Newspaper clipping – iol online – 4 December 2009

Non-custodians liable for school fees

A non-custodian parent can be held responsible for a child’s school fees even if he is unwilling but has the means to pay, the Supreme Court of Appeal held on Thursday.

The SCA upheld an appeal by the Fish Hoek Primary School against a finding in the High Court in Cape Town that only a custodian parent was liable to it for payment of school fees.

Earlier the school sued the natural father of one of its minor pupils for payment of the sum of R1610 in outstanding school fees. The father, who did not take part in the appeal in the SCA, denied that he owed the school. He submitted that whilst he was the biological father of the pupil, he was not liable for school fees but that the child’s custodian parent was.

The matter to be decided on appeal in the SCA was if the father was indeed a parent in terms of section 40(1) of the South African Schools Act 84 of 1996. The trial court held that he was not and accordingly dismissed the school’s claim, while an appeal to the High Court was also unsuccessful.

The SCA held that the lower courts had misinterpreted the law. It held that “parent” had been given a more expansive meaning by the country’s legislature in current legislation. The SCA reasoned that now a natural father such as in this case was a parent as defined in the Act. The court held that there was nothing in the definition to suggest that a non-custodian or non-guardian parent was excluded from the meaning of the word parent. 

The SCA decision was also influenced by the fact that historically it was almost always mothers who become custodial parents and had to care for children on the breakdown of their marriages. It held that despite the constitutional promise of equality, the division of parenting roles continued to remain largely gender-based and that courts should be sensitive to such matters.

The SCA also found that an interpretation that saddles both parents with responsibility for school fees was consistent with the injunction in section 28(2) of the Constitution, which stated “a child’s best interests are of paramount importance in every matter concerning the child.”

The court held it was in the best interests of a child that a non-custodian parent should be liable to pay for school fees and could even be forced by a court order. The Bloemfontein court set aside the lower court orders and made judgment in favour of the school for the sum of R1610 together with interest plus costs. - Sapa