HARMONY HIGH SCHOOL COURT CASE
The Constitutional Court has admitted Equal Education (EE) as a “friend of the Court” in a court case that will decide whether school governing bodies can suspend pregnant learners. The Free State Department of Education appealed to the Constitutional Court after a Supreme Court of Appeal judgment that significantly hampered the Department’s ability to quickly and efficiently intervene when unlawful school governing body policies deny learners access to their schools. The matter will be heard at the Constitutional Court tomorrow, 5 March 2013, at 10h00.
The Constitutional Court will decide on whether the head of a provincial education department may instruct a principal not to implement a school governing body policy that would result in the unlawful suspension of a learner. The matter initially came before the High Court after two Free State schools, Harmony and Welkom High, sought to suspend learners because they had fallen pregnant. In the Harmony matter the 17 year old learner concerned had already given birth in July 2010. She returned to school and had been attending classes for a full school term before she was informed that she would have to leave unless she was able to produce a medical certificate proving that she had not given birth.
The Head of Department will argue that the pregnancy policies unfairly discriminate on the basis of gender and pregnancy, violate female learners’ right to a basic education and are not taken in the best interest of the child or the individual circumstances of affected learners. These pregnancy policies also violate national and provincial policies aimed at ensuring that pregnant learners are able and encouraged to attend school as long as they are medically able and to return to school as soon as possible after giving birth.
Both the High Court and the Supreme Court of Appeal found that a Head of Department was essentially powerless and could not instruct a principal to ignore a school governing body pregnancy policy. Both lower courts ruled that Heads of Department would have to first go to court in order to secure the learners’ return to school.
At the hearing EE will argue that the lower courts are incorrect because:
- Heads of Department are under a duty to ensure that all learners’ constitutional rights are protected;
- the South African Schools Act makes Heads of Department responsible to ensure that no learner is unlawfully denied access to a school through unlawful suspensions or discrimination;
- The South African Schools Act gives Heads of Department the power to intervene by instructing principals to ignore school governing body policies that are unlawful, unconstitutional or otherwise unreasonable;
- The Free State Head of Department acted reasonably and was therefore entitled to intervene to ensure the swift and immediate return of the learners to Harmony and Welkom High; and
- Requiring Heads of Department to first obtain court order prior to intervening flies in the face of the structure of the South African Schools Act, would result in costly and inefficient use of limited education resources and is to the detriment of learners’ who would suffer from continued discrimination whilst cases are pending.
All the court documents are available online:
- 12 May 2011: Free State High Court ruling
- 28 September 2012 : Supreme Court of Appeal Ruling
- Gauteng Department of Education’s application for leave to appeal to the Constitutional Court
- 23 January 2013: Equal Education’s application to be admitted to the Constitutional Court as a “friend of the court”
- Equal Education’s Heads of Argument for Constitutional Court
- Judgment of the Constitutional Court
For more information please contact
Lisa Draga (EE Law Centre Attorney) on 0726500214
Yoliswa Dwane (EE Chairperson) on 072 342 7747
Kate Wilkinson (EE Media Officer) on 082 326 5353
