12 October 2016

On Thursday, 15 September 2016, the Western Cape High Court handed down a judgment which has a significant impact on the liability of parents to pay school fees.

Background

Michelle Saffer, a divorced mother, applied in 2010 for her daughter to be admitted to Fish Hoek High School in the Western Cape. She was unable to pay the full amount of school fees, and sought a fee exemption.

The school required the fee exemption form to be completed by both Ms Saffer and her ex-husband, adopting the view that they together constitute a ‘family unit’.

Ms Saffer has custody over her child and a difficult history with her former spouse. Because of this, she regarded it as unreasonable, humiliating and discriminatory for the school to expect her exemption application to be conditional upon securing his co-operation.

As Ms Saffer put it in a letter to the school on 17 November 2011:

“I am in no way a family unit with my daughter’s biological father. I divorced him soon after she was born. Divorced is another way of saying: we are separated. I know very little about his life. I do not have the kind of relationship which would enable me to do financial calculations as a ‘family unit’.”

Despite appeals, Ms Saffer’s fee exemption applications were ultimately rejected.

The Case

The Equal Education Law Centre (EELC) represents Ms Saffer, whose case is an example of a systemic issue in the fee exemption process, largely affecting separated and divorced mothers who face discrimination when applying for school fee exemptions.

On 25 May 2016 the matter was heard by Justice Le Grange at the Western Cape High Court. The EELC asked the Court to declare that Ms Saffer and her ex-husband, and all other divorced and separated biological parents, are jointly, rather than severally liable for payment of school fees for their children attending state schools.

In addition, Ms Saffer argued that the Court should declare the definition of ‘combined annual gross’ in the Fee Exemption Regulations inconsistent with the Constitution and invalid, insofar as it may apply to a single mother seeking a fee exemption.

Judgment

The judgment has the potential to introduce progressive reforms, however the judgment has not gone far enough. We welcome the court’s finding that the South African Schools Act holds parents jointly liable for the payment of school fees. On this point, the Court recognised that holding a custodial parent entirely liable for the full amount of fees “would impose an unnecessary heavy burden on parents like Ms Saffer and is irreconcilable with the paramountcy that must be afforded to the best interest of the child as a principle in our Constitution.”

The Women’s Legal Centre (WLC), amicus curiae in the matter, stressed in their submissions the adverse impact the current fee exemption scheme has on women. WLC argued that the fee exemption scheme should be viewed in a society where women experience multiple and intersecting forms of discrimination resulting in them being socially and economically disadvantaged. The Court recognised, importantly, the plight of single mothers who are, historically and presently, the custodial parents and have to care for children on divorce or breakdown of a relationship. On this the Court said: “[T]hese circumstances as a result, places an additional financial burden on them and …[d]ivorced or separated  mothers accordingly face the double disadvantage of being overburdened in terms of responsibilities and under-resourced in terms of means.”

However, despite this recognition, the Court retained the position that both parent’s income must be produced when applying for a fee exemption. This means that a poor single mother may have her fee exemption status influenced by the wealth of an ex-husband, despite the fact that her ex-husband is not responsible for the payment of her half of the school fee.

This does not accord with the judgement’s recognition of the disproportionate burden that single mothers shoulder in providing access to education for their children.

Application for Leave to Appeal

On 4 October 2016 the State filed a Notice of Application for Leave to Appeal to the Supreme Court. In the application, the State will seek to appeal the High Court’s findings on joint liability, and the award of costs in the case to Ms Saffer.

The Equal Education Law Centre will oppose the appeal. In addition, the EELC intends to cross appeal the High Court’s failure to ensure that single parents are able to apply for an exemption without furnishing the financial details of their ex-spouse.

 

For more information, please contact
Chandre Stuurman – Attorney EELC

Solminic Joseph – Attorney EELC

021 461 142