“My father and mother were divorced and I was staying with my mother. My father is responsible for my school fees and he has since passed away. Can my school fees be claimed against his estate or what must I do in order to claim against his estate?”

The first aspect that needs to be address in order to fully answer the above mentioned question is what enables the school governing body to collect school fees from its learners or their parents and thereafter deal with the collection process against the estate.

Section 41 of the Schools Act allows a public school to hand over a school-fee account that is in arrears to an attorney to issue a summons in two circumstances:

1. STEPS HAVE BEEN TAKEN TO ENSURE THAT A PARENT DOES NOT QUALIFY FOR A SCHOOL- FEE EXEMPTION. Before a parent is handed over to an attorney for a fee account that is in arrears, the school must ensure that:
2. WRITTEN NOTIFICATION HAS BEEN ISSUED. The Schools Act also allows a school to hand over the arrear account if:

• The school has proof that written notification was sent to a parent by hand or registered post informing that parent that they have not applied for a school-fee exemption;
• If a parent did qualify for a fee exemption, then those deductions have been made to the total school fees payable;
• The parent has still not paid the school fees after three months from the date this written notice was sent.

Section 41 specifically provides that a residential property cannot be attached for the non-payment of school fees. A learner cannot be excluded from participating in all aspects of a public school despite non-payment of school fees. A learner’s report card or transfer certificate cannot be withheld due to non-payment of school fees. Despite these provisions, many schools adopt unsavory debt-collection practices, flaunt the strict regulations regarding the collection of school fees, and often withhold report cards and victimize and exclude learners from school activities. In Center for Applied Legal Studies and Others v Hunt Road Secondary School and Others, the school was interdicted from proceeding with any further action for the recovery of outstanding school fees unless and until it had delivered to the applicant’s attorneys proof that it had complied with its obligations in terms of Section 41 of the Schools Act.

The Schools Act further treats ex-spouses or ex-partners as a family unit in calculating the amount of a fee exemption.

Both the Schools Act and the Regulations require the combined annual income of both parents to determine whether a parent is entitled to a fee exemption.

This is problematic for single and divorced parents, who are unable to provide the financial information of a non-custodian parent. All that they can provide is the amount of maintenance they receive from an ex-spouse or ex-partner.

These provisions therefore discriminate against parents who do not fall within the traditional definition of a ‘family’.  

Several cases have attempted to address the discriminatory effect of the current fee-exemption regulations.

1- In Bestuursraad van Laerskool Sentraal, Kakamas v Sersant van Kradenburg and Another the court held that in respect of the collecting of school fees, the definition of ‘parent’ in the South African Schools Act does not include a parent who does not carry any parental responsibility, and therefore Sections 40 and 41 do not apply.  

2- However, the decision in this matter was overturned by another judgment: in Fish Hoek Primary School v G W, the Court held that a non-custodian parent does have liability for a child’s school fees, and that such parents are not excluded from the meaning of the word ‘parent’. The Court held that it is in the best interests of a child that a non-custodian parent should be held liable for payment of school fees. The courts have also been asked to determine whether a non-custodian parent who agrees to pay 100% of a child’s school fees in terms of a divorce order absolves the custodian parent from the payment of school fees. In terms of our common law, both parents are jointly and severally liable for the payment of maintenance, which includes school fees. This means that a creditor (in this case, the school) can choose which parent they want to sue for the collection of the full school fees outstanding. The custodian parent then has a right to claim back what they paid from their ex-spouse.

In light of the judgment in the Fish Hoek Primary School case mentioned above the school will have a right to claim against either the deceased estate or against the mother of the child for the arrears school fees depending on whether an exemption is granted.

Now dealing with the aspect of the claim against the estate, it is trite that any creditor of the estate of any late person may claim payment from such an estate by lodging a claim with the executor of the estate.

The School may claim the arrears school fees from the estate by lodging a claim with the executor but I however submit that the school will not become involved in the lengthy administration of the estate and rather proceed to collect the arrears from the other parent involved.

That being said the other parent has a claim against the estate on behalf of the minor child and is advised to immediately lodge a maintenance claim against the estate of the late on behalf of the minor child with the executor of the estate and with such claim future maintenance relating to the expenses of the minor child i.e. school fees.

It is advisable to contact your attorney immediately when a parent dies or when a summons is served upon you for arrears school fees to assist you in either defending the summons or administrating of the estate of the late parent.

Reference List:

• Bestuursraad van Laerskool Sentraal, Kakamas v Sersant van Kradenburg and Another
• Fish Hoek Primary School v G W
• Basic Education Rights Handbook – Education Rights in South Africa – Chapter 7: School Fees