With South Africa’s schools closed for more than six weeks due to the coronavirus lockdown, and no firm outline for when they will return, questions are being raised around the issue of school fees.
On 30 April, minister of Basic Education Angie Motshekga urged parents to continue paying school fees as normal to ensure that teachers receive their salaries.
However, the question is whether or not parents are expected to pay the full school fees even though their children are not physically attending school and not benefitting from the schooling experience – which includes social interaction, play and sports and recreation, says law firm Werksmans.
In the same vein, what are the rights of schools to enforce the payment of fees in the circumstances?
Werksmans said that the governing legislation for schools is the South African Schools Act which distinguishes between public and independent schools.
“Public schools perform the constitutional function of providing basic education in terms of section 29(1) of the Constitution,” it said.
“As such, the Schools Act prohibits the refusal of admission, suspension or expulsion of a learner due to the non-payment of school fees in order not to deprive learners of their right to basic education.”
Werksmans noted that in terms of section 40 of the Act, parents of learners in public schools are liable for school fees, but can be exempted from the payment of school fees to the extent that they are unable to pay.
“Depending on whether a parent has suffered a reduction in salary or has become unemployed, the exemption may be partial or full.
“According to a statement made by the Western Cape Education Department, where parents have been rendered unemployed due to the national lockdown, they should apply to the head of the School Governing Body for exemption from fees in terms of section 40.
“Nevertheless, parents have been urged by various stakeholders to continue paying school fees to cover the salaries of teachers.”
Independent or private schools do not provide the same constitutional function as public schools, and instead have contractual relationships with the parents of learners.
As such, independent schools have more extensive remedies at their disposal to enforce the payment of school fees, said Werksmans.
The firm cited the case of St Charles College v Du Hecquet De Rauville, in which the KwaZulu-Natal Division of the High Court confirmed the principle of ‘informed choice’.
This dictates that parents exercise a discretion to send their children to independent schools because they enjoy a higher economic status than the majority of parents who choose to send their children to public schools.
“The case confirmed that the immovable property of parents is executable for payment of arrear school fees,” Werksmans said.
“Further, in AB and Another v Pridwin the Supreme Court of Appeal that private schools have the right to terminate their contractual relationships in the event of a material breach.
“Depending on the terms of each contract, failure to pay school fees may constitute such a breach. Schools would then be entitled to prevent students from returning to school.”
What if you can’t pay?
Werksmans said that in the case of NM v John Wesley School, the KwaZulu-Natal Division of the High Court emphasised that when independent schools enforce their contractual rights in recovering arrear payments or want to exclude learners, they must always be cognisant of the best interests of the child standard.
Schools must enquire into the reason for the default on fees and make a reasonable decision which will minimise any adverse effect on a learner’s education.
“Considering the ongoing situation regarding Covid-19 and its effect on the economy and the livelihoods of many South Africans, schools should be careful not to appear draconian in the enforcement of their contractual rights in the face of the possible economic hardship of parents,” Werksmans said.
“Schools should consult with parents and attempt to settle the outstanding fees or make provision for alternative repayment terms before considering the exclusion of a learner.”
Where parents become unemployed or it becomes unreasonably difficult for them to pay their school fees, they may rely on the contractual principle of supervening impossibility of performance, the firm said.
“If a school contract contains a material adverse change clause, parents may rely on that clause to justify non-performance of their contractual obligations to pay school fees.
“However, such a clause may only be invoked in specific circumstances. Even if there is no clause, the common-law principle of vis maior may apply where performance has become objectively impossible or so onerous that it would be unreasonable to expect a party to perform.”
However, such disputes will always need to be decided by a court, taking into account all the relevant and surrounding circumstances, Werksmans said.
In conclusion, Werksmans said that parents have been encouraged to continue paying their school fees wherever possible.
“In a situation where it becomes impossible for parents to pay, the first step should always be mutual engagement between parents and schools.
“Parents in public schools may be granted exemptions in terms of the Schools Act. It is advisable that parents obtain legal advice before attempting to rely on vis maior or material adverse change clauses.”
However, in enforcing their contractual rights, independent schools must be careful to minimise any adverse impact on learner’s rights and seek settlement routes before considering more litigious options, Werksmans said.
“Covid-19 has not only brought to the fore various “new normals” in virtually all areas of life, but it has also accentuated the glaring stubborn inequality in South African society and in particular the interconnectedness between the right to education and access to data.”
Commentary provided by Bulelwa Mabasa and Thomas Karberg of Werksmans Attorneys.