The rights of pregnant school learners were “lost in translation” because of a feud between the governing bodies at their schools and the provincial education department.
This was the message from a majority of the Constitutional Court, which today ruled that the pregnancy policies adopted by the governing bodies of two Free State schools had violated the rights of pregnant girls at the schools.
But in what will likely be seen as a partial victory for governing bodies, the court has also ruled that it is well within the powers of a governing body to adopt its own pregnancy policy.
The case was about a dispute over whether the Free State department of education could intervene in the pregnancy policies adopted by the governing bodies of Welkom High School and Harmony High School.
In a judgment penned by Justice Sisi Khampepe, and supported by Deputy Chief Justice Dikgang Moseneke, and Justice Johann van der Westhuizen, the court found that the governing bodies at the schools were “empowered, pursuant to their responsibility for governance and codes of conduct at their respective schools, to adopt pregnancy policies”.
The court found that the head of department had attempted “to usurp an effective power of policy formulation that he did not have” by attempting to interfere with the pregnancy policies adopted by the governing bodies.
The court however ruled that the pregnancy policies the schools had adopted violated the constitutional rights of the students involved.
It found that the policies:
» Discriminated against the students on the basis of pregnancy;
» Discriminated against pregnant female students on the basis of sex, because the consequences for them were more dire than those for male students who caused pregnancies;
» Limited pregnant learners’ fundamental right to basic education, especially because many of them never returned to finish their education;
» The policies violated their rights to human dignity, privacy and bodily and psychological integrity by requiring them to report their pregnancies as well as those of other learners they suspect to be pregnant; and that
» The inflexible nature of the policies may violate the constitutional principle which provides that the child’s best interests are of paramount importance in every matter concerning the child.
In a separate concurring judgment, which was penned by justices Johan Froneman and Thembile Skweyiya, they point out that a “sensible” resolution was reached in the cases of the two pregnant girls involved because both were allowed to return to school pending the outcome of the case.
The justices wrote that this was a “pointer” as to how this dispute and future disputes which affect the rights of learners should be resolved.
“We consider that there 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.”
Instead, wrote the justices, the matter had been allowed to turn into a “power-play”.
“Lost in translation was the fact that the best interests of the children at the schools were of paramount importance and that the powers of the school governing bodies and HOD were subservient to the children’s needs,” ruled the justices.
A minority judgment, penned by Justice Ray Zondo and in which Chief Justice Mogoeng Mogoeng and Justices Chris Jafta and Bess Nkabinde concurred, the court ruled the provincial head of the education department was entitled to overrule the policies, which constituted an unlawful suspension or expulsion of the learners from the schools by the governing bodies.
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