Private schools can attach homes of defaulting parents, court rules

2017-04-12 22:39
School. (Duncan Alfreds, News24, file)

School. (Duncan Alfreds, News24, file)

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Durban - Private schools are entitled to recover debt through the forced sale of homes owned by defaulting parents, the KwaZulu-Natal High Court in Pietermaritzburg ruled on Wednesday.

The private school fraternity has closely watched the case because of its wide implications for debt collection.

The application, before KwaZulu-Natal Judge President Achmat Jappie, was brought by St Charles College in Pietermaritzburg against Henry and Gleryl Du Hecquet De Rauville. They had two sons at the school, who had both matriculated.

They owed the school R620 000 in fees, incurred over two years. The couple signed an acknowledgement of debt and entered into a written repayment agreement. The money was not paid and the school obtained a judgment against them.

When the Sheriff served the warrant of execution, he was only able to attach moveable goods worth just more than R6 000. The school then sought permission from the court to sell the family home in Albert Falls.

The couple said the house had sentimental value and its true value would not be realised at a forced sale.

More importantly, they raised a constitutional issue, arguing that the South African Schools Act outlawed such debt recovery from parents of children at government schools.

"They contended that this constituted differential treatment which was unfair discrimination against parents of children attending private schools," Jappie said in his judgment.

"They argued that this differential treatment is arbitrary and irrational. They contend that they ought to be placed on an equal footing with parents of children who attend public schools."

Informed choice

Jappie said they had made an informed choice to send their sons to an independent school.

"They knew they would incur the cost of tuition fees and they did so voluntarily. They had a choice, if they so wished, to enrol them at a public school and thus would have avoided their present predicament."

The debt was substantial and there was no suggestion that they could not afford alternative accommodation.

Jappie had difficulty with the couple's argument that differential treatment constituted unfair discrimination. They would have had to show that their dignity was affected.

They had chosen to send their sons to that school and could do so because they enjoyed a higher economic status than other parents.

"The exercise of this choice does not fundamentally impair their dignity."

He said other independent schools should have been joined in the application because it could have adversely affected them in how they sought to recover unpaid fees.

He granted an order, declaring the family home executable and ordered the couple to pay the costs of the application.

Read more on:    durban  |  judiciary  |  education

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