In terms of Section 5 (3) (a) of the South African Schools Act No 84 of 1996 no learner may be refused admission to a public school on the grounds that his or her parents is unable to pay or has not paid the school fees as determined by the Governing Body. However, this Act does not make provision for independent â€œprivateâ€ schools with regard to fees.
Section 5 (3) (a) of the South African Schools Act No 84 of 1996 has incorporated Chapter 2 Section 29 (1) (a) of the Constitution of the Republic of South Africa 1996 in terms of which everyone has the right to basic education. Therefore no child can be sent home or refused to participate in certain activities or sports due to arrears school fees. Public schools must provide for equitable criteria and procedures for the total, partial or conditional exemption of parents who are unable to pay school fees. This means that should a parent find themselves retrenched during the third term of school, they can apply for subsidiary for the tuition of the last term and their child / children can continue their education.
The South African Schools Act does not make provision for independent â€œprivateâ€ schools. Private schools are governed by the Private Schools Act No 104 of 1986, which does not make any mention of arrears school fees and whether or not children are still allowed their right to basic education if their parents find themselves in a financial struggle. The Private Schools Act focuses more on the regulations of a school itself and how to become a private school.
The problem relating to this is the fact that the children suffer. At the time of entering their children into a private school, the parents are financially stable. However, what happens if a parent suddenly find him/herself retrenched? Furthermore, the above problem is aggravated by the fact that private schools are struggling to obtain funds from the Government for subsidies. Race-based inequalities in subsidies to independent schools have been eliminated since 1994. Since then, subsidy levels have differed somewhat per province. But extreme pressure on the non-salary components of provincial education budgets, especially in 1997/98 and 1998/99, has resulted in a sharp decline in the per learner value of independent school subsidies, and considerable uncertainty as to the future trend of independent school funding by provincial education authorities.
 South African Schools Act No 84, Section 41 (7)
 South African Schools Act No 84 of 1996, Section 39(2) (b)
 South African Schools Act No 84 of 1996
 South African Schools Act No 84 of 1996: Rules and Regulations
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