HIGH SCHOOLS PUPIL PREGNANCY POLICIES Head of Department, Department of Education, Free State Province v Welkom High School and Another; Head of Department, Department of Education, Free State Province v Harmony High School and Another (CCT 103/12) [2013] ZACC 25 On the one hand this case required the Constitutional Court to answer the question of whether the Head of a Provincial Department of Education has the power lawfully to instruct the principal of a public school to ignore a policy promulgated by the school’s governing body when the Head of Department was of the opinion that, that policy was unconstitutional. On the other hand it dealt with rights that must be observed when formulating and implementing pregnancy policies for learners and the manner in which those rights were protected. In 2008 and 2009 respectively, the Welkom governing body and the Harmony governing body adopted pregnancy policies for their respective schools that provided for the automatic exclusion of any learner from school in the event of her falling pregnant. The Head of Department however later issued instructions to the principals of the schools to readmit two learners who had been excluded from school in terms of the particular pregnancy policies. Before the High Court the respondents requested, firstly an order declaring that the Free State Head of Department did not have the authority to instruct or compel a school principal to act in a manner contrary to a policy of the school governing body and in particular the school’s pregnancy policies; secondly an order declaring that the decisions to exclude the learners from school in accordance with the policies be implemented forthwith; and lastly an interdict restraining the Free State Head of Department from taking any action in contravention of the pregnancy policies. The High Court found that the Free State Head of Department did not have the legal authority to act as he did and that his instructions to the principals violated the principle of legality. The High Court held that the Free State Head of Department’s only available remedy would have been to call on the governing bodies to change their policies and in the event that they refused to do so, to apply to the Courts for appropriate relief. The Supreme Court of Appeal broadly agreed with the High Court, that the Free State Head of Department did not have the authority to instruct the school principals to act contrary to policies adopted by the respondent governing bodies. Furthermore the Court was of the opinion that the content of the pregnancy policies had not been properly challenged and therefore that it was unnecessary to consider the constitutionality of those policies. The Court amended the High Court order to eliminate the declaration that the decisions to exclude the two learners were “valid in law” in order to ensure that there was no risk of an unintended declaration of the constitutionality of the policies. Section 16 of the Schools Act, which is entitled: “Governance and professional management of public schools” and delineates the general roles played by the different statutory partners, provides that “subject to this Act, the governance of every public school is vested in its governing body and it may perform only such functions and obligations and exercise only such rights as prescribed by the Act. Subject to this Act and any applicable provincial law, the professional management of a public school must be undertaken by the principal under the authority of the Head of Department”. A principal must in discharging his or her professional management duties, amongst other things, implement educational programmes and curriculum activities, manage educators and support staff, perform functions that are delegated to him by the Head of Department under whose authority he falls and implement policy and legislation. In contrast a school governing body’s governance functions include promoting the school’s best interests and striving to ensure the provision of quality education to all learners at the school, developing a mission statement for the school, adopting a code of conduct for learners and administering school property (subject to certain constraints). Although a principal is a member of the school governing body, he occupies that position as a representative of the Head of Department, which is reiterated in section 16A(3) of the Act. Under the Schools Act, two things are perspicuous; firstly public schools are run by a partnership involving the state, parents of learners and members of the community in which the school is located. Each partner represents a particular set of relevant interests and bears corresponding rights and obligations in the provision of education services to learners. Secondly the interactions between the partners, the checks, balances and accountability mechanisms are closely regulated by the Act. Parliament has elected to legislate on this issue in a fair amount of detail in order to ensure the democratic and equitable realisation of the right to education. That detail must be respected by the Executive and the Judiciary. According to the Head of Department’s argument school governing bodies have powers that were expressly limited by the Schools Act and those powers did not include the power to adopt a pregnancy policy. A governing body did not have that power by virtue of its competence to determine admission policy, as a pregnancy policy applied only after a learner had already been admitted to the school and therefore could not constitute part of a public school’s admission policy. A governing body further did not have the power to adopt a pregnancy policy by virtue of its authority to determine the school’s code of conduct, because codes of conduct only dealt with disciplinary issues and pregnancy may not be treated as a species of misconduct. Secondly the school governing bodies did not have the power to adopt pregnancy policies that compulsorily exclude pregnant learners from school for the remaining portion of the year following the birth of their children. Only a Head of Department may expel a learner, suspend her for a lengthy amount of time or exempt that learner from compulsory school attendance. Thirdly a Head of Department’s status as the official responsible for executive control over public schools and as the employer of public-school principals took primacy over any obligations that principal may have to assist school governing bodies. Accordingly a Head of Department was entitled to instruct principals under his authority to ignore or act in contravention of policies adopted by school governing bodies. The respondents, in turn relied on the governing bodies’ general responsibility for governance issues and in particular, on their powers to adopt a code of conduct in terms of section 8 of the Schools Act. These powers and responsibilities, the respondents contend, authorised governing bodies to adopt pregnancy policies for their respective schools. Judge Khampepe, with whom Judge Moseneke and Judge Van der Westhuizen concurred, dismissed the appeal. The Judge held that as a matter of legality, supervisory authority must be exercised lawfully in accordance with the Schools Act. The Judge concluded that because the Head of Department had purported to override school policies without following the relevant procedures set out in the Schools Act, he acted unlawfully. The interdict was therefore correctly granted. Judge Khampepe acknowledged that the respondent schools’ pregnancy policies at face-value infringe upon the constitutional rights of pregnant learners, including the rights to human dignity, to freedom from unfair discrimination and to receive a basic education. In order to address these concerns, the Judge ordered the schools to review the policies in the light of the requirements of the Constitution, the Schools Act and the considerations set out in the judgment. The Judge further ordered that the schools meaningfully engage with the Head of Department in the process of reviewing their policies, according to the principles of cooperative governance enshrined in the Schools Act. In a separate concurring judgment by Judge Froneman and Judge Skweyiya, in which Judge Moseneke and Judge Van der Westhuizen concurred, that they support and endorsed the approach and outcome of Judge Khampepe. They noted that, although this was a matter between school governing bodies and the Head of Department, their respective functions were to serve the needs of children. An approach which placed the learners’ best interests as the starting point must contextualise the present dispute within the parties’ duties to engage and cooperate. Judge Froneman and Judge Skweyiya held that where a crisis requiring immediate redress arises, the duty to engage, cooperate and communicate in good faith remains. However any short-term remedial action taken to secure learners’ rights must be lawfully taken. Judge Zondo wrote a dissenting judgment, in which Judge Mogoeng, Judge Jafta and Judge Nkabinde concurred and would have upheld the particular appeal. The Judge 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 infringes the right to a basic education and equality. Judge Zondo also held that the exclusions were unlawful because they constitute a suspension or expulsion of the learner from school by the governing body and this was in breach of the Schools Act. The Head of Department was therefore not only entitled but obliged to take steps to prevent the principals, who were his employees and representatives in the school, from enforcing the policies.
Posted on: Mon, 22 Jul 2013 06:38:20 +0000
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