Head of Department, Department of Education, Free State Province v Welkom High School and Others

• Jurisdiction: South Africa
• Judge: Mogoeng CJ, Moseneke DCJ, Froneman J, Jafta J, Khampepe J, Nkabinde J, Skweyiya J, Van der Westhuizen J and Zondo J
• Judgment Date: 10 July 2013
• Citation: 2014 (2) SA 228 (CC)
• Docket Number: CCT 103/12 [2013] ZACC 25
• Hearing Date: 05 March 2013
• Counsel: M Chaskalson SC (with B Mene) for the applicant. J du Toit SC (with N Snellenburg) for the respondents. A Breitenbach SC (with T Masuku) for the first amicus curiae. N Rajab-Budlender for the second amicus curiae.
• Court: Constitutional Court

Khampepe J (Moseneke DCJ and Van der Westhuizen J concurring): G

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 H been enshrined in our law. [1] On the one hand this case requires us to

Khampepe J (Moseneke DCJ and Van der Westhuizen J concurring)

A 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/HOD) is of the opinion that that policy is unconstitutional. On the other hand it deals with rights that B must be observed when formulating and implementing pregnancy policies for learners, and the manner in which those rights are protected.

[2] The respondents sought interdictory relief from the Free State High Court, Bloemfontein (high court), under case Nos 5714/2010 (the Welkom case) and 5715/2010 (the Harmony case). The high court heard C 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 D Court of Appeal.

The parties

[3] The applicant is the head of the department of education in the Free State Province (Free State HOD).

E [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). [2]

F [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 G 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 H 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

Khampepe J (Moseneke DCJ and Van der Westhuizen J concurring)

this court. Notwithstanding these findings, I conclude that, in the A 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 Act [3] 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 B problems relating to the substance of those policies, a more detailed outline of the facts is necessary.

Facts particular to the Harmony case

[8] In October 2009, a 16-year-old learner in grade 10 at Harmony (the C Harmony learner) fell pregnant. She continued attending classes and passed her grade 10 examinations. The following year she returned for grade 11 and attended classes for the first and second terms. During the winter school holidays in 2010 she gave birth. She then returned to school for the third and part of the fourth school terms. In October 2010, only a month before final examinations and in accordance with Harmony's D pregnancy policy, the learner and her mother were instructed that she (the learner) would not be admitted to school for the remainder of 2010 and should return only in January 2011. The practical effect of this decision, had it been carried out fully, would have been to prevent the Harmony learner from writing her year-end examinations and to force her to repeat grade 11. E

[9] On or about 12 October 2010 the mother of the Harmony learner approached the Department of Education in the Free State Province (provincial department) for assistance. On 13 October 2010 two departmental officials, Dr Liphapang and Mrs Lioma, wrote to Harmony's F principal and requested that the Harmony learner's case be reviewed. To their letter the officials annexed the Provincial Department's 'Management and Governance Circular No 18 of 2010' (2010 circular). While the 2010 circular indicates that '(t)he Department does not condone learner pregnancy', it emphasises that learners may not be expelled on the basis of their pregnancy, that learner pregnancy policies and G interventions should be 'rehabilitative and supportive' rather than 'punitive', and that learners should be encouraged to return to school as soon as possible after giving birth.

[10] The Harmony governing body decided not to review the Harmony learner's exclusion from school as it was of the view that its learner pregnancy policy had been properly applied to her case. H

[11] On 26 October 2010 officials from the provincial department met with the Harmony governing body and the principal. At the meeting it was concluded that the governing body should convene to reconsider the Harmony learner's exclusion from school. However, on 28 October 2010, I prior to the governing body convening, Harmony's principal received a letter from the Free State HOD that goes to the heart of the dispute presently before this court. Although the initial provisions of the

Khampepe J (Moseneke DCJ and Van der Westhuizen J concurring)

A letter are framed in somewhat qualified terms, the final paragraph contains an unequivocal instruction:

'You are . . . instructed to allow the [Harmony] learner back at school with immediate effect and to put in place measures to help the learner catch up with any work she might have missed whilst still at home.'

B [12] Following the Free State HOD's instruction, two meetings took place that are relevant for present purposes. First, on 2 November 2010 the Harmony governing body held a special meeting and decided, notwithstanding the Free State HOD's instruction to the principal, that the Harmony learner should not be readmitted during 2010. A letter was sent to the Free State HOD on 3 November 2010 communicating this C outcome. At the instance of the school, a second meeting took place between members of the Harmony governing body and officials from the provincial department (though the Free State HOD himself was not in attendance) on 4 November 2010. The parties discussed the Harmony learner's situation but were unable to reach agreement on the appropriate D solution. It was concluded that the matter would be referred to the Free State HOD and the member of the executive council responsible for the provincial department.

[13] The Federation of Governing Bodies of South African Schools (FEDSAS), a national organisation representing school governing bodies, E attempted to schedule a third meeting between the Harmony governing body and the Free State HOD on 16 November 2010. Harmony alleges that the meeting was requested to discuss, amongst other things, the Harmony learner's situation, whereas the Free State HOD contends that it was purely to discuss 'general issues'. In any event, the meeting never F took place.

[14] After the Free State HOD refused to rescind his instruction to the Harmony principal, the school approached the high court for interdictory relief. The Harmony respondents were — and remain — of the opinion that the Free State HOD had no power to issue the abovementioned instruction. This notwithstanding, the school decided to readmit the G Harmony learner during 2010, pending the outcome of the high court proceedings. The Harmony learner completed her grade 11 examinations successfully and was a grade 12 learner at the time that the application was heard by the high court.

Facts particular to the Welkom case H

[15] In 2010 a learner in grade 9 at Welkom, aged around 15 or 16 years old at the time [4] (the Welkom learner), fell pregnant. She continued attending school until the principal, in accordance with the school's pregnancy policy, instructed her mother that she had to leave school on 16 September 2010 and remain at home until the end of the first term of I 2011. This instruction followed consultations between the principal, the Welkom learner and her mother, which took place on 15 and 16 September 2010. The effect of the principal's instruction, had it been carried

Khampepe J (Moseneke DCJ and Van der Westhuizen J concurring)

out, would have been to prevent the Welkom learner from completing A her grade 9 year and to force her to repeat that year in 2011.

[16] On the day the instruction was communicated to the Welkom learner's mother, her uncle dispatched a written request to the Minister of Basic Education (Minister), asking that she intervene 'immediately . . . prior to [the dispute regarding the Welkom learner's exclusion B from school] becoming a legal battle'. It is not apparent whether there was any response from or intervention by the Minister.

[17] The Welkom learner's family also sought the assistance of the South African Human Rights Commission [5] (HRC) in their efforts to gain her readmission to Welkom prior to the second term of 2011. The HRC C subsequently wrote to Welkom, indicating that it had received a complaint relating to the Welkom...