Tee v Collegiate High School for Girls (CA100/2016) [2016] ZAECGHC 127 (11 November 2016)

Tee v Collegiate High School for Girls (CA100/2016) [2016] ZAECGHC 127 (11 November 2016)

The court held that section 40 of the Schools Act does not create joint and several liability for school fees between parents; rather, liability is joint unless otherwise expressly stated. Therefore, both the appellant and her former husband should have been joined as co-defendants. The appellant's defence of lis alibi pendens was valid, as another action for the same debt was pending. The appellant provided sufficient material facts and documentary evidence to establish a bona fide defence regarding exemption from school fees. The Magistrate's Court erred in granting summary judgment without properly considering these defences. The appeal was upheld, summary judgment was refused, and the...

Citation
[2016] ZAECGHC 127
Parties
Appellant: Susan Elizabeth Tee; Respondent: Collegiate High School for Girls
Court
Eastern Cape High Court, Grahamstown
Jurisdiction
South Africa
Judgment Date
11 November 2016
Case Number
CA 100/2016
Procedural Posture
Civil Appeal / Appeal From Summary Judgment Granted by Magistrate's Court
Outcome
Appeal upheld; summary judgment set aside; appellant granted leave to defend.
Judges
S M Mbenenge, M Makaula
Legal Topics
Summary Judgment, Non Joinder, Lis Alibi Pendens, School Fees Liability, Exemption From School Fees
Civil Procedure Family and Children Summary Judgment Non Joinder Lis Alibi Pendens School Fees Liability Exemption From School Fees

Case Brief

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Parties

Susan Elizabeth Tee

Appellant

Collegiate High School for Girls

Respondent

Procedural Posture

Civil Appeal / Appeal From Summary Judgment Granted by Magistrate's Court

Legal Issues

  1. 1 Whether the appellant and her former husband should have been joined as co-defendants in terms of section 40 of the Schools Act.
  2. 2 Whether the defence of lis alibi pendens was properly raised and should have precluded summary judgment.
  3. 3 Whether the appellant provided sufficient evidence of exemption from school fees to constitute a bona fide defence.

Ratio Decidendi

The court held that section 40 of the Schools Act does not create joint and several liability for school fees between parents; rather, liability is joint unless otherwise expressly stated. Therefore, both the appellant and her former husband should have been joined as co-defendants. The appellant's defence of lis alibi pendens was valid, as another action for the same debt was pending. The appellant provided sufficient material facts and documentary evidence to establish a bona fide defence regarding exemption from school fees. The Magistrate's Court erred in granting summary judgment without properly considering these defences. The appeal was upheld, summary judgment was refused, and the...

Court Disposition

Appeal upheld; summary judgment set aside; appellant granted leave to defend.

Orders

  • The appeal succeeds, with costs.
  • The order of the court a quo granting summary judgment is set aside and substituted with: 1. Summary judgment is refused. 2. The defendant is granted leave to defend the main action. 3. Costs of the summary judgment application shall stand over for determination by the court hearing the main action.