File photo: Lebohang Mashiloane

Bloemfontein - The head of the Free State education department cannot order school principals to ignore adopted school policy, the Supreme Court of Appeal held on Friday.

It follows an SCA judgment dismissing an appeal by the Free State’s head of education (HOD).

The matter dealt with the HOD’s authority to instruct the principal of a public school to act in a manner contrary to a policy adopted by the school governing body (SGB), in this case the management of pupil pregnancies.

It relates to two Welkom schools where pupils became pregnant and had to leave the schools temporarily in terms of pregnancy policies adopted by the respective SGBs.

One pupil’s family laid a complaint and contested her absence from school to the minister of basic education, the MEC for education in the Free State and the Human Rights Commission of South Africa.

In both the matters the school principals received written directives form the Free State education HOD instructing them to rescind their decisions and to re-admit the pupils.

The HOD’s reasons were that the policies were unconstitutional and that his decision was based on what he thought was best for the pupils concerned.

The SCA held it was clear from the South African Schools Act the governance of a public school was the responsibility of the SGB.

The SCA judgment found the decision to adopt a pregnancy policy was an administrative decision, and stated that even if the pregnancy policies were unconstitutional, it did not entitle the HOD to instruct the principals to disregard such policies.

The court confirmed that the HOD exercised executive control over public schools through principals, but the HOD was constrained by the principle of legality.

The SCA found the HOD’s contention that he was protecting the constitutional right of pupils not to be excluded from school was not a defence in this case.

The judges further held the HOD should rather ask a court of law to set aside decisions which were, in his opinion, invalid in law.

The SCA also rejected the argument that the Free State education head had brought a collateral challenge in the matter. - Sapa