Assignment Task
Introduction
[1] State functionaries, no matter how well-intentioned, may only do what the law empowers them to do. That is the essence of the principle of legality, the bedrock of our constitutional dispensation, and has long been enshrined in our law.1 On the one hand this case requires us to answer the question of whether the Head of a Provincial Department of Education has the power lawfully to instruct the principal of a public school to ignore a policy promulgated by the school’s governing body when he or she (the Head of Department) is of the opinion that that policy is unconstitutional. On the other hand it deals with rights that must be observed when formulating and implementing pregnancy policies for learners, and the manner in which those rights are protected.
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Get Help Now![2] The respondents sought interdictory relief from the Free State High Court, Bloemfontein (High Court) under case numbers 5714/2010 (the Welkom case) and 5715/2010 (the Harmony case). The High Court heard the Welkom case and the Harmony case together and granted the relief sought in both cases. The matters went on appeal to the Supreme Court of Appeal and the award of the interdict was, in both cases, upheld by that Court, albeit subject to certain limitations not imposed by the High Court. This case now comes before us by way of an application for leave to appeal against the judgment and order handed down by the Supreme Court of Appeal. The parties
[3] The applicant is the Head of the Department of Education in the Free State Province (Free State HOD).
[4] In the Welkom case the first respondent is Welkom High School (Welkom), which is a public school, and the second respondent is the Governing Body of Welkom (Welkom governing body). In the Harmony case the first respondent is Harmony High School (Harmony), which is also a public school, and the second respondent is the Governing Body of Harmony (Harmony governing body).
[5] Equal Education and the Centre for Child Law were admitted as first amicus curiae and second amicus curiae respectively.
Overview
[6] In 2008 and 2009 respectively, the Welkom governing body and the Harmony governing body adopted pregnancy policies for their respective schools that provide for the automatic exclusion of any learner from school in the event of her falling pregnant.
[7] Below I find that these policies prima facie violate constitutional rights and thus order that they be reviewed in the light of the considerations set out in this judgment. Further, I order the respondent schools to engage meaningfully with the Free State HOD in the process of revising their pregnancy policies and to furnish copies of the revised policies to this Court. Notwithstanding these findings I conclude that, in the circumstances of this case, the conduct of the Free State HOD was invalid insofar as he failed to adhere to the prescripts of the South African Schools Act3 when seeking to address the content of the pregnancy policies. But before addressing either the Free State HOD’s power to instruct principals to ignore their governing bodies’ policies or the problems relating to the substance of those policies, a more detailed outline of the facts is necessary.
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