In light of the recent decision handed down by the Supreme Court of Appeal (“SCA”), Head of Department Western Cape Education Department and Others v Saffer (1209/2016)  ZASCA 187 (13 December 2017), single parents who are divorced or separated no longer require their former partners’ consent in order to apply for a fee exemption for their children.
The SCA overturned the decision of the Western Cape Division of the High Court and delivered a landmark ruling which allows single parents to apply for a fee exemption without submitting their partners’ income. This ruling allows public schools to grant fee exemptions to single parents based solely on their annual income and will alleviate financial pressure of many single parents in South Africa.
Section 40(1) of the South African Schools Act 84 of 1996 (“the Act”) provides that ‘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 terms of the common law, parents have a duty to support their child in accordance with their respective means. Historically, the custodian parent could be held liable for the full outstanding amount of school fees and have a right of recovery against the other party for his/her proportionate share. The responsibility for recovery of the proportionate share was not on the school, but on the custodian parent. This placed an onerous burden on single parents.
Moreover, the previous position with regards to the school fee exemption policy in South Africa was that the school’s governing body determined annual school fees, as provided for in Exception of Parents from the Payment of School Fees Regulations, 1998 (“the Regulations”). The Regulations created an income test to calculate whether an exemption of school fees should be allowed. The income test reads as follows: “if the combined annual gross income of the parents is less than ten times the annual school fees per leaner, the parent qualifies for full exemption.” (Our emphasis.) Partial exemptions were available to those whose income were more than ten times but less than thirty times the annual fees. The income test was premised on the combined annual gross income of the parents, and paid no regard to situations where the combined annual income was unobtainable.
Western Cape Decision
Michelle Safffer (“Saffer”), a divorced single mother could not afford the annual school fees at her daughter’s school, proceeded to apply for a fee exemption. In response, the school informed her that the exemption application form required the combined annual gross income of both biological parents of the child. Saffer appealed the school’s refusal of her fee exemption application to the Western Cape Education Department. Saffer, who is the custodial parent of her daughter, had a difficult history with her former spouse and regarded the school’s refusal to expect her application to be conditional upon the co-operation of her ex-husband to be unreasonable and discriminatory. The Western Cape Educational Department also rejected Saffer’s exemption application and she accordingly approached the Western Cape High Court for relief.
On 15 September 2016 the Western Cape Division of the High Court held that section 40(1) of the Act imposes a joint liability on parents and that both parents’ income must be produced when applying for an exemption. Whilst the court a quo recognised the immense burden that single parents faced, it held that parents were jointly liable for payment of school fees and maintained that both parents had to produce income statements when applying for exemption. This judgment did not offer Saffer, and other single parents in similar situations, the declaratory relief sought. It remained impossible for single custodian parents to obtain a fee exemption without the cooperation of their former partners. This placed an immense burden on single custodian parents and the law, alternatively the interpretation of the law, was in serious need of reform.
The Supreme Court of Appeal Judgement
The SCA finally recognised the potentially vulnerable position that the Act and Regulations pose to single parents. The principal issue under consideration was whether liability of biological parents for school fees at public fee paying schools, as provided for in section 40(1) of the Act, is that of joint liability, or whether it is joint and several liability.
The SCA, found that upon a proper interpretation of section 40(1), it compels a conclusion that parents are jointly and severally liable for payment of their children’s school fees, as opposed to jointly as held by the court a quo. The SCA thereafter had to consider 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. The SCA found that section 40(1) provides a safety valve in that joint and several liability is eased by the proviso ‘unless or to the extent that he or she has been exempted from payment in terms of this Act.’ The SCA held that the impugned legislation is capable of being read in a manner that is constitutionally compliant.
Whilst the SCA held that section 40(1) imposes joint and several liability, it amended the previous position by allowing parents to be liable for their proportionate share of the fees only, as opposed to the full amount. If the custodial single parent is not able to afford his/her pro rata share of the fees, such a parent can apply for a total or partial fee exemption of his/her share of the fees. The fee exemption would be the total or partial fee exemption to which the single custodian parent would have been entitled had he or she been the only parent. If the Act and regulations, properly construed, are to be applied, the complaint of unequal treatment fall away.
The SCA unequivocally did away with the notion that both parents’ income has to be produced in these circumstances. Fee exemptions can no longer be refused on the basis that the non-custodial parent is able to afford the full fee. The SCA made it clear that in circumstances where a recalcitrant parent has refused or failed to provide his/her income details, public schools will only have regard to the single custodial parent’s income. All public schools, governing bodies and education Departments have to comply with the SCA judgment forthwith in relation to all parents who are in the same or similar situation as the Applicant. Public schools may still take legal action to enforce payment by the other parent to ensure that the balance of the school fees are settled, however this burden no longer rests on the custodian parent.
According to South African Child Gauge 2016, 40.6% of children in South Africa were residing only with their biological mother, whereas 3.7% of the children where living only with their biological fathers. In addition, Statistics SA released that 55.6% of divorce cases in 2015 involved couples with children younger than 18 years. The number of children in South Africa being raised by single parents, especially single mothers, is recognised to be among the highest in the world. In light of the prevalent socio economic circumstances and a history of disparity and discrimination, this judgment has ground-breaking consequences seeing as single custodian parents, who are mostly women, no longer have to bear the grunt.
Gone are the days were single custodian parents are prejudiced by their former partners’ lack of cooperation. Single custodian parents are no longer at their estranged partners’ / former spouses’ mercy and may very well be entitled to a fee exemption based solely on their lack of financial means. Fee-exemption applications can now be processed 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.
The SCA judgement does not only provide custodial single parents with clarity as to their position with regards to applying for fee exemptions, but also alleviates the burden single parents may face in providing access to education for their children, which is ultimately a fundamental right entrenched by section 29 of our Constitution and in line with the paramountcy that must be afforded to the best interests of the child.
Authors: Nicola du Toit, Associate and Jeannique Booysen, Candidate Attorney