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IN THE HIGH COURT OF SOUTH AFRICA

NORTH WEST DIVISION – MAHIKENG

 

Case No.CIV APP MG02/2022

Reportable:  YES / NO

Circulate to Judges: YES / NO

Circulate to Magistrates: YES / NO

Circulate to Regional Magistrates: YES / NO

 

In the matter between:       

 

FIELDS COLLEGE                                                        Applicant

 

and

 

OSCAR ATANG RAMMUTLA                                        1^st Respondent

 

LYDIA PALESA KATE RAMMUTLA                              2^nd Respondent     

 

This judgement was handed down electronically by circulation to the parties’ representatives via email. The date and time for hand-down is deemed to be 17 August 2023.

 

 

JUDGEMENT

 

Mfenyana J

[1]        The appellant noted an appeal against the whole of the judgement and order of the Rustenburg District Court, handed down by Magistrate Matjila on 27 September 2021. The grounds of appeal are set out in the notice of appeal and are in essence that the court a quo erred in dismissing the appellant’s claim with costs.

 

[2]        It is further the appellant’s contention that the court a quo incorrectly dismissed the claim on the basis of non- compliance with Section 41(5) of the Schools Act  86 of 1994, (The Act) when compliance had been admitted by the respondents.

 

[3]        Consequently, the appellant seeks an order that the respondents pay an amount of R32 450.00  (in respect of outstanding school fees) together with interest thereon, costs, both of the application in the court a quo, and the appeal.

 

[4]        The relevant facts giving rise to this application can be summed up as follows:

 

4.1       The appellant, a public school as defined in Section 1 of the the Act, is issued a summons against the respondents’ for an amount of R32 450.00 (thirty two thousand four hundred and fifty rands), for outstanding school fees in respect of the respondents’ children. The respondents defended the action. At the trial of the matter, the appellant was legally represented. The respondents conducted their own defence. The first respondent informed the court that he is a legal practitioner. The appellant called two witnesses and the respondents closed their case without calling any witnesses, opting to stand by their pleadings.

 

4.2       After hearing evidence on behalf of the appellant, the court a quo dismissed the appellant’s claim with costs.

 

4.3       The court found that there was no evidence that, prior to taking legal steps, the appellant complied with its statutory obligations as imposed by the Act  and the Regulations for Fee Exemption, with regard to processes and procedures to be followed.  The court also noted that the respondents had also not complied with the provisions of the Act. They failed to provide the outstanding particulars to the school, after being so informed by the school. “The school thus found itself with an incomplete application for exemption, and not a pending application for exemption”. It then proceeded with an action in the court a quo.

 

4.4       The court  a quo further pronounced that legislation places obligations on both parties, and parents “cannot simply ignore requests for information from public schools in which their children are enrolled.”

 

[5]        In dismissing the claim, the court a quo found that parents have a right to apply for a fee exemption, and the schools are obliged to follow the procedure set out in the Act before enforcing payment against defaulting parents. It held that a school must find out whether the parent qualifies for fee exemption prior to taking legal action, and if that parent qualifies, exempt them. In order to take action against a defaulting parent, the school must have written proof that the parent was notified of their right to apply for a fee exemption and failed to do so.

 

[6]        What is discernible from the above, is that there is no dispute that the respondents are in arrears with the payment of school fees in respect of their children enrolled at the school. There is also no dispute that after submitting an application for a fee exemption, the appellant requested further information from the respondents, and that this information was not provided.  What is in dispute is whether the appellant complied with the provisions of the Act and the Regulations in instituting legal proceedings against the respondents.

 

[7]        It  may be prudent to briefly consider the provisions of the Act relevant to the present dispute. Section 40 provides:

 

40.    Parent’s liability for payment of school fees

 

(1)                          A parent is liable to pay the school fees determined in terms of section 39 unless or to the   extent that he or she has been exempted from payment in terms of this Act.

 

(2)                          A parent may appeal to the Head of Department against a decision of a governing body regarding the exemption of such parent from payment of school fees.

 

 

  (3)                 in deciding an appeal referred to in subsection (2), the Head of Department must follow due process which safeguards the interests of the parent and the governing body.

 

                                 41           Enforcement of payment of school fees

 

(1)       A public school may by process of law enforce the payment of school fees by parents who are liable to pay in terms of section 40.

 

(2)       …

 

(3)       …

 

(4)       A public school may act in terms of subsection (1) only after it has ascertained that-

 

(a)  the parent does not qualify for exemption from   payment of school fees in terms of this Act;

 

(b)  deductions have been made in terms of regulations contemplated in section 39 (4), for a parent who qualifies for partial exemption;

 

and

 

(c)  the parent has completed and signed the form prescribed in the regulations contemplated in section 39 (4).

 

 

(5)       Despite subsection (4), a public school may act in terms of subsection (1) if-

 

(a)  that school can provide proof of a written notification to the parent delivered by hand or registered post that the parent has failed to apply for exemption contemplated in section 39; and

 

(b) despite the notice contemplated in paragraph (a), the parent fails to pay the school fees after a period of three months from the date of notification.

 

[8]        It was argued on behalf of the respondents that the appellant did not comply with Section 41(5).  They aver that the application for exemption is still pending determination by the appellant. Upon enquiry it transpired that this is the sole ground of opposition by the respondents. This issue is however not apparent from the judgement. What the judgement makes reference to in this regard are the provisions of Regulation 3(1), which place certain obligations on the school to notify parents, of various details, including the amount of school fees, procedures for applying for exemption, and completion of the applicable Form.

 

[9]        Notably, Regulation 4(2) places an obligation on the parents to furnish any relevant information requested by the school governing body. This provision is crafted in peremptory terms.

 

[10]      Considering the above, it is apparent that the order granted by the court a quo is not supported by the evaluation of the evidence as it appears ex facie the judgement. The school did not find out whether the respondents qualify for exemption, as it required further information from the respondents, which was never provided.

 

Is there an application for exemption pending?

 

[11]      In paragraph 3 of the judgement, it is stated that the “Defendants alleged that there is a pending application by them to be exempted…..”. In that allegation lies a concession that the respondents were aware of their option to apply for exemption, and they did. The court had accepted that the respondents were informed that some particulars were outstanding, but “failed to provide same to the school”. Rather tellingly, the court a quo pronounced that parents cannot simply ignore requests for information from the school, but fell short of imposing any consequences therefor. What is more is that the court a quo, had already made a finding at paragraph 5.2 of the judgement, that the  school ‘found itself with an incomplete application for exemption, and not a pending application’. This, in my view, is dispositive of the respondents’ contention that there was no compliance with the provisions of the Act.

 

Order

 

[11]      In the result, I make the following order:

 

(i)           The appeal is upheld.

 

(ii)          The judgement of the court a quo is set aside and substituted with the following:

 

“ The first and second defendants are liable for payment of the amount of R32 450.00 jointly and severally, the one paying the other to be absolved, together with interest thereon at the rate of 10% per annum, calculated from date of service of summons to date of payment.

 

The defendants shall pay the costs of suit jointly and severally, the one paying the other to be absolved”.

 

(iii)        The defendants shall pay the costs of the appeal jointly and severally, the one paying the other to be absolved.

 

 

 

S MFENYANA

JUDGE OF THE HIGH COURT OF SOUTH AFRICA

NORTH WEST DIVISION, MAHIKENG

 

 

I agree

 

 

R.D. HENDRICKS

JUDGE PRESIDENT OF THE HIGH COURT OF SOUTH AFRICA

NORTH WEST DIVISION, MAHIKENG

 

 

 

APPEARANCES

DATE OF HEARING:	03 February 2023
DATE JUDGEMENT RESERVED:	03 February 2023
DATE OF JUDGEMENT:	17 August 2023
For the Applicants:	Mr.W.M.Keeny
Instructed by:	Van Velden – Duffy Inc
c/o:	Van Rooyen Tlhapi Wessels Inc
Email:	wesleyk@vvd.co.za
Email:	patsyt@vvd.co.za
Email:	litigation@vtwinc.co.za
For the Respondents:	Adv.A.O.Rammutla
Instructed by:	Nchupetsang Inc.
c/o:	Nchupetsang Attorneys
Email:	rammutlaoscar@gmail.com
Email:	admin@nchuosattorneys.co.za

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