Van Wyk Van Heerden Attorneys

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


[1] 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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Bianca obtained her LLB degree from the University of Pretoria in 2013. She was admitted as an Attorney of the High Court in 2016 and subsequent as a Conveyancer in 2018. She specializes in the drafting of contracts, conveyancing and all other property related matters. She is dedicated to excellent service and good client relations.

Danie began his law career in Pretoria, Gauteng, where he opened his own law firm in 1994. Through Danie’s knowledge of the world of media and entertainment his clientele extends to music artists, celebrities, television, and film production houses. In 2000 Danie founded the firm West & Rossouw with colleague Sharon West in the Cape Town Southern Suburbs until March 2024 when Danie accepted an appointment to relocate to the fast growing Cape Winelands to join van Wyk van Heerden in their Paarl office. Danie has a strong interest in family law and High Court litigation, with vast experience in several jurisdictions and high-profile cases in the High Court, the Supreme Court of Appeal, and the Constitutional Court. Danie has been actively involved in the organized profession and served on the Cape Law Society and the Law Society of South Africa (LSSA) communication committees and several years as vice-president of the Cape Town Southern Suburbs Attorneys’ Association. During August of 2022, Danie was appointed by the Premier of the Western Cape, Alan Winde as the Western Cape Government’s representative on the Council of the Stellenbosch University.

Alicia obtained her LLB degree cum laude from the North-West University, Potchefstroom, in 2020. She commenced her articles during 2020 at Van Velden-Duffey Inc, situated in Rustenburg, where she acted as a candidate attorney in the civil litigation department.

Alicia was admitted as an Attorney of the High Court during early 2023, and currently practices as such in the litigation department of Van Wyk Van Heerden.

Maryna obtained her LLB Degree at the North West University, Potchefstroom. Originally from Clanwilliam, she went to school in Paarl at Paarl Gymnasium and returned to embark on her professional career at our firm. She joined our team in 2021 as an article clerk and was admitted as an Attorney during 2023. Maryna is currently appointed in our Estates Department in the Wellington Office.

Milton is a well organised Attorney passionate about offering multidisciplinary legal service, focusing on the best interest of his clients. He aims to provide impetus to the vision of creating new momentum in transforming the legal system. He values cost effective solutions on various matters of law, persist on a flexible approach and strive to allocate the necessary resources to satisfy his clients' needs.

Milton obtained his LLB degree in 2020 from the University of the North West. He was admitted as an attorney of the High Court of South Africa on 3 March 2023. He specializes in Civil and Commercial Litigation, Alternative Dispute Resolution, Mediation, Contracts, Sports Law, Construction Disputes and Insolvency.

Anika obtained her LLB in 2020 from the University of Stellenbosch. She completed her articles at Van Wyk Van Heerden in 2022 and was admitted as an Attorney of the High Court at the beginning of 2023.

She currently practices in the Conveyancing Department where she assists estate agencies and developers, as well as marketing of the firm.

Gawie obtained his BComm and LLB Degrees at the University of Stellenbosch during 2009 and 2011 respectively. He completed his Master of Laws during 2017 in the Law of Trusts and completed a Post Graduate Diploma in Financial Planning during 2019.

He joined the team at Becker Bergh & More Inc. for his articles in Upington during 2013 and worked at the firm for 9 years attending to litigation, conveyancing and commercial matters. He was admitted as Attorney and Notary Public during 2015 and as a Conveyancer during 2016.

Gawie was appointed in the Conveyancing and Commercial Departments of Van Wyk Van Heerden during 2022 in the Wellington Office, providing clients with expert advice on the structuring of transactions, the registration of Trusts as well as general Conveyancing.

Liesl graduated from the University of Stellenbosch with an LLB degree in 2005.  During University she developed a special interest in and passion for Family Law.  Due to the fact that Liesl specialised during her articles, she completed the Practical Legal Training Course presented by UNISA, in conjunction with her articles, which she commenced with Miller du Toit Cloete Inc in 2006.  She was admitted as an attorney of the Western Cape High Court, with Right of Appearance in 2007.

Liesl co-presented a paper titled “African Charter on the Rights of Children” at the London Metropolitan University Summer School in 2011 and received her Certificate of Completion in this regard.

Liesl commenced her articles at Miller du Toit Cloete Inc, under the guidance of Zenobia du Toit, in 2006 and went on to practise as a Senior Associate there for nearly 14 years. After moving to Paarl, she practised as a director of Family Law at Clark Cupido Attorneys.

Liesl joined Van Wyk Van Heerden Attorneys in April 2022, as head of their Family Law department.  She has practised exclusively in Family law and ancillary matters for 16 years.

Roeline specialises in Estate Administration. Roeline obtained her B.Com Law, LLB and LLM (Estate Law) degrees at North-West University in 2006, 2008 and 2010, respectively.
After she completed her articles in 2010, she joined a financial institution as an estate administrator.

She joined the team in 2022 and attends to all Estate matters.

Aleisha grew up in Durban and relocated to the Western Cape to attend the University of Stellenbosch where she completed a Bachelor of Arts Degree in Social Dynamics from 2011-2013. Thereafter she obtained her LLB degree through the University of the Free State with distinction from 2014-2017. She joined Van Wyk Van Heerden in 2018 as candidate attorney and gained experience in various fields of the law, with a special interest in Property Law and the Administration of Deceased Estates. After qualifying as an Attorney and Conveyancer during March 2020 Aleisha joined the team assisting in the Conveyancing and Estates Departments of the firm.

Gaynor obtained her LLB degree in 2012 from the University of Stellenbosch. She then completed her articles at a law firm in the North West Province where she gained experience in General Litigation, Family Law and Debt Collection. In 2016 she moved back to the Western Cape and finally joined the firm in November 2018 where she currently heads up the Debt Recovery Department.

Mariska obtained her Bachelor of Arts and LLB degree from Stellenbosch University in 2018 and 2020 respectively. She completed her Master of Laws, with a special interest in Children’s Rights, in 2021.

She commenced her articles at Van Wyk Van Heerden in 2022 and was admitted as an Attorney of the High Court at the start of 2024.

She currently practices in the Litigation Department where she assists with, inter alia, Magistrate Court litigation; Divorces; and Evictions.

Leonette completed her studies at the University of Pretoria and obtained her LLB degree in 2009. She practised in Rustenburg for 8 years and specialised in debt Recovery, debt review and related matters.

Leonette joined the firm in 2017 and manages all correspondent work.

Carla grew up in the Free State and decided to relocate to the Cape Winelands to study law at Stellenbosch University. She obtained her LLB degree in 2002 and furthered her studies at the University of Cape Town’s School for Legal Practice where she received the Dean’s award for the best student in Business Management and Administration.

She joined the litigation department at Van der Spuy & Partners as a candidate attorney where-after she decided to pursue a career in property and commercial law, specializing in sectional title schemes, security estates and developments, servitudes, subdivisions and consolidations as well as commercial contracting.

Carla heads up the Conveyancing Department of the firm and mainly assists estate agencies and developers and is actively involved in the marketing of the company.

Charl obtained his law degree at the North West University in 2008. And finalised his articles at Van Velden & Duffey Attorneys where after he practised at the same firm and became a director in 2014.

Charl was recruited by Van Wyk Van Heerden in 2017 to strengthen and assist our growing litigation department. He handles a wide range of litigation matters including company, family, insolvency, banking and delictual law.

"Quick, practical and commercial resolution is first priority"

Willem van Heerden is a Director at Van Wyk Van Heerden in the dispute resolution, litigation and mediation department. He specialises in contractual disputes, company law, shareholder issues, evictions, family law, banking law and insolvency law. He provides sound strategic advice and direction on all commercial and company issues.

He is an accredited commercial mediator as well as a business rescue practitioner.

He has encouraged the appropriate use of mediation in the resolution of all disputes.

He has acted for various international and cross border trade, transport, agricultural and construction companies. Willem has acted for major banks, insurance houses, leading retailers, property groups as well as high network of entrepreneurs and individuals. He serves as a trustee on a number of trusts.

Willem has written various articles and is a co-author of a published legal book on farm evictions.


  • BCom (Northwest University)
  • LLB (Northwest University)
  • Postgraduate Diploma (VRIJE University Amstelveen )
  • Admitted as an Attorney of the High Court of South Africa
  • Accredited Business Rescue Practitioner (University of South Africa)
  • Accredited Commercial Mediator

Nazlee Abrahams grew up in Paarl and obtained the degrees B.Sc. and LLB from the University of Stellenbosch in 1992 and 1997 respectively.

She commenced with her articles at Van Wyk Fouchee in 1998 and was admitted as an Attorney with right of appearance in the High Court in 2000 after which she consequently became a Director at the firm.

In October of 2002 she was admitted as Conveyancer and also Notary Public in 2006. She currently manages Bonds registrations in the Conveyancing Department and further specialises in family & marriage law, drafting of wills, administration of estates and all notarial work.

Nazlee makes a valuable contribution in pro-bono work when the opportunity arises and invests a considerable amount of time in community service. She also serves as the current Chairperson of the governing body of William Lloyd Primary.

Anville specialises in Property Law, General Commercial Law, Estate and Tax Planning, Administration of Deceased Estates and Trust Law. Through the years, he contributed to the community life in Paarl. He was a founding member of the Drakenstein Rotary Club in Paarl, founding member of the Paarl Attorneys Association, served as Captain, President and Chairman of the board of the Paarl Golf Club and has played a major role in establishing the Boschenmeer Golf and Country Estate.

Anville obtained his BA LLB degree at the University of Stellenbosch in 1974. He served his articles with Silberbauers Attorneys in Cape Town and joined Solomon Miller, Hymie Maisel and Willem Gaum in Paarl in May 1977.

He is an experienced and seasoned attorney who commenced his career in litigation and migrated into Commercial, Trust and Tax work. He obtained his post graduate diploma in Tax Law at the University of Cape Town, with distinction, in 1993.

Anville celebrated his 40th year in practice in 2017.