The South African Human Rights Commission is backing a landmark legal challenge aimed at ensuring that schools apply legislation providing for exemption from the payment of fees.
But in opposing the action, Durban’s Hunt Road Secondary School highlights in court papers the acute financial difficulties schools face because the government does not compensate schools for exemptions they do grant.
Applicants in the case to be heard in the Durban High Court on Friday, are the Centre for Applied Legal Studies (Cals) at Wits University, and two parents with children at Hunt Road, Audrey Ngubane and Emily Ngwira. Both are unemployed single mothers. Respondents are the school, its governing body, KwaZulu-Natal education minister Ina Cronje and National Education Minister Naledi Pandor.
The application argues that Hunt Road breached its legal obligations by not informing Ngubane and Ngwira of their rights to exemptions from school fees, by not granting them exemptions even though they were eligible and by unlawfully suing them for unpaid fees.
The first of its kind, the application is a class action in which Cals is acting on behalf of other parents at Hunt Road ‘who are poor and who are eligible for exemptions from school fees, but who cannot act in their own names because of poverty, lack of awareness of their rights and fear of their children being stigmatised or discriminated against by the [school] authoritiesâ€.
Cals also argues it is acting in the public interest ‘by securing the effective enforcement of the constitutional rights that are at issue … as well as the effective enforcement of the legal framework, which is in place to protect poor parents who cannot afford to pay school fees, by ensuring that school principals and school governing bodies implement the legal frameworkâ€.
The HRC is supporting the action as a friend of the court. Its submission refers to the commission’s public hearings in 2005 on the right to basic education, and says the court papers ‘in [the Hunt Road] matter indicate that the challenges faced by the applicants mirror and replicate the challenges faced by indigent parents throughout the country who seek to access a better quality of education for their childrenâ€.
Hunt Road argues that it has ‘meticulously applied†the exemptions policy. In her affidavit, principal Hendrina Kemp submits a copy of a circular dated May 2005 to parents as ‘a reminder that each parent/guardian has an obligation to contribute towards the school fees of their childrenâ€.
The circular also declares: ‘It is recognised that some of our parents’ situations are not financially sound, and therefore these individuals should apply for relief from paying fees, if they qualify.†Kemp says that the school, which has about 620 pupils, granted six exemptions in 2001, four in both 2003 and 2004, three in 2005 and seven last year.
The applicants insist, however, that when Ngubane and Nwgira inquired about exemptions at the school, they were turned away and told they should consider moving their children to township schools where they would not have to pay fees.
In their court papers, they say the number of exemptions Kemp specifies ‘appears extremely lowâ€, especially given her claim that the school has ‘99,5% black learners†who ‘hail predominantly from townships in and around the greater Durban metropolisâ€.
Kemp’s affidavit remarks on the school’s ‘desperate need … of sufficient financial resources in order to provide education to learners from a previously disadvantaged backgroundâ€. She says the school’s difficulties ‘have been compounded by the lack of assistance in this regard from either the central or provincial governmentâ€.
In response, the applicants say that while the school’s financial history ‘evokes considerable sympathy … [it] has no direct bearing on the issues between the parties, which are about the failure to abide by the legal frameworkâ€.
They argue that the school’s grievance is with the KwaZulu-Natal education department, and that ‘rather than illegally pursuing poor parentsâ€, the school should ask the department to review its funding.