The matter came before the Court as a result of the SGB’s of the two public schools (Welkom High School and Harmony High School) respectively adopting pregnancy policies which provided for the exclusion of pregnant learners from school. Two learners were – as a result of the respective policies – excluded from attending the schools because they were pregnant.  The HOD believed that the policies or relevant parts of the policies breached certain provisions of the Constitution, relevant education legislation, as well as the policy of the provincial Department of Education. He accordingly  intervened in the matter and instructed the principals of the schools to readmit the learners who had been excluded in terms of the policies.

The respondent schools thereafter sought to interdict the HOD from interfering with the implementation of the policies, and both the High Court and the Supreme Court of Appeal (SCA) ruled that the Free State HOD had no authority or power to instruct the principals to act in contravention of their respective school governing bodies’ adopted learner pregnancy policy. 

In a majority judgment handed down by Justice Sisi Khampepe (Deputy Chief Justice Moseneke and Justice Van der Westhuizen concurring), the Court ruled that, even taking into account that Free State HOD Ramathe Malope had good intentions, no matter how well-intentioned their actions might be, state functionaries can only act in a manner that that is consistent with the provisions of the Schools Act 84 of 1996 (the Act) and that – in this instance – because the HOD exercised his supervisory authority in contravention of the Act, his conduct was unlawful. 

On the one hand, the Free State HOD contended that the SGB’s had no power to make policies which required the exclusion of learners from school owing to pregnancy and sought to justify his intervention to instruct the principals to allow the learners back at school on that basis. On the other hand, the SGB’s contended that they had the power to adopt and enforce the learner pregnancy policies and the Free State HOD had no power or right to instruct the principals to act in conflict with those policies.

Although the Court agreed and confirmed that the schools had the power to adopt and implement such policies, it ordered the schools to review the policies in casu as certain portions thereof were found to be discriminatory. Importantly, the Court also ruled that Malope – as HOD – did not follow proper procedure as set out in the Act. It is in this sense that the judgment reaffirms certain important principles: the need for SGB policies to adhere to constitutional values, principles and rights, the autonomy of SGB’s as well as the importance and parameters of supervisory executive authority (in this case the the Free State Education HOD). 

The Court had divergent views on the matter, with Justices Froneman and Skweyiya writing a separate concurring judgment (with Justices Moseneke and Van der Westhuizen concurring) and Justice Zondo issuing a dissenting judgment in which Mogoeng CJ, Jafta J and Nkabinde J concurred. 

The dissenting judgment would have upheld the appeal and held that the governing bodies’ learner pregnancy policies were unconstitutional in that the exclusion of a pregnant learner from school as envisaged in the policies, unjustifiably infringed the right to a basic education and equality and as a result, the HOD was not only entitled but also to obligated to intervene. 

Although the dissenting judgment takes note of the fact that the policies unjustifiably infringed on certain constitutional rights of the learners, it erred not only by failing to take into account the autonomy of SGB’s to adopt policy and effectively administer schools as provided for in the Act, but also creates the impression that education departments can issue instructions to schools and school principals even if such instructions are not procedurally compliant or in accordance with the law. 

The Court’s majority and separate concurring judgments, however, embody a more balanced and well-reasoned approach to a number of interests in the case. The judgment reaffirms the autonomy of SGB’s to adopt policy and to effectively administer schools, free from unwarranted interference as provided for in the Act. The judgement also confirms that education departments cannot simply issue instructions to schools and school principals where these instructions are not procedurally compliant or in accordance the law. At the same time – in ordering a review of the policies in question – the Court gives effective recognition and protection to constitutional rights of the pregnant learners who were excluded from attending school in terms of the policies. These rights include the right to education in terms of section 29 of the Constitution and the right not be discriminated against as set out in section 9(4) of the Constitution.

The judgment has bearing on the often delicate interplay between the rights and functions of SGB’s on the one hand and relevant departments of education on the other. The Court made it clear that in its view it is imperative – as indicated in both the majority and separate concurring judgment – that all relevant stakeholders in education engage each other, as provided for in the Act, in a meaningful manner as required by the principle of cooperative governance. The Court also emphasised that there is a constitutional obligation on all parties to engage each other on matters of education in good faith before turning to the courts.

Such an approach (considering other current matters including admission and language policies involving SGB’s and departments of education) would surely serve to give effect to the best interests of children – in particular in matters concerning children, as set out in section 28(2) of the Constitution.

by Adv Jacques du Preez, Centre for Constitutional Rights

[Photo: Chris Kirchhoff/ MediaClubSouthAfrica]