Learner Pregnancy PolicyFree State High Court Judgment

Welkom High School & 1 other v HOD & 1 other

Harmony High School & 1 other v HOD & 1 other

Provincial Principals’ Forum held on 22

July 2011Encore, Northlink College, Panorama

CONTENTS

• Facts of the 2 cases • Legal Relief • Decision of the court• Reasons for the court decision• Implications of the decision• Implications for Principals• Conclusion

The Facts

Welkom High School: Ncedisa Dlutu (16yrs)• A grade 9 learner, fell pregnant

in January 2010.• The school instructed her on 16

September 2010 to come back on first day of the 2nd term in 2011.

• She was barred from school for six months in 2010 and the first term in 2011, and was instructed to come back to repeat gr 9 in 2011.

• The HOD directed that the learner be re-admitted to school and that principal rescind decision.

Harmony High School: Katleho Mokoena (17yrs)• A grade 10 learner fell pregnant

in October 2009. • She attended classes and passed

gr 10 examinations. • She attended classes for both

school terms in 2010 and gave birth during the winter holidays.

• When schools reopened in July 2010, she attended until 16 October 2010, she was told to come back in January 2011, to start gr. 11 afresh.

• The HOD directed that the learner be re-admitted and that decision be rescinded.

The Legal Relief

• Two urgent court applications were lodged by the schools and SGBs seeking the following relief :

– A declaratory order concerning the barring of the pregnant learners

– To rule that the department had no authority to compel a public school to act contrary to the SGBs policy

– To confirm the SGBs decision to bar the pregnant learners– To interdict the department from subverting the SGB’s

decision to exclude pregnant learners

The legal issue was the validity of the instruction by the HOD to the principal to rescind his decision and to readmit the learners.

Decision of the Court

The court ordered the following: • The HOD did not have the power in law to instruct

the principals to act contrary to the SGBs learner pregnancy policy.

• The HOD was restrained from acting directly or indirectly from defying, contravening, subverting or in any manner undermining the decisions of the SGBs.

• The learners must continue in their current grades,

until the completion of their high school studies.

• No cost order against the HOD.

Reasons for Court’s Decision

• The schools: modelled their policies on National measures that provide for:

- exclusion period of up to 2 year; and - learner may not be readmitted in same year as the pregnancy• Schools: - must engage with affected parents and learners - pregnancy policy must not be applied inflexibly • SGB: governance of public schools falls under the authority of

the SGBs -they adopt admission, language, code of conduct and a variety of policies

• HOD had remedies available in law: - review application - withdrawal of SGB functions - (no cost order because the HOD acted in good faith)• Parents had court interdict available• Court: was not deciding on substance of policy but on validity

of process and the exercise of administrative power by HOD.

Implications of the Decision

• The FDoE has lodged an appeal against the decision .• An appeal suspends the decision of the Court. • The Policy on Learner Pregnancy remains valid

pending the Appeal.• The governance of public schools still remain under

the SGB’s authority which must be exercised within the confines of the law.

• The professional management of public schools must be undertaken by the principal under the authority of the HOD.

• DBE has developed Draft Regulations on the Management of Learner Pregnancy and will publish for public comment.

Implications for Principals

The role of principals at public schools:• Represents the HOD as a member of the SGB.• Performs the functions as contained in legislation.• Undertakes the professional management of the

school.

NOTE: Principal of a public school, in assisting the SGB in the performance of its functions and responsibilities, must ensure that such assistance does not conflict with: (a) the instructions of the HOD; (b) legislation and policy; (c) an obligation that the principal has towards the HOD, Provincial Minister; or (d) the EEA and PAM.

CONCLUSION

WCED Policy on Managing Learner Pregnancy in Public Schools reaffirms the fundamental rights entrenched in the Constitution of the Republic of South Africa, 1996 as follows:

• Equality before the law, equal enjoyment of rights and freedoms (sect 9)

• Prohibition of unfair discrimination on grounds of pregnancy, age and birth

• The right to human dignity (sect. 10)• The right to basic education (sect. 29)• Children’s rights (sect. 28)• The child’s best interests are of paramount importance in any

matter concerning the child (sect 28(2)).