F J v E J

The parties were formerly married and had one minor child, born on 10 October 1995. Their divorce order incorporated a settlement agreement granting custody and control of the child to the respondent mother, subject to the appellant father's rights of reasonable access. The agreement further provided that the appellant would have the right to decide which school the child should attend, but that this right would fall away if he failed to pay the school fees in full, in which event the respondent would be entitled to nominate the school. After periods of residence abroad, the child attended S[…] G[…] School in Cape Town during 2007, where he performed very well academically. The respondent decided to transfer him at the start of the 2008 school year to J[…] Primary School, an Afrikaans-medium government school closer to her home and less expensive than S[…] G[…]. She explained that this was to prepare the child for likely attendance at Hoërskool Jan van Riebeeck, an Afrikaans-medium high school, and that the move had been discussed with the child. The appellant urgently applied for an order compelling the child's immediate enrolment at S[…] G[…] School and restraining the respondent from having the child assessed by experts without a court order. The urgent application was dismissed by Motala J, and the appellant appealed.

• Whether the appellant had retained any contractual right under the divorce settlement to decide which school the child should attend despite non-payment of school fees
• Whether, under the Children's Act 38 of 2005, the respondent was obliged to consult the appellant or give due consideration to his views before changing the child's school
• Whether failure by the respondent to consult or inform the appellant rendered her decision invalid
• Whether the appellate court could admit and consider post-judgment evidence, including a second report by an educational psychologist
• Whether, applying section 28(2) of the Constitution and section 9 of the Children's Act, the child's best interests required that he remain at J[…] Primary School or be returned to S[…] G[…] School

The appeal was dismissed with costs, including the costs of the curator ad litem.

Where a divorce settlement agreement validly confers on one parent a conditional right to decide a child's school, failure to satisfy the condition results in forfeiture of that right and the decision-making power reverts to the parent holding custody/care. Under sections 30 and 31 of the Children's Act 38 of 2005, co-holders of parental responsibilities and rights may generally exercise those rights independently unless the Act, another law, or a court order provides otherwise; a duty to consider the views of a co-holder arises only where the contemplated decision is likely significantly to affect that co-holder's exercise of parental responsibilities and rights. In disputes concerning a child, the court as upper guardian must determine the matter according to the child's best interests, which are paramount under section 28(2) of the Constitution and section 9 of the Children's Act, and may in exceptional circumstances admit post-judgment evidence relevant to that inquiry.

The court made broader observations that the ongoing torrent of litigation between the parents was undesirable and potentially harmful to the child, echoing earlier authority that parents should act reasonably and prioritise the child's welfare over their own disputes. It also commented that the manner in which extracts from the second expert report were placed before the appeal court was unsatisfactory and that ideally the full report should have been filed. The court further remarked that the time had come for the child to be allowed to settle down without further litigation, assessment, and investigation.

The case is significant for clarifying the interaction between divorce settlement agreements and the Children's Act 38 of 2005 in disputes over schooling. It confirms that parents may regulate aspects of parental responsibilities and rights by agreement, and that where a conditional right to choose schooling is forfeited, the custodial/caring parent may resume that power. It also underscores that not every major educational decision requires the consent of the other co-holder of parental responsibilities and rights, and that failure to consult does not necessarily invalidate the decision. Most importantly, the judgment reaffirms that the best interests of the child are paramount and may justify the reception of post-judgment evidence on appeal where necessary to protect those interests.