Single parents who are separated or divorced can now apply for a fee exemption for their children without their partners, the Supreme Court of Appeal (SCA) ruled on Wednesday.

The SCA made the ruling in an appeal which the Western Cape Education Department lodged against the Western Cape High Court’s findings that both parents’ income must be produced when applying for a fee exemption.

“The decision of the first respondent, in the appeal in terms of section 40(2) of the South African Schools Act 84 of 1996 (the Act) made on the 19 September 2013, dismissing the applicant’s appeal against the second respondent’s decision to refuse the applicant a partial exemption from the payment of the school fees as a result of her failure to institute the appeal within the prescribed period of 30 days after receipt of the notification of the second respondent’s decision, is reviewed and set aside.”

In the case, it emerged that Michelle Saffer – a single divorced mother – had applied for her daughter to attend school at Fish Hoek High School in the Western Cape in 2010.

She was unable to pay full school fees and sought a fee exemption.

However, the school required a fee exemption form, which had to be completed by Saffer and her ex-husband.

Saffer had sole custody of the child and had a troublesome history with her ex-husband.

She regarded it as unreasonable, humiliating and discriminatory for the school to expect her exemption application to be conditional upon her securing his co-operation.

The Western Cape Education Department rejected her exemption applications.

Challenging refusals

The Equal Education Law Centre (EELC) represented Saffer in challenging the refusals to grant her a fee exemption and took the matter to the Western Cape High Court.

In a judgment handed down in September 2016, the High Court recognised the burden that single mothers faced when providing access to education for their children.

It ruled that both parents’ income must be produced when applying for a fee exemption.

The EEL, supported by advocates Pete Hathorn SC and Ncumisa Mayosi, cross-appealed 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.

The Women’s Legal Centre (WLC) joined the proceedings as a friend of the court.

The WLC highlighted the impact of the current fee exemption scheme on women, who are similarly placed as Saffer and the manner in which the current framework discriminates against women.

“It is declared that in processing and dealing with the applicant’s applications for a fee exemption in 2011, 2012 and 2013, the school and its governing body subjected her to repeated violations of her constitutional and statutory rights.”

Non-custodial parents held responsible

The SCA ruled that in circumstances where one parent was refused or failed to provide their income details, public schools shall grant a conditional fee exemption to the custodial parent –  having regard only to her or his income.

This conditional fee exemption would be the total or partial fee exemption to which the applicant would have been entitled to if he or she were the only parent of the learner concerned.

The appellants were also ordered jointly and severally to pay the respondent’s costs in relation to both the appeal and the cross-appeal, such costs to include the costs of two counsel.

“The granting of such a conditional exemption will not limit the public school from taking legal steps to enforce payment by the other parent of the learner for the balance of the school fees. This ensures that non-custodial parents are held responsible where required,” the EELC said in a statement.

The EELC said the judgment provided clarity for single, custodial parents with disproportionate burdens of care seeking fee exemptions.
– News24