviewable in July of
2014. The review mentioned in the
letter occurred in the form of a
meeting with the new credit controller (Ms Holland) on 4 July 2014.
At this meeting both the first
defendant and appellant were present.
Ms Holland recorded the following to minute the discussions which
took place during the meeting;-
“
They paid R123 000 today. They are asking for one
month extension to give them time to gather more money. They need to
deliver
by end of July, failing, the children will be excluded in the
third term.”
[29]
This note is signed by
both the first defendant and the appellant. In my view and as
correctly found by the trial court, there was
no settlement agreement
entered into between the first defendant and the respondent on 8 May
2014. This is borne out by the minutes
of the meeting which reviewed
the payment arrangement agreed to in the letter of 08 May 2014.
[30]
The appellant further
argued that the letter of 08 May 2014 purports to be a possible
novation in that the school accepted that
the first defendant pay a
reduced amount of R 120 000 upon the sale of his immovable
property and in the meantime R 3000 per
month towards arrear school
fees, as such the respondent absolved her from liability. As the
respondent correctly argued in this
court and the court a quo,
accepting an interim payment arrangement to pay off school fees and
writing off school fees are two
different things. A review took place
in July 2014 where both parents were present where both of them
requested more time to find
more money to pay. The appellant signed
the minute of the meeting acknowledging the contents. The court a quo
was in my view correct
in finding that the letter by the executive
head of the respondent did not novate the written agreement between
the school and
both parents to pay arrear school fees, nor were there
any school fees written off.
[31]
The appellant did indeed
sign annexure “POC3” where it is clear that absolute
responsibility was assumed for the payment
of school fees by both
parents signing. The fact that the appellant signed as a
“responsible” parent does not absolve
her of her
liability in the eventuality of a claim rising as in this case. While
the appellant argued that she signed “POC
3” on the basis
of the oral agreement and upon the first defendant signing “POC
2” which he signed for alone,
it cannot be accepted that on
this basis liability for payment of school fees is solely the
responsibility of the first defendant,
neither in terms of the oral
agreement (if any) nor in terms of the written agreement. The fact
that the first defendant signed
“POC 2” alone does not
impute sole liability on him as “POC 2” is simply a
document which pertains to “payment
options”. Whilst he
signed this form alone as the person responsible for payment, it
cannot reasonably be read from this
form that because he was
responsible for payment he was the only parent liable for school
fees. The appellant in “POC 3”
acknowledged that she was
also liable.
[32]
Subsequent to 2010 the
appellant and the first defendant continued to re-enrol their
children at the school. In
Head
of Department Western Cape Education Department and others v S
2018
(2) SA 418 (SCA),
[2018] 1 ALL SA 640
(SCA), the Supreme Court
of Appeal held that parents at a public school are jointly and
severally liable for their children’s
school fees as opposed to
jointly liable. The court considered the prejudice which the culture
of non-payment of school fees by
parents has on children’s
education. Independent schools operates at their own costs whilst
public schools are funded by
the State. This means that all the
resources and services of an independent school must be paid for by
the school. School fees
are the primary, if not the only, income for
independent schools which they use to offer quality educational
services to their
students. In the same vein, it can therefore be
reasonably said that defaulting parents pose a similar sustainably
risk for the
independent schools.
[33]
An obligation to pay
independent school fees is never foisted upon any unwilling parents.
Parents freely and voluntarily choose
to apply for and sign a
contract(s) that clearly outlines their responsibility to pay for
their children’s school fees at
the independent school of their
choice and liking.
[34]
I have already indicated
that the appellant did indeed sign “POC 3” where she
assumed responsibility for payment of
school fees together with the
first defendant and that the appellant was in no way absolved from
her obligation or liability to
pay school fees. In conclusion I find
that the Magistrate did not misdirect himself regarding any findings
of fact or application
of the law in this matter. The appeal
therefore stands to fail.
[35]
In the result I make the
following order,
31.1
The appeal is dismissed
with costs.
________________________________________
M B MAHALELO
JUDGE OF THE HIGH COURT
GAUTENG LOCAL DIVISION, JOHANNESBURG
I agree
________________________________________
H NGOMANE
ACTING JUDGE OF THE HIGH COURT
GAUTENG LOCAL DIVISION, JOHANNESBURG
APPEARANCES
FOR THE APPELLANT: ADV R BHIMA
INSTRUCTED BY: HAJIBEY-BHYAT INC
FOR THE RESPONDENT: ADV AJJ du PLOOY
INSTRUCTED BY: CHRISTELIS ARTEMIDES
DATE OF HEARING: 06 MAY 2019
DATE OF JUDGMENT: 19 AUGUST 2019