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We all know that children have a constitutional right to basic education but the question often arises of how this right is influenced when school fees are something that a parent cannot afford and their child/ren are enrolled in a fee paying school. The basic rule is found in Section 40 of the South African Schools Act, which provides that “a parent is liable to pay the school fees…unless or to the extent that he or she has been exempted from payment”. However, this exemption process becomes complicated when parents are divorced or separated.

Firstly, it’s important to note that a child may not be excluded from school due to non-payment of school fees by his or her parents/ guardians. Further, parents are not legally obliged to pay school fees if they do not earn enough money (the test is normally if the school fees exceed 10% of the total family income).

If a parent/s finds that they are struggling to make school payments, they can apply to that specific school for a school fee exemption. However, bank statements will have to be provided in order to prove financial neediness. Previously, schools strictly required the statements of both parents/ guardians even where the parents are separated or divorced. This meant that a custodial parent would have their application for a fee exemption judged based on an overall income which often did not reflect their reality, and that was if they could even get the financial details from their former spouse. This standard placed a heavy burden on custodial parents to try and obtain financial statements from their former spouse and exemptions were often refused.

This was the issue that came to light in the Supreme Court of Appeal case of Head of Department: Western Cape Education Department & another v S (Women’s Legal Centre as Amicus Curiae). Ms S is a single mother who had applied for a school fee exemption but was refused by the governing body on the basis that she could not provide her former husband’s bank statements for the application to be assessed. After a decision by the High Court that each parent is liable for one half of their child’s school fees, the Department of Education approached the Supreme Court of Appeal. The case by the Department of Education was one based on the fact that both parents should support their children, regardless of custody, and that non-custodian parents should not be permitted to shift the financial cost of their children’s education onto the custodial parent or to public funding.

In the end, the Court provided for a conditional exemption to be granted by schools. This means that in circumstances where one parent has refused or failed to provide their income details‚ then a school shall assess and grant a conditional fee exemption to the custodial parent‚ having regard only to her or his income.

On a note of caution, the Court nevertheless found that parents are still jointly and severally liable for their child’s school fees and the school is fully within its rights to enforce the payment by the non-custodial parent for the balance of the school fees. This ensures that non-custodial parents are still held responsible for the support of their child, at least as far as school fees are concerned.

So what is the practical implication for a single parent who is struggling to afford school fees? They have the right to approach their child/ren’s school and apply for a fee exemption based on only their financial status. The school must consider this application on the merits of that parent’s documents alone and if they are found to be unable to afford the fees then they should be granted a conditional exemption for the portion of fees for which they are liable.