The Free State education department argued that it was within its rights when it ordered the principals at Welkom High School and Harmony High School to ignore pregnancy policies put in place by the schools' governing bodies.
The Free State High Court and Supreme Court of Appeal earlier ruled that the head of department (HOD) could not interfere in the implementation of school policy. It did not consider whether the schools' policies complied with the Bill of Rights or the Constitution.
Rights organisations Equal Education and the Centre for Child Law entered the case as friends of the court, and argued that the policies themselves are unconstitutional.
Section 9 of the Constitution says that the state may not unfairly discriminate directly or indirectly against anyone on the bases of, among other things, gender, sex or pregnancy.
The HOD argued that the state has an obligation not to act unconstitutionally, that he was obliged to order the school principals to protect the pupils' constitutional rights, and that the lower courts should not have facilitated the ongoing violation of pupils' fundamental rights.
But the schools argued that irrespective of the lawfulness of school policies, the HOD was not entitled to intervene once it had been adopted.
Morgan Courtenay, an attorney with the Centre for Child Law, who was admitted as a friend of the court, said the case was divided along two separate but interrelated issues
"Firstly, it deals with legality – whether the HOD's conduct in this particular matter was lawful. The other issue is policy itself – whether the school had the power to enact such a policy and whether the policy as it was enacted was constitutionally valid from a rights-based perspective," he said.
Courtenay said that the Centre for Child Law intervened in the matter based on the constitutionality of the schools' pregnancy policies, which it says unfairly discriminates against girl pupils.
He said the centre hoped that a ruling from the Constitutional Court would give schools guidance on what pregnancy policies should entail.
"Our problem with the policy was that it was a very rigid policy that didn't have any flexibility to it," said Courtenay.
The policies required that learners be excluded from school for the remainder of the school year, regardless of individual circumstance, such as whether the learner had a family support structure that would allow her child to be cared for while she attended school, or even if she had chosen to give the child up for adoption. This, Courtenay said, resulted in girls being excluded from school almost arbitrarily.
Courtenay pointed out that one of the girls, who was suspended from school, gave birth during the mid-year break, and had been back at school for four months before school officials found out and asked her to leave.
This raised questions about the reasons why girls were being suspended from school.
Stigma and discrimination
"At the heart of the matter lies stigma and discrimination against girls and seeking to penalise young girls for falling pregnant," said Lisa Draga, an attorney with the Equal Education Law Centre, which represented Equal Education.
The nongovernmental organisation has called on the Constitutional Court to adopt a balanced approach, which would serve the education system well and protect learners' rights.
Draga said pupils' rights would be best served by allowing HODs to instruct principals to ignore school policies that were unreasonable, unlawful or unconstitutional.
The organisation argued that while school governing bodies should be able to make pregnancy policies, these should be legally and constitutionally acceptable policies, which make it clear that pupils cannot be expelled or suspended from schools due to pregnancy, enable pregnant learners to be kept at school as long as medically possible and encourage learners who have given birth to return to school as soon as possible.
In the two cases in question, there had been a blatant violation of girl learners' rights and it was quite clear that the HOD had acted constitutionally to protect their rights, she said.
16 320 schoolgirl pregnancies
"We're hoping the court will pronounce that the HOD has the authority to intervene where they think policies are problematic and that the judgment won't hamstring their ability to do so," she said.
Draga said the fact that these policies have been on the schools books and had been enforced in cases of other pupils was worrying. "It is an indictment on all of the relevant role players. The department should have been aware of it from the outset. They should be reviewing school policies all the time," she said.
Statistics provided by Harmony High School as part of court proceedings show that between 2007 and 2010 there were 25 cases of pregnancy. Almost half of the girls ended up leaving school permanently after their suspension.
It is unclear how widespread the practice of excluding pregnant pupils is. But in 2008, the year in which one of the Free State students involved in the case was excluded from school, there were 16 320 schoolgirl pregnancies.