By Duncan Wild on 22 July 2013

In this case the Constitutional Court had to determine whether the Department of Education may order the principal of a public school to readmit learners to that school in circumstances where the school’s governing body has adopted a policy which provides for the mandatory exclusion of the learners.

The case involved two schools, Welkom High School and Harmony High School (“the Schools“), that had adopted policies dealing with learner pregnancies.  In essence, both policies allowed the school to exclude a learner who became pregnant from the school for a period of time. In 2010, a learner was excluded from each of the Schools under these policies and the learners complained to the provincial Department of Education. Soon thereafter, the  Head of Department, Department of Education Free State Province (“HOD“) wrote to each of the Schools directing that the learners be re-admitted.

Each school then brought an application to court that were subsequently consolidated into one matter, and the High Court granted an order declaring the HOD had no authority to compel a school principle from acting in a manner contrary to the policy adopted by the school governing body; declared the exclusion of the learners valid in law; and interdicted the HOD from taking steps to undermine the schools decisions. 

At the SCA, the HOD appealed the High Court’s decision that it had no power to interfere with a decision taken in terms of the Schools’ policy, and sought to challenge the validity of the Schools’ policies on pregnancy.  The SCA found that the constitutionality of the policies had not been properly brought before the court, and the High Court was correct to limit its decision to the the authority of the HOD.

The SCA went on to find that the High Court was correct in its finding that this matter fell within the authority of the governing bodies of the Schools, which had validly adopted these policies, and the decisions in question were taken in terms of those policies. The SCA found that under the South African Schools Act 84 of 1996 the HOD does not have the authority to order a principal to disregard a policy adopted by the governing body in relation to governance matters at the school. If the HOD was of the view the policies were unlawful, it would have to bring an application before a court for those policies to be set aside, and could not simply order the school is disregard the policy.

The SCA did, however, find that the High Court’s order was too broad in that it would prevent the HOD from bringing a legitimate challenge to the School’s policies, and noted that as the constitutionality of the policies themselves was not properly before the High Court, the High Court could not have found the policies “valid in law”, but only valid until set aside by a court.

The Constitutional Court, in a judgment authored by Justice Khampepe, in which Deputy Chief Justice Moseneke and Justice Van der Westhuizen concurred, found that the HOD had not followed the relevant procedures in the Schools Act in purporting to override that school polices, and so had acted unlawfully.  Khampepe J. noted that although the police did at face value infringe on the constitutional rights of pregnant learners and so ordered the schools to review the policies, and in doing so to meaningfully engage with the HOD.

Justices Froneman and Skweyiya wrote a concurring judgment (the Deputy Chief Justice and Justice Van der Westhuizen concrurring) in which they agreed with the order of Justice Khampepe, and noted that in this context the rights of the children are paramount, and it is in this context that the parties’ duties to engage and cooperate must be exercised.  To the extent that the HOD had attempted to impose an interim solution though, that interim solution should have been imposed lawfully and it was not. 

Justice Zondo wrote a dissenting judgment, in which Chief Justice Mogoeng and Justices Jafta and Nkabinde concurred. Justice Zondo would have upheld the HOD’s appeal on the basis that the Schools’ policies were unconstitutional in that they infringed the rights to basic education and equality, as such the HOD was obliged to take steps to prevent the principals from enforcing such unconstitutional policies.

Download the judgment here.