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Johannesburg - Two Free State schools' pregnancy policies will be challenged in the Constitutional Court in Johannesburg on Tuesday.
This follows a challenge by the Free State department of education, which believes it is unconstitutional to not allow a pupil who has given birth to return to school in the same year, and that they must redo the year.
According to papers submitted ahead of the application, the issue arose as a result of the policies of Welkom High School and Harmony High School.
In terms of their pregnancy policies pupils who fall pregnant may not be readmitted to school in the year that they give birth, and must repeat a year of schooling.
This is irrespective of the health of the pupils, and their and their parents' wishes, as well as their capacity to catch up on missed school work.
The education department tried to intervene, on the grounds that the policies were in breach of Section nine of the Constitution and violated the pupils' right to education.
The head of the education department had issued instructions to the schools to readmit the pupils, in terms of the Employment of Educators Act and in terms of Section seven of the Constitution to “act positively to respect, protect, promote and fulfil the fundamental rights protected in the Bill of Rights”.
This saved the pupils affected by the application from exclusion from school for the balance of 2010, and from having to repeat their 2010 school year in 2011.
But the schools contended this infringed the powers of the school governing bodies.
The matter was taken to the Free State High Court, which ruled it could not consider the constitutionality of the pregnancy policies without a counter application from the department for an order declaring the pregnancy policies unconstitutional and invalid.
It also held that the head of department had no legal power to act as he did, and that his instructions to the principals violated the constitutional principle of legality.
The only remedy available to the head of department was to call on the governing body to change its policy. If the governing body refused, the head could apply to the high court for an order.
The Supreme Court of Appeal dismissed the head of department's appeal.
The education department is challenging the matter in the Constitutional Court on four grounds: that the courts below assumed incorrectly that a governing body is competent to adopt a pregnancy policy at its school; that it fails to take into account the employment relationship between the head of department as employer, and the principal as employee; it ignores the obligation of the State not, through its employees, to act unconstitutionally; and that it fails to take account of the responsibilities of the courts themselves to protect fundamental rights.
Lobby group Equal Education is among the friends of the court that have been admitted to the case.
According to the court papers the respondents ultimately accepted that the pupils could return to their schools. The department however believes the case illustrates the unconstitutionality of the schools' pregnancy policies. - Sapa