Education rights were legally tested last week in the first court case in the country involving non-payment of school fees.
Markku and Charmaine Sorsa were the applicants in a case heard in the Simon’s Town Magistrate’s Court on Thursday. They were assisted in their application by the Centre for Applied Legal Studies (Cals) at the University of the Witwatersrand.
Two of the Sorsas’ daughters attend a secondary school in the Western Cape, and their eldest daughter matriculated from the school in 2000. The school was the respondent in the case.
Markku Sorsa’s affidavit before the court draws into question whether the school determined its fees policy as the Schools Act of 1996 requires. It also says the school failed to inform him and his wife of their rights to exemption from fees; that the Sorsas’ financial difficulties led to their falling into arrears exceeding R24 000 in unpaid fees between 1998 and 2002; and that the school won a court judgement against the Sorsas in November ordering them to pay the outstanding fees plus 15,5% interest.
Following this judgement, the school’s attorneys told the Sorsas that they ”would be visited by a sheriff to attach our goods”, according to Markku Sorsa’s affidavit.
On Thursday, the court granted the Sorsas’ application that the November judgement against them be rescinded.
”The effect of the magistrate’s decision is that, in his view, the Sorsas had in principle a good defence in law against the school’s action for non-payment of fees,” says Theunis Roux, head of the law and transformation programme at Cals.
Government policy on fees is that parents qualify for exemption or partial exemption from payment depending on their income relative to the level of fees charged. By law, schools must meet certain criteria if they wish to charge fees, including that a majority of parents adopt a resolution to do so.
Schools are also obliged to inform parents, in writing, what their fees are, the criteria for exemptions from fees, and what procedures to follow to apply for exemption.
In practice, government policy in these areas is often abused, according to research by the Education Rights Project (ERP), based at Wits University. Since it began its work early last year, the ERP has uncovered numerous cases in which schools fail to inform parents of their rights regarding fees, illegally use unpaid fees as reasons for refusing to register children or release their report cards, and publicly humiliate non-fee-paying learners.
The government responded to such abuses of policy, and to other cost-related barriers preventing many from enjoying their full rights to education, by announcing in September last year a review of its school financing policy.
The review is ”only partly about financing”, Minister of Education Kader Asmal said when he released the review in March.
”It is more fundamentally concerned with the rights of the child.”
Asmal commissioned the review, he said, because ”I found it unacceptable that children were being excluded from school, or humiliated while at school, because their parents were unable to pay the school fee. I found this unacceptable because it constituted an assault on the dignity of the child and a violation of the rights of the child enshrined in our Constitution.”
Markku Sorsa’s affidavit says that when his daughters began attending the school in 1998, he ”entered into an informal arrangement with the then school principal … in terms of which I was allowed to pay R50 a month for school fees for each of the children until such a time as our financial situation improved”.
The then principal called every six months to enquire into the parents’ finances and ask whether they were in a position to pay full fees, his affidavit says.
”During these conversations I would always enquire from [the then principal] about a subsidy for parents who could not afford to pay school fees, as I had heard that such subsidies were available to parents in our circumstances.
”I am now aware that the term used to describe assistance to parents who cannot afford to pay school fees is not a ‘subsidy’ but an ‘exemption’. [The principal’s] response to my inquiry was always that the school did not provide any subsidies to parents who could not afford to pay school fees.”
Markku Sorsa also claims in his affidavit that he and his wife have never received ”in writing a copy of the fees policy informing us of the amount of fees charged at the school and more importantly, informing us of the criteria and procedure for applying for an exemption, despite the legal obligation of the Respondent to provide us with such information”.
”The school can now choose to proceed with its action against the Sorsas — that is, its suit for debt — or to withdraw it,” Roux told the Mail & Guardian on Thursday.