One should always pay the piper. Especially where the Constitutionally entrenched rights of Children are concerned. But what does it mean to pay the piper? A brief search on the internet reveals various renditions and explanations of the saying. However, two of the more relevant interpretations are that it “means to accept and to bear the consequences for some action or circumstance” and “to pay the cost of an undertaking and thus be in charge of it.”.[1] A recent judgement fresh off of the South Gauteng High Court roll demonstrates exactly why it’s advisable to make payments toward school fee’s when you have undertaken to do so and have therefore accepted the consequences for a subsequent failure to, so-to-speak, pay the piper. The case of M P (Born K) v V P not only addresses the latter but also serves a sound reminder of the importance of making a proper procedural distinction between issues ripe for consideration in terms of Rule 43 proceedings, and those issues that are important and related, but not altogether appropriate for consideration therein. This article takes a brief look into how the Court dealt with these two points on the particular set of facts.

The Parties in the above matter had separated and were in the process of getting divorced.[2] Their son M was attending a top private college where he was acknowledged for his academic excellence and for which he received an academic scholarship affording him a reduction in his school fees.[3] As a result of the separation, the Applicant proceeded to pay M’s school fees during most of the 2020 school year.[4] During the later stages of 2020, the Respondent agreed to contribute 50% of the school fees.[5]

On or about 11 September the School issued a statement of account notifying the parties that school fees were due and payable.[6] Shortly thereafter the Parties were notified that their School Account was in arrears and that failure to make payment would prevent M from being eligible to register for the following school year.[7] The parties met to attempt to reconcile their differences and during a lengthy exchange, the Respondent gave his verbal undertaking to make full payment thereof.[8] This undertaking was dully accepted by the Applicant. The Parties were unfortunately not able to reconcile their differences leading the Respondent to refuse to make payment of the arrears in accordance with his undertaking to do just that, without informing the Applicant.[9]

During December of 2021, the Applicant brought a Rule 43 application seeking relief against the Respondent which included relief for the payment of the arrears.[10] In January of 2022, the School re-affirmed M’s ineligibility to register for the new year prompting the Applicant to bring an urgent application, which the Respondent opposed.[11]

The Court commences its consideration of the issues by firstly considering the applicability of Rule 43 of the Uniform Rules of Court. Rule 43 is a statutory mechanism in terms of which an application can be brought to Court seeking relief on strictly the grounds listed therein, namely, spousal claims for interim maintenance pending existing divorce proceedings, contributions toward the costs of a pending matrimonial action, interim custody of and/or access to children.[12] It was clear that an action by one party against another for the payment of monies due and owing to a third party did not fall within the statutory parameters of Rule 43.[13]

Whilst the relief sought was brought using the Rule 43 procedure it was ultimately decided as a separate urgent application for consideration of a liability arising out of contract.[14]

Urgency, it must be emphasised, and the matter at heart, was grounded in the constitutional right to receive an education, and more broadly, the best interests of the child on the facts.

The Respondent provided his verbal undertaking to pay the arrear school fees. His intention to do so was evident from purchasing school uniforms and educational material while also instructing the school to remove the debit order from the Applicants account.[15] At no point was the Respondent’s payment of the arrears made contingent on a successful reconciliation between the parties. In fact, there is a statutory duty on parents to pay school fees to the extent that they have not been exempted therefrom otherwise.[16]

An unconditional undertaking was provided for the payment of 100% of the arrears and this was accepted. Accordingly, an agreement between the parties came into being in terms of which the Applicant was exempted from the statutory duty to pay the arrears, and for which the Respondent now found himself fully liable. The Court compares this sort of agreement to a contract for the benefit of a third party, in this case, the third party being the minor child M.[17] The Respondent undertook to make payment for the benefit of M which undertaking was accepted by the Applicant on M’s behalf.[18] It was on these points that the Court found the Respondent fully liable for the payment of the arrears.

In summary, one should make a clear and proper distinction of the legal issues that are ripe for consideration in accordance with the special statutory Rule 43 procedure. The matter at the heart of this discussion fell outside of the grounds listed in the Rule and therefore fell to be decided by way of an urgent application for the hearing of a dispute arising out of a contract that came into being between the parties. Ultimately, M had a right to attend school. The law determines that his parents need to pay his school fees in lieu of which the Applicant accepted an unconditional undertaking from the Respondent to do just that. It is quite clear from the applicable law just why, on this set of facts, it was required of the Respondent to, so-to-speak, pay the piper, and exactly what the consequences were for reneging on that responsibility.

Article by Kenneth Meyer

Candidate Attorney

VAN WYK VAN HEERDEN ATTORNEYS INC

[1] https://www.idioms.online/pay-the-piper/ accessed on 24 February 2022.

[2] M P (Born K) v V P (2022) SG HC para 1.

[3] Para’s 2-3.

[4] Para 4.

[5] Para 5.

[6] Para7.

[7] Para 8.

[8] Para 9.

[9] Para 10.

[10] Para11.

[11] Para’s 13 & 15.

[12] Rule 43(1)(a) – (d) of the Uniform Rules of Court.

[13] M P (Born K) v V P (2022) SG HC para 18.

[14] Para 18.

[15] Para 23.

[16] Para 23; Section 40(1) of the Schools Act 84 of 1996.

[17] Para 24.

[18] Para 26.

This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your adviser for specific and detailed advice. Errors and omissions excepted (E&OE)

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