Mila Kakaza, Equal Education Law Centre – 13 December 2017
Equal Education Law Centre welcomes Supreme Court of Appeal judgment on school fee exemptions.
Today, the Supreme Court of Appeal handed down judgment in the case of HOD, Western Cape Education Department and Others v Michelle Saffer. The case highlights the discrimination that single parents, particularly single mothers, face when seeking to ensure access to schooling for their children.
The EELC welcomes the judgment of the Supreme Court of Appeal as a progressive step towards recognising the difficulties faced by custodial parents seeking fee exemptions at public schools.
Taking into account the arguments of both parties, the Supreme Court of Appeal took a measured approach in reaching a compromise that would adequately provide for the difficulties facing single parents when applying for school fee exemptions. As the court held:
“This judgment, especially in relation to the principal issues, is of importance to the vast number of parents who find themselves in the same or similar position as Ms Saffer.”
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 had 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 her securing his cooperation.
Despite appeals to the Western Cape Education Department, Ms Saffer’s fee exemption applications were ultimately rejected.
The Equal Education Law Centre (EELC) represented Ms Saffer in challenging the refusals to grant her a fee exemption. In a judgment handed down in September 2016, the Western Cape High Court recognised the disproportionate burden that single mothers shoulder in providing access to education for their children. The High Court held that that the South African Schools Act holds parents jointly liable for the payment of school fees. However, despite this recognition, the Court retained the position that both parents’ income must be produced when applying for a fee exemption.
Supreme Court of Appeal
At the Supreme Court of Appeal, the Western Cape Education Department (WCED) appealed the High Court’s findings on joint liability, and the award of costs to Ms Saffer.
The Equal Education Law Centre 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 and sought a declaratory order that the school and the school governing body violated Ms Saffer’s constitutional and statutory rights when processing her fee exemption applications.
The Women’s Legal Centre (WLC) entered the case as a friend of the court, highlighting the impact of the current fee exemption scheme in fee paying schools on women who are similarly placed as Ms Saffer and the manner in which the current framework discriminates against women.
In a vindication of Ms Saffer’s rights, the Supreme Court of Appeal has set aside the refusal to grant Ms Saffer a fee exemption and declared that in processing and dealing with Ms Saffer’s fee exemption applications, the school and the school governing body subjected Ms Saffer to repeated violations of her constitutional and statutory rights.
Further, the court has made it clear that in circumstances where one parent has 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 shall 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 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 judgment provides welcomed clarity for single, custodial parents with disproportionate burdens of care seeking fee exemptions. The EELC looks forward to the WCED taking all necessary steps to ensure the effective implementation of the order by public schools.
The EELC was supported by Adv Pete Hathorn and Adv Ncumisa Mayosi in this case.