Does the head of a provincial education department have the power to instruct principals of public schools to ignore policies adopted by the governing bodies of those schools? This question required an answer from the Constitutional Court as a result of pupils falling pregnant in the Free State and then, pursuant to policies of the relevant school governing body, being informed that these pupils were to be automatically excluded for the school for a stipulated period.
The head of the education department reacted to the implementation of this policy by ordering the principals to allow the pregnant pupils to return to school with immediate effect. The schools were so unimpressed with this instruction that they applied to court for interdictory relief against the HOD.
Both the high court and the Supreme Court of Appeal agreed with the schools and granted the required interdict. Enter the Constitutional Court, which has decided the matter by way of three separate judgments running to 144 pages.
In the majority judgment, Justice Sisi Khampepe held that the governing bodies of the schools had the power to adopt pregnancy policies for their schools and, as a consequence, the HOD was not entitled to issue an instruction to the principals to ignore these policies and readmit the pregnant pupils.
This conclusion led the judge to the question of whether a school body may adopt a pregnancy policy that is unconstitutional. The majority found that the relevant policy breached a pupil's right to a basic education by having, in effect, to repeat up to an entire year of schooling; the right to equality and hence not to be subject to unfair differentiation; and the right to human dignity and privacy by having to report to school authorities when they believed they were pregnant.
Khampepe held that, by having adopted so inflexible a policy, the school had breached Section 28(2) of the Constitution – that a child's best interests are of paramount importance in every matter concerning a child.
It is here that we arrive at the major difference between the majority of the court and the minority, whose views are represented in the judgment of Justice Ray Zondo.
The majority hold to the view that the running of schools is to be accomplished in a partnership between educators, parents and the state. However, the role of the state is not primary in that "the effective power to run schools is indeed placed in the hands of the parents and guardians of pupils through the school governing body".
Therefore, the Schools Act does not grant the HOD powers of policy- making for particular schools or any powers to establish binding pregnancy policies as a "matter of first instance".
For this reason, the majority held that, notwithstanding the unconstitutionality of the pregnancy policies under judicial review, the partnership model for education at schools had to be followed. Thus the parties should have collaborated with each other in resolving this dispute.
Khampepe thus upheld the interdict but ordered the relevant school bodies to review the current pregnancy policies and report back to the court with a revised policy.
By contrast, Zondo held that a school body could not possibly have a power to adopt a policy that was inconsistent with the Constitution.
Zondo continued: "It should follow as night follows the day that, in making a policy with such effects, the school governing body in this case acted unlawfully."
Hence the HOD was not only entitled but obliged to issue the instruction to the principals that they must desist forthwith from implementing an unlawful policy. On this basis, the minority held that the HOD had acted lawfully and accordingly there was no reason by which the high court or the appeals court should have granted an interdict in favour of the school.
There is an initial appeal to the approach adopted by the minority in that, as the foundation of our legal system, the Constitution must prevail over law or conduct that is inconsistent with its provisions.
But there is a nuance to the majority's approach that ultimately should prevail. The HOD did not engage with the schools. Rather, he reacted by way of a diktat.
That approach is itself questionable from a constitutional perspective. In this connection, justices Johan Froneman and Thembile Skweyiya, in their concurring judgment, encapsulate the problem with the conduct of the HOD, and thus the minority approach: thus: "[T]here is a constitutional obligation on the partners in education to engage in good faith with each other on matters of education before turning to the courts. In the present case they should have done so and that may well have prevented this long journey through the courts."
This is the kind of judicial wisdom that is needed from the Constitutional Court. Collaboration and dialogue are, in the fraught context of education, far preferable to unilateral orders from an HOD, even when there is a prima facie justification for such an intervention.
In turn, this kind of intervention draws courts into determining closure rather then allowing deliberation to produce the outcome.