Abstract
The author highlights some legal issues regarding the liability of parents and other individuals to pay public school fees in the light of recent judicial precedent, specifically Fish Hoek Primary School v GW 2009 JOL 24624 (SCA). The various possible legal bases for the liability for such fees are examined. In this regard the common law duty to maintain as amended by legislation; contractual liability; and the concepts of household necessaries, stipulatio alteri, negotiorum gestio and unjustified enrichment are considered.
Highlights
The South African Schools Act[1] provides that "a parent is liable to pay the school fees determined in terms of section 39 unless and to the extent that he or she has been exempted from payment in terms of the Act."[2] This provision prima facie confirms the common law duty on all parents to maintain their children.[3]
The court based its decision on the earlier decision of the Cape High Court in Bestuursliggaam van Gene Louw Laerskool v Roodtman,[6] where it was found that the term "parent" in the Education Affairs Act (House of Assembly)[7] should be interpreted to mean only the custodian parent.[8]
The custodian parent remained solely liable for the school fees, he or she could in terms of the common law, claim from the non-custodian parent any amount paid in excess of his or her share of the maintenance of the child in general
Summary
Apart from the liability of a parent in terms of the SASA as read with the Children's Act and case law as set out above, there are other bases for a claim against a parent These include contractual liability, liability based on the principle of household necessaries irrespective of the matrimonial property system of the parents, the principle of stipulatio alteri (where the obligation to pay school fees is set out in a court order),[87] and negotiorum gestio or undue enrichment. Where the parents are married or in a civil partnership and there is a joint household, both parents would be liable for school fees, irrespective of who the contracting party was that enrolled the child in the school,[92] based on the principle of household necessaries. Unlikely that the school would base its claim on household necessaries, given the existence of the SASA provisions
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