In the case of Fish Hoek Primary School v G W the Supreme Court of Appeal was asked to decide if a parent who did not have custody of a child had to contribute to that child’s school fees.
The biological father contended that he was not liable for payment of the school fees but that only the mother of the child, the custodian parent, was.
S 40(1) of the South African Schools Act 84 of 1996 provides that:
‘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.’
The Concise Oxford Dictionary defines the word ‘parent’, inter alia, as ‘a person who has begotten or borne offspring’; ‘a father or mother’; or ‘a person who has adopted a child’. That, ordinarily at any rate, is the plain meaning of the word.
The court held there was nothing in the definition to suggest that a non-custodian or non-guardian parent is excluded from the meaning of the word ‘parent’. Accordingly, it found
that a non-custodian parent can be held responsible for a child’s school fees – even if he is unwilling – if he has the means to pay.
The decision was influenced by the fact that historically it was almost always mothers who become custodial parents and have to care for children on the breakdown of their marriages.
The court also found that an interpretation that saddles both parents with responsibility for school fees is consistent with the injunction in section 28(2) of the Constitution, which states that “a child’s best interests are of paramount importance in every matter concerning the child”.