Abstract

PRINSLOO, Jesse. The constitutionality of the Fee Exemption Regulations in South African schools: A critical analysis of Michelle Saffer v Head of Department, Western Cape Education Department. Afr. hum. rights law j. [online]. 2019, vol.19, n.1, pp.534-556. ISSN 1996-2096.  http://dx.doi.org/10.17159/1996-2096/2019/v19n1a25.

This article examines the Western Cape High Court decision in Michelle Saffer v Head of Department, Western Cape Education Department. This case explores crucial issues prevalent in contemporary society surrounding custodial parents, who primarily are women, and confirms the nature of the burdens associated with their roles with respect to their children post-divorce. The article argues that section 40(1) of the South African Schools Act and Regulation 6(2) of the Fee Exemption Regulations infringe the dignity of custodial parents and indirectly preclude the children of divorced parents from realising their right to education. It further asserts that Le Grange J failed to take sufficient account of the underlying inequitable gender power dynamic that exists between custodial parents and non-custodial parents, and that the Fee Exemption Regulations place an unnecessary and discriminatory burden on custodial mothers who no longer are married. For this reason, section 40(1) of the Schools Act and Regulation 6(2) are shown to be unconstitutional and therefore invalid to the extent of its unconstitutionality.

Keywords : custodial mothers; South African Schools Act; discrimination; unconstitutionality.

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