Concourt orders Free State schools to review teen pregnancy policies

Neither the basic education minister nor the provincial education department was ideally suited to adopt a pregnancy policy for a particular public school. (David Harrison, M&G)

Neither the basic education minister nor the provincial education department was ideally suited to adopt a pregnancy policy for a particular public school. (David Harrison, M&G)

The review had to be done by October 10 this year, Judge Sisi Khampepe said in the judgment.

Once this had been completed the governing bodies had to hand an affidavit to the court setting out the process followed and furnish copies of the reviewed policies.

"The applicant and respondents must engage meaningfully with each other in order to give effect to the order," Khampepe said.

The court was delivering judgment in a dispute between the Free State education head (HOD) and two Welkom high schools.

At issue was whether the HOD was lawfully entitled to order the principals of the Welkom High School and Harmony High School not to comply with the pregnancy policies their governing bodies adopted in 2008 and 2009. These provided for the automatic suspension of pregnant pupils.

Empowered
Khampepe said neither the basic education minister nor the provincial education department was empowered or ideally suited to adopt a pregnancy policy for a particular public school.

However, there was no doubt that the rights of pregnant pupils to "freedom from unfair discrimination and to receive education must be protected, promoted and fulfilled", but this had to be done lawfully.

"[T]he Free State HOD was obliged to address his concerns with the pregnancy policies pursuant to his powers under the Schools Act.

"He did not do so, but instead purported to usurp an effective power of policy formation that he did not have," said Khampepe.

The HOD instructed the principals of the schools to readmit two pupils who had been suspended under the pregnancy policies.

No authority
The schools asked the Free State High Court for an interdict preventing the HOD from interfering with the implementation of their policies. The high court granted the interdict, which the Supreme Court of Appeal (SCA) confirmed.

The high court and the SCA found the HOD did not have authority to instruct the principals to contravene duly adopted school policies.

The HOD appealed against the decision in the Constitutional Court.

Khampepe said the HOD acted unlawfully and so the Constitutional Court dismissed the appeal against the SCA's decision, but ordered the schools to review their policies on pregnant pupils.

"The policies limit pregnant learners' fundamental right to basic education in terms of section 29 of the Constitution by requiring them to repeat up to an entire year of schooling.
The policies prima facie violate learners' rights to human dignity, privacy, and bodily and psychological integrity."

No costs were ordered in the case. – Sapa

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