PUBLIC INTEREST LAW GATHERING
EDUCATION LITIGATION PANEL
DISCUSSION
LEARNER PREGNANCY: WELKOM HIGH
SCHOOL & ANOTHER V HOD, DoE (FREE
STATE) AND ANOTHER CASE 2011 (4 ) SA
531(FB)
FACTS
2 separate cases concerning the “exclusion” of
learners who had fallen pregnant.
In the Welkom High School matter the grade 9
learner fell pregnant in the beginning of the 2010
school year and continued to attend school until
September 2010 when she was instructed not to
attend anymore and to return at the beginning of
the second term in 2011.
In the Harmony High School matter the learner
fell pregnant in October 2009 while in grade 10 and
continued with grade 11 on 2010 and gave birth
during the June school holidays until October 2010
when she was told to not attend school until
January 2011.
In both instances the matters were brought to the
attention of the provincial authorities of the
department of education who intervened by ordering
both schools to rescind their decisions to expel the
learners and allow them to continue with their
schooling.
The schools launched urgent applications challenging
the HOD and persisting with their position that the
learners be excluded.
The learners were allowed to continue with their
education pending the adjudication of the matter.
LEARNER PREGNANCY POLICIES
 Both schools had adopted learner pregnancy policies
which provided that a pregnant learner will have to
leave school during her eighth month of pregnancy and
that no learner should be readmitted in the same year
that they left school due to pregnancy.
In addition to the aforementioned, the NDOE’s
Measures for the Prevention and Management of
Leaner stated that:
“…However it is the view of the DOE that learners as
parents should exercise full responsibility for parenting,
and that a period of absence of up to two years may be
necessary for this purpose. No learner should be readmitted in the same year they left school due to a
pregnancy.”
 The schools learner pregnancy policies were based
on the Measures.
The HOD had issued a circular which stipulated that
the Measures had created confusion and learners
who fall pregnant should be allowed to return to
school as soon as possible.
The HOD had acted on instruction from the NDOE
which acknowledged the confusion caused by the
Measures and indicated that learners should not be
expelled on account of pregnancies as this amounts
to unfair discrimination.
ARGUMENT
The schools raised objection to the HOD’s
instruction- that he did not have the public power to
instruct the schools not to act in accordance with
their properly adopted policy.
The HOD argued that he was fully within his rights
and authorised to have instructed the schools not to
implement the learner pregnancy policies- in line with
the Constitution, the Children’s Act and international
instruments such as the UNCRC.
Therefore the issue before the court was viewed to
be about the legality of the HOD’s actions than the
content of the learner pregnancy policies.
CCL and SAHRC entered as amici.
 CCL and SAHRC argued that the schools actions
were in violation of ss 9;10; 11; 28 and 29 of the
Constitution as well as international instruments
(UNCRC and ACRWC).
Furthermore, the SAHRC argued that the HOD was
entitled to have acted in the manner that he did as:
•Section 72 of the Constitution requires the State
to respect, promote and fulfill the rights in the
BoR;
•Section 41(1)(d) of the Constitution which
requires all organs of the State to be loyal to the
Constitution.
The CCL raised specific arguments in relation to the
content of the policies and the Measures.
JUDGMENT
The court found that the HOD was not entitled
to direct the schools to ignore the learner
pregnancy policy as contained in their code of
conduct.
•This was based on the fact that the Schools
Act gives the school governing body authority
to decide on codes of conduct;
•Further that the school governing body had
authority in terms of s 22 of the Schools Act
and this could only be withdrawn if the school
governing body ceased to perform its
functions.
The court found that the decision that the schools
had taken in relation to the expulsion of the
learners were valid in law.
Further that the respondents are restrained from
taking any action(s) directly or indirectly calculated
to defy, contravene, subvert or in any manner to
undermine the decisions of the applicants taken in
terms of their learner pregnancy policies.
In relation to the two learners the court ordered
that they were entitled to attend the same schools
and remain in their current grades and to be taught,
to learn and to be examined until completion of
their high-school careers.
IMPACT OF AMICUS INTERVENTION
The judgment centered around the issue of legality,
however the judgment captures some of the issues
that the amici raised:
• That the NDOE’s Measures were the source of
confusion;
• That the schools had selectively lifted some of
the text from the Measures- resulting in the
inflexible policies;
• That the policies were subject to the
Constitution, legislation, ordinances etc, and
where the policies were deliberately or
inadvertently contrary to these legal preceptsthe State was not powerless- could have taken
the decisions on review;
•The parties agreed that there was a need for the
NDOE to promulgate regulations in terms of
section 61 of the Schools Act for a policy and
uniform procedure on pregnant learners; and
• The regulations should comply with the
constitutional rights in the BoR and the PEPUDA as
well as other applicable legislation.
The court could not make an order in relation to the
national regulations as the Minister of Education was
not a party to the matter, however the judge “urged
her to do her best to promulgate such regulations
within 24 months hereof.”
THANK YOU!