Head of Department, Department of Education, Free State Province v Welkom High School and Another Case (CCT 103/12)  ZACC 25 (10 July 2013)
The Constitutional Court of South Africa has ruled that school pregnancy policies that allow the automatic exclusion of pregnant students, violate students' constitutional rights to equality and a basic education and were not in the best interests of the students. The Court ordered that the policies be reviewed.
In 2008 and 2009 respectively, the governing bodies of Welkom High School and Harmony High School adopted pregnancy policies that provided for the automatic exclusion from school of any student who fell pregnant. In October 2009, a 16-year-old student in grade 10 at Harmony High School fell pregnant and was instructed that she would not be readmitted to school for the remainder of 2010. The following year, a grade 9 student at Welkom High School also fell pregnant and was instructed to leave school pursuant to the school's pregnancy policy.
Following requests from the students' families for assistance in having the students' cases reviewed, the Head of the Department of Education of the Free State Province ('HOD') issued instructions to the principals of the schools to readmit the students who had been excluded in accordance with the pregnancy policies. The schools approached the High Court for interdictory relief, arguing that the HOD did not have the power to issue instructions to the principals requiring them to disregard the schools' policies.
The High Court held that the HOD did not have the legal authority to act as it did. This decision was upheld on appeal, with the Supreme Court of Appeal adding that because the content of the pregnancy policies had not been challenged in the proceedings, it was not necessary to consider the constitutionality of them. The HOD appealed to the Constitutional Court.
The case primarily dealt with the proper exercise of public power by organs of the state and the steps that must be taken by the Executive in order to protect fundamental rights. In addition, the Court took it upon itself to evaluate the human rights implications of the pregnancy policies, as the constitutional rights to education, human dignity, privacy, bodily and psychological integrity, and equal protection and benefit of the law, as well as the prohibition against unfair discrimination were all implicated by the pregnancy policies.
Pending the decisions of the Courts, the two students were readmitted to their schools.
Justice Khampepe delivered the leading judgment (with Moseneke DCJ and Justice Van der Westhuizen concurring) and began by considering whether the Schools Act authorised public school governing bodies to adopt pregnancy policies. Justice Khampepe concluded that the governance responsibilities placed on school governing bodies, and their authority to adopt codes of conduct, empowered them to adopt pregnancy policies. However, she found that this power was limited by the Schools Act and the Constitution, and did not extend to adopting pregnancy policies that have exclusionary effects: "[n]o governing body may adopt and enforce a policy that undermines, amongst others, the fundamental rights of pregnant learners to freedom from unfair discrimination and to receive an education".
Having made this finding, Justice Khampepe went on to determine what course of action the HOD was empowered to take. Justice Khampepe found that when faced with a school policy that offends the Constitution and the Schools Act, an HOD is obliged to engage in a consultative process with the governing body and, if there are reasonable grounds, take over the performance of the governance or policy formulation function in order to give effect to the relevant constitutional rights and the objectives of the Schools Act. Additionally, the HOD, as an organ of the state, has obligations under section 7(2) of the Constitution to respect, protect, promote and fulfill the rights as enshrined in the Constitution.
Justice Khampepe found that the schools' governing bodies were empowered to adopt pregnancy policies and that in addressing his concerns regarding the policies, the HOD was obliged to act in accordance with the Schools Act, which he did not. The HOD therefore acted unlawfully in issuing instructions to the principals that they readmit the pregnant students, contrary to their schools' pregnancy policies. Justice Khampepe held that the HOD's obligations under section 7(2) of the Constitution did not affect this finding, as the obligation to protect must be discharged in accordance with the rule of law. Therefore, while the HOD was obliged to protect the rights of pregnant students to freedom from unfair discrimination and a basic education, he was obliged to do so lawfully.
Justice Khampepe then considered the unconstitutionality of the pregnancy policies. She found that the policies were discriminatory as they differentiate between students on the basis of pregnancy, which is disallowed under section 9(3) of the Constitution. The policies also limit pregnant students' fundamental right to education, as protected by section 29 of the Constitution, by requiring students to repeat up to a year of schooling. The requirement that students report to the school authority when they believe they are pregnant violates their rights to human dignity (section 10), privacy (section 14), and bodily and psychological integrity (section 12(2)). This is further compounded by the obligation placed on other students to report to the school authority when they suspect a student is pregnant. Finally, Justice Khampepe considered that the inflexible nature of the policies, which require the automatic exclusion of pregnant students, violates section 28(2) of the Constitution, which provides that a child's best interests are of paramount importance in every matter concerning a child.
In light of these findings, Justice Khampepe ordered that the appeal be dismissed and that the schools' governing bodies review their pregnancy policies in light of the judgment and furnish the Court with a copy of the revised policies. Further, the Court ordered that the parties engage meaningfully with each other to give effect to the revised policies. Justice Froneman and Skweyiya agreed with these orders.
In contrast to the majority's findings on the exercise of public power, Justice Zondo found that the governing bodies did not have the power to make the pregnancy polices, as they were inconsistent with provisions of the Schools Act and the Constitution. As such, he found that the HOD not only had the power to act as he did in instructing the principals not to carry out or implement the pregnancy policies which were in breach of the Schools Act and the Constitution, he was obliged to do so.
Article 28 of the United Nations Convention on the Rights of the Child recognises the right of the child to education. However, unlike the South African Bill of Rights, neither the Australian Constitution nor Victoria’s Charter of Human Rights contains a specific right to education. Nevertheless, the Charter provides that every person has the right to enjoy their human rights without discrimination (section 8(2)) and that every child has the right to such protection as is in their best interests and is needed by them by reason of being a child (section 17(2)). State and federal anti-discrimination laws also broadly protect against discrimination on the grounds of pregnancy and parental status (with some exemptions for religious bodies). Accordingly, similar policies in Australia are likely to be unlawful.
In Victoria, the Victorian Department of Education's 'Student Pregnancy and Parenting School Policy' stipulates that students who are pregnant or parenting have the right to continue schooling. Freedom is granted to schools and principals in making local decisions about how pregnant students can be supported to continue their schooling, but the policy guards against the exclusion of pregnant students by reason of their pregnancy.
The Federal Sex Discrimination Act 1984 (Cth) also protects against discrimination on the basis of pregnancy in the provision of goods and services, including education, although private religious schools do have an exemption under this legislation.
The decision is available at: http://188.8.131.52/uhtbin/cgisirsi/20130715092443/SIRSI/0/520/J-CCT103-12
Carmendy Cooper is a solicitor at DLA Piper Australia.