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[2000] ZAWCHC 2
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Bestuursliggaam van Gene Louw Laerskool v J.D.R (A37/2000) [2000] ZAWCHC 2; 2004 (1) SA 45 (C); [2003] 2 All SA 87 (C) (29 September 2000)
SAFLII Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
and
SAFLII
Policy
IN THE HIGH COURT OF
SOUTH AFRICA
(CAPE OF GOOD HOPE
PROVINCIAL DIVISION)
Case
No
A37/2000
In
the matter between:
DIE
BESTUURSLIGGAAM VAN GENE LOUW
A
ppellant
LAERSKOOL
and
J
D
R[...]
R
espondent
JUDGMENT:
DELIVERED 29 SEPTEMBER 2000
Van
Heerden J
:
The
appellant is the governing body of a state-aided school, while the
respondent is the divorced non-custodian parent of a pupil
of this
school. In the Magistrate’s Court for the District of
Bellville, the appellant sued the respondent for an amount
of
R3 060.00, being outstanding school fees due and payable to
the appellant in respect of the said pupil. According
to the
particulars of claim, the respondent’s alleged liability to pay
the outstanding school fees was based on the provisions
of section
102A(1) of the Education Affairs Act (House of Assembly) 70 of 1988
(‘the Act’).
The
matter was ultimately placed before the magistrate for adjudication
in the form of a stated case. The factual basis of the stated
case
(partly set out in the written statement of agreed facts and partly
common cause between the parties) was as follows:
1.
The respondent is the natural parent of a minor child who has been
admitted as
a pupil to the state-aided school of which the appellant
is the governing body.
2.
The
respondent is divorced from the mother of the minor child in question
and, in terms of the deed of settlement incorporated in
the divorce
order made on 13 February 1990, the custody of (‘
beheer
en toesig oor
’)
[1]
such minor child was granted to the mother.
3.
The amount of R3 060.00 is due and payable to the appellant in
respect of
outstanding school fees for the minor child and these
school fees relate to a period governed by the provisions of the Act.
4.
The mother of the minor child (the respondent’s former wife)
was the person
who enrolled the child as a pupil at the state-aided
school in question. There is, accordingly, no
contractual
relationship between the appellant and the respondent as regards the
payment of school fees.
5.
In terms of the deed of settlement incorporated in the divorce order,
the respondent
is obliged to pay maintenance for his two minor
children in the total amount of R500,00 per month from 31 January
1990. In
addition, the respondent is obliged to keep his minor
children covered by his medical fund, his liability in this regard
being
limited to the amount for which the medical fund is liable.
No provision is made in the deed of settlement for any further
payments by the respondent in respect of his minor children; in
particular, no express provision is made for the payment of school
fees by the respondent.
It
is not clear from the papers before this Court whether the
above-mentioned fixed amount of maintenance payable by the respondent
has been increased subsequent to the divorce, either by court order
or by agreement between the respondent and his former wife.
However,
it would appear that the respondent has at no stage subsequent to the
divorce been ordered by a competent court, to pay
school fees in
respect of the minor child to whom these proceedings relate.
In
terms of the stated case, the question which had to be decided by the
magistrate was formulated as follows:
‘
Of
the bepalings van Wet 70 van 1988 die Verweerder [the respondent] as
nie-toesighoudende Ouer aanspreeklik stel vir die betaling
van
onderriggelde vir sy minderjarige kind.’
The
magistrate decided this question in the negative and, accordingly,
dismissed the appellant’s claim. The judgment
and order
of the magistrate in this regard form the subject of the present
appeal.
With
reference to various authorities, the magistrate sketched the common
law position in terms of which the parent to whom the
custody of a
minor child has been awarded (most frequently upon the divorce of the
parents) is henceforth vested with that portion
of the parental
power
[2]
which pertains to the
personal, day-to-day life of the child. One of the incidents of
custody is the decision-making power
in respect of the child’s
education, including the choice of school for the child. The
magistrate continued as follows:
‘
Gevolglik
kan die ander (nie-bewarende) ouer nie besluite neem oor wat by die
bewarende ouer tuis- hoort nie. Die verweerder
is gevolglik nie
by magte om die kind in ’n spesifieke skool te plaas vir
onderrig nie. … Die gevolglike aanspreeklikheid
vir
betaling van skoolfooie volg dus vir die rekening van die ouer wie
die gesag het oor die kind en ooreenkomste in belang
van die
kind by die skool aangegaan het, te wees. Die ouer wie nie meer
ouerlike gesag oor die kind voer nie, ook nie met
betrekking tot
watter skool die kind moet bywoon nie, kan dus ook nie aanspreeklik
wees vir betaling van skoolgelde nie.
Die egskeidingsbevel
gelas dit nie. Die vader van die kind, met ander woorde die
verweerder, het homself ook nie kontraktueel
verbind om die
skoolgelde te betaal nie. Die moeder het haar egter sodanig
verbind toe sy die kind ingeskryf het by daardie
skool. Daar
bestaan nie ’n ooreenkoms in dié verband tussen die
eiser en die verweerder nie. Die eiser
se eis word gevolglik
bevind om nie te slaag nie...'
Mr
Treurnicht
, who appeared for the appellant, submitted that the
magistrate had not actually decided the question posed in the stated
case,
namely whether the provisions of the Act render a non-custodian
parent liable
vis-à-vis
the relevant school for the
payment of school fees in respect of his or her minor child,
irrespective of the non-custodian parent’s
lack of
decision-making power concerning the choice of such school.
Mr
Treurnicht
emphasised that the appellant’s claim was based
neither on the common law, nor on a contractual relationship between
the
appellant and the respondent, but exclusively upon the provisions
of section 102A(1) of the Act.
There
is some merit in this criticism of the magistrate’s reasoning.
However, this does not necessarily mean that the
order ultimately
made by the magistrate is incorrect. If this Court comes to the
conclusion that, on a proper interpretation,
the provisions of
section 102A(1) of the Act do not in fact support a claim for school
fees by the appellant against the respondent,
this appeal cannot
succeed.
Section
102A(1) of the Act reads as follows:
‘
The
parent of a pupil admitted to a state-aided school shall pay such
school fees as the governing body of that school may levy.’
In
terms of section 1, the word ‘parent’, in relation to a
child, means ‘the parent of such child or the person
in whose
custody the child has been lawfully placed’.
Counsel
for the Appellant argued that, in view of this definition of ‘
parent
’
in the Act, the legislature must be taken to have envisaged an
expansion of the concept of ‘
parent
’ so as to
include not only the natural parents (the father and the mother) of a
child, but also other
persons
(not being parents) in whose
custody the child has been lawfully placed. Upon this
interpretation, the parties liable to
pay school fees in respect of a
minor child, in terms of section 102A(1) of the Act, would be either
the father or the mother of
the child, (irrespective of whether
either or both such parents have custody of the child), as well as
any third party who has
custody of the child in terms of the order of
a competent court. The school would thus be able to rely on the
provisions
of the section to hold either the father or the mother
liable for school fees - even if the parents are divorced, the
custody of
the child has been granted to the other parent and the
latter as the custodian has enrolled the child in the school.
According
to counsel for the appellant, this interpretation is supported by the
common law duty of both parents to support their
children in
proportion to their respective means, which duty is not terminated by
divorce or by the fact that the custody of the
child has been granted
to the other parent.
Mr
la Grange
, who appeared for the respondent, also relied on the
common law in support of quite a different interpretation of the
relevant
provisions of the Act. Referring to the common law
‘
right
’ of the custodian of a minor child to
determine all questions relating to such child’s education
(whether or not the
custodian is a parent of the child), counsel
submitted that the definition of ‘
parent
’ in
section 1 of the Act was intended by the legislature to encompass
only those parents or other persons who have custody
of a child,
either by operation of law or by the order of a competent court.
Married parents (who, in the absence of a court
order to the
contrary, share the custody of their minor child), the surviving
parent of a legitimate child whose other parent has
died, and the
mother of an extra-marital child all have custody by operation of
law. On the other hand, there are categories
of parents and
other persons who have custody of a minor child, not by operation of
law, but rather by virtue of the order of a
competent court.
These categories include:
·
the father of an extra-marital
child to whom the custody of such
child has been granted, either in terms of the common law or under
the provisions of the
Natural Fathers of Children Born Out of Wedlock
Act 86 of 1997
;
·
the
divorced parent who has upon divorce been granted custody of his or
her child, to the exclusion of the other parent, or the
divorced
parents who have upon divorce been awarded joint custody of their
child, in terms of
section 6(3)
of the
Divorce Act 70 of 1979
;
[3]
·
the adoptive parent (or parents)
of a child who has (or have) custody
(and guardianship) of the child by virtue of the adoption order made
by a children’s
court under Chapter 4 of the Child Care Act 74
of 1983;
·
the foster parent (or parents)
who has (or have) custody of a child
by virtue of the order of a children’s court, made in terms of
section 15(1)(b), read
together with section 53(1), of the Child Care
Act 74 of 1983; and
·
the person in whose custody a
convicted child has been placed by the
relevant criminal court, acting in terms of
section 290(1)(b)
of the
Criminal Procedure Act 51 of 1977
.
Counsel
for the respondent thus submitted that, on a proper interpretation,
the non-custodian parent of a child would
not
fall within the
definition of ‘
parent
’, as it appears in section 1
of the Act. On the contrary, this definition should be taken to
include only those parents
who have custody of a child by operation
of law, as also those parents and other persons in whose custody a
child has been placed
by the order of a competent court.
According to counsel, this interpretation is also supported by the
context of the Act
as a whole and, in particular, by having regard to
other sections of the Act in which the word ‘
parent
’
is utilised.
The
principle of statutory interpretation which requires a statute to be
interpreted in conformity with the common law rather than
against it
has been described as ‘
the
most fundamental of all the presumptions
[of
statutory interpretation]
since
many of the others are merely axiomatic extrapolations of it
’.
[4]
In
the words of Wessels J in
Casserley v Stubbs
1916 TPD 310
at
312:
‘
It
is a well-known canon of construction that we cannot infer that a
statute intends to alter the common law. The statute
must
either explicitly say that it is the intention of the legislature to
alter the common law, or the inference from the Ordinance
must be
such that we can come to no other conclusion than that the
legislature did have such an intention.’
The
effect of this principle is neatly summed up by Professor Lourens du
Plessis as follows:
‘
This
implies that, as a starting-point, an enactment must be interpreted
in view of the common law in that its provisions must as
far as
possible be reconciled with related precepts of the common law:
the provisions that stand to be interpreted must be
so construed that
they are capable of co-existing with similar and/or related
provisions of the common law.’
(See
Du Plessis
The Interpretation of Statutes
(1986) 69 and the
authorities there cited; see also Steyn
Die Uitleg van Wette
(5 ed, 1981) 97-100.)
At
common law a parent (or other person) who has the custody of a minor
child is entrusted with the care of the child’s person
and the
decision-making power in respect of the child’s day-to-day
life, upbringing and education. A useful description
of the
position of the custodian parent is given by Gubbay J in
Matthee v
MacGregor Auld
1981 (4) SA 637
(Z) at 640D-F:
‘
the
custodian parent has, therefore, the right and duty to regulate the
life of the child; to choose and establish his residence
(
Landmann v Mienie
1944 OPD 59
at 65); to resolve with whom he
should be allowed to associate (
Wolfson v Wolfson
1962 (1) SA
34
SR at 37C-H); to direct the lines on which his secular education
should proceed (
Simleit v Cunliffe
1940 TPD 67
at 76;
Scott
v Scott
1946 WLD 399
at 401), including the choice of the school
(
Martin v Mason
1949 (1) PH B9 (N)); to devise upon his
religious instruction (
Ryan v Ryan
1963 R & N 356 (SR) at
368A); to determine what medical advice, supervision or assistance
should be sought in the event of
his becoming ill or sustaining an
injury (
Oosthuizen v Rix
1948 (2) PH B65 (W);
Custner v
Hughes
1970 (3) SA 622
(W) at 625B). The …
non-custodian has no right of interference in these matters.’
This
description applies equally to the position of a non-parent in whose
custody the child has been lawfully placed.
Specifically
as regards the secular education of the child, it is the custodian
who is vested with the decision-making power concerning
all questions
relating to such education, such as selecting the school to which the
child is to be sent, choosing the medium of
instruction, and changing
the child’s school from time to time, as circumstances may
require (see, for example,
Niemeyer v De Villiers
1951 (4) SA
100
(T) at 103H-104A and the numerous other authorities cited in
Joubert (ed)
LAWSA
Volume 16
Marriage
(First Reissue,
1998) para 134 and in
Boberg’s Law of Persons and the Family
op cit at 562-563 note 215 and 663 note 21).
The
question of the custodian’s position concerning the religious
education of the child was left open in
Simleit v Cunliffe
1940
TPD 67
at 76 (which case was concerned only with secular education).
However, the custodian’s ‘
duty to care for the
religious upbringing of the child and the right,
prima
facie,
to decide upon the form which that religious
upbringing should take
’ was affirmed by Ramsbottom J in
Dreyer v Lyte-Mason
1948 (2) SA 245
(W) at 251, followed in
Ryan v Ryan
1963 (2) PH B26 (SR). (See also in this
regard the later cases cited in
LAWSA
Volume 16
Marriage
loc cit and in
Boberg’s Law of Persons and the Family
op
cit 663 note 22; but cf Spiro
Law of Parent and Child
(4 ed,
1985) 298-299 and
Allsop v McCann
(CPD Case No 1518/2000,
unreported judgment of Foxcroft J) at 7-14.)
As
pointed out above, the parents of a dependent child are both under a
common law duty to support such child in accordance with
their
respective means. This duty of parents to support their
children is not terminated by the dissolution of their marriage
by
divorce. A court order for the maintenance of a dependent child
(whether made by the High Court or by a maintenance court)
simply
regulates the incidence of the common-law duty of support as between
the parents. A parent who has paid more than
his or her
pro
rata
share towards the child’s support is entitled to
recover the excess from the other parent, irrespective of whether the
duty
of support was apportioned between them by an order of court.
This right of recourse appears to be based either on unjust
enrichment or on
negotiorum gestio.
The
parental duty of support includes the obligation to provide the child
with a suitable education (see now
section 15(2)
of the
Maintenance
Act 99 of 1998
). In appropriate cases, this may even extend to
the provision of a university education (see, for example,
Mentz v
Simpson
1990 (4) SA 455
(A) at 459B-D).
The
scale upon which parents must provide support for their child is
determined by the reasonable needs of the child, viewed against
the
background of the standard of living of the parents and their
economic and social circumstances. (On the duty of parents
to
support their children, see
Boberg’s Law of Persons and the
Family
op cit 240-248,
LAWSA
Volume 16
Marriage
op
cit paras 156-168, Clark (ed)
Family Law Service
(1988, with
looseleaf updates) paras C3-C13 and the numerous authorities cited by
these writers.)
For
the purposes of the present case, it is important to distinguish
between the duty of parents
inter se
to support their
children, on the one hand, and the liability of parents as against
third parties for debts incurred by either
parent in respect of the
child’s maintenance needs, on the other hand. Provided
that the parent with whom the third
party contracted had the
requisite contractual capacity, the third party would of course have
a contractual claim against such
parent. Furthermore, during
the subsistence of the parents’ marriage, the provision of
goods or services by the third
party for the support of the child
would, in many instances, fall within the concept of ‘
necessaries
for the joint household
’. If so, the third party
would, in appropriate circumstances, also have a contractual claim
against the non-contracting
parent. If, on the other hand, the
goods or services supplied by the third party cannot be brought
within the concept of
‘
necessaries for the joint household
’
(for example, if the spouses are separated and there
is
no
such joint household), then the contractual claim of the third party
would lie only against the contracting parent and any liability
of
the non-contracting parent
vis-à-vis
the third party
would have to be based either on unjust enrichment or
negotiorum
gestio.
(See further in this regard, Sinclair assisted by
Heaton
The Law of Marriage
Volume 1 (1996) 445 et seq, as also
Hutchison et al (eds)
Wille’s Principles of South African
Law
(8 ed, 1991) 134-138).
It
must be noted that, to a certain extent, the common law rules
governing the liability of spouses as against third parties for
debts
incurred by either of them in respect of household necessaries have
been replaced by the provisions of the
Matrimonial Property Act 88 of
1984
. In the case of a marriage in community of property,
section 17(5)
of this Act provides that, where a debt has been
incurred for necessaries for the joint household, the spouses are
jointly and
severally liable to the third party concerned. In
terms of the same subsection, even if the debt does not fall within
the
ambit of necessaries for the joint household, the spouse who
incurred the debt or both spouses jointly may be sued by the third
party creditor, provided that the debt in question is recoverable
from the joint estate. In terms of section 23(5) of Act
88 of
1984, spouses married out of community of property are also jointly
and severally liable to third parties for all debts incurred
by
either of them in respect of necessaries for the joint household.
Where
the parents of a child are divorced, the third party who provides
goods or services for the support of the child would appear
to have a
contractual claim only against the parent or other person with whom
the third party has contracted. Although both
parents
do
remain liable to support their child in accordance with their
respective means, the third party who wishes to sue a non-contracting
parent would, it would seem, have to base this claim on some other
ground (such as unjust enrichment or
negotiorum gestio
) and
would have to satisfy the requirements of such a claim (see
Boberg’s
Law of Persons and the Family
op cit 248, as also the first
edition of the same work (1977) 266-267).
Responding
to a question from the Court, counsel for the respondent submitted
that, where the deed of settlement between the parents
expressly
provided for the payment by the non-custodian parent of the cost of
goods or services in respect of the child (eg medical
expenses or
school fees), the third party supplier might be able to found a claim
against the non-custodian parent on the basis
of a
stipulatio
alteri
. This may well be so, but it is not necessary, for
the purposes of this judgment, to express any firm views in this
regard.
The
above-mentioned presumption that a statutory provision does not alter
the existing law more than is necessary applies not only
to the
common law, but also to the alteration of existing statute law (see
Devenish
op cit
71-72). The common law and statutory
framework set out above must therefore form the background to the
interpretation of
section 102A(1) of the Act. Moreover, it
should also be remembered that, where the legislature uses the same
word in different
sections of the same statute, it may reasonably be
supposed that it would intend this word to be understood in the same
sense throughout
the statute, where no clear indication to the
contrary is given (see
Minister of the Interior v Machadodorp
Investments (Pty) Ltd and Another
1957 (2) SA 395
(A) at 404D-E,
The Master v I L Back and Co Ltd
1983 (1) 986 (A) at 1001C-D,
as also Devenish op cit 217-218 and Joubert (ed)
LAWSA
Volume
23
Statute Law and Interpretation
(1991) para 296).
Apart from section 102A(1), there are various other sections of the
Act which regulate the position of a
‘
parent
’ of a
child as regards the education of that child. These sections
bear closer examination.
§
In terms of section 42 of the Act, the relevant Head of Education
may, at the request of the ‘
parent of the child
’,
approve that the child be admitted to a school for specialised
education (whether a state-aided school or otherwise), if
the Head of
Education is of the opinion that the child concerned is a handicapped
child. (See also sections 43, 44, 45 and
47, which also confer
certain rights and/or impose certain obligations on the ‘
parent
of a handicapped child
’.)
§
Section 55 of the Act provides that, in certain circumstances, the
‘
parent of a child
’ may choose which official
language shall be determined by the school principal as the mother
tongue of the child.
§
In cases in which the school principal or some other competent person
has, in terms of section 55, determined
the mother tongue of the
child, section 56 gives to the ‘
parent of the child
’
who is aggrieved by such determination a right to appeal against that
determination, first to the Head of Education, and
thereafter to the
Minister of Education.
§
Section 57(2) of the Act specifically empowers the ‘
parent
of a child
’, in certain circumstances, to choose which
official language shall be the medium of instruction for the child
concerned.
§
As regards religious ceremonies and Bible instruction in schools
governed by the Act, section 62(4) entitles
the ‘
parent of a
child
’ to request the school principal in writing that the
child be exempted from attending such ceremonies or Bible
instruction,
whereupon the principal is obliged to exempt the child
accordingly.
As
pointed out by counsel for the respondent, the rights, powers and
duties conferred by all the above-mentioned sections of the
Act upon
the ‘
parent of a child
’ relate to matters which,
under the common law, fall within the exclusive competence of the
parent or other person having
custody of the child in question. The
non-custodian parent has no common law right to interfere in these
matters, although he or
she may petition the court to do so if it
appears that the custodian has exercised his or her discretion in a
manner contrary to
the interests of the child, or in conflict with an
order of court. If, therefore, the word ‘
parent
’
in these sections were to be interpreted to include a non-custodian
parent, this would amount to a radical departure from
the common law
principles set out above. It certainly cannot be said that either the
language or the import of these provisions
support the conclusion
that the intention of the legislature
was
to alter the common
law in this manner. This being so, the word ‘
parent
’,
as used in the above-mentioned articles, must be interpreted to mean
the parent or other person who has custody of a child,
whether by
operation of law or by order of a competent court.
Mention
may also be made of section 52 of the Act. In terms of this
section, if a so-called ‘
feeder area
’ has been
determined for the purposes of the admission of children to a school,
then ‘
no child whose parent resides within the feeder area
shall, except with the approval of the school board concerned, attend
a school
outside that feeder area
’ (section 52(1)(a)). As,
in the vast majority of cases, the child would reside together with
its custodian, it is logical
to interpret the word ‘
parent
’
in section 52 to have exactly the same meaning as the word ‘
parent
’
in the other sections discussed above.
Interestingly
enough, both counsel for the appellant, as also counsel for the
respondent, relied on section 104 of the Act to support
their
different interpretations of the word ‘
parent
’ in
section 102A(1). Section 104(1) provides that, if the ‘
parent
of a child
’ who is subject to compulsory school attendance
fails to send the child to school regularly without sufficient cause,
that
parent is guilty of a criminal offence.
Counsel
for the respondent argued that, as it is trite law that penal
provisions must be construed strictly, the word ‘
parent
’
in section 104(1) must be interpreted as referring only to the parent
or other person who has custody of the child and who,
therefore,
under the common law has the exclusive decision-making power in
respect of the child’s education. On the
other hand,
counsel for the appellant submitted that such an interpretation would
give rise to the absurd result that, in circumstances
in which the
child is staying with the non-custodian parent (for example, during
one of the periods of access by the non-custodian
parent), the
non-custodian parent could fail to send the child to school regularly
with impunity – and this could surely
not have been the
intention of the legislature.
The
latter interpretation overlooks the provisions of section
104(2)(a)(ii) of the Act, in terms of which ‘
any person
’
who, during normal school hours, without sufficient cause ‘
prevents
or
discourages
’ a child (who is subject to
compulsory school attendance) from attending school, is also guilty
of an offence. The
penalties applicable to both such offences
are exactly the same (see section 106(b) of the Act). Thus,
even if the word ‘
parent
’ in section 104(1) were
interpreted to exclude the non-custodian parent, such parent would
nevertheless in most cases be
caught within the provisions of section
104(2)(a)(ii) if the child who is staying with him or her does not
attend school on a regular
basis.
As
submitted by counsel for the appellant, there would appear to be no
indication that the word ‘
parent
’ as utilised in
section 102A(1) of the Act should be interpreted to have a different
meaning to the same word when used in
the other sections of the Act
discussed above. Indeed, if one were to interpret the word ‘
parent
’
in section 102A(1) to include the divorced non-custodian parent, this
would mean that the school would be able to hold such
non-custodian
parent liable for the payment of school fees, not only in the absence
of a contractual relationship between the school
and such parent, but
also without having to satisfy the requirements of a claim based on
some other ground such as unjust enrichment
or
negotiorum gestio
.
Such an interpretation would also amount to a fairly radical
departure from the common law principles set out above.
The
appellant’s interpretation of the word ‘
parent
’
in section 102A(1) of the Act would also give rise to inequitable
and, in many cases, absurd or anomalous consequences.
Thus, for
example, where the amount of maintenance payable by the non-custodian
parent in respect of his or her child has been
computed with
reference to all the different components of the duty of support,
including the child’s educational expenses
(see, for example,
Du Toit v Du Toit
1991 (2) SA 856
(O)), the school at which
the custodian parent has enrolled the child would nevertheless be
entitled to sue the non-custodian parent
for all the outstanding
school fees in respect of such child. This would be the case
even if the non-custodian parent had
complied with the maintenance
order in all respects.
Another
possibility which springs to mind is the situation where the child
has been placed in the custody of a foster parent by
a children’s
court and that foster parent has enrolled the child in a school.
Quite apart from the possibility of a
foster care grant payable to
the foster parent, the natural parent may also have been ordered to
make regular payments as a contribution
towards the maintenance of
the child (by means of a contribution order in terms of section 43 of
the Child Care Act 74 of 1983).
If one were to interpret the
word ‘
parent
’ in section 102A(1) of the Act in the
manner contended for by the appellant, this would mean that the
school would be able
to sue the natural parent (who does not have the
custody of his or her child) for all outstanding school fees in
respect of such
child, even if the natural parent had complied with
the contribution order against him or her in every respect.
This type
of consequence would offend against the tenet of statutory
interpretation to the effect that, as far as possible, statutes must
be interpreted so as not to give rise to inequitable or absurd
results (see, in this regard, Du Plessis op cit 83-97).
In
the light of the above, I am of the view that the word ‘
parent
’
in section 102A(1) of the Act, read together with the definition of
‘
parent
’ in section 1, must be interpreted so as
to encompass only a parent who has custody of the pupil in question
by operation
of law, as also the parent or other person in whose
custody the pupil has been placed by order of a competent court.
If more
than one person has custody of a particular pupil, then any
of such persons can be held liable by the school, in terms of section
102A(1), for that pupil’s school fees. Thus, married
parents who, in the absence of a court order to the contrary,
share
the custody of their minor child, would both be liable
vis-à-vis
the school for the payment of school fees, irrespective of which
parent had enrolled the child in the school. Similarly,
the
school would be able to sue either parent (or both parents jointly)
for school fees in a situation where the parents are divorced,
but
where joint custody of the child has been awarded to them (once
again, quite irrespective of which custodian parent had enrolled
the
child at the school).
To
a certain extent, therefore, this interpretation of section 102A(1)
does alter the common law principles regulating the liability
of
parents
vis-à-vis
third parties who provide goods or
services for the support of a child. In such situations,
however, each of the parents
having custody of the child has an equal
voice in matters relating to the child’s daily life, including
educational matters,
so that this ‘
extension
’ of
the common law would appear to be justified. Here too, of
course, the parent who pays the school fees and, by so
doing,
contributes more than his or her
pro rata
share towards the
child’s support, will be entitled under the common law to
recover the excess from the other parent.
It
follows from what I have said above that, in my view, the provisions
of section 102A(1) of the Act do not render the respondent,
as the
non-custodian parent, liable
vis-à-vis
the appellant
for the payment of outstanding school fees in respect of his minor
child. I would accordingly recommend that the
appeal be dismissed
with costs.
B
J VAN HEERDEN
GRIESEL
J: I agree. The appeal is dismissed with costs.
B
M GRIESEL
[1]
For criticism of the term
‘
beheer
en toesig
’
instead of the word ‘
bewaring
’
(‘
custody
’),
see
Stassen
v Stassen
1998 (2) SA 105 (W).
[2]
The term ‘
parental
power
’
may be regarded as outmoded and unsatisfactory, the modern emphasis
being on the rights and interests of children rather
than on the
‘
power
’
relationship between parent and child (see Van Heerden et al (eds)
Boberg’s
Law
of Persons and the Family
(2ed, 1999) 313-316 and the authorities there cited). This
term is, however, so entrenched in the South African case law
and
other sources that use of another term for purposes of this judgment
would simply cause confusion (cf in this regard,
V
v V
1998 (4) SA 169
(C) at 176C-F).
[3]
Custody orders may also be made
by the High Court, in terms of s 5(1) of the Matrimonial
Affairs Act
37 of 1953 (as substituted by s 16(a) of Act 70 of 1979), in cases
where the parents are already divorced or are
living apart from each
other. Moreover, in the exercise of its inherent jurisdiction
as the upper guardian of all minors
within its area of jurisdiction,
the High Court has a common law power to make
any
order (including a custody order) in respect of a child where the
best interests of the child require such an order. In
exceptional cases,
both
parents may be deprived of the custody of their child and this
custody may be vested in a third party. See further in this
regard
Boberg’s
Law of Persons and the Family
op cit 500 et seq.
[4]
See Devenish
Interpretation
of Statutes
(1992)
159.