The Department of Basic Education released the Draft Basic Education Laws Amendment Bill on the 13th October 2017 , calling for comments by the 10 November 2017.
The Bill covered many aspects covering the administration of public schools but as a firm that deals with large numbers of public school fee collections we decided to focus on the proposed amendment of Amendment of section 41 of Act 84 of 1996, as amended by section 5 of Act 24 of 2005 Section 41 of the South African Schools Act, 1996, dealing with the documentation required in support of an application for an exemption and the challenges of parent liability to pay school fees.
We believed in following a position of compromise, fairness and understanding of the position of parents applying for exemptions balanced with the needs of the school and the general body of learners and the details of our submission appear below.
I am an attorney who acts for over 120 fee paying public schools and I assist these schools with compliance of the SA School Act and school fee collections. In addition, for the past 14 years I have been giving annual seminars to public schools around the country on the topic of compliance with the SA Schools Act, specifically relating to school fees and exemption applications.
The sole focus of this submission is to deal with the proposed amendment of Amendment of section 41 of Act 84 of 1996, as amended by section 5 of Act 24 of 2005 Section 41 of the South African Schools Act, 1996, dealing with the documentation required in support of an application for an exemption and the challenges of parent liability to pay school fees.
These submissions are based on facts and actual situations dealt with by not only our clients but other public schools in the country that were canvassed by the writer on this specific proposed amendment. However, the content of the submissions are those of the writer alone.
It is not an easy area to create fairness, as will appear from this submission, as there are competing rights and particularly where parents are separated finding a workable and practical legal framework is challenging.
2. Rights of Parents vs the School and General Body of Learners
Admittedly the approach of some fee paying schools in dealing with exemption applications has been stringent and requires detailed private financial information but there are valid reasons in many cases and the legislature has to be careful that in trying to protect the parents that they don’t tread on the rights of the general body of learners at the school. In addition, one has to understand the motivation of the public school in being reluctant to grant exemptions without a proper investigation of the true financial affairs of the parents.
While Supreme Court of Appeal case of Fish Hoek Primary School v G W (642/2008)  ZASCA 144; 2010 (2) SA 141 (SCA) ; 2010 (4) BCLR 331 (SCA) ;  2 All SA 124 (SCA) (26 November 2009) dealt with the question of non-custodian parent liability, Ponnan JA’s statement at 14 sheds light on the consequences of non-payment of public school fees, be that as a result of enforcement issues or the relaxing in the requirements for the granting of exemptions:
“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.”
While the Department of Basic Education offers a small compensation to fee paying schools for exemptions granted, in most cases this amount is not even remotely commensurate with the fees lost on the granting of exemptions.
Therefore, the more parents that qualify for exemptions, the less income the school has, which results in the school having to look at increasing school fees which in turn results in more exemptions being granted, as the formula for exemptions is a direct relationship between what the parents earn and the amount of the school fees. This vicious spiral can result in the inability of schools to meet its financial requirements and may result in the reduction of school standards and facilities which obviously then effects all learners in that school.
In the unreported case of Centre for Applied Legal Studies and Others v Hunt Road Secondary School and Others (DCLD) (case 10091/2006) the Applicant secured a court order preventing the school from enforcing various judgments for the payment of outstanding school fees as the school had failed to properly comply with the relevant law before handing the matters over for legal debt collection. The writer was personally advised by the then principal of this previously disadvantaged school that the result of this court order and the reduction in school fee income was that the school was no longer able to employ 3 Governing Body employed educators and lost a subject. Patently this was to detriment of the general body of learners.
From the above I trust that it is clear that we are dealing with competing rights of parents applying for exemptions versus the rights of the other parents in the school and more importantly the rights of the general body of learners and their Section 29 Constitutional right to basic education.
Moreover, the effect of the new proposed 41(2A) will be to effectively let off a large number of non-custodian parents from their legal liability to support their child/ren in paying for their fees notwithstanding that they may well be capable of doing so.
3. Divorce Orders and Settlement Agreements
It is submitted that reference to Divorce agreements and orders, gives an incorrect perception that these are binding on schools, which they are not.
While the school may wish to have proof of a divorce decree, the specific reference to documents beyond this have no bearing on the calculation of an exemption as such a court order is binding inter partes and not on third parties. There is a long line of legal authority confirming this general position while the unreported Free State case of Meeding v Hoer Tegniese Skool Sasolburg case no: A134/2011 which deals specifically with public school fees and in which the court held at page 46-47:
“Al wat hierde bevel doen is dat dit ‘n verhaalsreg van persoonlike aard aan die appellante verleen en geen saaklike reg nie. Hierde bevel is bloot ‘n persoonlike vorderingsreg wat nie teenoor die res van die wêreld geld en spesifiek nie ten opsigte van enigiemand wat nie ‘n party tot die egskeidingsgeding was nie.
Wat meer is dit voorsien uitdruklik dat uitgawes wat aangegaan is ook betaal moet word deur die tweede verweeder of dan die appellante se vorige eggenoot. Dit voorsien met ander woorde by noodwendige implikasie dat sy reeds uitgawes aangegaan het en moontlik uitgawes kan aangaan wat sy van hom kan verhaal. Daar is geen ruimte vir ‘n bevinding dat hierdie bevel die bepalings van die Skolewet wysig of inperk in enige opsig nie. Daar is geen manier waarop so ‘n bevel die wet kan wysig of ‘n inperking op die regte van die respondent kan daarstel wat nie ‘n party daartoe was nie.
Dit is eintlik die einde van die saak in die sin dat uit hoofde van die bepalings van die Skolewet die landdros tereg geregtig was om ‘n bevinding te maak soos hy gedoen het, naamlik dat beide die ouers, synde die appellante en die tweede verweerder, gesamentlik en afsonderlik aanspreeklik is vir betaling van die skoolfooie.”
Translated into English:
“All that this order does is that it gives the appelant a right of recourse of a personal nature and no real right. This order is purely a personal right of action which is not effective against the rest of the world and specifically not in relation to anyone who is not a party to the divorce suit.
What is more, it explicitly states that expenses incurred must also be paid by the second defendant or the appellant’s previous spouse. It provides, in other words, with the necessary implication that she has already incurred expenses and may incur expenses she can recover from him. There is no room for a finding that this order changes or limits the provisions of the Schools Act in any way. There is no way in which such an order could amend the law or create a restriction on the rights of the respondent who was not a party to it.
It is actually the end of the case in the sense that under the provisions of the Schools Act the magistrate was entitled to make a finding as he did, namely that both the parents, being the appellants and the second defendant, jointly and severally liable for payment of school fees.“
4. Separated Parents
The effect of the proposed amendment will be to cut of the school’s right to look at the non-cooperative parents who are generally the non-custodian parent and limit the application solely to the income of the applicant parent, notwithstanding that the non-custodian may well be the proverbial millionaire. This is completely unfair to the school.
Case such as the Meeding case referred to above and the case of M S v Head of Department, Western Cape Education Department and Others (18775/2013)  ZAWCHC 119;  4 All SA 578 (WCC); 2017 (4) SA 465 (WCC) (15 September 2016), which is currently on appeal to the Supreme Court of Appeal, highlight the challenges when dealing with the liability of separated parents to pay school fees and how to deal with them in cases of exemption applications. In numerous instances these parents are in conflict with one another and this soured relationship spews over into the area of who is liable for school fees and exemption applications and many schools report being unwillingly drawn into this arena of conflict, something they wish to avoid.
So in M S v Head of Department, Western Cape Education we had a case trying to deal with the challenges of an application for an exemption of a divorced mother in which the father was not co-operative in providing his financial information so that the school could apply the exemption formula in terms of the exemption regulations which apply to “combined annual income of parents”. The writer respectfully submits that the court in this matter erred in its judgment and hopes that a Supreme Court of Appeal corrects this error. The court in this case rather than creating fairness for the mother through an interpretation of the exemption regulations chose rather to look to the SA Schools Act and hold that parents are jointly liable for public schools, and stating that :
“Joint liability in this context means that each parent would only be liable for their proportionate share of the fees; joint and several liability means that each parent is liable to the school for the full amount of the fees and if one parent pays the full amount, she or he will have a right of recovery against the other parent.”
This is problematic in many aspects.
Firstly, what is a proportionate amount? In the Supreme Court of Appeal case, Fish Hoek Primary School referred to previously, it was held:
“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 needs 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.”
So while in the M S v Head of Department, Western Cape Education case the parents were conveniently liable for 50% each, a large number of divorce and maintenance orders do not specify in percentages but rather who pays what. Moreover, to enforce that would draw schools into being bound by divorce and maintenance orders, which is not only untenable for schools of becoming the interpreters of such orders but moreover this conflicts with the legal position of such orders not being binding on third parties as reflected in numerous cases and specifically the Meeding case, which also conflicted with the M S case in holding that parents were jointly and severally liable in terms of the SA Schools Act.
Secondly the decision creates an interpretation issue, as if parents are jointly liable, this conflict with the exemption regulations in which the “combined annual income of parents” is measured in a formula against the total years school fees and the judgment renders the regulations impossible to apply in accordance with direct wording of the regulations.
To allow any form of liability of parents other than joint and several would result in schools having to try and interpret court orders, which are legally not binding on them, and being drawn into post-marital/relationship conflicts.
Admittedly joint and several liability might result in one parent paying more than their legal duty to support their child in accordance with their means but they would then have the right to refer the matter to the maintenance court, the correct institution to determine and redress the liability between the parents.
5. Use of Affidavits as Binding Evidence
One of the strongest criticism the writer received from schools providing feedback on this proposed amendment was the reliance on affidavits as final proof in a number of cases.
A large number of schools have reported numerous instances of false affidavits being submitted and while this is a criminal offence of perjury, which will be future defined as a specific criminal offence in terms of the proposed provision of Section 59(3) in which it is proposed to add the following:
“A parent of a learner or any person who, in an application for
admission to a public school or for the exemption of the payment of school fees, submits or provides information which he or she knows to be false or misleading, or submits a forged document or one which, purports to be but is not a true copy of the
original is guilty of an offence and upon conviction liable to a fine or to imprisonment for a period of six months.”
But the reality is that in a country in which serious crime is rife, the chances of successfully having criminal charges under either criminal provision prosecuted are slim and therefore the criminal sanctions do not serve as a disincentive for false statements relating to income or employment.
Moreover, the limitation of information that schools can request from parents in terms of these draft amendments will severally limit the about of false information that is detected therefore rendering the possible implementation of the proposed Section 59(3) impossible in a majority of cases.
6. Self-Employed Parents
Another challenging area for schools is trying to determine the income of self-employed parents and the reliance purely on unaudited statements on self-employed parents and those with investment interests leaves the schools open to extensive false statements in this area.
7. Unemployed Parents
Once again the reliance on simple affidavits is not sufficient and lead to abuses and false statements. A simple letter by the Department of Labour that the parent is unemployed while not perfect, would be far more effective.
8. Act being Amended to deal with Regulation Issues
One must also question why the Act is becoming amended to deal with an issue that comes from the exemption regulations. With respect, a number of the issues come directly for the poor drafting of these regulations and it would be far better to overhaul the entire exemption regulations.
In addition, the formula applied needs to be rethought as it’s resulting in persons who are upper middle-class earners qualifying for exemptions and the vicious spiral discussed at the beginning of this submission needs to be avoided.
9. Bank Statements
In numerous instances schools have advised us that bank statements were vital in properly assessing the income of parents as without it:
– additional income beyond salaries would go undetected
– a number of fraudulent salary slips would not be detected
– various other frauds would not have been picked up
It is submitted that the requirement of 3 months bank statements is a fairly regular requirement in financial transactions and is something that parents should be familiar with.
10. Our Proposal on the Amendment
Our suggestions on the proposed amendment dealing with school fees and exemptions under Section 41 is as follows:
1. Amending Section 40(1) to:
“[Parents are jointly and severally liable] to pay the school fees determined in terms of section 39 unless or to the extent that [they have been ] exempted from payment in terms of this Act.”
2. Re-looking at the entire exemption process and then amending the regulations (as opposed to the Act) to:
2.1 Consider a new exemption formula that is fairer and does not result in exemptions placing the financial burden of such exemptions almost solely on the school; and
2.2 Limiting the documents that a school can request from parents to –
(a) A salary advice of all parents, where applicable;
(b)Three (3) months personal bank statements of each parent and in the event that they are self-employed those of the business;
(c) divorce orders, if applicable, to determine the legal status of the parents;
(d)audited statements of profits received from investments or other forms of business, alternatively each parent’s last annual tax return;
(e) where the parent is unemployed, a letter from the Department of Labour confirming this; and
(f) proof of all children registered at a public school.
2.3 Amending the proposed S41(2A) and placing it in the regulations as:
“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 prima facie 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.”
2.4 Add a new subsection dealing the school’s right to trace and sue the uncooperative parent for outstanding school fees subject to their right to apply with the other parent for an exemption : –
2.4.1.”Notwithstanding a parent submitting the requisite documents in terms of (2A) above, this shall not preclude the school from attempting to trace the other parent and obtain details of their income in order to comply with the regulation allowing it to use “the combined annual income of the parents”. If the school does not trace the other parent, then the exemption shall be calculated without such parent.”
2.4.2 “In the event of any one of the parents not providing the financial information required to process the exemption application, the school shall have the right to sue such parent for the full outstanding school fees subject to that parent’s right to apply for an exemption with the other parent.”