Summons: what you need to do

[Jacob Zuma]

Hi There,

I'm looking for a little advice.

I've just had a summons to appear in the Magistrate's court delivered to me at my workplace. (wasn't necessary to sign for it, however the sherriff delivering was very quick to tell me if I don't appear in court that he'll be back to arrest me...)
My ex-husband hasn't paid our eldest daughter's school fees and the summons is from the school to me for collection of this debt. According to the documents received it has already been to the 'landros' court where I 'failed to appear'. I have never received any summons for that appearance, nor any telephone calls, letters, no communications whatsoever. The copy of the proof of registered letters sent, were all sent to my ex's parent's postal address for his attention.
There's a notice that they want a list of all my assets/liabilities, income and expenses.


The agreement between us is that he is responsible for the school fees in full.
When I called to ask what on earth is going on now, he says 'yeah well, I don't have a job and the last I heard from the school was to make an arrangement with them and that the costs would be put on hold until I find a job.'

Now I get this summons, when I was completely unaware of the fact that he hadn't paid anything.
My current husband and our new baby are now being affected.
I don't own any assets, the car is in my husband's name end we are renting a cottage atm. My husband is obviously quite upset, as, if I understand correctly, being married in community of property, they are going to be looking at his assets too?

What can I do??

If married ICP then your husbands assets will be affected unless there is an ANC that does not allow the joinder of assets that existed before marriage.

[StaceyW]

Hi Dave A,

It's a public school in Mpumalanga.

Thanks!

[StaceyW]

Is it a public or private school?

If it's a public school parents can be jointly and severably held accountable for the payment of school fees (despite any divorce agreement to the contrary), but there are certain requirements - see section 41 of the South African Schools Act, 1996 (Act No. 84 of 1996).

I have a staff member who ended up in exactly the same situation as you a few years ago. Based on her experience, it seems if you're earning above the exemption threshold you can squirm, but if your ex-spouse doesn't land a job anytime soon you're going to end up paying...

Hi Dave A,

Thanks for that reply. And the link.

According to this law, 'parent' is thus defined as:
a) the biological of adoptive parent or legal guardian of a learner;
b) the person legally entitled to custody of a learner; or
c) the person who undertakes to fulfil the obligations of a person referred to in paragraphs (a) and (b) towards the learner's education at school;

Now the ex is then classified as (b) & (c) as he has full custody and is under obligation to fulfill all financial needs of the child/ren.
If I understand what you're saying, whether he is under this obligation or not, whether we have a settlement stating that I have no obligation to pay anything towards school fees, or not, I would still be held liable because I am (a) the biological parent?

[Dave A]

If I understand what you're saying, whether he is under this obligation or not, whether we have a settlement stating that I have no obligation to pay anything towards school fees, or not, I would still be held liable because I am (a) the biological parent?

That pretty much sums it up.

In my staff-member's case, the tactic adopted was to agree to pay a small monthly installment until the ex got an income and could start paying again.

[StaceyW]

So basically, I just go to the court, with a letter that the ex has signed stating that he will pay off the debt once he finds a job and has an income, and then agree that I will pay until that time, in small installments. (Whatever amount is affordable, which quite honestly, is really not alot as my husband and have have a 1yr old daughter together.)
Will that then be enough for them?

Someone also mentioned to me that I should then in return sue the ex for the money. Personally I don't see the point in that, as it would just accumulate more lawyers fees, and he can't pay it back anyway.
But then again, if that is the best way, perhaps I should consider it.. I'll have to see what's best.

I think I'm just so fed up with the toerag that I'm not thinking straight. A day or two to calm down a bit should bring some clarity.

Thank you again Dave A, you have been a great help in giving me some much needed advice, and direction.

[Dave A]

My only other comment is to try to avoid this becoming a judgement or an order of court against your name. If you can come to an arrangement with the school or lawyer directly without it becoming an order of court, that would be about as close to a win as you're probably going to get in the circumstances.

[StaceyW]

Again Thanks Dave.

I have tried to speak to the school, they won't even talk to me, I'm referred back to the lawyers firm handling he case.
Phoning the firm did not help, as the lawyer handling it is on leave until the 20th, which is basically 2 days before the summons is for...

Not much I can do at the moment.

For now, I'm going to ask my dad to give his lawyer a call and get some more advice.
Hopefully things will get resolved amicably.

I'll let you know.

[StaceyW]

Just an update on my case for you Dave A.
I have acquired legal representation, as upon request of the documents on file from the prosecutors, we found that the ex had in fact been in to the attorney's offices and signed an acknowledgement of debt with them. However on this form they had him as 1st respondent and my name as 2nd respondent, his signature on each page as 1st, and someone else's signature where I should have signed as 2nd.
The attorney agrees and admits that I didn't sign anything, however, is still proceeding to try and claim the school fees + costs from me.
They seem to think that there's nothing wrong with having someone sign on my behalf, when I had no knowledge thereof..... Screams fraud in our opinion.
My attorneys, are putting in an application to rescind, and will also be proceeding against the school and the prosecuting attorneys for damages and costs.

[HR Solutions]

Its a tough one this. I remember being on the Governing body and dealing with non paying parents that were separated or divorced. We were very often told that the other spouse was going to pay the debt and gave us a run around. The one said the other everytime. We then always ended up going for both parents because an agreement between divorcing parents really has got nothing to do with the school. I am just mentioning this here.

[StaceyW]

Its a tough one this. I remember being on the Governing body and dealing with non paying parents that were separated or divorced. We were very often told that the other spouse was going to pay the debt and gave us a run around. The one said the other everytime. We then always ended up going for both parents because an agreement between divorcing parents really has got nothing to do with the school. I am just mentioning this here.

Quite honestly HR, if I had known about it from the start it wouldn't have been a problem. We could have made arrangements and it wouldn't have gone this far. It would have been paid last year, while the child was still in the school, and there would have been no issues.

One would think that after being divorced for 11 years the ex would suck up his pride and tell me when there's a problem relating to the kids, but he doesn't, he still just keeps on telling lies.

The main reason I'm now fighting this is the fact that they are basing their whole case on fraudulent documents. They claim that I signed an aknowledgment of debt with my ex-husband last year in October, when in fact a) it is not my signature, b) they have witness signatures, but no names to the witnesses, and c) I was in a different town on that specific date, with a 6 week old baby, I don't drive(can't drive, and don't have a licence), and was packing to move to Gauteng... so there is absolutely no way I could have been there at all.
It is now up to them to prove that it was I that signed those documents, which they won't be able to do.

[Dave A]

However on this form they had him as 1st respondent and my name as 2nd respondent, his signature on each page as 1st, and someone else's signature where I should have signed as 2nd.

Well that certainly aids your cause.

[Anonymous1416]

What happens in a case where someone that is in a different country wanting to serve a summons to someone in South Africa. How does that process work if that person is lets say from the USA and I am from Cape Town how does this work.

[StaceyW]

Just a quick update on my case vs the school/lawyers for DaveA:
Currently awaiting a court date in Bethal, for the Rescission Application to be put into force. Due to the fraud commited not only by my ex, but the school's lawyers as well, the Application will be going through unopposed, with (hopefully) re-imbursement on costs. Costs all depends on the Magistrate's decision.
We're hoping this will be before the 21st, when I have to appear in court again for the Section 65. If so this will be basically a formality to have my name cleared completely and the case taken off the roll... Here's holding thumbs we get a date before the 21st!

[Dave A]

Thanks for the update, Stacey.

[Snce]

Hi everyone please assist. I received summons and also filed notice to defend. This was obviously followed by a summery judgement which will be in the 9th. This is for a property foreclosure- my primary residence
I will be representing myself as I have no money to pay lawyer.
When I did the notice to defend I did not attach any affidavit to it- is it too late to do it now? If I do it should I file it both with plaintiff and court or just court?


I also have my business partner who wants to help pay the arrears and maintain monthly installments until am fine. How do I put this well for the judge to be convinced?