A divorcing father will simply have to dig into his pockets and foot the private schooling fees of his two children, despite his demands that they attend a government school as he can no longer afford the private schooling fee.
The Gauteng High Court, Johannesburg, has put its foot down after the father applied to appeal a previous order that he had to pay for the private schooling, as well as nearly R380,000 in arrear school fees.
The court did not take kindly to the father’s attempts to uproot his children – aged 13 and 10 – from the private school which they have attended since they were little. “The uprooting of both minor children from a long-standing private school environment to a public school, primarily due to one parent’s unilateral desire to reduce expenses (despite evidence of ability to pay), would not serve their best interests,” the court said. It added that this disruption and potential impact of such a move, against their expressed wishes, outweighed the father’s financial arguments.
The children have attended the private school since they were three and four years old respectively and were due to commence the 2026 academic year. The father, however, stopped paying school fees in March last year.
The school refused to enroll the children for this academic year, which caused the mother to launch urgent proceedings against the father. The court at the time ordered him to pay both the arrears as well as the fees for this year. If he did not adhere to the order, he stood to be imprisoned for contempt, the court ordered.
The father opted to appeal this, but Acting Judge T Khaba now refused the appeal. The judge pointed to the principle that the best interest of the children is paramount and said removing them from their long-standing school environment would cause them significant disruption. This is particularly so given their emotional attachment to the school and their peers.
Legal expert Ann-Suhet Marx, Director and Head of Litigation at VDM Incorporated, meanwhile commented that South African law is clear about parental responsibilities and maintenance. The clear message of the courts is that the children come first.
“The law doesn’t tie children’s rights to maintenance to the parents’ relationship. That right exists from birth. Both parents, whether they’re married, divorced or have never lived together, are responsible for meeting their child’s needs”.
According to Marx, the law looks at the child’s needs and each parent’s financial capacity, not their relationship status. South African courts consistently reinforce that a child’s right to support is both constitutional and non-negotiable.
Another common misconception, according to Marx, is that maintenance obligations only kick in once divorce proceedings begin. “When spouses separate – even informally – the duty of support continue. If one parent refuses to contribute, the other may approach the Maintenance Court for an order, without needing to file for divorce”.
The court will then consider the child’s reasonable needs, each parent’s income and expenses, the standard of living to which the child is accustomed and proportional contributions based on affordability. Maintenance orders are legally binding, Marx stresses.
The Maintenance Act provides strong enforcement tools, including salary garnishee orders, attachment of assets, contempt of court proceedings and even warrants of arrest in serious cases. South African law is designed to protect children from the fallout of adult conflict, Marx emphasises.
“Maintenance (which includes schooling) is not a negotiation tactic. It’s a legal obligation grounded in the best interests of the child. When parents understand their responsibilities early, children are protected from unnecessary hardship”.
Zelda Venter
iol.co.za
