File photo: Lebohang Mashiloane

Bloemfontein - Two Free State school governing bodies acted unlawfully when they expelled girls temporarily from school for being pregnant, the Supreme Court of Appeal heard on Tuesday.

'It’s a case where the conduct of the SGB (school governing body) had interfered with the existing rights of learners,” said Matthew Chaskalson, for Free State’s education head (HOD).

Chaskalson submitted the SCA had a duty to consider the “exclusionary provisions” of the school's pregnancy policies.

The HOD appealed against a High Court order, which held he was not entitled to direct the schools to ignore their pupil pregnancy policies in their codes of conduct.

The Schools Act gives school governing bodies authority to decide on codes of conduct.

The two girls, in two Welkom high schools, fell pregnant and the schools acted against them by asking them to leave school and return after their pregnancies.

However, the HOD instructed the principals not to adhere to the SGB regulations.

The schools objected to this, arguing he did not have the power to instruct principles to act against the adopted school policy.

The HOD replied he was within his rights, in line with the Constitution and the Children’s Act of a child’s right to receive education.

'The HOD has the power to instruct employees not to act unlawfully,' submitted Chaskalson.

He argued the rights of the two girls had been violated by the pregnancy policies of the schools.

Further, the powers of the SGBs were not above that of the Free State head of education.

Replying to questions, Chaskalson submitted the SCA could not retreat from the constitutional aspect of the matter, even if it was not asked to look at it.

“Even if not called upon to make a decision on constitutional aspects, it (the court) could not ignore it,” he submitted.

Neil Snellenburg, for the schools, argued the case did not rest on the constitutional aspects of the policies.

He submitted that all constitutional aspects had not even been ventilated in detail. The HOD’s arguments only reflected that of two pregnant girls.

The rights of the other children in the schools, the unborn children, the parents of the schools and other parties were not even heard.

Snellenburg submitted the department of education published guidelines for school pregnancy policies in 2007.

It also asked schools to adopt a policy by 2010.

Furthermore, the HOD had the schools pregnancy policies for quite some time but never acted.

It was submitted it was not for the HOD to decide whether a policy was unconstitutional or not, but a court.

“The route was obviously to bring review proceedings against the policies (of the schools),” submitted Snellenburg.

He told a full bench of the SCA that even labour laws on pregnancy tell people to take time off.

“This constitutional attack is not correct,” said Snellenburg.

He argued the HOD could not expect the SCA to make a decision on constitutionality, if it was not properly ventilated.

He said the matter rested squarely on the legality of the HOD’s decision to interfere with the powers of the SGB.

Judgment was reserved. - Sapa