Equal Education (EE) welcomes the finding yesterday by the Constitutional Court that pregnancy policies which exclude pregnant girls from attending class are prima facie a violation of pregnant learners rights to equality, basic education, human dignity and privacy [See full judgment]. The Court ordered the two Free State schools concerned to review their pregnancy policies and to file copies of the revised pregnancy policies with the Court by 10 October 2013. The Court has brought about much needed legal clarity on the need to support and not punish pregnant learners.
The claims being made by school governing bodies associations that this judgment will insulate SGBs from effective state oversight are an exaggeration. Both the Majority and Minority judgments recognise the authority of provincial education departments to intervene. The Majority judgment found that in this instance the provincial Head of Department (HOD) did not properly follow Section 22 of the SA Schools Act in doing so. But the Court’s refusal to make a costs order against the HOD shows that the HOD was correct to jump in and aid the learners even if the HOD did not properly follow procedure.
In March this year EE joined this case as an amicus (friend of the Court). EE was represented by the Equal Education Law Centre (EELC) in doing so. The Supreme Court of Appeal had, in a previous judgment, significantly hampered the provincial department’s ability to quickly and efficiently intervene when unlawful school governing body policies deny learners access to schools. The Free State Department of Education therefore appealed to the Constitutional Court.
At the hearing EE argued that the pregnancy policies were unconstitutional as they blatantly discriminated against learners on the basis of both gender and pregnancy and in so doing perpetuated the negative stereotypes faced by pregnant learners. The school governing bodies argued that the provincial department of education should obtain a court order in order to intervene to assist learners denied access to school. EE argued that such an approach contradicts the balance of authority required by the South African Schools Act, and would result in costly and inefficient use of public resources for litigation, and is to the detriment of learners who would suffer from continued discrimination whilst cases are pending.
The question of the proper balance of authority between provincial education departments and school governing bodies will doubtless be examined in future cases. One such is the Rivonia Primary School case in which EE is also an amicus, and judgment is pending. It may be that Parliament should amend the Act to introduce greater certainty into the law. The most important immediate outcome of this case though, is that the rights of pregnant schoolgirls have been protected.
For comment please contact:
Lisa Draga (EE Law Centre Attorney) on 072 650 0214 / 021 461 6582 firstname.lastname@example.org