- The court found that the father failed to show reasonable prospects of success on appeal.
- The children’s best interests required continuity at their long-standing school.
- The court granted a Section 18(3) order to ensure immediate enforcement of the ruling.
The High Court in Johannesburg has dismissed a father’s application for leave to appeal and ordered that an earlier ruling requiring him to pay private school fees for his two children must take immediate effect.
The judgment, delivered by Acting Judge T Khaba, addresses a deeply contested dispute between the parents over schooling and maintenance obligations, with the court firmly prioritising the stability and well-being of the children.
Judge Khaba rejected the father’s attempt to overturn a December 2025 order that required the children to remain enrolled at their current private school. The father had argued that he could no longer afford the fees and sought to move the children to a different school. The court found that this claim was not supported by credible evidence and that the father’s own conduct had created the very situation he was relying on.
Judge Khaba emphasised the strict threshold for leave to appeal and found that it had not been met. He stated that “the applicant has failed to demonstrate that another court would reach a different decision.” The court held that there were no reasonable prospects of success and no compelling reason to allow the appeal to proceed.
Background and the dispute over schooling
The matter concerns two minor children who have attended the same private school since early childhood. The father stopped paying school fees in March 2025, which resulted in the cancellation of the enrolment contract and triggered urgent litigation shortly before the start of the 2026 academic year.
The father argued that his financial circumstances had deteriorated and that moving the children to a more affordable school was in their best interests. He sought orders either compelling the mother’s cooperation or allowing him to act without her consent.
The mother opposed the application and put forward evidence of a sustained pattern of non-compliance with maintenance obligations. She argued that the father had deliberately allowed the school contract to lapse in order to force a change of schools without properly varying the existing maintenance order.
The court accepted this version of events. Judge Khaba found that the father had orchestrated the crisis and could not rely on it for relief. He stated that “a party cannot unilaterally create circumstances to evade such an order and then approach a court for relief on those self-created circumstances.”
Best interests of the children take priority
Central to the judgment is the principle that the best interests of the children are paramount. The court found that removing the children from their long-standing school environment would cause significant disruption, particularly given their emotional attachment to the school and their peers.
The evidence showed that the children strongly opposed changing schools and that one of them would face additional disruption during a critical academic year. The proposed alternative also raised concerns, including a shift to a different language of instruction.
Judge Khaba found that the father’s case focused largely on financial considerations rather than a genuine assessment of what the children actually needed. He held that the father had “failed to discharge this onus” and did not demonstrate that a move would serve the children’s best interests.
The court also found that the father’s claim of financial difficulty sat uncomfortably alongside evidence of his lifestyle, which included international travel and high-value assets. This significantly undermined his assertion that he could not afford the fees.
Appeal dismissed and Section 18(3) enforcement granted
After dismissing the application for leave to appeal, the court considered the mother’s urgent application in terms of Section 18(3) of the Superior Courts Act. This provision allows a court to enforce an order despite an appeal where exceptional circumstances exist, and irreparable harm would otherwise result.
Judge Khaba found that those requirements were clearly met. The children had already started the academic year and were settled in their environment. Removing them would cause harm that could not be undone, and as the judge put it, “the harm is irreparable because it cannot be undone.”
The court emphasised that emotional and developmental harm to children carries significant weight. It found that disrupting their education at that stage would undermine their stability and well-being in a manner that could not be remedied later.
Judge Khaba also rejected the argument that the father would suffer irreparable harm if the order were enforced. He found that the order created no new obligations and simply required the father to comply with an existing court order and his own prior agreement.
The court held that the circumstances were exceptional, pointing to the father’s conduct, the timing of the appeal, and the urgent need to protect the children’s education. It concluded that allowing the suspension of the order to continue would leave the children in a state of ongoing uncertainty.
Costs and final outcome
The court dismissed the application for leave to appeal with costs and granted the Section 18(3) application, ordering that the December 2025 ruling be enforced immediately. The father was also ordered to pay costs on a punitive scale, including the costs of counsel.
Judge Khaba found that the father’s conduct justified a stricter costs order, particularly given the urgency and complexity of the matter. The court reaffirmed that costs should follow the result and that a punitive scale was entirely appropriate.
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