Unpaid public school fees: The legal implications for parents and schools

Written by Ashleigh Laurent, Staff Attorney at TPN from MRI Software

The South African Schools Act (“SASA”) sets out a clear position in respect of school fees at public schools in that, “a parent is liable to pay 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 the Act.” It is true that fee-paying public schools must ensure that they have complied with several sections in SASA before enforcing the payment of school fees by parents who are liable to pay. Despite exemption options afforded, TPN’s latest data would indicate that there has been a further decline in the number of school fee accounts in good standing during the first quarter of this year.

According to the latest data on school fee payments for public and private schools, only 42% of fee-paying public-school parents or guardians have kept up with school fee payments, which means that less than half of them have paid on time or in full by the end of the month. In comparison, private schools have a better record, with 66% of accounts paid on time and in full, as required by the school’s payment terms.

Fee paying public schools are hardest hit. In the first quarter of 2024, 30% of parents made no payment toward their fee obligations, while 22% made only partial payments. Only 28% of school fees were paid on time during this period. Private schools, however, see better collections. Only 15% of parents and guardians made no payment towards their school fee obligations, while 32% made partial payments.

When it comes to school fee collections, it is imperative that both fee-paying public schools and defaulting parents of these respective schools understand the legal considerations and consequences. TPN emphasises the important points below:

Legal considerations for fee-paying public schools:

• Fee-paying public schools may only enforce payment of school fees once it has ascertained that a parent does not qualify for exemption from payment of school fees, once the relevant deductions have been made in respect of a parent who qualifies for a partial exemption and once a parent has completed and sign the prescribed form (Annexure A) of the “Regulations Relating to the Exemption of Parents from Payment of School Fees in Public Schools.” (“The Exemption Regulations”).
• In addition to the point above, fee-paying public schools are required to provide “proof of a written notification to the parent delivered by hand or registered post that the parent has failed to apply for an exemption.” Should a parent, after 3 months from the date of notification, fail to pay for outstanding fees, the fee-paying public school can then enforce the payment of the outstanding fees.
• Fee-paying public schools are entitled to adversely list or seek judgement against defaulting parents for the non-payment of school fees once the requirements cited in SASA, the Exemption Regulations and the National Credit Act 34 of 2005 have been met.
• The legal position in respect of our public schools is clear in respect of execution of immovable property in that, “a public school may not attach the dwelling in which a parent resides.”
• Both public schools and independent schools are not entitled to withhold a report based on non-payment of school fees. Section 25(12) and section 25(13) of the National Protocol on Assessment 2011, confirms both Public and Independent Schools may not withhold an academic report for any reason.

Legal considerations for defaulting parents of fee-paying public schools:

• The Act confirms that, “a parent is liable to pay 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 the Act.” School fees are, therefore, a statutory duty of a learner’s parents.
• It is the parent’s responsibility to apply for an exemption of payment of school fees in fee-paying public schools. The exemption application process is done on an annual basis. Parents should ensure that they furnish the relevant further particulars as requested by the governing body in support of their application.

SASA currently defines “parent” as:

• The biological or adoptive parent or legal guardian of a learner
• The person legally entitled to custody of a learner
• Or the person who undertakes to fulfil the obligations of a person referred to in paragraphs (a) and (b) towards the learner’s education at school

The Supreme Court of Appeal has previously confirmed that it is in the best interests of a child that a non-custodian parent be held liable for school fees. It is, therefore, important to note that any person who qualifies as a “parent” in terms of the abovementioned definition can be held liable for school fees.

• Parents (whether married/not married/divorced) are joint and severally liable. Accordingly, the school reserves the right to pursue a school fee debt from any one or both parents. Whilst a divorce order may instruct that a parent pay a child’s school fees, it is imperative to note that a school is not party to the divorce or to the court order. Therefore, a school may pursue a school fee debt from parent A and/or parent B. If a court order stipulates that parent B is liable to pay a child’s school fees and parent B fails to do so, parent A would have recourse to pursue the outstanding amount as per the court order from parent B.

Why school fees matter beyond the classroom

2024 continues to indicate a trend in which financially constrained parents are unable to meet their fee-obligations with public and independent schools alike. The non-payment of school fees impacts both the school’s and students’ access to resources to provide and receive a high-quality education. Many schools rely on these fees to supplement teacher posts, provide and maintain infrastructure, and secure their institutions, staff, and students. If you would like to find out how TPN can help your school with fee collections, you can email heldesk@tpn.co.za or call 0861 876 000.