PUBLIC INTEREST LAW GATHERING EDUCATION LITIGATION PANEL DISCUSSION LEARNER PREGNANCY: WELKOM HIGH SCHOOL & ANOTHER V HOD, DoE (FREE STATE) AND ANOTHER CASE 2011 (4 ) SA 531(FB) FACTS 2 separate cases concerning the “exclusion” of learners who had fallen pregnant. In the Welkom High School matter the grade 9 learner fell pregnant in the beginning of the 2010 school year and continued to attend school until September 2010 when she was instructed not to attend anymore and to return at the beginning of the second term in 2011. In the Harmony High School matter the learner fell pregnant in October 2009 while in grade 10 and continued with grade 11 on 2010 and gave birth during the June school holidays until October 2010 when she was told to not attend school until January 2011. In both instances the matters were brought to the attention of the provincial authorities of the department of education who intervened by ordering both schools to rescind their decisions to expel the learners and allow them to continue with their schooling. The schools launched urgent applications challenging the HOD and persisting with their position that the learners be excluded. The learners were allowed to continue with their education pending the adjudication of the matter. LEARNER PREGNANCY POLICIES Both schools had adopted learner pregnancy policies which provided that a pregnant learner will have to leave school during her eighth month of pregnancy and that no learner should be readmitted in the same year that they left school due to pregnancy. In addition to the aforementioned, the NDOE’s Measures for the Prevention and Management of Leaner stated that: “…However it is the view of the DOE that learners as parents should exercise full responsibility for parenting, and that a period of absence of up to two years may be necessary for this purpose. No learner should be readmitted in the same year they left school due to a pregnancy.” The schools learner pregnancy policies were based on the Measures. The HOD had issued a circular which stipulated that the Measures had created confusion and learners who fall pregnant should be allowed to return to school as soon as possible. The HOD had acted on instruction from the NDOE which acknowledged the confusion caused by the Measures and indicated that learners should not be expelled on account of pregnancies as this amounts to unfair discrimination. ARGUMENT The schools raised objection to the HOD’s instruction- that he did not have the public power to instruct the schools not to act in accordance with their properly adopted policy. The HOD argued that he was fully within his rights and authorised to have instructed the schools not to implement the learner pregnancy policies- in line with the Constitution, the Children’s Act and international instruments such as the UNCRC. Therefore the issue before the court was viewed to be about the legality of the HOD’s actions than the content of the learner pregnancy policies. CCL and SAHRC entered as amici. CCL and SAHRC argued that the schools actions were in violation of ss 9;10; 11; 28 and 29 of the Constitution as well as international instruments (UNCRC and ACRWC). Furthermore, the SAHRC argued that the HOD was entitled to have acted in the manner that he did as: •Section 72 of the Constitution requires the State to respect, promote and fulfill the rights in the BoR; •Section 41(1)(d) of the Constitution which requires all organs of the State to be loyal to the Constitution. The CCL raised specific arguments in relation to the content of the policies and the Measures. JUDGMENT The court found that the HOD was not entitled to direct the schools to ignore the learner pregnancy policy as contained in their code of conduct. •This was based on the fact that the Schools Act gives the school governing body authority to decide on codes of conduct; •Further that the school governing body had authority in terms of s 22 of the Schools Act and this could only be withdrawn if the school governing body ceased to perform its functions. The court found that the decision that the schools had taken in relation to the expulsion of the learners were valid in law. Further that the respondents are restrained from taking any action(s) directly or indirectly calculated to defy, contravene, subvert or in any manner to undermine the decisions of the applicants taken in terms of their learner pregnancy policies. In relation to the two learners the court ordered that they were entitled to attend the same schools and remain in their current grades and to be taught, to learn and to be examined until completion of their high-school careers. IMPACT OF AMICUS INTERVENTION The judgment centered around the issue of legality, however the judgment captures some of the issues that the amici raised: • That the NDOE’s Measures were the source of confusion; • That the schools had selectively lifted some of the text from the Measures- resulting in the inflexible policies; • That the policies were subject to the Constitution, legislation, ordinances etc, and where the policies were deliberately or inadvertently contrary to these legal preceptsthe State was not powerless- could have taken the decisions on review; •The parties agreed that there was a need for the NDOE to promulgate regulations in terms of section 61 of the Schools Act for a policy and uniform procedure on pregnant learners; and • The regulations should comply with the constitutional rights in the BoR and the PEPUDA as well as other applicable legislation. The court could not make an order in relation to the national regulations as the Minister of Education was not a party to the matter, however the judge “urged her to do her best to promulgate such regulations within 24 months hereof.” THANK YOU!