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[2017] ZASCA 187
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Head of Department Western Cape Education Department and Others v S (1209/2016) [2017] ZASCA 187; [2018] 1 All SA 640 (SCA); 2018 (2) SA 418 (SCA) (13 December 2017)

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THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Case
No: 1209/2016
Reportable
In
the matter  between:
HEAD
OF DEPARTMENT WESTERN
CAPE
EDUCATION
DEPARTMENT
FIRST
APPELLANT
MEMBER
OF THE EXECUTIVE COUNCIL FOR
EDUCATION
IN THE WESTERN CAPE PROVINCIAL
GOVERNMENT
SECOND
APPELLANT
MINISTER
OF BASIC
EDUCATION
THIRD
APPELLANT
and
M
S
RESPONDENT
WOMEN’S
LEGAL
CENTRE
AMICUS
CURIAE
Neutral
Citation:
Head
of Department: Western Cape Education Department & another v S
(Women’s Legal Centre as Amicus Curiae)
(1209/2016)
[2017] ZASCA 187
(13 December 2017)
Coram:
Navsa
ADP and Tshiqi, Seriti and Saldulker JJA and Makgoka AJA
Heard:
23
November 2017
Delivered:
13
December 2017
Summary:
Interpretation
and application of
s 40(1)
of the
South African Schools Act 84 of
1996
– subsection provides for joint and several liability –
fee-exemption applications can, however, be processed in terms
of the
Act and the Regulations to enable single parents separated from their
partners or divorced from a spouse to have their applications

assessed in relation to their own personal circumstances and not on
combined income.
ORDER
On
appeal from:
Western
Cape Division of the High Court, Cape Town (Le Grange J sitting as
court of first instance):
1
The appeal and the cross-appeal succeed to the extent reflected in
the substituted orders that appear hereafter. The appellants
are
ordered jointly and severally to pay the respondent’s costs in
relation to both the appeal and the cross-appeal, such
costs to
include the costs of two counsel.
2
The order of the court below is set aside and replaced as follows:
‘
1 The decision of
the First Respondent, in the appeal in terms of s 40(2) of the South
African Schools Act 84 of 1996 (the Act)
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 Respondent’s
decision, is reviewed and set
aside.
2 It is declared that in
processing and dealing with the applicant’s applications for a
fee exemption in 2011, 2012 and 2013,
the school and its governing
body subjected her to repeated violations of her constitutional and
statutory rights.
3 It is declared that in
terms of s 40(1) of the Act the Applicant and her former husband are
jointly and severally liable for their
child’s school fees.
4 It is declared that the
Applicant was entitled to have her applications for a fee-exemption
and the related appeals dealt with
in the manner set out hereafter
with reference to the Regulations relating to the Exemption of
Parents from Payment of School Fees
in Public Schools (Government
Notice R.1052 in Government Gazette 29311 of 18 October 2006) as
amended (‘the Regulations).
All public schools, governing
bodies and education Departments must comply therewith in relation to
the Applicant and all other
parents who are in the same or similar
situation as the Applicant:
(a) The governing body of
a public school shall grant a conditional exemption from payment of
school fees, referred to in Regulation
1 of the Regulations, to a
parent who:
(i) in his or her
application for exemption:
(aa) gives particulars
for his or her total annual gross income; and
(bb) does not give
particulars of the total annual gross income of the other parent of
the learner concerned because the other parent
has refused or failed
to provide such particulars to the parent applying for the exemption;
and
(ii) having regard solely
to his or her total annual gross income, would qualify for a total or
partial exemption in terms of the
Regulations if he or she were the
only parent of the learner concerned.
(b) A conditional
exemption shall be the total exemption or the partial exemption to
which the applicant would have been entitled
if he or she were the
only parent of the learner concerned.
(c) When granting such a
conditional exemption the governing body shall impose conditions to
the effect that the applicant for the
exemption:
(i) must report to the
school forthwith any increase in his or her gross annual income
during the school year in question which,
had it been his or her
income at the time of making the application for exemption, would
have disentitled him or her from receiving
the total exemption
granted to him or her or from receiving any partial exemption granted
to him or her;
(ii) must, on demand from
the governing body, pay on reasonable terms to be determined by the
governing body after giving him or
her the opportunity to make
representations, the school fees or the portion of the school fees
for which he or she would have been
liable in terms of the
Regulations based on his or her increased gross annual income;
(iii) shall not be liable
to make any such payment unless, during the school year in question,
his or her gross annual income increases
to such an extent that, had
it been his or her income at the time of making the application for
exemption, he or she would have
been disentitled from receiving the
total exemption granted to him or her or from receiving any partial
exemption or he or she
would have been entitled only to a lesser
partial exemption than the one granted to him or her.
5. It is declared that
the granting of such a conditional exemption shall not preclude the
public school from taking legal steps
to enforce payment, by the
other parent of the learner concerned, of the school fees or the
balance of the school fees, as the
case may be, in terms of section
41(1) of the Act.
6. The Respondents are
liable jointly and severally to pay the Applicant’s costs,
including the costs occasioned by the employment
of two counsel.’
JUDGMENT
NAVSA
ADP (Tshiqi, Seriti and Saldulker JJA and Makgoka AJA concurring)
:
[1]
The principal dispute encompassed in an appeal and cross-appeal,
before us with the leave of the court below, is whether liability
of
biological parents for school fees at public fee paying schools, as
provided for in s 40(1) of the South African Schools Act
84 of 1996
(the Act), is joint liability, or joint and several liability, and if
the latter, whether the consequences are such
as to impact
disparately, negatively and ultimately unlawfully on single parents
who are separated from their partners or divorced
from their spouses.
I shall for convenience refer to the parties as they are in the
appeal.
[2]
Mothers like the respondent, Ms S, who are separated or divorced from
their partners or spouses, are more often than not custodian
parents
who are left, at the coalface, so to speak, to deal with schools who
seek payment from them. As noted by this court in
Fish Hoek
Primary School v GW
2010 (2) SA 141
(SCA) (para 13):
‘
Historically, mothers have been
the primary care-givers of children in this country. That continues
to be so. It is almost always
mothers who become custodial parents
and have to care for children on the breakdown of their marriage or
other significant relationships.
That places an additional financial
burden on them and the sad reality is that they then become
overburdened in terms of responsibilities
and under-resourced in
terms of means.’
[3]
When the mother of a child whose former partner or spouse refuses to
co-operate, she is more often than not, as in the case
of the
respondent, called upon to account to the school for issues or
problems related to the non-payment of school fees. In the
normal
course, in the event of joint and several liability being imposed,
she would be liable for the full amount of the fees with
a right of
recovery against the other parent for its share. The responsibility
for recovery is placed on the custodian parent and
not on the school.
This, so it was submitted in the court below on behalf of the
respondent and by the amicus curiae, the Women’s
Legal Centre
(the WLC), results in discrimination against the custodian parent,
often the mother, by treating her exemption application
in the same
way as exemption applications by parents living in joint households.
It was contended that this practice also operated
in favour of
non-custodian parents, often the father.
[4]
In the court below, it was submitted on behalf of Ms S, that s 40(1)
of the Act should be interpreted so as to impose liability
on parents
on a joint, rather than joint and several basis and she sought an
order to that effect. This, so it was argued, would
entitle mothers
such as Ms S to apply for an exemption from paying school fees and
that an assessment in that regard would be based
on their own means
and ability to pay rather than on the joint income of both parents.
In the alternative, Ms S sought an order
declaring s 40(1)
unconstitutional and a further order declaring that Ms S qualified
for a fee exemption.
[5]
To facilitate a better understanding of what is set out in the
preceding paragraph and of what follows, it is necessary at this

early juncture to set out the provisions of s 40(1) of the Act:
‘
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’.
In
the present case the scheme of the Act and the regulations
promulgated thereunder, in relation to the question of exemption from

payment of fees, is critical in addressing the vulnerable position
that parents such as the respondent find themselves in.
[6]
Before dealing with the background leading up to the hearing before
us it is necessary to point out that the enforceable order
at the end
of this judgment, bearing on the principal dispute between the
parties, is largely due to a productive debate between
the court and
counsel on behalf of the parties that led to an accommodation being
reached by them on its material terms, and endorsed
by us on a proper
interpretation of the legislation in issue. The reasoning in relation
to the interpretation of s 40(1) of the
Act and the regulations
thereunder is set out later. This judgment, especially in relation to
the principal issues, is of importance
to a vast number of parents
across the country who find themselves in the same or similar
position as  Ms S. The parts of
the order not agreed upon that
were left to the court to decide are mostly accessory to the
principal orders. It needs to be said
that the parties’ legal
representatives, in reaching the accommodation, displayed an
admirable maturity. It also demonstrates
how sound and keen minds can
be usefully employed in the national interest to advance and protect
constitutional values.
[7]
The appeal and cross-appeal we were called upon to adjudicate are
before us on the following basis. The Head of the Western
Cape
Education Department (the HOD), the Member of the Executive Council
for Education in the Western Cape Provincial Government
(the MEC) and
the Minister of Basic Education, the first, second and third
appellants respectively, appeal against an order of
the Western Cape
Division of the High Court, Cape Town (Le Grange J), in terms of
which it was declared that Ms S, and her former
husband (Mr G), from
whom she is divorced, are ‘jointly’ and not ‘jointly
and severally’ liable for the
school fees of their daughter
(the child) at Fish Hoek High School (the school). Ms S cross-appeals
against the dismissal of the
further orders she had sought in the
court below. The appeal and cross-appeal are before us with the leave
of the court below.
At the time that the dispute between the parties
arose, the child was a grade 10 learner at the school. Happily, she
has since
then matriculated and is presently pursuing a degree at
University. I shall, in due course, set out the very lengthy list of
orders
sought by Ms S. The background culminating in the litigation
in the high court is set out hereafter.
[8]
Ms S is a newspaper reporter. In March 1999, following the breakdown
of her marriage, a settlement agreement was concluded with
Mr G,
which was made an order of court. It provided, inter alia, for
maintenance for their child. The order was subsequently varied
by a
maintenance court in terms of which Mr G was required to pay an
amount of R2 500 per month. This was later increased to R3
300 per
month.
[9]
The child was admitted to the school in January 2011 where she
commenced grade 8. Ms S’s assertion that she made it clear
at
the outset that she would be applying for a fee exemption is
unchallenged. The school fee for that academic year was R13 250.
At
that time Ms S’s annual salary was R160 284, in addition
to which she received maintenance from Mr G in an amount
of R33 540
per year.
[10]
The practice at schools under the aegis of the HOD and the MEC is
that official forms are handed to children for the attention
of their
parents. The form informs parents about their responsibilities in
relation to school fees and provides payment options.
Ms S was
referred to the bursar’s office where she received a form in
terms of which she could apply for an exemption. The
form required,
inter alia, the combined annual gross income of a child’s
parents to be provided. In addition to the breakdown
in the
relationship with Mr G and the difficulty in obtaining the required
information she also considered it an infringement of
her right,
relative to her circumstances, to apply as an individual for a fee
exemption. Simply put, the form did not provide for
parents in Ms S’s
position, namely that of a divorced custodian parent entitled to be
considered for an exemption relative
to her personal circumstance,
distinct from her former spouse.
[11]
The following part of her founding affidavit bears repeating:
‘
On 1 March 2011 I submitted my
fee exemption application. In support of the application I attached
an affidavit completed in terms
of Annexure “B” of the
Regulations,
[1]
as it did not contain a declaration
that needed to be signed by both parents (as requested by the
school). I also explained that
I get a monthly payment out of which
all my daughter’s expenses were to be paid and stated that my
financial position should
be considered separately from that of my
ex-husband. A copy of this letter together with the affidavit and
other supporting documents
is annexed . . . .’
[12]
The school responded, in a letter dated 11 March 2011, by stating
that in order for it to consider the application for exemption,
it
required the gross combined income of both biological parents. The
school was adamant that it would only consider the application
upon
receipt of the particulars of Mr G’s income.
[13]
On 9 May 2011 the school wrote a further letter to Ms S in which it
re-iterated that position. The school informed her that
it had
written to Mr G and had sent him the exemption application form, in
terms of which financial assistance was sought and that
it had
received no reply. The letter concluded by stating that the school
governing body would not be in a position to consider
the application
without the required information from both parents.
[14]
On 31 May 2011 Ms S responded, asserting that she had supplied all
the information at her disposal, justifying her application
for
financial assistance, and drew the governing body’s attention
to Regulation 9(3) , which provides:
‘
No applicant may be
disqualified on the grounds that his or her application form is
either incomplete or incorrectly completed.’
[15]
She went on to state that she was unable to supply Mr G’s
financial particulars and that it was unreasonable for the
school to
expect her to obtain and provide them. She called on the school, in
the interim, to provide her with a conditional exemption,
until it
had obtained the information from him. Ms S stated that according to
her calculations, based on the formula provided for
in the
Regulations, she was entitled to a discount of R9 673 and was only
personally liable for the difference between that amount
and the
amount of the school fees set out above, namely R13 250. She was
adamant that her contribution to the school fees and that
of Mr G
needed to be calculated separately.
[16]
To this, the school responded by way of a letter dated 28 June 2011
in which it was adamant that both parents were equally
responsible
for the payment of school fees and that it did not wish to get
involved in a dispute between parents which it described
as ‘personal
matters’. She was requested to direct all further communication
to the school’s attorney.
[17]
On 8 July 2011 Ms S advised the school in a letter that there was no
dispute between her and Mr G and required clarity on whether
her
application for an exemption had been processed and the outcome
thereof. Predictably, the school responded, during July 2011,
by
stating that since it had not received the full co-operation of both
parents it had been unable to finalise her application
for an
exemption. The school informed her that Mr G had conveyed to them
that school fees were included in the maintenance payments
he was
making to her monthly.
[18]
Equally adamant, Ms S wrote a letter on 3 August 2011 in which she
stated that she had given her ‘full co-operation’
and
provided all the information at her disposal and that Mr G’s
co-operation was a matter beyond her control. She enquired
why, under
the prevailing circumstances, she had to bear the burden of obtaining
the outstanding information. She requested a ruling
on her
application for an exemption.
[19]
In a letter addressed to both parents, dated 11 November 2011, the
governing body informed Ms S that it was not in a position
to provide
her with a fee exemption as it was unable to determine the income of
both parents. It is necessary to repeat the following
parts of the
letter:
‘
From the information we have
gleaned to date it does not appear that your income as a family unit
would entitle you to such an exemption.
. . .
Your failure to act and to resolve
your differences leaves us with no alternative but to hand this
matter over to our attorney for
him to act in terms of the law to
recover the school fees. The courts can then apportion payments and
you can cover the cost of
that intervention.
We will hand this matter to Attorney
Leon van Rensburg on 30 November 2011 unless you both submit
completed exemption forms or pay
the outstanding fees.’
[20]
Ms S objected to what she considered to be the bullying tone of the
letter and responded by requesting a ruling on her application
for
exemption. She took umbrage at being described as a family unit with
Mr G. She was offended and felt humiliated. Further exchanges

included a threat by the school of legal action upon a failure to
arrange for payment of the school fees. Ms S met with the school’s

attorneys in an effort to resolve the impasse but walked out of the
consultation when it was suggested that she was collaborating
with Mr
G to the detriment of the school. Thereafter the school’s
attorneys sent her a letter of demand claiming payment
of school fees
for the 2011 academic year in an amount of R7 250, described as
‘arrear school and related fees’. This
was followed by a
summons being issued out of the Simons Town Magistrate’s Court,
served on Ms S in May 2012, with the school
claiming payment of that
amount. Ms S filed a plea. At present, that
lis
is pending.
[21]
In 2012 the same problem arose. On 16 February 2012 Ms S applied for
a fee exemption in the same manner as the previous year.
She stated
that her income for that year was an amount of R186 325, which
comprised her salary and maintenance payments. Initially
the school
reassumed its prior position. However, on 1 March 2012, the school
changed tack. It sent Ms S a letter directing her
to submit an
application for financial assistance. It stated that a separate
application form would be dispatched to Mr G. This
time, wary of what
might ensue, Ms S approached attorneys for assistance who entered
into communication with the school. The attorneys
wrote the school on
12 March 2012, indicating that it interpreted the letter of demand –
this occurred before summons was
issued – as a refusal to grant
an exemption for both the 2011 and 2012 academic year. The letter
signalled Ms S’s intention
to appeal both decisions to the HOD.
[22]
Consequently, on 15 March 2012, appeals were noted against the
refusal of both exemption applications. On 24 March 2012, following

upon a request from the school concerning her fee exemption
application for that year, Ms S supplied such information as was at

her disposal.
[23]
On 11 April 2012, the HOD requested the school to furnish particulars
in respect of Ms S’s 2012 exemption application.
The school
responded in writing, reiterating its initial position that it could
not consider the application for exemption until
it was in possession
of all the prescribed documentation and proof of income of both
biological parents.
[24]
On 30 May 2012, the HOD informed Ms S in writing that her appeal in
respect of the 2011 year could not be considered as it
had been
received outside of the prescribed 30 day period. In respect of her
appeal in relation to the 2012 academic year, her
appeal was upheld
and she was granted an exemption of 83 per cent. The relevant part of
the letter from the HOD reads as follows:
‘
However, after careful
consideration of your appeal against the decision of the governing
body of Fish Hoek High School not to grant
you exemption from the
payment of school fees for 2012, I have decided, in terms of
regulation 8(4) of the Regulations for the
Exemption of Parents from
the Payment of School Fees, 2006, that your appeal be upheld. The
current school fees per learner at
Fish Hoek High School constitutes
7,71 % of your annual gross income. In terms of regulation 6(4) of
the aforementioned regulations
and the table, you   qualify
for 83 % exemption from the payment of school fees in respect of your
daughter, . . .,
for
the 2012 school year.’
[2]
[25]
For the remainder of the 2012 academic year, Ms S paid school fees in
accordance with that exemption. During August of that
year, she
received a letter of demand informing her that she owed an amount of
R10 910. The letter claimed that she had failed
to apply for or
qualify for any exemption from school fees and should it not be paid
within 90 days, legal action for recovery
of the money would be
launched. The letter of demand recorded the outstanding amount of R7
250 for the prior year being brought
forward. On 4 September 2012,
she returned the letter of demand to the school informing them that
her appeal had been successful.
[26]
In relation to the 2013 academic year, Ms S, once again, submitted a
fee exemption application. She supplied personal financial

information and applied the formula provided for in the Regulations,
indicating that she would again be entitled to an 83 per cent

exemption from school fees. She received no response to that
application.
In May 2013 she received a letter of demand from the school stating
that she owed R12 800 in respect of school fees
for the 2013 academic
year. Legal action upon default was threatened.
[27]
On 28 May 2013 Ms S’s attorneys appealed on her behalf to the
HOD against the school’s refusal to grant her a fee
exemption.
The HOD informed her that the school had been requested to consider
and determine her fee exemption application and
to inform her of the
outcome. She subsequently received a further letter of demand from
the school threatening legal action. In
consequence Ms S’s
attorneys wrote to the HOD asking her to decide the appeal. The
school governing body engaged the Department,
stating that an attempt
by the HOD to grant an exemption based on the financial information
of only one parent might be outside
the law and the governing body
would, in that event, ‘take a very strong position’. Ms
S’s attorneys wrote to
the Department stating that the
governing body’s insistence upon the application for exemption
being conditional upon Mr
G disclosing financial information was
unreasonable. The HOD adopted the position that she could only
exercise appeal powers after
the governing body had considered and
made a decision on the application for exemption. Ms S’s
attorneys sent a letter of
demand to the governing body insisting
that a decision be made on the exemption application.
[28]
On 12 September 2013 Ms S was informed by the governing body that her
application for exemption had been declined. Subsequently,
the HOD
was requested to decide Ms S’s appeal. Later that month the HOD
wrote to Ms S’s attorneys advising her that
the appeal was
lodged out of time, beyond the prescribed period of 30 days from the
date of notification from the school governing
body, and could
therefore not be entertained.
[29]
Ms S’s attorneys, in response, pointed out that an earlier
notification letter  from the governing body had been
wrongly
addressed and had thus not been received and that the appeal was
therefore not lodged out of time. There was no reply by
the HOD.
[30]
During October 2013 Mr G informed Ms S that he had been served with a
summons in which fees for the 2013 academic year, in
an amount of R7
383, was claimed from the two of them jointly and severally.
[31]
The series of events set out above led to Ms S applying in the
Western Cape Division of the High Court for extensive relief,
inter
alia, in the following terms:
‘
2. Reviewing and setting aside
the decision of the First Respondent, in an appeal in terms of
section 40(2)
of the
South African Schools Act 84 of 1996
. . ., made
on or about 19 September 2013, dismissing the Applicant’s
appeal against the Second Respondent’s decision
to refuse her a
partial exemption from the payment of 2013 school fees.
3. Declaring that:
3.1 the Applicant and the Sixth
Respondent, 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;
3.2 [Mr G] is not [the child’s]
“
parent”
for purposes of determining the “
combined
annual gross income of parents”
in
Regulation 6(2)
, read
with the definition of this phrase in
Regulation 1
, of the
Regulations relating to the exemption of parents from payment of
school fees in public schools, promulgated in GN 1052
of 18 October
2006 (“the Regulations”);
3.3
in
the alternative to paragraph 3.2:
Regulation
6(2), read together with the definition of the phrase “
combined
annual gross income of parents”
in
Regulation 1,
[3]
is inconsistent with the Constitution
and invalid; and
3.4 the Applicant qualifies for a
fee-exemption for the 2013 academic year, together with a
determination of the amount of the exemption
for which she qualifies.
3.5
Section 40(1)
of the
South African
Schools Act 84 of 1996
is inconsistent with the Constitution and
invalid.
. . .
5. Declaring that the Applicant 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.
6. Declaring that the First, Fourth
and Fifth 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 the Act and
Regulations in relation
to fee-exemptions, more particularly, in that
they have failed:
6.1 to take sufficient and adequate
measures to ensure that fee-charging public schools inform all
parents of learners attending
such schools of their right to apply
for fee-exemptions;
6.2 to take sufficient and adequate
measures to ensure that fee-charging public schools in no way
discourage parents from applying
for fee-exemptions or stigmatise
parents who have applied for such exemptions;
6.3 to take sufficient and adequate
measures to ensure that governing bodies cause a copy of the
Regulations to be displayed in
a conspicuous place at their schools;
6.4 to take sufficient and adequate
measures to ensure that schools do not adopt policies which
unlawfully limit fee-exemptions
by excluding parents such as those
who are refugees, immigrants or living outside the feeder area for
the school;
6.5 to take sufficient and adequate
measures to ensure that no learner is disqualified from attending a
fee-charging public school
as a result of his or her parents being
unable to afford school-fees;
6.6 to take sufficient and adequate
measures to ensure that governing bodies do not require divorced or
single parents to provide
financial information in respect of
non-custodian biological parents;
6.7 to take sufficient and adequate
measures to ensure that governing bodies and schools do not
disqualify and applicants for fee-exemptions
on the grounds that
their application forms are either incomplete or incorrectly
completed;
6.8 to take sufficient and adequate
measures to ensure that governing bodies comply with the criteria and
safeguards stipulated
in the Act and Regulations in determining
fee-exemption applications;
6.9 to take sufficient and adequate
measure to ensure that governing bodies consider applications for
fee-exemptions and make a
decision on those applications within 30
days of receiving them;
6.10 to take sufficient and adequate
measures to ensure that governing bodies in writing notify every
applicant for a fee exemption
of the outcome of his or her
application, together with reasons for the decision, within seven
days of the decision being taken;
6.11 to take sufficient and adequate
measures to ensure that if an application for a fee-exemption is
rejected by a governing body,
that the unsuccessful applicant is
informed in writing, within seven days of the decision being taken,
of his or her right to appeal
against that decision to the Frist
Respondent in terms of section 40(2) of the Act;
6.12 to take sufficient and adequate
measures to ensure that in cases where applicants for fee-exemptions
do not qualify for total
or partial exemptions that governing bodies
consider whether:
6.12.1 the parent concerned qualifies
for a conditional exemption on account of his or her inability to pay
school fees owing to
personal circumstances beyond his or her
control; and
6.12.2 the parent concerned qualifies
for an exemption based on transparent and equitable criteria other
than those set out in the
Regulations;
6.13 to ensure that the Western Cape
Education Department has taken adequate measures to assist schools in
applying the formula
for fee-exemptions in Regulation 6 of the
Regulations;
6.14 to take sufficient and adequate
measures to ensure that when the parents are in arrears with the
payment of school fees by
one month or more, governing bodies
investigate whether the parent concerned qualifies for a
fee-exemption before instituting legal
proceedings for the recovery
of school fees;
6.15 to take sufficient and adequate
measures to ensure that public schools institute legal proceedings
for the recovery of school
fees only after having ascertained that:
6.15.1 the parent concerned does not
qualify for exemption from the payment of school fees in terms of the
Act;
6.15.2 deductions have been made in
terms of the Regulations for parents who qualify for partial
exemptions;
6.15.3 the parent concerned has
completed and signed the prescribed form, annexure “A” to
the Regulations;
6.15.4 the school can provide proof of
a written notification to the parent, delivered by hand or registered
post, that the parent
has failed to apply for a fee exemption; and
6.15.5 despite the receipt of a notice
contemplated in subsection 41(5)(a) of the Act, the parent has failed
to pay school fees
after a period of three months from the date of
notification;
6.16 to take sufficient and adequate
measures to ensure that all governing bodies institute legal
proceedings for the recovery of
school fees only after considering
reasonable forms of payment other than cash.
7. Directing the First, Fourth and
Fifth Respondents to comply with their constitutional and statutory
obligations as declared by
this Court.’
In
addition, Ms S sought a structural interdict in extensive terms which
she did not persist with in the court below.
[32]
At the end of her founding affidavit Ms S, pointed out that her
application to court had far reaching implications for a large
number
of parents at fee-paying schools throughout the Western Cape. She
went on to state the following:
‘
The failure of the education
authorities to comply with their obligations to ensure that school
fees are not an obstacle to access
to education, is a matter of
considerable public interest, which needs to be remedied without
delay.’
[33]
Ms S complained that the school, the governing body and the HOD
repeatedly violated her constitutional and statutory rights.
As is
apparent from what is set out above, the principal orders sought by
her based on her interpretation of the Act was the following.
First,
a declaration that she and Mr G were jointly rather than jointly and
severally liable for the child’s school fees
and, second, that
for the purposes of claiming an exemption, a declaration that
Regulation 6(2) be read so as to exclude Mr G as
the child’s
parent when determining ‘the combined annual gross income’
of parents and, finally, as a consequence
of the above, a declaration
that Ms S qualified for a fee exemption for the 2013 academic year
together with the determination
of the amount of exemption for which
she qualified. The declarations of invalidity of legislation on the
basis of unconstitutionality
were sought in the alternative.
[34]
The HOD, the MEC and the Minister opposed the relief sought, save
that the HOD and the MEC conceded para 2 of the notice of
motion,
which translates into an acceptance that the appeal in relation to
the 2013 academic year was not out of time and ought
to be considered
and decided. The school and the governing body chose not to enter the
fray, giving notice that they would abide
the court’s decision.
[35]
The three appellants, in resisting the application by Ms S, all
denied that any of Ms S’s constitutional or statutory
rights
had been infringed. The Minister was rightly concerned about the
effect that the non-payment of fees by a parent had on
the remainder
of the parent body and other learners. The Minister adopted the
position that the legislative scheme was such that
exemptions had to
be determined on the income of both parents and that the requirement
was rational and served a legitimate governmental
purpose.
Notwithstanding that position, the deponent on behalf of the Minister
stated the following at para 32 of the answering
affidavit:
‘
Having said that, I accept that
the Regulations create practical difficulties for parents like the
Applicant who struggle to get
the requisite financial information
from the other parent. Although I do not believe these difficulties
give rise to the unconstitutionality
alleged by the Applicant,
legislative amendments to address this difficulty are being prepared
for consideration by the National
Minister and the Council of
Education Ministers established by the
National Education Policy Act
27 of 1996
. If any relevant amendments are approved and published for
public comment, the National Minister will seek leave to supplement
her answering affidavit so as to place them before this Court and, to
the extent necessary, to explain their rationale and intended

working.’
[36]
To sum up, the Minister adopted the position that the legislative
scheme was such that in order for a school to process an
application
for exemption the income of both parents was required.
[37]
The HOD and the MEC made common cause with the position adopted by
the Minister and in response to the declaratory orders sought,
in the
main, contended that they were too generalised and vague or not
justified.
[38]
In adjudicating the dispute, the court below (Le Grange J) commenced
with the right to education as a fundamental right entrenched
in
terms of s 29 of the Constitution and that the right was immediately
realisable and could only be limited by a law of general
application,
in terms of s 36(1) of the Constitution.
[4]
The court had regard to the funding of public schools premised on s
34(1) of the Act. The Act, so the court noted, dictated that
funding
has to be sourced equitably to ensure that learners are able to
exercise their rights and to redress past inequalities.
Le Grange J
had regard to the distinction between no-fee schools and fee-paying
schools. Fish Hoek High School is and has always
been a fee-paying
school. Section 39(1) of the Act provides that school fees may be
determined and charged at public schools only
if a resolution to do
so has been adopted by a majority of parents attending the meeting
referred to in s 38(2).
[5]
The
court took into account the provisions of s 39(2) of the Act which
read as follows:
‘
(2) A resolution contemplated
in subsection (1) must provide for –
(a)
the
amount of school fees to be charged;
(b)
equitable
criteria and procedures for the total, partial or conditional
exemption of parents who are unable to pay school fees;
and
(c)
a
school budget that reflects the estimated cumulative effect of –
(i) the established trends of
non-payment of school fees;
and
(ii) the total, partial or conditional
exemptions granted to parents in terms of the regulations
contemplated in subsection (4).’
The
court below went on to consider the procedure in the Regulations for
applying for an exemption and had regard to the appeal
process
provided for therein.
[39]
It was against the background set out in the preceding paragraph that
Le Grange J went on to determine whether, in terms of
s 40(1) of the
Act, the liability of divorced or separated biological parents was
joint or joint and several. He examined the conflicting
contentions.
First, on behalf of Ms S that if s 40(1) of the Act were to be
interpreted as imposing joint and several liability
on divorced or
separated parents, it would in effect be treating them as a
‘household unit’, thereby violating the
individual
parent’s rights to dignity and equal protection of the law. It
was contended that an interpretation favouring
constitutional
compliance should be preferred and that the logical consequence was
that s 40(1) should be interpreted as imposing
joint rather than
joint and several liability. Second, on behalf of the appellants, it
was submitted that a proper reading of ss
39 and 40 of the Act
compelled the conclusion that the parents were jointly and severally
liable and that if the legislature had
intended otherwise it would
have said so and would have provided the basis for an apportionment.
It was contended that schools
could not be expected to determine such
apportionments. Paragraphs 93 and 94 of the judgment in the court
below relating to contentions
on behalf of the appellants bear
repeating:
‘
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.
It was also argued that [Mr G’s]
undertaking, in the divorce Consent Paper to pay half of the school
fees incurred at Government
Schools in respect of [the child] means
he is responsible, as between him and [Ms S], for half of the school
fees at the school.
And the arrangement between [Ms S] and [Mr G]
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.’
[40]
The court below also recorded the submissions on behalf of the WLC.
Some of their submissions appear at paras 95 and 96 of
the judgment
which read as follows:
‘
[I]t
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 discriminations 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.
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.’
[41]
It was also submitted on behalf of the WLC that the fee exemption
scheme presently employed was inconsistent with South Africa’s

international obligations in terms of Article 2
(f)
of the Convention on the
Elimination of All Forms of Discrimination Against Women,
particularly when it places the onus on them
to obtain information
from the non-custodian parent in order to have an exemption
application finalised.
[42]
The court below was astute not to minimize the difficulties faced by
women who become custodial parents. Le Grange J had regard
to the
decision of this court in
Fish
Hoek Primary School v GW
2010
(2) SA 141
(SCA) which recognised the duty of parents to support
their child in accordance with their respective means and that the
duty undoubtedly
embraced the educational needs of the child. The
court below was acutely aware of the problems that arise from the
differential
treatment of custodian parents and their non-custodian
counterparts, resulting in gender discrimination and concluded that
to hold
that
s 40(1)
imposes joint and several liability would impose
an unnecessarily heavy burden on single parents like Ms S and is
irreconcilable
with the paramountcy that must be afforded to the best
interest of the child. He went on to find that in terms of
s 40(1)
parents were jointly and not jointly and severally liable to pay
school fees. As a result of that conclusion, Le Grange J did not
find
it necessary to determine the constitutionality challenge to the
provisions of
s 40(1).
[43]
In respect of the attack on the constitutionality of
Regulation 6(2)
,
the court below noted the Minister’s concession concerning the
practical difficulties for parents like Ms S and took into
account
the legislative amendments that were in process. It had regard to the
proposed amendments to
s 41
filed by the Minister. They read as
follows:
‘
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.”’
[44]
In the court below counsel on behalf of Ms S submitted that the
proposed amendments failed to provide for divorced or separated

parents. The court considered contentions on behalf of the appellants
that the legislative scheme including the Regulations was
structured
so as to ensure that school fee exemptions are calculated on a basis
that encourages both biological parents to comply
with the duty to
support their child. The court held as follows:
‘
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.’
[45]
In relation to Ms S’s complaint concerning her treatment at the
hands of the school, namely, that she was expected to
regard Mr G as
part of her family unit and to obtain financial information from him
which, she contended, infringed her right to
human dignity in that
she was degraded and humiliated, the court below took the view that
the infractions were not such as to justify
the declaratory orders
sought. It came to that conclusion partly on the basis that the
child’s parents had both undertaken
to remain involved in the
child’s life and that Ms S’s reaction to being linked
with Mr G as a family unit was not
justified. In respect of the
further declaratory order sought by Ms S, namely, that she qualified
for a fee exemption in relation
to the 2013 academic year, together
with a determination of the amount for which she qualified, Le Grange
J held that the HOD or
the MEC could still grant the exemption. In
this regard reliance was placed on the decision in
Trencon
Construction (Pty) Ltd v Industrial Development Corporation of South
Africa Ltd & another
2015 (5) SA 245
(CC) where the court
said the following:
‘
In the administrative review
context substitution remains an extraordinary remedy. Remittal is
still almost always the prudent course.’
[46]
In relation to the declaratory orders sought against the school and
the governing body in respect of the processing of Ms S’s

fee-exemption applications for 2011, 2012 and 2013, the court below
noted that the main complaint concerns the manner in which
they dealt
with her. The court found that her complaints that she had been
subjected to continuous violations of her constitutional
and
statutory rights were unfounded.
[47]
The court below considered Ms S’s complaints about the
appellants’ failure to ensure that all fee-charging public

schools in the Western Cape complied with the Act and the Regulations
in relation to fee exemptions and the relief sought in relation

thereto. In this regard the court noted that Ms S placed reliance on
a report by the Equal Education Law Centre which was to the
effect
that, far from complying with their duty to ensure equitable and just
treatment, the respondents were actively discouraging
applications
for exemptions. The HOD, in turn, denied that the Department’s
monitoring and compliance systems were unreasonable
and irrational.
The HOD and the MEC suggested that the problems that arose were
attributable to differing interpretations and applications
of the fee
exemption regulations. The HOD made the claim that between 2010 and
2011, the Department allocated the highest fee exemptions
in the
country. The court concluded that it was evident from the facts put
up by the appellants, that schools in the Western Cape
Province
granted hundreds of fee exemption applications every year without
significant problems being experienced. In respect of
the remaining
declaratory order sought by Ms S the court was in agreement with the
view propounded by the appellant that, if the
order was granted, this
would amount to micro-management of the relationship between the HOD
and the MEC and the schools under
their jurisdiction. The court also
took the view that by granting the relief it would be infringing the
doctrine of the separation
of powers. The following order was made by
the court below:
‘
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 Respondent’s
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.’
[48]
Before us the following four issues were initially presented for
adjudication:
(i) whether s 40(1) of
the Act imposes joint or joint and several liability for the payment
of school fees on each of the two living
biological parents of a
learner at a fee-paying public school;
(ii) whether s 40(1) of
the Act and the Fee Exemption Regulations Relating to the Exemption
of Parents from Payment of School Fees
in Public Schools
[6]
unconstitutionally infringe the right of single or divorced parents
to equal protection and benefits of the law in s 9(1) of the

Constitution and the right to dignity in s 10 of the Constitution
because the formula in the Regulations require every parent applying

for an exemption from the obligation to pay school fees to give the
combined annual gross income of both parents;
(iii) Ms S’s claim
for a declaratory order that she was subjected to repeated violations
of her rights in the course of the
processing of her 2011, 2012 and
2013 fee-exemption application; and
(iv) Ms S’s claim
for a declaratory order that the Appellants failed to comply with
their constitutional and statutory obligations
to ensure that
fee-charging school in the Western Cape comply with the requirements
of the Act and the Regulations in the respects
set out in paragraphs
6.2, 6.4, 6.6, 6.7 and 6.11 to 6.16 of her Amended Notice of Motion.
[49]
As stated above, the parties after debate with the court reached an
accord in relation to the first two issues and were generally
in
agreement with the line of reasoning in relation thereto, set out
below.
[50]
In addressing the first issue, before turning directly to s 40(1) of
the Act, which is the provision at the centre of the dispute
between
the parties, I consider it necessary to start with the preamble to
the Act, which sets out the basis for its enactment.
It reads as
follows:
‘
WHEREAS the achievement of
democracy in South Africa has consigned to history the past system of
education which was based on racial
inequality and segregation; and
WHEREAS this country requires a new
national system for schools which will redress past injustices in
educational provision, provide
an education of progressively high
quality for all learners and in so doing lay a strong foundation for
the development of all
our people’s talents and capabilities,
advance the democratic transformation of society, combat racism and
sexism and all
other forms of unfair discrimination and intolerance,
contribute to the eradication of poverty and the economic well-being
of society,
protect and advance our diverse cultures and languages,
uphold the rights of all learners, parents and educators, and promote
their
acceptance of responsibility for the organisation, governance
and funding of schools in partnership with the State, and
WHEREAS it is necessary to set uniform
norms and standards for the education of learners at schools and the
organisation, governance
and funding of schools throughout the
Republic of South Africa.’
[51]
In
Head of Department,
Mpumalanga Department of Education &
another v Hoërskool Ermelo & another
2010 (2) SA 415
(CC), the Constitutional Court had regard to the terrible legacy of
apartheid and its impact on public and private resources and
said the
following at paras 45 and 47:
‘
45. Apartheid has left us with
many scars. The worst of these must be the vast discrepancy in access
to public and private resources.
The cardinal fault line of our past
oppression ran along race, class and gender. It authorised a
hierarchy of privilege and disadvantage.
Unequal access to
opportunity prevailed in every domain. Access to private or public
education was no exception. While much remedial
work has been done
since the advent of constitutional democracy, sadly, deep social
disparities and resultant social inequity are
still with us.
. . .
47. In an unconcealed design, the
Constitution ardently demands that this social unevenness be
addressed by a radical transformation
of society as a whole and of
public education in particular. This the Constitution does in a
cluster of warranties. I cite only
a handful. Section 1
(a)
entrenches respect for human dignity,
achievement of equality and freedom. Section 6(1) read with s 6(2)
warrants and widens the
span of our official languages from a
partisan pair to include nine indigenous languages which for long
have jostled for space
and equal worth. Sections 9(1) and (2) entitle
everyone to formal and substantive equality. Section 9(3) precludes
and inhibits
unfair discrimination on the grounds of, amongst others,
race and language or social origin. Section 31(1) promises a
collective
right to enjoy and use one’s language and culture.
And even more importantly, s 29(1) entrenches the right to basic
education
and a right to further education which, through reasonable
measures, the State must make progressively accessible and available

to everyone.’
[52]
What is set out above is part of the context against which s 40(1)
has to be interpreted and applied. Section 34 of the Act
provides
another part of the contextual base. It reads as follows:
‘
(1) The State must fund public
schools from public revenue on an equitable basis in order to ensure
the proper exercise of the rights
of learners to education and the
redress of the past inequalities in education provision.
(2) The State must, on an annual
basis, provide sufficient information to public schools regarding the
funding referred to in subsection
(1) to enable public schools to
prepare their budgets for the next financial year.’
[53]
Section 35 is also of significance. It provides:
‘
(1) Subject to the Constitution
and this Act, the Minister must determine national quintiles for
public schools and national norms
and standards for school funding
after consultation with the Council of Education Ministers and the
Minister of Finance.
(2) The norms and standards for school
funding contemplated in subsection (1) must –
(a)
set
out criteria for the distribution of state funding to all public
schools in a fair and equitable manner;
(b)
provide
for a system in terms of which learners at all public schools can be
placed into quintiles, referred to as national quintiles
for
learners, according to financial means;
(c)
provide
for a system in terms of which all public schools in the Republic can
be placed into quintiles referred to as national quintiles
for public
schools, according to the distribution of learners in the national
quintiles for learners; and
(d)
determine
the procedure in terms of which the Member of the Executive Council
must apply the criteria contemplated in paragraph
(a)
.’
[54]
Equally significant as part of the contextual setting, and flowing
from s35 of the Act, is the following part of the introduction
to the
Amended National Norms and Standards for School Funding:
[7]
‘
152. School fees provide two
benefits for the schooling system. Firstly, they provide a mechanism
for raising revenue amongst parents
who can afford to make this
contribution, which in turn provides fiscal space for the state to
implement preferential funding for
poor schools. Secondly, school
fees, even if they are set at a low and nominal level, encourage
parent participation in school
governance, and promote accountability
of schools to the communities they serve.
153. School fees must not be allowed
to become an obstacle in the schooling process, or a barrier
preventing access to schools,
especially as far as the most
marginalised are concerned. Government believes that in the schools
serving the poorest communities,
there should be no school fees.
Moreover, where schools do charge school fees, proper parent
participation in the fee-setting process
is critical. Effective
criteria determining which schools should not charge school fees, as
well as an effective exemptions policy
to protect those who are less
advantaged economically within fee-charging schools, are of utmost
importance.’
What
can be seen from the above is that there is commendable government
sensitivity to ensuring that access to schools is not impeded,
that
fee-exemptions are provided on criteria that will ensure that those
who are the most disadvantaged economically within fee-charging

schools are protected and that there is ultimately an equitable
distribution of financial burdens relative to means.
[55]
A further material part of the background to the interpretation
exercise is the decision of this court in
GW
, which dealt with
some of the concerns set out in the preceding paragraphs. In that
matter Ponnan JA said the following at para
14:
‘
At 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 need of the child as well, particularly as the Act
creates a system of compulsory
schooling. The narrow construction
placed on the word “parent” by the High Court offends
against the principle of statutory
interpretation which requires a
statute to be interpreted in conformity with the common law rather
than against it. Moreover, an
interpretation that burdens both
parents with responsibility for school fees is consistent with the
injunction in s 28(2) of the
Constitution that “a child’s
best interests are of paramount importance in every matter concerning
the child”.
It 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. Were
that
not to be so, the custodian parent would solely be saddled with
that responsibility. And whilst a custodian parent, if she has paid

more than her pro rata share towards the child’s support, may
in law be entitled to recover the excess from the non-custodian

parent, the reality is that her right to recover may for all
practical purposes prove to be illusory. Further, the sad truth is

that many custodian parents are simply unable to pay or have been
exempt from paying due to poverty.
Were
the school not to have the right to recover school fees from the
non-custodian parent in those circumstances, it will either
have to
shoulder that loss or mulct other parents with additional charges. In
either event it would be acting to the detriment
of other learners.
By including a further category of persons to those ordinarily
contemplated by the word “parent”,
it is plain that the
legislature cast the net as widely as it could to afford the school
and in turn the learner the maximum possible
protection.
To interpret the word restrictively as
the High Court did can hardly be reconciled with the paramountcy that
must be afforded to
the best interests of the child principle.’
(My emphasis.)
[56]
In
GW
this
court rejected the submission by a biological father that the word
‘parent’ in s 40 (1) did not render him liable
for school
fees but that the mother of the child, the custodian parent was
liable for payment. Notably,
GW
recognised
that at common law both parents are under a duty to support a child
in accordance with their respective means, including
seeing to the
child’s educational needs. In rejecting the claim that only the
custodian parent was liable for payment of
school fees, this court
was adamant that an interpretation that burdens both parents with
responsibility to pay school fees was
consistent with the injunction
of s 28(2) of the Constitution that ‘a child’s best
interests are of paramount importance
in every matter concerning the
child’. The highlighted part of the judgment outlined above is
particularly apposite.
[57]
I turn now to consider s 40(1), which appears near the beginning of
this judgment, but is repeated here for ease of reference
:
‘
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.’
(My emphasis.)
I
pause to point out that the high court in interpreting the subsection
had regard to authorities that make it clear that there
is a general
presumption that liability is joint rather than joint and several.
However, as pointed out on behalf of the appellants,
that presumption
can be displaced by statute, (see R H Christie and G B Bradfield
Christie’s
Law of Contract in South Africa
,
7 ed (2016) at 296).
[58]
In considering s 40(1) one has to bear in mind s 38(2), which
provides that each year the budget of a school for the following
year
prepared by the school governing body must be presented at a general
meeting of parents and approved by a majority of the
parents present
and voting. Section 39(1) also has relevance:
‘
Subject to this Act, school
fees may be determined and charged at a public school only if a
resolution to do so has been adopted
by a majority of parents
attending the meeting referred to in section 38(2)’.
Section 39(2)
(a)
states that ‘a
resolution contemplated in subsection(1) must provide for the amount
of school fees to be charged’
[59]
The term ‘parent’ is defined in s 1 of the Act to mean,
amongst others, ‘the biological . . . parent . .
. of a
learner’. As stated earlier, at common law a parent who pays
the full amount of the fees has a right of recourse against
the other
parent for his or her respective share, viewed from the perspective
of the parents inter se (see
Christie
at 298,
Boberg’s
Law of Persons and The Family
C4
and C7).
[60]
Viewed against legislative concerns as expressed in the architecture
of the Act and in the norms and standards referred to
above, that
there should be an equitable burden between parents within a school,
and inter se, and that non-custodian parents should
not escape their
legitimate responsibility for paying school fees as determined by
this court in
GW
,
a contextual, purposive and literal reading of s 40(1) of the Act
compels the conclusion that parents are jointly and severally
liable
for school fees. What then of persons in Ms S’s situation? The
discussion that follows demonstrates how the legislative
scheme
properly interpreted and applied serves to alleviate the default
position set out above.
[61]
The second issue that now calls for attention is whether s 40(1) and
the fee exemption regulations are unconstitutional and
infringe the
rights of single, separated or divorced parents to equal protection
of the law, or impinges on their dignity, because
the formula
referred to above provides for exemptions based on income and the
regulations require every person applying for an
exemption to supply
the combined annual gross income of both parents.
[62]
It must be kept in mind that a child may not be refused admission to
a school based on non-payment by a parent. Section 5(3)
(a)
of
the Act is to that effect. Section 5(1) provides that a public school
must admit learners and serve their educational requirements
without
unfairly discriminating in any way. Furthermore, s 41(7) provides
that a learner may not be deprived of his or her right
to participate
in all aspects of the programme of a public school because of the
non-payment of school fees by his or her parent
and may not be
victimised in any manner, including but not limited to the following
conduct:
‘
[S]uspension from classes;
verbal or non-verbal abuse; denial of access to cultural, sporting or
social activities of the school;
denial of access to the nutrition
programme of the school for those learners who qualify in terms of
the applicable policy; and
denial of a school report or transfer
certificate.’
[63]
Seen in proper perspective this case is about the impact that s 40(1)
and the fee exemption scheme provided for by the Regulations
have on
people in Ms S’s position and not about a child’s
exclusion from a school or any of its programmes. Section
40(1) sets
out the default position that parents are jointly and severally
liable but does provide a safety valve in that the liability
is eased
by the following proviso:
‘
unless
or to the extent that he or she has been exempted from payment
in
terms of this Act
.’
(My emphasis.)
[64]
In s 1(1) of the Act, ‘this Act’ is defined as including
the Act and all the Regulations promulgated thereunder.
Section 41(2)
of the Act provides that the exemption from payment of school fees
must be calculated according to the Regulations
contemplated in s
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 s 39(2)
(b)
.
[65]
The framework for the exemptions is therefore to be found in the Fee
Exemption Regulations, which were made in terms of ss
39(4) and 61
[8]
of the Act. The Regulations provide for four categories of
exemptions, namely automatic exemptions, total exemptions, partial
exemptions and conditional exemptions.
[66]
Regulation 1 states that the following persons qualify for an
automatic exemption:
(i) a person who has the
responsibility of a parent in respect of a child placed in a foster
home, a youth care centre, a place
of safety or an orphanage;
(ii) a person who is a
kinship caregiver of an orphan or of a child who has been abandoned
by his or her parents and is without
any visible means of support;
(iii) a person who
receives a social grant on behalf of a child; and
(iv) a child who heads a
household.
[67]
Regulation 6(3), read with the formula in Regulation 6(2), provides
that a total exemption is to be granted if the learner’s
school
fees plus any additional monetary contributions to be paid to the
school are equal to or more than 10 % of the learner’s
parents’
combined annual gross income. Regulation 1 defines the term ‘combined
annual gross income’ 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’.
[68]
In terms of Regulations 6(4) and 6(6), where parents have a single
child at a fee-paying public school, a partial exemption
ranging
between 7 % and 97 % is granted to the parents if the learner’s
school fees plus any additional monetary contribution
to be paid to
the school are 3,5 % or more but less than 10 % of the learner’s
parents’ combined annual gross income.
Parents with more than
one child at a fee-paying public school qualify for partial
exemptions where those percentages are between
2 % and 3,5 %.
[69]
It follows from what is set out above and the formula provided for in
the Regulations, that where the combined gross income
of both the
parents is the denominator, a parent cannot be granted a total or
partial exemption where he or she is unable to or
does not provide
the gross annual income of the other parent. However, that should not
be the end of the road as far as parents
in the position of Ms S are
concerned.
[70]
Regulation 1 provides that a conditional exemption may be granted to,
amongst others, 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.
[71]
Regulation 6(7) empowers the governing body of a public school, when
granting a conditional exemption, to include suspensive
conditions
regarding the payment of school fees. The obligation therefor does
not come into operation until the condition has been
fulfilled.
[9]
[72]
The governing body of a public school may grant such a conditional
exemption to a parent who:
(i) in his or her
application for exemption:
(a) gives particulars for
his or her total annual gross income; and
(b) does not give
particulars of the total annual gross income of the other parent of
the learner concerned because the other parent
has refused or failed
to provide such particulars to the parent applying for the exemption;
and
(ii) having regard solely
to his or her total annual gross income, would qualify for a total or
partial exemption in terms of the
Regulations if he or she were the
only parent of the learner concerned.
[73]
A conditional exemption shall be the total exemption or the partial
exemption to which an applicant would have been entitled
if he or she
were the only parent of the learner concerned. When granting such a
conditional exemption the governing body shall
impose conditions to
the effect that the applicant for the exemption:
(i) must report to the
school forthwith any increase in his or her gross annual income
during the school year in question which,
had it been his or her
income at the time of making the application for exemption, would
have disentitled him or her from receiving
the total exemption
granted to him or her or from receiving any partial exemption granted
to him or her.
(ii) must, on demand from
the governing body, pay on reasonable terms to be determined by the
governing body, after giving parents
the opportunity to make
representations, the school fees or the portion of the school fees
for which he or she would have been
liable in terms of the
Regulations based on his or her increased gross annual income.
(iii) shall not be liable
to make any such payment unless, during the school year in question,
his or her gross annual income increases
to such an extent that, had
it been his or her income at the time of making the application for
exemption, he or she would have
been disentitled to receive the total
exemption granted to him or her or to receive any partial exemption
or he or she would have
been entitled only to a lesser partial
exemption than the one granted to him or her.
[74]
The granting of such a conditional exemption shall not preclude the
public school from taking legal steps to enforce payment
by the other
parent of the learner concerned, of the school fees or the balance of
the school fees, as the case may be, in terms
of s 41(1) of the Act.
Conditional exemptions of this sort will overcome the practical
problems of obtaining information and other
co-operation from
non-custodial parents.
[75]
An option open to the governing body in such circumstances is to
notify a recalcitrant non-custodian parent like Mr G, in terms
of s
41(5) of the Act, that should he fail to apply for an exemption
within a period of three months the school will enforce the
payment
by him of his child’s school fees in terms of s 41(1) of the
Act. Such a notification may result in the recalcitrant
parent
providing the information necessary for the determination of the
exemption application made by the other parent.
[76]
That leads us to the attack by Ms S on the constitutionality of the
Regulations. In light of what is set out above about how
the Act and
the Regulations, properly construed, are to be applied, the complaint
of unequal treatment falls away. The result is
one that will ensure
that parents in the position of Ms S, especially women, are not
treated prejudicially and are able in their
own right to claim
exemptions based on their own financial circumstances. Moreover, they
are not burdened with the responsibility
of obtaining financial
information from the other parent. It also ensures that recalcitrant
parents do not escape their parental
obligations. The balance that is
struck is that the funding structure for public fee-paying schools is
preserved on the basis that
parents pay relative to their means and
that exemptions are granted on a fair, equitable and predictable
basis. The construction
of the Act and the Regulations advanced above
will promote the achievement of gender equality which is a founding
constitutional
value. I agree with the submissions on behalf of the
appellants that the objective of the Act and constitutional values
dictate
that both parents should be encouraged to support their
children and that non-custodian parents should be discouraged from
shifting
the financial cost of their children’s education at
fee-paying schools onto the other parent or the parents of other
learners
or, in some instances, to public funding in general. In
construing a statute a court ought first to determine whether,
through
the application of all legitimate interpretive aids, the
impugned legislation is capable of being read in a manner that is
constitutionally
compliant.
[10]
That is the exercise embarked on resulting in the conclusions set out
above. The interpretation and application of the Act and
the
Regulations set out above are consonant with the proposed legislative
amendments referred to in para 43 above.
[77]
The court below, in holding that parents in terms of s 40(1) were
jointly and not jointly and severally liable, considered
that it was
being gender sensitive and coming to the aid of persons in the
position of Ms S. However, she was provided no practical
relief and
the question of precisely how the fee-exemption regulations were to
be applied was left unanswered. It will be recalled
that the court
below took the view that the combined financial income still had to
be provided.
[78]
The next question that calls for determination is whether Ms S is
entitled to an order declaring that she was subjected to
repeated
violations of her constitutional and statutory rights during the
processing of her applications for a fee exemption during
the years
2011, 2012 and 2013. It will be recalled that she complained about
how she had been repeatedly required by the school
to obtain
information concerning Mr G’s finances and how there were
repeated references to herself and Mr G being part of
a family unit
despite her objections thereto. She communicated how degrading and
humiliating that experience was. If it had ended
there one could
perhaps have argued that the attitude of the school and the governing
body was driven by a mistaken view of the
Act and the Regulations.
However she was pressurised to meet with the school’s attorneys
during which meeting she was accused
of conspiring with Mr G in an
effort to avoid their joint obligation to pay school fees.
Furthermore, when the HOD and the Department
appeared to be
sympathetic, ostensibly after taking legal advice, the school’s
attitude hardened and they stated that they
would forcefully adopt
the contrary position. They did not seek to enter into a dialogue
concerning the legality of their position.
I appreciate the
difficulties faced by schools and their governing bodies who face the
tremendously difficult task, especially
in trying economic times of
maintaining their financial health and ensuring that school
programmes are adequately funded in the
best interests of their
learners. However, we are compelled by constitutional imperatives to
employ our best efforts towards the
attainment of a just and
egalitarian society where every individual has worth and opportunity
and the right to be treated with
dignity. The conduct of the school
and the governing body over the years of their interaction with Ms S
was such they showed scant
respect for her position as a custodian
mother. Ms S is articulate and assertive. Yet, she struggled to
engage the school and the
governing body constructively. What, one
might rightly ask, were the chances of a less assertive, more
vulnerable single mother
being able to vindicate her constitutional
and statutory rights. To drive this point home the declaratory order
sought should be
granted in relation to the school and the governing
body.
[79]
The HOD and the Department took a stand, against Ms S, following on
their
view
of the interpretation and application of the Act and the Regulations.
At times it could perhaps have been characterised as
stereotypically
bureaucratic. However, at some stage their attitude softened only to
be met with an obdurate governing body. In
my view they did not
display the degree of insensitivity as did the school.
[80]
That leads us to the long list of orders sought by Ms S against the
appellants, based on her allegations concerning systemic

obstructionism in relation to fee exemption applications by schools
in the Western Cape and the Department which has oversight

responsibility. The charge by Ms S of deliberate obstructionism was
denied and the sample provided in relation to instances of

obstructionism on the part of the Department was denied by them and
they contended that the sample provided as evidence of obstructionism

was too small. Furthermore, statistics were supplied by the
Department showing the high level of exemptions granted by it. The

orders sought are in any event mostly vague and would amount to the
court engaging in micromanagement and coming close to crossing
the
line between the three arms of government. In her heads of argument
Ms S noted that the Department, in what she describes as
a belated
response to her application, amended its School Improvement Plans by
requiring schools to report on:
(i) the number of
fee-exemption learners;
(ii) whether parents have
been informed of the right to apply for fee-exemptions;
(iii) whether a copy of
the regulations have been displayed; and
(iv) whether there has
been adherence to fee-exemption time-lines.
It
was stated on her behalf that since this reflected an attempt to
address some of the issues raised by her, she had decided not
to
request declaratory orders in relation to these matters and therefore
did not proceed with her application for a structural
interdict. That
notwithstanding, it was contended on her behalf that she had made out
a proper case for not only the general declaratory
order sought in
para 6 of her amended notice of motion but also in respect of the
other extensive orders sought. In light of what
is set out above,
there is no warrant in granting the extensive further orders sought.
[81]
In relation to costs, the following has to be considered. Although
the appellants would have succeeded in relation to the question
of
liability of parents in terms of s 40(1), that success has to be
measured against the fact that Ms S has attained the real relief
of
having her applications for exemption assessed relative to her
ability based on her personal circumstances. That is, in effect,

substantive success that should ensure costs in her favour. Even
though there is some reference in the answering affidavits of
the
appellants concerning partial and conditional exemptions, it took
this appeal to finally refine that position to the one resulting
in
the order set out below. The form of the order in substitution of the
order of the court below poses some challenges. Nevertheless,
the
order that appears hereunder is one that is enforceable and must be
followed by schools and the Department. In light of the
conclusions
set out above, it would make little sense for the school to proceed
in the action instituted in the Simons Town Magistrates
Court.
Hopefully common sense will prevail. In respect of the pending
appeal, the principles set out above should also apply.
[82]
Finally, it remains to commend counsel on behalf of the appellants
for adroitly providing the basis for the substituted order.
[83]
The following order is made:
1 The appeal and the
cross-appeal succeed to the extent reflected in the substituted
orders that appear hereafter. The appellants
are ordered jointly and
severally to pay the respondent’s costs in relation to both the
appeal and the cross-appeal, such
costs to include the costs of two
counsel.
2 The order of the court
below is set aside and replaced as follows:
‘
1 The decision of
the First Respondent, in the appeal in terms of s 40(2) of the South
African Schools Act 84 of 1996 (the Act)
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 Respondent’s
decision, is reviewed and set
aside.
2 It is declared that in
processing and dealing with the applicant’s applications for a
fee exemption in 2011, 2012 and 2013,
the school and its governing
body subjected her to repeated violations of her constitutional and
statutory rights.
3 It is declared that in
terms of s 40(1) of the Act the Applicant and her former husband are
jointly and severally liable for their
child’s school fees.
4 It is declared that the
Applicant was entitled to have her applications for a fee-exemption
and the related appeals dealt with
in the manner set out hereafter
with reference to the Regulations relating to the Exemption of
Parents from Payment of School Fees
in Public Schools (Government
Notice R.1052 in Government Gazette 29311 of 18 October 2006) as
amended (‘the Regulations).
All public schools, governing
bodies and education Departments must comply therewith in relation to
the Applicant and all other
parents who are in the same or similar
situation as the Applicant:
(a) The governing body of
a public school shall grant a conditional exemption from payment of
school fees, referred to in Regulation
1 of the Regulations, to a
parent who:
(i) in his or her
application for exemption:
(aa) gives particulars
for his or her total annual gross income; and
(bb) does not give
particulars of the total annual gross income of the other parent of
the learner concerned because the other parent
has refused or failed
to provide such particulars to the parent applying for the exemption;
and
(ii) having regard solely
to his or her total annual gross income, would qualify for a total or
partial exemption in terms of the
Regulations if he or she were the
only parent of the learner concerned.
(b) A conditional
exemption shall be the total exemption or the partial exemption to
which the applicant would have been entitled
if he or she were the
only parent of the learner concerned.
(c) When granting such a
conditional exemption the governing body shall impose conditions to
the effect that the applicant for the
exemption:
(i) must report to the
school forthwith any increase in his or her gross annual income
during the school year in question which,
had it been his or her
income at the time of making the application for exemption, would
have disentitled him or her from receiving
the total exemption
granted to him or her or from receiving any partial exemption granted
to him or her;
(ii) must, on demand from
the governing body, pay on reasonable terms to be determined by the
governing body after giving him or
her the opportunity to make
representations, the school fees or the portion of the school fees
for which he or she would have been
liable in terms of the
Regulations based on his or her increased gross annual income;
(iii) shall not be liable
to make any such payment unless, during the school year in question,
his or her gross annual income increases
to such an extent that, had
it been his or her income at the time of making the application for
exemption, he or she would have
been disentitled from receiving the
total exemption granted to him or her or from receiving any partial
exemption or he or she
would have been entitled only to a lesser
partial exemption than the one granted to him or her.
5. It is declared that
the granting of such a conditional exemption shall not preclude the
public school from taking legal steps
to enforce payment, by the
other parent of the learner concerned, of the school fees or the
balance of the school fees, as the
case may be, in terms of section
41(1) of the Act.
6. The Respondents are
liable jointly and severally to pay the Applicant’s costs,
including the costs occasioned by the employment
of two counsel.’
_________________
M
S Navsa
Acting
Deputy President
Appearances:
For
the Appellant: A M Breitenbach SC (with him M L Davis)
Instructed
by:
State
Attorney, Cape Town
State
Attorney, Bloemfontein
For
the Respondent: P Hathorn SC (with him N Mayosi)
Instructed
by:
Equal
Education Law Centre, Khayelitsha
Webbers,
Bloemfontein
For
the Amicus: T V Norman SC (with him C M Nqala)
Instructed
by:
Women’s
Legal Centre, Cape Town
Maduba
Attorneys, Boemfontein
[1]
The Regulations referred
to by Ms S are those promulgated under the Act.
Regulations relating to
the Exemption of Parents from Payment of School Fees in Public
Schools, GN R1052,
GG
29311, 18 October 2006.
[2]
The
calculation was based on the formula contained in Regulation
6(2)
(a)
:
‘
The
governing body must apply the following formula when considering the
application for exemption:
Where –
E = school fees as a
proportion of the income of a parent.
F = annual school fees,
for one child, that a school charges in terms of section 39 of the
Act.
A = additional monetary
contributions paid by a parent in relation to a learner’s
attendance of, or participation in any
programme of, a public
school.
C = combined annual
gross income of parents.
100 = the number by
which the answer arrived at in the brackets is multiplied so as to
convert it into a percentage.’
In terms of Regulation
6(3), if E is equal to or greater than 10 per cent the parent
qualifies for total exemption. Ms S falls
in a category where she
qualifies for partial exemption as provided for in Regulation 6,
which includes a table of the levels
of exemptions to be applied.
[3]
In
Regulation 1 ‘combined annual gross income of parents’
means ‘the annual gross income of the parents, calculated

together, or, if a learner only has one parent, the total annual
gross income of such parent’.
[4]
In
this regard, reliance was placed on the decision of the
Constitutional Court in
Governing
Body of the Juma Musjid Primary School & others v Essay NO &
others
2011
(8) BCLR 761
(CC). For completeness it is necessary to record that
the law of general application which purports to limit the right has
to
be ‘reasonable and justifiable in an open and democratic
society based on human dignity, equality and freedom’. It
is
also necessary to mention that in
Juma
Musjid
the
Constitutional Court distinguished between the right to a basic
education and the right to further education.
[5]
Section
38(2) provides:
‘
Before
a budget referred to in subsection (1) is approved by the governing
body, it must be presented to a general meeting of
parents convened
on at least 30 days’ notice, for consideration and approval by
a majority of parents present and voting.
[6]
See
fn 1.
[7]
Amended
National Norms and Standards for School Funding, GN 869,
GG
29179,
31 August 2006 (with effect from 1 January 2007).
[8]
Section
61
(b)
of
the Act provides, inter alia, that the Minister may make regulations
on any matter which must or may be prescribed by regulation
under
this Act. Section 61
(i)
empowers
the Minister to make regulations on any matter which may be
necessary or expedient to prescribe in order to achieve the
objects
of this Act.
[9]
See
Southern
Era Resources Ltd v Farndell NO
[2010]
2 All SA 350
(SCA) para 11.
[10]
See
Bertie
van Zyl (Pty) Ltd & another v Minister for Safety and Security &
others
[2009]
ZACC 11
;
2010 (2) SA 181
(CC).