Godfrey Simons
BLOEMFONTEIN – The Department of Education in Free State on Friday, September 28 lost an appeal in the Supreme Court of Appeal with costs against Welkom and Harmony high schools in Welkom that suspended two pregnant pupils had in 2007 and 2011.
The court heard that on November 20 2008, the governing body at Welkom High School adopted a policy on the management of learner pregnancies that took effect on 1 January 2009.
Harmony High School adopted a similar policy on January 29, 2009 in line with the National Department of Education’s Measures for the Prevention and Management of Learner Pregnancy which were published in 2007.
The family of the Welkom school girl complained to the Minister of Education and MEC for education in the Free State after her suspension. Although the Head of Department in Free State wrote a letter to the school principal to allow the learner back in class the principal refused.
Another 17-year-old named M, from Harmony High School was suspended while in Grade 11 in 2010. The head of Department again wrote to the principal asking him to rescind the decision to suspend the learner.
Justice Leona Theron ruled that: “The HOD, in issuing such instructions to the principal, was in effect substituting his own pregnancy policy for that of the respective schools.
The HOD does not have the power, in terms of the Act, to determine pregnancy policies for the schools. Whether the governing bodies have such power is irrelevant, and so is the constitutionality of the policies, the question addressed by the amicus curiae.
It suffices, for the purpose of this appeal, to hold that the HOD failed to adhere to the principle of legality and that his conduct is accordingly unlawful, for the reasons given by the high court.
“The HOD had to outright legislative power to determine or to abolish the learner pregnancy policy for the school all on his own and against the popular and democratic will or resolution of the school governors.”