We have noted the judgment of the Constitutional Court of today 10 July 2013.
In general we are very happy about this judgment, because the Constitutional Court has re-affirmed our view that those learners pregnancy policies we complained about were:
- at face value infringing upon the constitutional right of the pregnant learners, including the right to human dignity, freedom from unfair discrimination and to right to receive basic education.
In order to address the issues we had complained about, namely the learner’s right to receive basic education and the constitutionality of those policies, the Court had ordered that those policies of the schools involved must be reviewed in the light of the Constitution and the South African Schools Act.
It further ordered that, when the SGBs of the schools review these policies, they must meaningfully engage with the HOD in accordance with the principle of cooperative governance.
Furthermore, that whatever the SGBs of the schools and the department are doing they should place the learners’ best interest as the starting point.
- In addition, the two schools have been ordered by not later than 10 October 2013, to lodge with the Constitutional Court affidavits setting out the processes they undertook to review those pregnancy policies and furnish copies of the revised pregnancy policies to Court.
We should be mindful that this was a very difficult matter taking into account, the length of this judgment which involved the application of the law, learners’ best interests and their right to receive basic education that we as the department are obliged to provide.
This is also evident from this judgment because four out of nine learned Justices of the Court indicated that:
- they would have upheld the department’s appeal in all aspects we appealed on because governing bodies’ learner pregnancy policies were unconstitutional in that the excluded pregnant learners from school.
- that the exclusion of those learners were unlawful because they constituted suspensions or expulsions of those learners from school by the SGB and that was a breach of the Schools Act, and
- that the Head of Department (HOD) was therefore not only entitled, but obliged to take steps to prevent the Principals who are his representatives in the schools from enforcing those unconstitutional policies.
We celebrate, respect this judgment and feel vindicated on our position we had on the constitutionality of those learner pregnancy policies, even though we are disappointed that the majority of the learned Justices did not agree with the argument we had presented in Court on technical legal issues, namely on the power of the HOD in terms of Section 16A(3)(a) of the South African Schools Act [SASA] to instruct the Principals not to implement unconstitutional policies as compared to Section 22 of the above-mentioned Act, which the Court found that the HOD should have used to withdraw the function of adopting a Code of Conduct, a code which provides for the determination of the schools’ learner pregnancy policies.
It is only on this basis (principle of legality) that the Court found that HOD acted without powers by relying on Section 16A(3)(a) which would given him some sort of veto or unlimited discretionary powers, instead of relying on Section 22 of the above said Act, which have detailed procedural steps that the HOD need to follow before withdrawing a School Governing Body’s function/s as compared to Section 16(A)(3)(a).
Enquiries:
Howard Ndaba
Cell: 079 503 5485
