Head of Department, Department of Education, Free State Province v Welkom High School and Another; Head of Department, Department of Education, Free State Province v Harmony High School and Another (CCT 103/12) [2013] ZACC 25; 2013 (9) BCLR 989 (CC); 2014 (2) SA 228 (CC) (10 July 2013)

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[2013] ZACC 25
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Head of Department, Department of Education, Free State Province v Welkom High School and Another; Head of Department, Department of Education, Free State Province v Harmony High School and Another (CCT 103/12) [2013] ZACC 25; 2013 (9) BCLR 989 (CC); 2014 (2) SA 228 (CC) (10 July 2013)

Links to summary

CONSTITUTIONAL COURT OF SOUTH AFRICA
Case: CCT 103/12
[2013] ZACC 25
In the matter between:
HEAD OF DEPARTMENT, DEPARTMENT
OF EDUCATION, FREE STATE PROVINCE
...................................................
Applicant
and
WELKOM HIGH SCHOOL
.....................................................................
First
Respondent
GOVERNING BODY OF WELKOM HIGH SCHOOL
......................
Second
Respondent
and
in the matter between
HEAD OF DEPARTMENT, DEPARTMENT
OF EDUCATION, FREE STATE PROVINCE
...................................................
Applicant
and
HARMONY HIGH SCHOOL
...................................................................
First
Respondent
GOVERNING BODY OF HARMONY HIGH SCHOOL
...................
Second
Respondent
and
EQUAL
EDUCATION
........................................................................
First
Amicus Curiae
CENTRE
FOR CHILD LAW
..........................................................
Second
Amicus Curiae
Heard on : 5 March 2013
Decided on : 10 July 2013
JUDGMENT
KHAMPEPE J (Moseneke DCJ and Van der Westhuizen J concurring):
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 been enshrined in our law.
1
On the one hand this case requires us to 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) is of the opinion that that policy is
unconstitutional. On the other hand it deals with
rights that 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 numbers 5714/2010

(the Welkom case) and 5715/2010 (the Harmony case). The High Court
heard 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 Court of Appeal.
The
parties
[3] The applicant is the Head of the Department of Education in the
Free State Province (Free State HOD).
[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
[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
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 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 this Court. Notwithstanding

these findings I conclude that, in the 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
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 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 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.
[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 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 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.
[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, 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 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.”
[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 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 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, 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 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 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
[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 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 out, would have been
to prevent the
Welkom learner from completing 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 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 subsequently wrote to Welkom,
indicating
that it had received a complaint relating to the Welkom learner’s
exclusion from the school and requesting a response.
The HRC noted
that expelling or suspending a learner on the basis of her pregnancy
amounts to a violation of that learner’s
constitutional right
to education. It is not apparent whether Welkom ever responded to the
HRC.
[18] Sometime during October 2010 the Welkom governing body received
the 2010 Circular.
6
On 11 October 2010 the Welkom governing body called a special meeting
to consider the import thereof. Notwithstanding the contents
of the
Circular, the governing body elected to uphold its decision to
enforce the school’s pregnancy policy in relation to
the Welkom
learner.
[19] On 28 October 2010, three days after the Welkom learner had
given birth, the principal of Welkom received a letter from the
Free
State HOD regarding the Welkom learner’s exclusion from the
school, reflecting almost the exact contents of the letter
received
by the Harmony principal on the same date. The Welkom principal was
thus also “instructed to allow the [Welkom]
learner back at
school with immediate effect”.
[20] It would seem that a director from the Provincial Department,
responsible for the district in which Welkom is situated, met
with
the chairman of the Welkom governing body during the first half of
October 2010 and insisted that the school’s decision
regarding
the Welkom learner be revisited, to no avail. Welkom intended to
participate in the meeting organised by FEDSAS with
the Free State
HOD to be held on 16 November 2010. Welkom also alleges that the
meeting was requested to discuss, amongst
other things, the Welkom
learner’s situation, while the Free State HOD contends that it
was purely to discuss “general
issues”. As stated above,
the meeting never took place.
[21] The Welkom respondents were – and remain – of the
opinion that the Free State HOD had no power to instruct the

principal in the manner in which he did. The school accordingly
instituted the application for urgent interdictory relief in the
High
Court. It nevertheless decided to readmit the Welkom learner pending
the outcome of the High Court proceedings. The learner
returned to
school on 1 November 2010 and completed her grade-9 examinations
successfully.
The High Court
[22] Before the High Court, the respondents requested the following
relief in their respective notices of motion: first, an order

declaring that the Free State HOD does not have the authority to
instruct or compel a school principal to act in a manner contrary
to
a policy of the school governing body and, in particular, the
school’s pregnancy policies; second, an order declaring
that
the decisions to exclude the learners from school in accordance with
the policies be implemented forthwith; and last, an interdict

restraining the Free State HOD from taking any action in
contravention of the pregnancy policies.
[23] The High Court, per Rampai J, found that the Free State HOD did
not have the legal authority to act as he did and that his

instructions to the principals violated the principle of legality.
The High Court held that the Free State HOD’s only available

remedy would have been to call on the governing bodies to change
their policies and, in the event that they refused to do so, to
apply
to the courts for appropriate relief.
[24] The High Court therefore made an order stating in relevant part
that—
a. the Free State HOD does not have the authority to instruct or
compel the school principals to act in a manner contrary to an

adopted policy of the school governing bodies and, more specifically,
to take any action in contravention of or contrary to the
learner
pregnancy policies;
b. the decisions of the respondent schools to exclude the two
learners were valid in law;
c. the Free State HOD is restrained from taking any action directly
or indirectly calculated to defy, contravene, subvert or in
any
manner to undermine the decisions by the respondent schools taken in
terms of their learner pregnancy policies; and
d. the two learners concerned shall be entitled to attend school
until the completion of their school careers.
The Supreme Court of Appeal
[25] The
Supreme Court of Appeal broadly agreed with the High Court that the
Free State HOD did not have the authority to instruct
the school
principals to act contrary to policies adopted by the respondent
governing bodies. Furthermore, the Court was of the
opinion that the
content of the pregnancy policies had not been properly challenged,
and therefore that it was unnecessary to consider
the
constitutionality of those policies. The Court amended the High Court
order to eliminate the declaration that the decisions
to exclude the
two learners were “valid in law” in order to ensure that
there was no risk of an unintended declaration
of the
constitutionality of the policies. In this regard, the Supreme Court
of Appeal explained:
“
[T]hat
part of the [High Court] order declaring the decisions of the
governing bodies ‘valid in law’ presupposes that
the
decision cannot be assailed on any legal grounds. I doubt that the
learned judge intended to go that far. He must have intended
. . .
that the decisions are valid until set aside.”
7
[26] The
Court therefore issued the following order:
“
In
each case, for as long as the pregnancy policy remains in force, the
[Free State HOD] is interdicted and restrained from directing
the
school principal to act in a manner contrary to the policy adopted by
the school governing body.”
Issues
[27] As
with all applications of this nature, our concern must initially
focus on whether leave to appeal ought to be granted. If
it is
concluded that leave ought to be granted, there are two material
issues for determination.
[28]
First, does the Head of a Provincial Education Department (HOD) have
the power to instruct principals of public schools to
ignore policies
adopted by the governing bodies of those schools, in the light of his
powers under the Schools Act, his authority
as the principals’
employer or his responsibilities under section 7(2) of the
Constitution?
[29]
Second, in what manner and to what extent may this Court address the
concerns raised regarding the unconstitutionality of the
pregnancy
policies?
Submissions
[30] The
arguments presented by counsel for the parties and the amici were
most helpful and this Court is indebted to them. It is
not, however,
my intention to traverse each of the many contentions put forward. I
shall limit myself instead to dealing with those
arguments that are
strictly necessary for the proper determination of this matter.
Leave to appeal
[31] Leave to appeal is granted where the dispute raises a
constitutional issue and where it is in the interests of justice to

do so.
8
[32] The
present matter clearly raises constitutional issues in that it
relates to the proper exercise of public power by organs
of state and
the steps that members of the Executive may lawfully take in order to
protect fundamental rights. In addition, it
implicates the
constitutional rights to education,
9
human dignity,
10
privacy,
11
bodily and psychological integrity
12
and equal protection and benefit of the law,
13
as well as the prohibition against unfair discrimination.
14
[33] The
manner in which public schools regulate learner pregnancies, and the
manner in which members of the Executive exercise
their supervisory
authority to ensure that public schools act lawfully and
appropriately, are self-evidently matters of great import.
On the one
hand, the rights of pregnant learners to freedom from unfair
discrimination and to receive education must be respected,
protected,
promoted and fulfilled.
15
On the other hand, interactions between organs of state when
discharging their obligations under the Bill of Rights must take
place in accordance with the provisions of the Constitution and the
relevant legislative framework. The facts of this case give
rise to a
complex interplay between these two highly important sets of
constitutional considerations, which interplay should be

authoritatively determined, at least to the extent relevant for
present purposes, by this Court. It is thus in the interests of

justice for this matter to be heard. I therefore grant leave to
appeal.
The scheme of powers in relation to public schools
[34] The
entrenchment of the right to education as a fundamental right of all
people in South Africa represents a remarkable and
ambitious break
with the past, occurring as it does in the wake of the apartheid
regime’s policy of racially-segregated,

disproportionately-resourced schooling and the very real legacy of
that noxious system with which we are still faced today.
[35] The
unfortunate reality of our education system was alluded to by this
Court in
Hoërskool Ermelo
:
“
Apartheid
has left us with many scars. The worst of these must be the vast
discrepancy in access to public and private resources.
The cardinal
fault line of our past oppression ran along race, class and gender.
It
authorised
a hierarchy of privilege and disadvantage.
Unequal access to opportunity prevailed in every domain. Access to
private or public
education was no exception. While much remedial
work has been done since the advent of constitutional democracy,
sadly, deep social
disparities and resultant social inequity are
still with us.”
16
[36] Given this legacy, the state’s obligations to ensure that
the right to education is meaningfully realised for the people
of
South Africa are great indeed. The primary statute setting out these
obligations is the Schools Act.
17
That Act contains various provisions governing the relationships
between the Minister, Members of Provincial Executive Councils

responsible for education (MECs), HODs, principals and the governing
bodies of public schools. It makes clear that public schools
are run
by a partnership involving school governing bodies (which represent
the interests of parents and learners), principals,
the relevant HOD
and MEC, and the Minister. Its provisions are carefully crafted to
strike a balance between the duties of these
various partners in
ensuring an effective education system.
[37] Section 16 of the Schools Act is entitled “Governance and
professional management of public schools” and delineates
the
general roles played by the different statutory partners. It provides
in relevant part:
“
(1)
Subject to this Act, the governance of every public school is vested
in its governing body and it may perform only such functions
and
obligations and exercise only such rights as prescribed by the Act.
. . .
(3) Subject to this Act and any
applicable provincial law, the professional management of a public
school must be undertaken by
the principal under the authority of the
Head of Department.”
[38] The
Act does not define “governance” or “professional
management”, but lists specific governance functions
of school
governing bodies in section 20(1), as well as certain functions and
responsibilities of public-school principals in section
16A.
[39] A
principal must, in discharging his or her professional management
duties, amongst other things, implement educational programmes
and
curriculum activities,
18
manage educators and support staff,
19
perform functions that are delegated to him or her by the HOD under
whose authority he falls
20
and implement policy and legislation.
21
In contrast, a school governing body’s governance functions
include promoting the school’s best interests and striving
to
ensure the provision of quality education to all learners at the
school,
22
developing a mission statement for the school,
23
adopting a code of conduct for learners
24
and administering school property (subject to certain constraints).
25
[40] Although a principal is a member of the school governing body,
he or she occupies that position as a representative of the
HOD.
26
This is reiterated in section 16A(3), which reads as follows:
“
The
principal must assist the governing body in the performance of its
functions and responsibilities, but such assistance or participation

may not be in conflict with
¾
(a) instructions of the Head of
Department;
(b) legislation or policy;
(c) an obligation that he or she
has towards the Head of Department, the Member of the Executive
Council or the Minister; or
(d) a provision of the
Employment of Educators Act, 1998 (Act No. 76 of 1998), and the
Personnel Administration Measures determined
in terms thereof.”
[41] In
addition to section 16A’s general delineation of a principal’s
duties, each provision of the Schools Act dealing
with a specific
aspect of school governance or administration provides further
guidance on the roles and responsibilities of the
relevant actors. I
shall discuss these in some detail below as it is important to gain a
nuanced understanding of the roles prescribed
by the Schools Act for
the various officials and entities.
[42]
Sections 3 and 4 of the Schools Act prescribe compulsory school
attendance, and make provision for exemption therefrom, for
children
from the age of seven until such time as they reach the ninth grade
or their fifteenth year. It is the responsibility
of the MEC in each
province to ensure that there are enough schools in the province to
accommodate all children who are subject
to compulsory attendance
27
and the responsibility of the relevant HOD to monitor, regulate and
enforce compulsory attendance.
28
The Act further provides that “any . . . person [other than a
learner’s parent] who, without just cause, prevents a
learner
who is subject to compulsory attendance from attending a school, is
guilty of an offence”.
29
[43]
Section 5 of the Schools Act empowers a school governing body to
determine a public school’s admission policy,
30
subject to certain express stipulations aimed at preventing the
imposition of unfair admission requirements
31
and further subject to regulations prescribed by the Minister.
32
An HOD, in turn, is empowered to administer the admissions process,
with appeals against admission refusals lying to the MEC in
the
province.
33
[44]
Sections 6 and 6B deal with language policies in public schools,
empowering school governing bodies to determine the policies,
subject
to the applicable provisions of the Constitution, the Schools Act,
relevant provincial legislation and any norms and standards

promulgated by the Minister.
34
[45]
Section 8 of the Schools Act empowers school governing bodies,
pursuant to a consultative process involving learners, their
parents
and educators, to adopt codes of conduct, subject to guidelines which
may be published by the Minister and which, if duly
published, must
be considered in the process of adopting such codes.
35
[46]
Section 9 goes on to regulate the suspension and expulsion of
learners from public schools, and grants school governing bodies
only
limited powers in this regard. As a precautionary measure, a
governing body may suspend a learner for up to seven days, pending

his or her disciplinary hearing, or such longer time as an HOD
authorises.
36
The governing body may, in the event of the learner having committed
serious misconduct, impose a disciplinary sanction of up to
seven
days of (further) suspension.
37
Only an HOD may decide to expel a learner,
38
although a governing body may extend the learner’s period of
suspension for up to 14 days pending an HOD’s determination
of
whether expulsion is appropriate.
39
While a governing body may recommend a learner’s expulsion to
an HOD, the latter is not bound by such recommendation and
a
governing body is bound to implement whatever sanction the relevant
HOD deems appropriate in the circumstances.
40
[47]
Finally, sections 22 and 25 regulate situations where an HOD’s
supervisory authority manifests in the form of a direct
intervention
in a public school’s affairs.
41
Section 22 thus empowers an HOD, on reasonable grounds, to withdraw
any function exercised by a school governing body, subject
to certain
procedural fairness requirements.
42
In the event of an urgent need to withdraw a school governing body’s
function, compliance with the procedural fairness requirements
may be
delayed until after the withdrawal has occurred, provided that the
governing body is given sufficient opportunity at a later
stage to
make the appropriate representations to the relevant HOD.
43
An HOD’s powers of withdrawal under section 22 are broad, and
extend to “any function” conferred on a school
governing
body.
44
Once an HOD withdraws a particular function, that function vests in
his or her office and he or she is “duty-bound to exercise
it
in furtherance of a specified goal permitted by the Schools Act.”
45
It goes without saying that these broad powers must be exercised in
strict compliance with the requirements of the Schools Act.
[48]
Section 25, on the other hand, empowers an HOD to intervene where a
school governing body has become dysfunctional –
where the
governing body has “ceased to perform functions allocated to it
in terms of [the Schools Act] or has failed to
perform one or more of
such functions”.
46
Thus section 22 regulates the situation where a school governing body
has purported to exercise its functions, but has done so
in a manner
warranting intervention, whereas section 25 obtains where a school
governing body has failed to perform its functions,
in whole or in
part.
47
[49] Under
the Schools Act, two things are perspicuous. First, public schools
are run by a partnership involving the state, parents
of learners and
members of the community in which the school is located. Each partner
represents a particular set of relevant interests
and bears
corresponding rights and obligations in the provision of education
services to learners. Second, the interactions between
the partners –
the checks, balances and accountability mechanisms – are
closely regulated by the Act. Parliament has
elected to legislate on
this issue in a fair amount of detail in order to ensure the
democratic and equitable realisation of the
right to education. That
detail must be respected by the Executive and the Judiciary. The
nature of the statutory partnership for
the running of public schools
was succinctly summarised in
Hoërskool
Ermelo
as follows:
“
An
overarching design of the [Schools Act] is that public schools are
run by three crucial partners. The national government is
represented
by the Minister for Education whose primary role is to set uniform
norms and standards for public schools. The provincial
government
acts through the MEC for Education who bears the obligation to
establish and provide public schools and, together with
the Head of
the Provincial Department of Education, exercises executive control
over public schools through principals. Parents
of the learners and
members of the community in which the school is located are
represented in the school governing body which
exercises defined
autonomy over some of the domestic affairs of the school.”
48
(Footnotes
omitted.)
The
Schools Act must, of course, be read in conjunction with other
applicable legislation. In this regard the
Employment of Educators
Act
>
49
is relevant. The Educators Act provides that an HOD is the employer
of public-school educators who are appointed to provincial

departmental posts, including principals.
50
That
is the statutory framework relevant for purposes of this case. The
Free State HOD argues that he was entitled to issue the
instructions
to the principals of Welkom and Harmony on the basis of his
statutory powers. I now turn to consider this contention.
Was the
Free State HOD entitled to intervene in the manner in which he did in
the light of his powers under the Schools Act?
The
Free State HOD’s arguments may be summarised as follows.
First, school governing bodies have powers that are expressly

limited by the Schools Act, and those powers do not include the
power to adopt a pregnancy policy. A governing body does not
have
that power by virtue of its competence to determine admission
policy, as a pregnancy policy applies only after a learner
has
already been admitted to the school and therefore cannot constitute
part of a public school’s admission policy. A governing
body
further does not have the power to adopt a pregnancy policy by
virtue of its authority to determine the school’s code
of
conduct, because codes of conduct only deal with disciplinary issues
and pregnancy may not be treated as a species of misconduct.
Second,
school governing bodies do not have the power to adopt pregnancy
policies that compulsorily exclude pregnant learners
from school for
the remaining portion of the year following the birth of their
children. Only an HOD may expel a learner, suspend
him or her for a
lengthy amount of time or exempt that learner from compulsory school
attendance.
Third,
an HOD’s status as the official responsible for executive
control over public schools and as the employer of public-school

principals takes primacy over any obligations that principals may
have to assist school governing bodies. Accordingly, an HOD
is
entitled to instruct principals under his authority to ignore or act
in contravention of policies adopted by school governing
bodies.
The
respondents, in turn, rely on governing bodies’ general
responsibility for governance issues and, in particular, on
their
powers to adopt a code of conduct in terms of section 8 of the
Schools Act. These powers and responsibilities, the respondents

contend, authorise governing bodies to adopt pregnancy policies for
their respective schools.
I
shall deal with each of the Free State HOD’s arguments in
turn.
Does
the Schools Act authorise governing bodies to adopt pregnancy
policies for public schools? I believe that this question must
be
answered in the affirmative.
Section
8 of the Schools Act regulates codes of conduct. Neither section 8
nor any other provision of the Act explicitly or precisely
defines
what constitutes a “code of conduct”. The Schools Act
does, however, stipulate that such a code “must
be aimed at
establishing a disciplined and purposeful school environment,
dedicated to the improvement and maintenance of the
quality of the
learning process.”
51
Codes
of conduct should, of course, deal with discipline in schools. Thus
section 8(5) to (9) of the Schools Act, which prescribes

certain mandatory content for codes of conduct (as well as relevant
procedures to be followed by schools when implementing particular

provisions of a code), refers only to disciplinary issues. This
limited prescription would appear to support the Free State HOD’s

construction of the Schools Act. That, however, is not the end of
the matter. The phrases “disciplined and purposeful school

environment” and “improvement and maintenance of the
quality of the learning process” found in section 8(2)
are
sufficiently broad to accommodate more than just disciplinary
policies. Pregnancy should not be construed as a species of

misconduct and, accordingly, may not be treated as an instance of
ill-discipline or as meriting punishment. However, the
non-disciplinary
nature of pregnancy does not preclude the governing
body from being able to formulate policies dealing with pregnancy.
This is
so especially when section 8 of the Schools Act is
considered in the light of the governing body’s overall
responsibility
for the governance of the school and its general
fiduciary obligation to ensure that the school environment
appropriately accommodates
learners’ needs.
As
with “code of conduct”, the Schools Act does not define
“governance” except insofar as it provides
for
particular governance functions in sections 5, 6, 8, 20 and 21. The
Oxford English Dictionary defines “governance”
as,
amongst other things, “[t]he action or manner of governing”,
“[c]ontrolling, directing or regulating influence”
and
“[t]he manner in which something is governed or regulated;
method of management, system of regulations.”
52
In
Hoërskool Ermelo
this
Court explained that “governance” in the context of the
Schools Act entails that “in partnership with the
State,
parents and educators assume responsibility for the governance of
schooling institutions. . . . [A governing body’s]
primary
function is to look after the interest of the school and its
learners.”
53
The Court went on to hold that “[s]
chool
governing bodies are a vital part of the democratic governance
envisioned by the Schools Act. The effective power to run
schools is
indeed placed in the hands of the parents and guardians of learners
through the school governing body.
”
54
“
Governance”
in the context of the Schools Act should also be understood in
contrast to “professional management”,
the two being
distinct categories of responsibilities set out in the statute. As
is evident from section 16A(2)(a), the professional
management of a
public school consists largely of the running of the daily affairs
of a school by directing teachers, support
staff and the use of
learning materials, as well as the implementation of relevant
programmes, policies and laws.
55
To my
mind, therefore, a governing body is akin to a legislative authority
within the public-school setting, being responsible
for the
formulation of certain policies and regulations, in order to guide
the daily management of the school and to ensure an
appropriate
environment for the realisation of the right to education. By
contrast, a principal’s authority is more executive
and
administrative in nature, being responsible (under the authority of
the HOD) for the implementation of applicable policies
(whether
promulgated by governing bodies or the Minister, as the case may be)
and the running of the school on a day-to-day basis.
It is this
understanding of a governing body’s governance obligations
which must inform our interpretation of the Schools
Act.
56
In
creating an appropriate school environment for learners, a governing
body may seek to include stipulations within its code
of conduct
regarding, for example, the exemption of pregnant learners from
otherwise mandatory sporting activities, the exemption
of pregnant
learners from the ordinary consequences of absenteeism, medical
services to be made available to pregnant learners
and the related
procedures in procuring these services, counselling services to be
made available to pregnant learners, the presence
of learners’
babies on the school campus and procedures regarding maternity
leave.
While we should refrain from purporting to use subordinate
legislation and similar instruments to interpret primary
legislation,
57
I think it is instructive that the various policy documents issued
by the Department of Basic Education and its provincial counterpart

in this matter are all predicated upon the promulgation of a
pregnancy policy falling within a governing body’s governance

responsibilities.
58
For example, the 2010 Circular states that it is “imperative
that all schools should have a policy on the prevention and

management of learner pregnancy” and goes on to stipulate
certain principles that should be given effect to by schools
“
when
drawing up
such policies” (emphasis added).
This
position, of course, makes sense. While the powers of governing
bodies are limited to “defined autonomy over some of
the
domestic affairs of the school”,
59
no other partner in the statutory scheme for the running of public
schools is empowered, or is as well-placed as a school governing

body, to formulate a pregnancy policy for a particular school (at
least as a matter of first instance). In other words, this
is
consistent with the Schools Act’s objective of ensuring
democratic governance within the public school system.
Any
policy promulgated by the Minister could only be general in nature
and would have to be particularised by school governing
bodies in
order to provide a systematic set of rules and norms that are
accommodating of a particular school’s circumstances.
For
example, girls-only and co-educational schools may have different
requirements with regard to pregnancy policies. Well-resourced

public schools would be able to provide more extensive counselling
and medical services for pregnant learners such that it would
be
unfair, unreasonable and impractical for a national policy to expect
all schools to adhere to exactly the same standards and
provide
exactly the same forms of assistance. Particularisation with due
regard to considerations of this sort could only fall
within a
school governing body’s governance function.
Under
the Schools Act the Minister has a discretion to determine
guidelines regarding the content of codes of conduct, which must
be
considered by a governing body when adopting a code of conduct.
60
The Minister duly promulgated the 1998 Guidelines,
61
which reserve for school governing bodies the formulation and
adoption of codes of conduct, including rules and norms regarding

learner pregnancies. The Schools Act does not grant the HOD any
powers of policy-making for particular schools or any powers
to
establish binding pregnancy policies that must be implemented by
public schools (as a matter of first instance). Indeed, counsel
for
the Free State HOD conceded during argument that the Provincial
Department has no power to formulate a pregnancy policy for
a
particular school.
Further,
during the hearing when asked about the correct remedy, counsel for
the Free State HOD argued that the pregnancy policies
could be
corrected by merely deleting a few of the most offensive clauses
(those clauses that make the policies inflexible).
This approach in
relation to remedy seems to accept that school governing bodies do
have the power to promulgate a pregnancy
policy. It is premised on
the notion that a pregnancy policy with the offensive provisions
removed would be entirely valid, notwithstanding
the fact that the
policy as a whole was formulated and adopted by the respondent
governing bodies. However, any piecemeal remedy
of this sort would
be completely unfounded if school governing bodies did not have the
power to promulgate pregnancy policies
at all (as the Free State HOD
contends), since any such “remedied policy” would still
be ultra vires.
To my
mind it is therefore clear that neither the Minister nor the
Provincial Department is empowered or ideally suited to adopt
a
pregnancy policy for a particular public school. And, in the light
of the foregoing, I am of the opinion that the Welkom and
Harmony
governing bodies were empowered, pursuant to their governance
responsibilities and their authority to adopt codes of
conduct, to
adopt pregnancy policies for their respective schools. Accordingly,
it is not open to the Free State HOD to claim
that he was entitled
to instruct the principals as he did because the pregnancy policies
were not properly authorised acts and
therefore could not lawfully
restrain his conduct.
Having
disposed of the Free State HOD’s argument in relation to a
governing body’s general power and competence to
adopt a
pregnancy policy, I turn to his second contention. Does the Schools
Act authorise governing bodies to adopt pregnancy
policies that have
exclusionary effects, that are premised on rigid application and
that do not take sufficient account of constitutional
rights? This
question must be answered in the negative. The powers of governing
bodies must be exercised subject to the limitations
laid down by the
Constitution and the Schools Act.
62
No governing body may adopt and enforce a policy that undermines,
amongst others, the fundamental rights of pregnant learners
to
freedom from unfair discrimination and to receive an education. This
is an issue with which I shall deal more fully below.
However,
we are presently concerned with determining whether the Courts below
were correct to grant the interdictory relief restraining
the Free
State HOD from conducting himself in a particular manner in relation
to the respondent schools. We therefore need to
determine what the
Schools Act empowers an HOD to do when faced with policies adopted
by school governing bodies that prima facie
(on the basis of the
HOD’s analysis) offend the Constitution and the Schools Act.
For just as school governing bodies are
obliged to act in accordance
with the Schools Act, so is an HOD. And for the reasons set out more
fully below, I am of the opinion
that the Schools Act does
not
empower an HOD to act as if policies adopted by a school governing
body do not exist. Rather, the Act obliges the HOD to engage
in a
comprehensive consultative process with the relevant governing body
regarding the particular policies and then, if there
are reasonable
grounds for doing so, to take over the performance of the particular
governance or policy-formulation function
in terms of section 22,
63
in order to give effect to the relevant constitutional rights and
the objectives of the Schools Act. Of course, the other avenue

always open to an HOD is to approach the courts for appropriate
relief, for instance to obtain an urgent interdict in respect
of the
application of the policies or to have the policies reviewed and set
aside.
In
Hoërskool Ermelo
this
Court was faced with a situation where a school governing body had
exercised a power – the power to determine language
policy –
pursuant to one of its statutory functions, but had done so in a
manner which the HOD in that case thought unlawful
and unreasonable.
In order to address the problematic policy, the HOD elected to
appoint an interim committee to discharge what
had been the
governing body’s language-policy-formulation function.
64
The Court noted that while language policy
formulation falls to school governing bodies as a matter of first
instance, such formulation
must be done in accordance with the
prescripts of the Constitution and the Schools Act.
65
In this regard, the Court emphasised the importance of departmental
supervision in ensuring that school governing bodies observe
the
requirements of the law. The Court stated:
“
[T
he
Schools Act] devolves power and decision-making on the school’s
medium of instruction to a school governing body. It would,
however,
be wrong to construe the devolution of power as absolute and
impervious to executive intervention when the governing body

exercises that power unreasonably and at odds with the constitutional
warranties to receive basic education and to be taught in
a language
of choice.
”
66
(Footnote omitted.)
Nevertheless,
this Court unanimously decided
that, although an
HOD has supervisory authority over the exercise by a governing body
of its policy-making governance functions,
that supervisory
authority may only be exercised pursuant to the mechanisms provided
for by the Schools Act. In other words,
the legality constraints
imposed by the Constitution and the Schools Act apply not only to
school governing bodies exercising
their policy-making functions,
but also to departmental officials seeking to ensure that policies
enforced in schools are consistent
with the relevant constitutional
and statutory framework.
Thus,
even though this Court was of the opinion that the school governing
body had exercised its policy-formulation function in
a manner “
not
consistent with the relevant provisions of the Constitution and the
Schools Act
”
,
67
it was constrained to dismiss the appeal and to
conclude that the relevant HOD had conducted himself unlawfully:
“
[M]
y
conclusion does not entail that the [HOD] enjoys
untrammelled
power
to rescind a function properly conferred on a governing body whether
by him or by the Schools Act or any other law. The power
to revoke
will have to be exercised on reasonable grounds. In addition the
[HOD] must, in revoking the function, observe meticulously
the
standard of procedural fairness required by section 22(2). . . .
[Even though the HOD is empowered to withdraw a function in

accordance with section 22 of the Schools Act, in the circumstances
of this case the HOD] unlawfully conflated the requirements
of
section 22(1) and of section 25 by withdrawing the function and
at the same time establishing an interim committee under
section 25.
This misapprehension of his powers strikes at the heart of the
lawfulness of the conduct of the interim committee and
infects with
unlawfulness also his recourse to section 22(1). Simply put, the
[HOD] had no power to constitute the interim committee.
”
68
We
are bound by the decision in
Hoërskool
Ermelo
unless it is “clearly
wrong”,
69
and
I do not think it can be said that the
decision
is clearly wrong. On the contrary, that
judgment correctly balances the importance of the accountability
checks imposed by the
Schools Act with considerations of legality
and respect for the sensitivity of the partnership between the
Minister, Provincial
Education Departments, public schools and
school governing bodies. In other words, that judgment asserts both
the Executive’s
obligation to ensure that the requirements of
the Constitution and the Schools Act are adhered to and its duty to
conduct itself
in a lawful manner that respects the powers that
Parliament has seen fit to apportion between various organs of
state. We are
thus bound by the decision in
Hoërskool
Ermelo
to conclude that, in addressing
his concerns regarding the content of the pregnancy policies, the
Free State HOD was obliged to
act in accordance with the relevant
provisions of the Schools Act or to approach the courts for
appropriate relief.
If
the Free State HOD had decided to intervene pursuant to section 22
of the Schools Act, he could only have done so after consultation

with the respondent schools and on the basis of a reasonable belief
that he should take over the governing bodies’ function
of
formulating pregnancy policies. In the event of urgency, the
consultation process could have been delayed and the power of

withdrawal exercised with immediate effect. No other statutory
provision empowers a direct departmental intervention in a public

school’s affairs when a governing body has exercised its
policy-making functions incorrectly. However, in argument before

this Court no reliance was placed on that provision and, indeed,
none could have been because at no stage did the Free State
HOD
observe the consultation requirements in either section 22(2) or in
section 22(3) and at no stage did he purport to withdraw
the
policy-making function from the governing bodies pursuant to section
22(1) (notwithstanding the fact that this function was
clearly
referred to as falling within the ambit of the governing bodies’
powers in the 2010 Circular).
70
Insisting
on compliance with section 22, in addition to being a requirement of
legality and being necessary to respect the sensitive
scheme of
powers established by the Schools Act, makes sense from the point of
view of protecting vulnerable learners. It avoids
ad hoc
interventions and ensures that all learners are protected if a
governing body has acted unreasonably or unconstitutionally.
This it
does by empowering an HOD to assume the particular policy-making
function and to override, on a general level, earlier
problematic
policies.
It
cannot be denied that the Free State HOD exercises executive control
over the respondent schools. However, for the reasons
that follow,
this executive authority does not entitle him to superimpose his own
policies and countermand those of the school
by fiat, simply because
he is of the opinion that the latter are unconstitutional.
First, as set out above, the Schools Act does not grant an HOD the
power to formulate pregnancy policies for particular schools
(at
least prior to a section 22 intervention process). However, as
established in
Mikro
,
71
when the Free State HOD instructed the principals to ignore the
existing pregnancy policies he usurped the power to formulate
those
policies, a power he did not have.
Second,
the Schools Act also very clearly grants HODs supervisory authority
in relation to the exercise of certain governance
and policy-making
functions of school governing bodies.
72
In addition to the powers set out in section 22, only an HOD (or the
relevant MEC, on appeal) may decide to give effect to a
governing
body’s recommendation that a learner be expelled;
73
an HOD must approve the allocation of any additional functions to a
governing body;
74
and an HOD must appoint persons to fulfil a governing body’s
functions where he or she reasonably determines that the governing

body has ceased or failed to perform those functions.
75
But, in the present case, the Free State HOD did not purport to rely
on any of these statutory powers. Indeed, in circumstances
that seem
most appropriate for the exercise of his powers in terms of section
22, he elected not to withdraw the governing bodies’
function
to formulate pregnancy policies and to substitute them with his own
policies. Instead, he instructed the principals
of Welkom and
Harmony to ignore the extant school policies. However wide the scope
of his supervisory authority may be, the Schools
Act in no way
contemplates this sort of power for the HOD.
Third,
while the Schools Act does not empower a governing body to expel a
learner or to suspend him or her for a lengthy period
of time, these
considerations cannot be decisive in this matter. The primary
determining factor is that nowhere does the Schools
Act authorise an
HOD to ignore extant policies or to undertake policy-formulation and
governance functions for a public school
without having gone through
a process in terms of section 22 or section 25. The Schools Act very
clearly prescribes mechanisms
available to an HOD when he or she
believes a governing body to have conducted itself unreasonably or
unlawfully. In the circumstances
of this case, however, the Free
State HOD eschewed any reliance on these mechanisms. I fail to
comprehend how an HOD’s
ultimate responsibility for expelling
a learner and for granting an exemption from compulsory attendance
may be construed (as
argued by the Free State HOD) as authorising
his or her assumption of a governing body’s governance
functions without recourse
to section 22 or without approaching a
court for appropriate relief.
Was the
Free State HOD entitled to intervene in the manner in which he did in
the light of section 7(2) of the Constitution?
The
Free State HOD, supported by the first amicus, argues that he was
empowered to instruct the principals to ignore the pregnancy

policies in order to counteract what he believed to be their
unconstitutional content, particularly in the light of his
obligations
under section 7(2) of the Constitution.
Section 7(2) provides that “[t]he state must respect, protect,
promote and fulfil the rights in the Bill of Rights.”

Importantly, the obligation to protect the rights in the Bill of
Rights goes beyond a mere negative obligation not to act in
a manner
that would infringe or restrict a right.
76
This Court has held that in some circumstances the Constitution
imposes a positive obligation on the “[s]tate and its organs

to provide appropriate protection to everyone through laws and
structures designed to afford such protection.”
77
The point is well-captured by Nugent JA in
Van Duivenboden
:
“
While
private citizens might be entitled to remain passive when the
constitutional rights of other citizens are under threat, and
while
there might be no similar constitutional imperatives in other
jurisdictions, in this country the State has a positive
constitutional
duty to act in the protection of the rights in the
Bill of Rights.”
78
(Footnote omitted.)
It is
axiomatic that section 7(2) places an obligation on the HOD, as an
organ of state, to protect the rights of learners. The
question is
how the HOD must exercise this obligation and, plainly, this
obligation must be discharged in a constitutionally-compliant

manner. Section 7(2) must thus not be construed in isolation, and
must be read with the other provisions of the Constitution
itself.
79
In particular, the obligation to “protect” must be read
in the light of section 1(c) of the Constitution, which states
that
“[t]he Republic of South Africa is one, sovereign, democratic
state founded on . . . the rule of law.” The state’s

obligations must thus be discharged in accordance with the rule of
law.
The rule of law does not permit an organ of state to reach what may
turn out to be a correct outcome by any means. On the contrary,
the
rule of law obliges an organ of state to use the correct legal
process.
80
Accordingly, section 7(2) and the rule of law demand that where
clear internal remedies are available, an organ of state is obliged

to use them, and may not simply resort to self-help. I pause to
emphasise that this Court has consistently and unanimously held
that
the rule of law does not authorise self-help.
81
This
interpretation is fortified by the fact that the obligations in
section 7(2) fall on “the state”, which not only

includes the Executive, but Parliament as well. Indeed, this Court
has expressly stated that Parliament, when enacting legislation,

must give effect to the obligations imposed by section 7(2).
82
It follows that where Parliament has done so by providing an organ
of state with internal remedies in order to protect the rights
in
the Bill of Rights, these remedies may not simply be disregarded.
This is particularly so in relation to legislation such
as the
Schools Act, where the sensitive scheme of powers enacted by
Parliament needs to be respected. This would accord with
the
doctrine of separation of powers, as the Legislature’s
prerogative to frame a particular legislative scheme cannot
be
usurped or disrupted by the Executive unless such laws are set aside
by a court.  In this way, the state can promote
and safeguard
individual rights whilst still adhering to the rule of law.
Therefore,
even if one were to hold that there may plausibly be instances in
which an organ of state may resort to self-help in
order to protect
the rights in the Bill of Rights, this could never be countenanced
where internal remedies are available. Given
the effective internal
remedies that were available to the Free State HOD, the present
matter was clearly not one of these instances.
83
During
oral argument counsel for the Free State HOD was questioned about
his client’s failure employ the available statutory
remedy in
order to address the perceived problems with the pregnancy policies.
In response he merely stated that reliance on
section 22 would
have been “too drastic” in the circumstances of this
case. I fail to see how relying on section
22 would be too drastic
where the Free State HOD took the view that the pregnancy policies
were clearly unconstitutional.
In
sum, it is so that the learners and their parents approached the
Free State HOD when they felt that their rights and the rights
of
their children respectively were violated. It is also true that the
Free State HOD also owed them a duty of protection under

section 7(2) and was obliged to take steps to protect them. But
it cannot be the case that section 7(2) means that he was
entitled
to do anything he wished in order to achieve the purported objective
of addressing the unconstitutionality of the policies.
The Schools
Act offered the Free State HOD clear remedies to deal with the exact
problem with which he was faced. In the event
that he formed a view
that the section-22 procedure would be inappropriate, he could also
have moved a court to have the allegedly
unlawful policies set
aside. These remedies are reasonable and effective,
84
and he was obliged to use them. What is evident is that the Free
State HOD was not entitled to ignore these means of addressing
the
unconstitutionality of the policies.
The employer-employee relationship
Does the Free State HOD’s status as the employer of every
public-school principal within a province entitle him to issue

instructions requiring the latter to ignore, contravene or override
policies duly adopted by the relevant school governing body?
I am of
the view that this question, too, must be answered in the negative.
Public-school
principals are employees of the relevant HOD.
85
On this basis the Free State HOD argues that: (a) an HOD exercises
executive control over public schools through principals by
virtue
of the employment relationship; (b) this employment relationship is
of prime importance and may not be undercut by a principal’s

obligations to assist governing bodies; and (c) a public-sector
employer does not require judicial authorisation to instruct
his or
her employees to act in a constitutional manner.
I
accept that an HOD may give instructions to his employees. It could
not be otherwise. This is buttressed by the statutory injunction

that any assistance provided by a principal to the governing body of
his or her school “may not be in conflict with instructions
of
the [HOD]”.
86
But it is a trite principle of labour law that an employer is only
entitled to issue lawful instructions.
87
In the circumstances of this case, we must therefore determine
whether the Free State HOD had the power to give the particular

instruction, if we are to conclude that the instruction was lawfully
issued. Any instruction that contravenes the scheme of powers

established by the Schools Act is unlawful and should not be issued.
The notion that the Schools Act entitles an HOD to issue
an unlawful
instruction need only be stated to be rejected. Put differently, the
argument that the Free State HOD was empowered
to interfere as he
did by virtue of his status as employer misses the point.
The
Schools Act, read with section 7(2) of the Constitution or by
itself, either empowers the Free State HOD to act as he did
or does
not. If it does empower him to do so, then the argument based on the
Free State HOD’s status as the employer of
the principals does
not advance his case and is merely a red herring. The proper enquiry
ought to centre on whether the Free
State HOD was empowered by the
Schools Act or the Constitution to instruct the principals to ignore
the pregnancy policies, and
not on the employment relationship
itself.
Moreover,
it is a mischaracterisation to describe the Free State HOD’s
conduct as the mere issuing of instructions to employees
to act in
accordance with the Constitution. First, that instruction amounted
to an imposition of a different policy on the respondent
schools in
circumstances where the Free State HOD was not entitled to make this
imposition, for the reasons already set out above.
88
Second, it was not the Free State HOD’s place to engage in a
constitutionality review of the respondent schools’
policies
and then to instruct his employees to ignore these policies simply
because he believed that they do not pass muster.
As noted above, in
these circumstances an HOD’s options are limited by the rule
of law to exercising his or her powers
in terms of section 22
of the Schools Act or instituting judicial review proceedings, and
rightly so.
The
Free State HOD contends that an interpretation of the statutory
scheme that does not allow him to issue an instruction to
principals
to ignore a school governing body’s policy may render him
susceptible to delictual liability. This is so, according
to the
HOD, because he would be
unable to stop a public-school
principal, his employee, from committing a delict, for which he (the
Free State HOD) may in turn
be held vicariously liable. This
argument does not hold water.
If an
HOD is concerned that a principal under his or her authority is
about to commit a delict, he or she may take steps to interdict
such
conduct. If an HOD is reasonably concerned that a principal under
his or her authority is enforcing an unlawful policy in
a manner
that may give rise to delictual liability, he or she may withdraw
the function in terms of which that policy was formulated
and impose
a new policy that will avoid the commission of a delict by his or
her employees. Insisting that the HOD observe the
strictures of the
Schools Act in no way hamstrings him or her in the management of
problematic employees.
Section
16A(3)(a) of the Schools Act
At
first blush, it may appear that the above interpretation of the
Schools Act – that an HOD may not instruct a public-school

principal to ignore policies duly adopted by a governing body
pursuant to its governance functions – negates the injunction

in section 16A(3)(a) that, in assisting the governing body, a
principal may not contravene the instructions of the relevant
HOD.
However, that is not the case.
The
target of section 16A(3)(a) is a principal’s conduct. It
instructs a principal how to act when faced with conflicting

instructions from the relevant governing body and the HOD. The
principal must comply with the HOD’s instruction. Crucially,

section 16A(3)(a) does not give any additional power to the HOD that
is not granted in terms of other provisions of the Schools
Act.
The
question in this case is whether the Free State HOD had the power to
act as he did, not whether the principals of Welkom and
Harmony were
required to follow the instruction of the HOD. The two questions are
distinct. An analogy is instructive to illustrate
a similar
distinction.
The
defence of superior orders is, in certain circumstances, available
to a subordinate where, amongst other things, the instruction
by a
superior was unlawful. The defence renders the conduct of the
subordinate lawful even though the superior official may not
have
had the power to give the instruction. The fact that the defence of
obedience to superior orders is available to the subordinate
in
order to justify the subordinate’s conduct does
not
indicate that the conduct of the superior official was justified or
lawful. That is, it does not follow from the fact that the

subordinate may, in some circumstances, be permitted lawfully to
follow an unlawful instruction that the instruction itself becomes

lawful.
89
Similarly,
the fact that section 16A(3)(a) instructs a principal, when faced
with a conflict, to follow an instruction from an
HOD rather than an
instruction from the relevant school governing body (even if the
instruction turns out to be unlawful) does
not render the HOD’s
instruction lawful.
In
addition, any argument that section 16A(3)(a) grants an implied veto
power to of an HOD in relation to school governing bodies
must fail
when having regard to the purpose and structure of powers in the
Schools Act. Assuming that section 16A(3)(a)
did give rise to
such a veto power, the Schools Act does not lay down any procedural
steps that would need to be followed by
an HOD in order lawfully to
make use of that power. It would be an unlimited discretionary
power. This interpretation would be
most peculiar given the careful
arrangement of powers in the Schools Act and the detailed steps that
need to be followed when
the HOD employs his section-22 powers, for
example. The HOD could simply negate the procedural duties expected
of him in terms
of section 22 by merely issuing an instruction
to the principal. This cannot be so.
But
what, then, is the practical application of section 16A(3)(a)?
Hoërskool Ermelo
is a prime
example. In
Hoërskool Ermelo
,
the HOD did not follow the provisions of section 25 of the Schools
Act correctly. The eventual result was that the HOD’s
conduct
was found to be unlawful. However, at the time of the dispute the
HOD argued that his conduct was lawful and the governing
body argued
the opposite. Section 16A(3)(a) instructs the principal to
favour the view of the HOD regardless of whether
the HOD is, in
fact, correct. The instruction to the principal means that, on the
ground, there is certainty about which view
should be followed until
any dispute is resolved. The provision thus ensures that the
principal knows what to do, without in
any way validating otherwise
unlawful conduct of the HOD.
90
Conclusion regarding the HOD’s conduct
At this stage it may be helpful to summarise my conclusions thus
far. It is my opinion that the Welkom and Harmony governing
bodies
were empowered, pursuant to their responsibility for governance and
codes of conduct at their respective schools, to adopt
pregnancy
policies. That being the case, the Free State HOD was obliged to
address his concerns with the pregnancy policies pursuant
to his
powers under the Schools Act. He did not do so, but instead
purported to usurp an effective power of policy formulation
that he
did not have. He acted unlawfully, and the Courts below were
therefore correct to grant and uphold the interdictory relief
sought
by the schools. Neither section 7(2) of the Constitution nor the
Free State HOD’s status as employer of the principals
affects
this in any way. At all times the HOD was obliged by the rule of law
and the carefully crafted partnership imposed by
the Schools Act to
adhere to the mechanisms provided for in the statute. Otherwise, he
was obliged to approach a court in order
to have the allegedly
unconstitutional policies set aside. There is no doubt that the
rights of pregnant learners to freedom
from unfair discrimination
and to receive education must be protected, promoted and fulfilled.
But this must be done lawfully.
None
of this should be read or understood to mean that the governing
bodies were entitled to adopt and impose the pregnancy policies
that
they did. It is this concern to which I now turn.
Should
this Court consider the constitutionality of the pregnancy policies?
Although
the Free State HOD’s conduct in ignoring the respondent
schools’ pregnancy policies was entirely inappropriate
and
undermined the carefully structured scheme of powers of the Schools
Act, a finding in that regard does not address the underlying

dispute. The respondents contend that the constitutionality of the
pregnancy policies is not properly before this Court and have

therefore made no submissions in respect thereof. From what is
before us it is apparent that there are serious objective concerns

regarding the unconstitutionality of the pregnancy policies, and
this Court would be remiss if it failed to deal with those concerns.

As per
Hoërskool
Ermelo
,
in terms of section 172(1)(b) of the Constitution this Court
has the power to order any just and equitable remedy “that

would place substance above mere form by identifying the actual
underlying dispute between the parties”.
91
While sections 8(1) and 172 of the Constitution do not impose an
obligation on courts to consider any and all constitutional
matters
irrespective of the manner in which those matters have been pleaded
or arisen, it is well-established in our case law
that this Court
has the discretion under section 172(1)(b) to provide a just and
equitable order even where the outcome of a
constitutional dispute
is not contingent upon the constitutional invalidity of legislation
or conduct.
92
This Court has, pursuant to its powers under section 172(1)(b) of
the Constitution, granted relief on the basis of claims that
were
not raised (directly, fully or at all) by the parties.
93
Section
172(1)(b) by no means suggests that this Court has unlimited
discretion to hear any constitutional issue related to a
case
brought before it. A variety of considerations must be taken into
account
94
and, as with any discretionary power, the discretion to issue an
equitable order under section 172(1)(b) must be exercised with

caution and in a judicial manner, to ensure that justice is served.
The pregnancy policies
A reading of the pregnancy policies adopted by the respondent
schools and a consideration of the effects of the application of

those policies to the affected learners give rise to serious
concerns regarding the constitutionality of the policies. As already

noted, the respondent schools have declined to make submissions on
the constitutionality of the pregnancy policies, asserting
that the
issue has not properly been placed before this Court. We are
therefore ill-placed at present to make a conclusive determination

on the substantive content of the policies. We may, however, invoke
section 172(1)(b) to issue a just and equitable order. It
is for the
purposes of considering the invocation of this section that I engage
in the following analysis of the pregnancy policies.
In
terms of the policies, learners who fall pregnant may not be
readmitted to school in the year in which they give birth and
must
effectively repeat up to an entire year of school. For example, a
student at Welkom who gave birth in December 2012 may
be prevented
from returning to school until January 2014 – more than a year
after delivery of her newborn. The Free State
HOD and the amici
assert that the policies violate the learners’ constitutional
rights to equality,
95
basic education,
96
human dignity,
97
privacy
98
and bodily and psychological integrity.
99
They further contend that the policies are overly rigid and
therefore do not allow the schools to take into account the best

interests of the child as prescribed by section 28(2) of the
Constitution when making a decision regarding learner pregnancy.
On
the basis of what is before us, I am of the opinion that the
policies prima facie violate the
forementioned
rights, for the reasons set out below.
First,
the policies differentiate between learners on the basis of
pregnancy. Because the differentiation is made on the basis
of a
ground listed in section 9(3) of the Constitution, it is both
discrimination
100
and presumptively unfair.
101
Furthermore, the policies differentiate between male learners and
female learners. A male learner at Welkom may only be given
a “leave
of absence” for paternity purposes if the pregnant learner can
prove
that he is the father of the unborn baby. What the
exact standard of proof required by the Welkom school authorities is
unclear,
but it is apparent that this policy operates more onerously
against female learners. At Harmony the differentiation is even more

severe in that only pregnant learners (or learners who have given
birth) are required to leave school – male learners who
are
equally responsible for the pregnancy are permitted to continue
their education without interruption and the policy contains
no
provisions regarding a “leave of absence” for paternity
purposes. For similar reasons, therefore, the policies
lead to
presumptively unfair discrimination on the basis of sex.
Second,
the policies limit pregnant learners’ fundamental right to
basic education in terms of section 29 of the Constitution
by
requiring them to repeat up to an entire year of schooling. Although
in theory they are entitled to return to school and therefore
to
complete their education, many learners simply cannot afford to add
an extra year to their studies. Moreover, statistics from
Harmony
indicate that two-thirds of the learners subject to the pregnancy
policies before 2010 never returned to complete their

secondary-school education. The policies thus have drastic effects
on learners’ ability to complete their schooling.
Third,
the policies prima facie violate learners’ rights to human
dignity,
102
privacy
103
and bodily and psychological integrity
104
by obliging them to report to the school authorities when they
believe they are pregnant. In addition, all other learners are

required to report to school authorities when they suspect that a
fellow learner is pregnant. The policies thus have the effect
of
stigmatising pregnant learners for being pregnant and creating an
atmosphere in which pregnant learners feel the need to hide
their
pregnancies rather than seek help from school authorities for
medical, emotional and other support.
Fourth,
by operating inflexibly, the policies may violate section 28(2) of
the Constitution, which provides that a child’s
best interests
are of paramount importance in every matter concerning the child.
105
The policies require that pregnant learners must leave school for
the remainder of the year in which they give birth without
regard to
the health of the learner, the point in the school year at which she
gives birth, arrangements she has made for appropriate
care for her
newborn, the wishes of the learner and her parents or her capacity
to remain in school. The policies are designed
in such a way as to
give the school governing bodies and principals no opportunity to
consider the best interests of pregnant
learners.
The
particular facts surrounding the Harmony learner adequately
demonstrate the danger of the inflexibility of these policies.
Upon
falling pregnant, the Harmony learner made arrangements for the care
of her newborn child. She returned to school shortly
after giving
birth and was able to complete her third term of school
successfully. Only three months
after
the birth of her child
was the Harmony learner asked to leave school due to her pregnancy.
The enforcement of the pregnancy policy
in these circumstances does
not seem to be rationally related to the “maintenance of the
quality of the learning process”
– the statutorily
defined purpose of a code of conduct.
I am
accordingly of the opinion that the content of the pregnancy
policies must be addressed by this Court. I have reached this

conclusion very much alive to the fact that the respondent schools
have not presented argument in justification of the policies.
This
is addressed in paragraphs 3 and 4 of the order that I grant.
The
considerations in favour of granting such an order in this case can
be characterised as follows: the rights of children are
implicated
and section 28(2) of the Constitution requires that their best
interests be of paramount importance in deciding the
appropriate
relief;
106
if relief is not granted in this matter, there may be potentially
far-reaching effects on children who are not party to these

proceedings, who might never independently challenge these or
similar policies; and there is a need for clarity on what the
Constitution and the Schools Act do and do not allow with regard to
the content of pregnancy policies in schools. As there is
at present
confusion with regard to the content of pregnancy policies in
schools, it will be necessary for the governing bodies
and the Free
State HOD to engage meaningfully in order to provide clarity on this
issue.
In
crafting an order, I also take into account the failure of the
parties to engage effectively and to consult with one another
on the
dispute currently before this Court. In my view, the parties have
made only superficial attempts at cooperation, as is
evident from a
consideration of the interaction between Harmony and the Provincial
Department. After the 2 November 2010
special meeting of the
Harmony governing body, a letter sent to the HOD by the governing
body stated that “[i]f this case
is not resolved, we are
prepared to take this case to the media.” Any progress that
could have been made between the parties
must surely have been
undermined by this overtly aggressive communication. At the 4
November 2010 meeting, at which the HOD himself
was not present, the
parties were unable to “find each other”. And a third
attempted meeting, this time initiated
by a third party, FEDSAS, did
not even take place.
Cooperative
governance is a foundational tenet of our constitutional order and
has been incorporated into the Schools Act through
the provisions of
section 22. It is incumbent upon HODs and governing bodies to act as
partners in the pursuit of the objects
of the Schools Act. In
Schoonbee and Others v MEC for Education, Mpumalanga and Another
,
the cooperative mandate contained within the Schools Act was
described as follows:
“
Having
read the Act again it seems to me that the new education regime
introduced by the Schools Act, which came into operation
on 1 January
1996, contemplates an education system in which all the stakeholders,
and there are four major stakeholders –
the State, the parents,
educators and learners – enter into a partnership in order to
advance specified objectives around
schooling and education. It was
intended, it appears, to be a migration from a system where schools
are entirely dependent on the
largesse of the State to a system where
a greater responsibility and accountability is assumed, not just by
the learners and teachers,
but also by parents.”
107
In
her dissent in
Pillay
, O’Regan J emphasised the
importance of partnership within the school structure and the effect
such cooperation may have
on dispute resolution more generally in
our country:
“
It
needs to be emphasised, however, that the strength of our schools
will be enhanced only if parents, learners and teachers accept
that
we all own our public schools and that we should all take
responsibility for their continued growth and success. Where possible

processes should be available in schools for the resolution of
disputes, and all engaged in such conflict should do so with civility

and courtesy. By and large school rules should be observed until an
exemption has been granted. In this way, schools will model
for
learners the way in which disputes in our broader society should be
resolved, and they will play an important role in realising
the
vision of the Preamble to our Constitution: a country that is united
in its diversity in which all citizens are recognised
as being worthy
of equal respect.”
108
The
importance of cooperative governance cannot be underestimated. It is
a fundamentally important norm of our democratic dispensation,
one
that underlies the constitutional framework generally and that has
been concretised in the Schools Act as an organising principle
for
the provision of access to education. Neither can we ignore the
vital role played by school governing bodies, which function
as a
“beacon of grassroots democracy”
109
in ensuring a democratically run school and allowing for input from
all interested parties.
Given
the nature of the partnership that the Schools Act has created, the
relationship between public school governing bodies
and the state
should be informed by close cooperation, a cooperation which
recognises the partners’ distinct but inter-related
functions.
The relationship should therefore be characterised by consultation,
cooperation in mutual trust and good faith. The
goals of providing
high-quality education to all learners and developing their talents
and capabilities are connected to the
organisation and governance of
education. It is therefore essential for the effective functioning
of a public school that the
stakeholders respect the separation
between governance and professional management, as enshrined in the
Schools Act.
I
therefore find it apposite to grant an order that respects the
scheme of powers of the Schools Act and the principle of cooperative

governance. Mindful of the fact that the respondents have not made
submissions justifying the constitutionality of the policies,
I
believe it appropriate for this Court to refrain from making a
declaration of invalidity thereof. Instead, invoking section

172(1)(b) of the Constitution, I find it appropriate to order the
school governing bodies to review their pregnancy policies
in the
light of this judgment. As a democratically constituted body
representative of the interests of the school community,
the school
governing bodies are in the best position to fashion policies that
take into account the needs of their particular
schools. It is just
and equitable further to order the respondent schools to report back
to this Court on reasonable steps they
have taken to review the
pregnancy policies. In addition, given the importance of cooperation
in the scheme of the Schools Act,
I find it appropriate to order
meaningful engagement between the parties in order to give effect to
the remedy granted in this
case.
If a
further dispute arises between the Free State HOD and the governing
bodies over the content of the revised policies, I strongly

encourage the parties to engage in consultation and employ the tools
provided by the Schools Act for resolving disputes before
resorting
to further litigation.
Costs
[127] This matter has raised important constitutional issues in a
dispute between organs of state.  The respondents have been

successful in relation to the issue of the unlawfulness of the Free
State HOD’s conduct.  While this is so, the pregnancy

policies seem to have violated the various fundamental rights of
learners referred to above.
110
I therefore find that this is a case where each party should pay its
own costs.
Order
[128] In the result, the following order is made:
1. Leave to appeal is granted.
2. The appeal against the decision of the Supreme Court of Appeal is
dismissed.
3. The school governing bodies of Welkom High School and Harmony High
School must—
a. review their current pregnancy policies in the light of this
judgment; and
b. by no later than 10 October 2013, lodge with this Court affidavits
setting out the processes that have been followed to review
the
pregnancy policies and furnish copies of the revised pregnancy
policies.
4. The applicant and respondents must engage meaningfully with each
other in order to give effect to the order in paragraph 3
above.
5. There is no order as to costs.
FRONEMAN J AND SKWEYIYA J (Moseneke DCJ and Van der Westhuizen J
concurring):
[129] We
concur in the order made in the main judgment of Khampepe J. It is
salutary to remember that although, formally, this
case is a dispute
between the school governing bodies
111
and the HOD, their respective functions are to serve the needs of
children in education. Section 28(2) of the Constitution makes
it
clear that the best interests of children “are of paramount
importance in every matter” concerning children.
112
That applies to education too.
[130]
This Court in
Ermelo
113
observed that when deciding constitutional matters, courts have an
“ample and flexible remedial jurisdiction . . . [which]

permits a court to forge an order that would place substance above
mere form by identifying the actual underlying dispute between
the
parties and by requiring the parties to take steps directed at
resolving the dispute in a manner consistent with constitutional

requirements”.
114
Cases involving children are pre-eminently of the kind where one
must scratch the surface to get to the real substance below.
In
Ermelo
that was done. There is no reason in this case not to
do the same.
What
is the actual underlying dispute here? It is quite simple, really:
how best should the special needs of pregnant learners
be
accommodated at public schools?
Sensibly,
the immediate needs of the two learners who fell pregnant were
properly catered for by allowing them to continue their
studies.
The accommodation achieved in that regard should have been a
pointer to how the dispute should have been resolved
in the first
place, and also how future difficulties of the same kind should be
avoided and resolved. Instead, the parties
lost patience with each
other and rushed to court. The focus then turned into a power play:
who has the final say over the
conduct of the principals of the
schools? Lost in translation was that the best interests of the
children at the schools were
of paramount importance and that the
powers of the school governing bodies and HOD were subservient to
the children’s
needs.
The
school governing bodies assert that they have the right to make
pregnancy policies and that the school principal must give
effect
to those policies. The HOD denies that the school governing bodies
have the competence to make pregnancy policies and
asserts that he
has the authority, as the employer of the principals, to instruct
them not to give effect to the policy when
its application will
infringe learners’ fundamental rights protected under the
Bill of Rights. The problem with these
contrasting assertions is,
however, that they speak past each other.
It
is apparent from the papers that the school governing bodies’
pregnancy policies potentially infringed the learners’
rights
to equality and basic education by excluding them from attending
school. Equally obvious is that there needs to be a
policy on how
pregnant learners’ needs should practically be accommodated
at school level. An approach which places the
learners’ best
interests as the starting point must contextualise the present
dispute within the parties’ duties
to engage and co-operate,
looking forward to a bigger picture in order to understand how
their interactions may best serve
the learners’ interests in
the future.
For
the reasons set out below, we consider that there is a
constitutional obligation on the partners in education to engage
in
good faith with each other on matters of education before turning
to courts. In the present case they should have done so
and that
may well have prevented this long journey through the courts. But
we recognise that things have now developed to the
extent that
further clarity is needed.
For
that reason we support and endorse the approach and outcome in the
main judgment. We believe that even on the approach suggested
in
the judgment of Zondo J the HOD had an obligation to engage in good
faith with the school governing bodies and the principal
before
issuing the instructions he did. The engagement order in the main
judgment is also, in our view, quite compatible with
Zondo J’s
judgment.
Good
faith engagement
The
Constitution
The
importance of participation in decisions affecting the rights and
interests of people is a general theme that runs throughout
the
Constitution. Its effect is felt in many diverse institutions and
processes.
Participation
in the parliamentary process was emphasised in
Doctors for
Life
.
115
The judgment recognises the indigenous roots of participation:
“
The
idea of allowing the public to participate in the conduct of public
affairs is not a new concept. In this country, the traditional
means
of public participation is imbizo/lekgotla/bosberaad. This is a
participatory consultation process that was, and still
is, followed
within the African communities. It is used as a forum to discuss
issues affecting the community. This traditional
method of public
participation, a tradition which is widely used by the government,
is both a practical and symbolic part of
our democratic processes.
It is a form of participatory democracy.”
116
The
judgment then continues to link the participatory and representative
elements of our democracy together:
“
In
the overall scheme of our Constitution, the representative and
participatory elements of our democracy should not be seen as
being
in tension with each other. They must be seen as mutually
supportive. General elections, the foundation of representative

democracy, would be meaningless without massive participation by the
voters. The participation by the public on a continuous
basis
provides vitality to the functioning of representative democracy. It
encourages citizens of the country to be actively
involved in public
affairs, identify themselves with the institutions of government and
become familiar with the laws as they
are made. It enhances the
civic dignity of those who participate by enabling their voices to
be heard and taken account of. It
promotes a spirit of democratic
and pluralistic accommodation calculated to produce laws that are
likely to be widely accepted
and effective in practice. It
strengthens the legitimacy of legislation in the eyes of the
people.”
117
This
notion of participatory democracy was again used and applied in both
judgments in
Matatiele
118
and
Ambrosini
119
in deciding matters relating to parliamentary processes.
This
understanding of the inherent value of participation and engagement
also underlies many of the decisions of this Court.
120
Many provisions of the Constitution require the substantive
involvement and engagement of people in decisions that may affect

their lives.
121
This Court has recognised this in relation to political
decision-making,
122
access to information,
123
just administrative action,
124
freedom of expression,
125
freedom of association,
126
socio-economic rights,
127
adequate housing
128
and protection from arbitrary eviction or demolition of homes under
the Constitution.
129
And in the field of labour dispute resolution there is clear
recognition of the notion of good faith consultation in order
to
arrive at agreement.
130
What is thus clear is that participation and engagement are central
to our constitutional project, a reflection of our “negotiated

revolution”.
131
This
emphasis on participation and engagement finds particular
recognition in the Constitution’s provisions on co-operative

government. Section 40(1) establishes the principle that in the
Republic of South Africa, government is constituted as national,

provincial and local spheres of government which are “distinctive,
interdependent and interrelated”. Of particular
relevance to
the present case, however, is that the principles of co-operative
government and inter-governmental relations
are also extended to
all organs of state within each sphere of government in section 41.
In relevant part it reads:
“
Principles
of co-operative government and inter-governmental relations:
(1) All spheres of government
and all organs of state within each sphere must—
(h) co-operate with one another
in mutual trust and good faith by—
(i) fostering friendly
relations;
(ii) assisting and supporting
one another;
(iii) informing one another of,
and consulting one another on, matters of common interest;
(iv) co-ordinating their
actions and legislation with one another;
(v) adhering to agreed
procedures; and
(vi) avoiding legal proceedings
against one another.”
The
school governing bodies and HOD are organs of state.
132
In terms of section 41(1)(h) they have an unequivocal
obligation to co-operate with each other in mutual trust and good

faith by assisting and supporting one another, informing one
another of, and consulting one another on, matters of common
interest, co-ordinating their actions, and avoiding legal
proceedings against one another.
In
Mikro Primary School
133
the Supreme Court of Appeal found the provisions of section 41 of
the Constitution inapplicable to disputes involving school

governing bodies on the ground that a school governing body is not
subject to executive control as far as the determination
of
language and admission policy was concerned:
“
In
the
Independent
Electoral Commission
case the Constitutional Court held that the Independent Electoral
Commission, although not subject to national executive control,
was
an organ of state: but that the fact that it was a State structure
and that it had to perform its functions in accordance
with national
legislation did not mean that it fell within the national sphere of
government. Because it was not subject to national
executive control
it stood outside government and was not an organ of state within the
national sphere of government. A dispute
with the Commission did not
qualify as an intergovernmental dispute: an intergovernmental
dispute was ‘a dispute between
parties that [were] part of
government in the sense of being either a sphere of government or an
organ of State within a sphere
of government’.
The first respondent is, in so
far as the determination of a language and admission policy is
concerned, not subject to executive
control at the national,
provincial or local level and can therefore, like the Electoral
Commission, in so far as the performance
of those functions is
concerned, not be said to form part of any sphere of government. For
the same reason its dispute with the
first and second appellants in
respect of the language and admission policy determined by it, is
not an intergovernmental dispute
as contemplated in section 41(3)
of the Constitution. The argument based on section 41 of the
Constitution was therefore
correctly rejected by the court
a
quo
.”
134
This
reasoning, that the school governing bodies were independent of
executive control, was rejected in
Ermelo
. The Court said:
“
These
and other positive duties found in section 29 of the Constitution
and in the Schools Act are inconsistent with an understanding
of
section 6(2) of the Schools Act which locates the right to determine
language policy exclusively in the hands of the school
governing
body. Such an insular construction would in certain instances
frustrate the right to be taught in the language of one’s

choice and therefore thwart the obvious transformative designs of
section 29(2) of the Constitution.
Put otherwise, the statute
devolves power and decision-making on the school’s medium of
instruction to a school governing
body. It would however be wrong to
construe the devolution of power as absolute and impervious to
executive intervention when
the governing body exercises that power
unreasonably and at odds with the constitutional warranties to
receive basic education
and to be taught in a language of choice.
The Constitution itself enjoins the state to ensure effective access
to the right to
receive education in a medium of instruction of
choice. The measures the state is required to take must evaluate
what is reasonably
achievable and must keep in mind the obvious need
for historical redress. School governing bodies are a vital part of
the democratic
governance envisioned by the Schools Act. The
effective power to run schools is indeed placed in the hands of the
parents and
guardians of learners through the school governing body.
For that reason, the starting point of our understanding of the role
of the governing body and of the state in relation to language
rights in public education is section 29 of the Constitution.
Section 6(2) must be construed in line with this constitutional
warranty.
. . .
What is more, the governing
body’s extensive powers and duties do not mean that the HoD is
precluded from intervening, on
reasonable grounds, to ensure that
the admission or language policy of a school pays adequate heed to
section 29(2) of the Constitution.
The requirements of the
Constitution remain peremptory. In this regard, the state must
consider all reasonable alternatives and
must take into account what
is fair, practicable and what ameliorates historical racial
injustice.”
135
Similarly,
the dispute in this case is not about the existence of executive
control over pregnancy policy, but about who may
exercise and in
what manner the control should be exercised. Both the main judgment
and Zondo J’s judgment acknowledge
this, although they differ
on the location of policy-making power and extent of control.
Education governance and management
is thus pre-eminently an area
where the constitutional principles of co-operative government must
apply.
Co-operative
governance in education legislation
The
Minister of Basic Education (Minister) must determine National
Education Policy in accordance with the provisions of the

Constitution and the National Education Policy Act
136
(Policy Act). That includes policy in relation to the control and
discipline of learners at educational institutions.
137
The Minister may also, in terms of the South African Schools Act
138
(Schools Act), determine guidelines for the consideration of a
school governing body in adopting a code of conduct for learners.

The policies and guidelines must be determined by the Minister in
consultation with various bodies.
139
The Policy Act creates channels of communication between the
national and provincial education departments, including provincial

HODs, to facilitate the development of a national education system
in accordance with the objectives and principles provided
for in
the Policy Act, to share information and views on national
education, to co-ordinate administrative action on matters
of
mutual interest and to advise the national department on matters
relating to various aspects of the Policy Act.
140
The
Schools Act seeks, among other objects, to provide for a uniform
system for the organisation and governance of schools.
141
Its provisions are dealt with in the main judgment and need not be
repeated here.
These
provisions reinforce the provisions of the Constitution that
engagement, participation and co-operation is the required
general
norm and that co-operative governance requires recognition of the
distinctiveness, interdependence and interrelation
of the different
functionaries involved in the co-operative effort.
Authoritative
precedent:
Ermelo
In
Ermelo
this Court was confronted for the first time with a
dispute about the making and application of policy in schools. The
case
concerned language policy, but in the course of his reasoning
Moseneke DCJ summarised the governance and management structure
in
the Schools Act as follows:
“
An
overarching design of the [Schools Act] is that public schools are
run by three crucial partners. The national government is

represented by the Minister for Education whose primary role is to
set uniform norms and standards for public schools. The provincial

government acts through the MEC for Education who bears the
obligation to establish and provide public schools and, together

with the Head of the Provincial Department of Education, exercises
executive control over public schools through principals.
Parents of
the learners and members of the community in which the school is
located are represented in the school governing body
which exercises
defined autonomy over some of the domestic affairs of the school.”
142
(Footnotes
omitted.)
Despite
confirming that the school governing body had the power to
determine language policy, the Court held that this power
was not
unfettered:
“
It is
therefore clear that the determination of language policy in a
public school is a power that in the first instance must
be
exercised by the governing body. The power must be exercised subject
to the limitations that the Constitution and the Schools
Act or any
provincial law laid down. Even more importantly, it must be
understood within the broader constitutional scheme to
make
education progressively available and accessible to everyone, taking
into consideration what is fair, practicable and enhances
historical
redress.”
143
Similarly,
despite finding that the HOD may rescind a function properly
conferred on the school governing body, the judgment
makes it clear
that the HOD is also constrained in the exercise of that power:
“
Indeed,
my conclusion does not entail that the HoD enjoys untrammelled power
to rescind a function properly conferred on a governing
body whether
by him or by the Schools Act or any other law. The power to revoke
will have to be exercised on reasonable grounds.
In addition the HoD
must, in revoking the function, observe meticulously the standard of
procedural fairness required by section
22(2) and, in cases of
urgency, by section 22(3).
What would constitute
reasonable grounds will have to be determined on a case by case
basis. This will require full and due regard
to all the
circumstances that actuated the HoD to bypass the governing body in
relation to the specific power withdrawn.
In the case of language policy,
which affects the functioning of all aspects of a school, the
procedural safeguards, and due time
for their implementation, will
be the more essential. It goes without saying that excellent
institutional functioning requires
proper opportunity for planning
and implementation.”
144
It
was after reaching these conclusions that the Court sought to
identify the “actual underlying dispute” in order
to
fashion an appropriate just and equitable remedy.
145
The value of this was explained:
“
In
several cases this court has found it fair to fashion orders to
facilitate a substantive resolution of the underlying dispute

between the parties. Sometimes orders of this class have taken the
form of structural interdicts or supervisory orders.
This
approach is valuable and advances constitutional justice,
particularly by ensuring that the parties themselves become part
of
the solution.”
146
(Footnote omitted.)
An order
was then made requiring both the school governing body and HOD to
report back on the respective deficiencies in their
earlier
approaches to the dispute.
147
The
Constitution and applicable legislation thus require the partners
in the governance and management of schools to engage
with one
another in mutual trust and good faith on all material matters
relating to that endeavour.
Ermelo
recognised and
re-affirmed the principle of co-operation in the running of schools
and authoritatively determined the dispute
relating to language
policy in the factual context that confronted it. The Court
nevertheless went further in its remedial
order, after identifying
what it considered to be the actual underlying dispute, and
fashioned a supervisory order aimed at
curing the underlying
deficiencies in the respective approaches of the school governing
body and HOD.
The
question now is what course needs to be followed in order to remedy
the underlying problem here, namely how best to deal
with the needs
of pregnant learners in schools.
148
Two aspects of that problem are crucial: (1) determining who is
entitled to make policy in respect of pregnant learners; and
(2)
ensuring that the content of the policy and its application do not
infringe upon the fundamental rights of pregnant learners.
But
these issues cannot be considered without locating them in the
particular factual context of the two cases with which we
are
dealing.
Confusion,
misunderstanding and lack of trust
[154] The
two school governing bodies determined their pregnancy policies at
the end of 2008 and start of 2009. They contend that
their policies
accord with the Measures for the Prevention and Management of
Learner Pregnancy (Measures) issued by the National
Department of
Education in 2007. The Measures contain a clause that reads:
“
No
learner should be re-admitted in the same year that they left school
due to a pregnancy.”
The
school governing bodies aver that they only became aware of the
contrary stance of the HOD after the disputes about the two
learners
erupted in October 2010 when in correspondence a circular compiled
by the HOD (HOD Circular) was forwarded to them.
[155] How
the HOD Circular came into being illustrates the confusion that
surrounded the issue of pregnancy policies. It is best
described in
the words of the HOD:
“
The
Measures relied upon by applicants created confusion throughout
South Africa and this caused many a debate and also correspondence

between my Department and the National Department: Basic Education.
I attach hereto a letter received from the National Department:

Basic Education . . . The contents thereof are clear and the
instructions issued necessitated my further action”.
The
“further action” consisted in the preparation of the HOD
Circular in April 2010. As noted earlier, the school
governing
bodies allege that they only gained knowledge of the HOD Circular
after the dispute concerning the two learners had
come into the open
in October 2010.
[156] The
HOD Circular reads in relevant part:
“
This
circular serves to reiterate the policy of the Department that
learners cannot be expelled from school due to pregnancy.
It is
therefore imperative that all schools should have a policy on the
prevention and management of learner pregnancy.
When drawing up such policies
the following should be emphasised:
It must be understood that the
Constitution is the supreme law in South Africa and that any law,
including school policies that
are inconsistent with the
Constitution are invalid and the obligations imposed by the
Constitution must be fulfilled.
The Department does not
condone learner pregnancy and therefore encourages all learners to
abstain from engaging in sexual relationships
until they complete
their studies. However, in the event that the learner falls
pregnant, the Department promotes continued
access to education for
boys and girls.
Management and educators at
schools need to understand that each case of a pregnant learner is
unique and therefore the school
and parents or guardians of the
affected learner need to discuss and agree on a suitable plan that
takes into account the wellness
of the affected learner. The
intention should be to keep the learner at school for as long as it
is medically possible with
the support of parents or guardians, and
where a learner must be out of school there must be provision for
academic support.
The measures are not intended
to be punitive but to be rehabilitative and supportive of the
pregnant learner and protect the
rights of the unborn child.
Furthermore, after the
learners have given birth they should be encouraged to return to
school as soon as they can, so that
they can complete their
education, and also be protected from falling pregnant again.
Each case needs to be resolved
quickly to avoid secondary victimisation of the affected learner
and parents or guardians.
The learner must be made aware
that after childbirth the rights of the newly born must be
protected, and she should be able to
demonstrate to the school that
proper arrangements have been made for care and safety of the
child.” (Emphasis removed.)
What
is important to note from the contents of the HOD Circular is that:
(1) it asserts that the policy it reiterates is the
policy of the
provincial Department of Education; (2) it regards it as imperative
that all schools should have a policy on
the prevention and
management of learner pregnancy; and (3) it accepts that pregnant
learners may have to be absent from school
for some time. There is
no reference in the HOD Circular to any national policy or
guidelines in relation to pregnant learners
at all.
[158] But the national department had issued guidelines. On 15 May
1998 the “Guidelines for the Consideration of Governing
Bodies
in Adopting a Code of Conduct for Learners” (Guidelines) were
promulgated.
149
In the introduction it states in relevant part:
“
1.1.
Section 8 of the South African Schools Act provides that a governing
body of a public school must adopt a Code of Conduct.
The Code of
Conduct must aim at establishing a disciplined and purposeful
environment to facilitate effective education and learning
in
schools.
1.2. This document sets out
guidelines for consideration by governing bodies of public schools
in adopting a Code of Conduct for
learners to ensure that there is
order and discipline in schools.
1.3. The Code of Conduct must
be subject to the Constitution of the Republic of South Africa,
1996, the
South African Schools Act, 1996
and provincial
legislation. It must reflect the constitutional democracy, human
rights and transparent communication which underpin
South African
society.”
In
paragraph 3.9 it deals succinctly with pregnant learners:
“
A
learner who falls pregnant may not be prevented from attending
school. A pregnant girl may be referred to a hospital school
for
pregnant girls.”
[159]
These facts show that until the dispute about the two learners came
to the fore towards the end of 2010 there was confusion
at both
national and provincial spheres of government about who was entitled
to determine policy for pregnant learners and what
the content of
that policy should be. It is also apparent that channels of
communication between the various role players were
not, to put it
mildly, very effective. It was thus a situation that cried out for
good faith engagement, based on mutual trust,
to find common ground
and seek a solution to the problem. That opportunity arose when the
plight of the two learners became known
in late 2010. But the
opposite happened.
[160]
Instead of approaching the situation in a spirit of co-operation and
engagement, both the school governing bodies and the
HOD dug in
their heels. The HOD issued his instruction to the principals; the
school governing bodies responded with defiance
and resorted to
litigation. Confusion and misunderstanding turned to mistrust. As
noted earlier,
150
the underlying issue of how the needs of pregnant learners should be
dealt with turned into a dispute about whether the HOD can
instruct
principals to disregard a school governing body’s policy.
[161]
There is no doubt that the principles of co-operative governance and
management were ignored and brushed aside. What is
to be done about
it?
[162] The
explicit provisions of section 41(1)(h)(vi) of the Constitution
appears to require a form of exhaustion of internal
remedies before
organs of state within a sphere of government should turn to the
courts.
151
In appropriate cases the courts may well be entitled to ensure
compliance with the section’s provisions in constitutional

disputes in the exercise of their just and equitable remedial power
in terms of section 172(1)(b) of the Constitution.
[163] In
our view, it seems feasible that, as found in the main judgment,
school governing bodies have the power (and indeed are

well-positioned) to make policies that concern the prevention and
management of pregnancy at schools.
152
The present policies adopted by the school governing bodies,
however, went beyond prevention and management to compulsorily
exclude pregnant learners without the consent of the learner or the
determination of the decision to exclude by the HOD.
[164] For
the reasons set out in the main judgment,
153
the exclusionary aspects of the pregnancy policies are, however, on
their face inconsistent with the Constitution. The question
of what
the HOD can do in their wake has been placed before this Court. As
described above, the HOD was obliged to seek engagement
and
co-operation in good faith with the school governing bodies before
pursuing litigious or confrontational means. The provincial

department’s initial efforts to engage with the school
governing bodies through the requests from department officials
to
reconsider the students’ exclusions and their making available
the HOD Circular are well received in this respect. However,
the
fact that the HOD issued the instructions to either school’s
principal prior to the convening of the school governing
body of
Harmony which had been planned is an indication of bad faith. The
failure of the parties to reach a consensus in meetings
after the
instructions were issued also indicates bad faith in the
co-operative efforts of both parties.
[165]
Some efforts were made by the HOD before issuing the instructions
but these were insufficient in the light of the demands
of
co-operative engagement and the importance of the rights of the
learners. So too was the stubborn behaviour of the school
governing
bodies inadequate, particularly following the issuing of the
instructions. Both parties’ behaviour therefore
fails to meet
the requirements of co-operative engagement. In our view, had the
HOD pursued these lines of co-operation diligently
and in good
faith, the instructions would not have been necessary.
[166]
What must be emphasised is that timeous planning and sustained
communication between the parties are the most powerful barriers

against these types of disputes arising and the learners’
interests being compromised in the process. Where a crisis requiring

immediate redress arises, the duty to engage, co-operate and
communicate in good faith does not dissolve. Any short-term remedial

action taken in the interim to secure the learners’ rights
must, however, be done in a lawful manner.
Conclusion
[167] As
noted earlier, we support the main judgment’s reasons for
finding the pregnancy policies to be prima facie unconstitutional.

In the ordered review of the pregnancy policies, which we also
support, the school governing bodies and the provincial department

ought to keep in mind their duties to engage as we have described
above. And in reporting back to this Court on any progress
made, the
learners’ best interests should lie at the heart of any
solutions reached.
ZONDO J
(Mogoeng CJ, Jafta J and Nkabinde J concurring):
Introduction
[168] The
questions confronting us in this matter are whether:
(a) a governing body of a public school (school governing body) as
contemplated in
section 16(1)
of the
South African Schools Act
154
(Schools
Act) has power to make a policy in respect of a school
which is inconsistent with provisions of an Act of Parliament or the
Constitution;
155
(b) in a case where a school governing body has made a policy that
is inconsistent with an Act or the Constitution, it is the
policy of
the school governing body or the Act or the Constitution which
prevails in the absence of or pending the obtaining
of any order of
court; and
(c) the Head: Department of Education, Free State Province (HOD,
Free State, or Free State HOD) has power to instruct the principal

of a school not to implement a learner pregnancy policy adopted by
the school governing body of the school where implementing
the
policy will be inconsistent with an Act or the Constitution.
[169] The
Free State High Court, Bloemfontein (High Court) and the Supreme
Court of Appeal found that it was unnecessary to answer
the first
question but in effect answered the second question by saying that,
in the case of a conflict between the policy of
a school governing
body and an Act or the Constitution, the school governing body’s
policy prevails over an Act or the
Constitution until an order of
court setting it aside has been obtained. Both the High Court and
the Supreme Court of Appeal
answered the third question in the
negative.
[170]
Khampepe J’s judgment (main judgment), which I have had the
opportunity of reading, seems to take the view that, until
the
function of making a learner pregnancy policy is revoked from the
school governing body, the school governing body’s
policy
prevails over an Act and the Constitution in so far as it is
inconsistent with such Act or the Constitution. The mere
withdrawal
of the function would leave the policy intact. I, therefore, assume
that the main judgment means that a Head: Department
of Education
(HOD) must not only withdraw the function of the school governing
body but must also withdraw the policy as well.
It, therefore, seems
to me that what the main judgment means is that, until the school
governing body’s policy is withdrawn
or amended, it prevails
over an Act or the Constitution wherever they are in conflict.
My
answer to the first question is an emphatic no. My answer to the
second question is that a policy cannot, as a matter of
law,
prevail over an Act or the Constitution when there is a conflict
between it, on the one hand, and, an Act or the Constitution,
on
the other. Accordingly, my answer is that in such a case the Act or
the Constitution prevails. My answer to the third question
is that
the HOD, Free State, has power to instruct a school principal not
to carry out or implement a policy of the school
governing body
when the policy is inconsistent with an Act or the Constitution.
The combined matters: Welkom High School and Harmony High School
These
matters concern certain learners at Welkom High School and Harmony
High School in Welkom, Free State, who fell pregnant
and were
excluded from school in terms of learner pregnancy policies that
were applied by the school governing bodies of the
schools. The
facts surrounding the exclusion of the learners from both schools
and the issues in both matters are materially
similar. For that
reason I propose to deal only with the Welkom High School matter
and not to refer to the matter relating
to Harmony High School
because the conclusion I reach in the Welkom High School matter
will apply with equal force to the Harmony
High School matter. In
the end, I shall make orders in respect of both the Welkom High
School matter and the Harmony High School
matter. I, therefore,
proceed to deal only with the Welkom High School matter.
The
main judgment concludes that there is a constitutional issue in
this matter, that leave to appeal should be granted but
that the
appeal should be dismissed. While I agree that there is a
constitutional issue and that leave to appeal should be
granted, I
am unable to agree that the appeal should be dismissed. In my view
the appeal should be upheld and the decisions
of both the High
Court and the Supreme Court of Appeal should be set aside and
replaced with an order dismissing the application.
I explain below
the reasons and approach that have led me to this conclusion.
Background
The
facts of this case are set out comprehensively in the main
judgment. For this reason I do not propose to set out any facts

save to the limited extent necessary for a proper understanding of
my approach and reasons. I highlight below some of the facts.
[175] In
November 2008 the school governing body of Welkom High School
adopted a policy on the “Management of Learner Pregnancy”

(learner pregnancy policy) which took effect from 1 January 2009.
[176]
Some of the features of the learner pregnancy policy are:
(a) “A learner that is pregnant or has reason to believe that
she may be pregnant, needs to immediately inform a member
of staff,
preferably a senior female, who has been appointed by the principal.
Learner should be informed who to consult.”
(b) “If a learner or any member has a suspicion that another
learner may be pregnant, this should also be brought to the

attention of the appointed member of staff.”
(c) “In the year that the learner’s child is born, the
learner may not return to Welkom High School. This is applicable
to
all learners, regardless of the following:
(i) The month the baby is born in, whether it is January, June or
October. This means that a matriculant who falls pregnant and

delivers her baby in June will not be allowed to write the matric
final exams. If a learner delivers a baby in December, she
will only
be allowed to return to school in the second January following the
birth, i.e. if the baby is born in December 2008,
the learner may
only return in January 2010.
(ii) The grade of the learner will be irrelevant, in other words
matriculants will not enjoy preferential treatment because it
is
their final year at school.
(iii) The age of the learner will be irrelevant, which means that if
the learner, after the leave of absence is too old to attend
school
at a secondary school level, recommendations for adult education
will be made.”
(d) “
It is further important to note that
it will be the responsibility of the learner to keep up to date with
the school work, and
educators will assist only if they see that the
said learner is doing her part.”
(e) “
[I]f a pregnant learner can prove that
the father of the unborn baby is attending Welkom High School, he,
too, will be given leave
of absence of one year to assume his
parental duties.”
(f) “
This management policy does not
suspend or expel a learner, but ensures that learners take
responsibility for their actions and
make informed choices.”
[177] In 2010, NMD,
156
a 15 year old and Grade 9 learner at Welkom High School fell
pregnant. On 16 September the principal addressed a letter to her

mother, Mrs D.
157
In the letter the principal made, among others, the points that—
(a) because of NMD’s pregnancy “the school has to apply
the pregnancy policy as stipulated by the School Governing
Body”;
(b) “[t]he learner will have her education
interrupted
at Welkom High School and
take a leave
of absence
for the period of 16
September 2010 till the start of the second term in 2011. She will
continue with Gr. 9 in 2011” (emphasis
added); and
(c) “
[t]he learner is not expelled from the
school in any way. The measures allow the learner to give her full
attention to her baby.”
[178] In
the founding affidavit Mr Radebe, who deposed to the school
governing body’s founding affidavit, purports to advance
the
school governing body’s authority for its decision to send NMD
on this “leave of absence” as a result of
her pregnancy.
He, inter alia, says:
“
This
decision was taken in the discretion of the Welkom High [school
governing body]
inter
alia
in view of [NMD]’s advanced stage of pregnancy and upon the
authority as provided for in the [Schools Act] dealing with
the
admission of Learners. It was also a major contributory factor that
no Educator at Welkom High is duly trained to deal with
any
complication(s) of pregnancy, such as an unexpected early birth or
any other complications.”
[179] A few days thereafter, Mr MD,
158
an uncle of NMD’s, addressed a letter to the Minister of Basic
Education (Minister), the MEC
159
for Education in the Free State Province and the Human Rights
Commission. In the letter Mr MD appealed to the Minister of Basic

Education in the following terms:
“
It is
with a grave sense of sadness and disbelief that I am compelled to
request your intervention and assistance as the head
of the Basic
Education Department of the Republic of South Africa. A school which
falls under your mandate both as a school within
the republic and by
virtue of it being a public school, has elected to both disregard
national education policy and
the
supreme law of our country namely; the Constitution of the Republic
of South Africa
”.
(Emphasis added.)
[180] Mr MD went on to point out in the letter that Welkom High
School had “expelled my niece ([NMD] 14 years old) on the

basis of her having fallen pregnant.” He said that “[t]his
is not only
a discriminatory act on their part as defined by
international law but is in contravention of the clear and
unambiguous directive
of the Constitution in relation to an
individual’s right to education
.” (Emphasis added.)
He referred to section 29(1)(a) of the Constitution which guarantees
everyone the right to a basic
education.
160
He said that the school had “elected to expel the child with
utter disregard for the law” “even after having
been
reminded of this by our family.”
[181] Mr MD pleaded with the Minister “to intervene effective
immediately in this matter prior to it becoming a legal battle,
for
without such intervention and the learner being allowed to return to
class, the invariable result will be as such. It is
worth noting
that our sole objective as a family is simply to see the child back
in class without any further delay.” He
concluded his letter
by threatening “legal action by Monday the latest, if we do
not receive any contact from yourself
prior to then, that being
Monday the 20
th
of September 2010.”
[182] The principal was contacted by Mrs B Kitching from the
provincial Department of Education about the matter. He wrote to
her
and explained the school’s position. The principal also
received circular 18/2010 from the provincial Department of

Education (circular). It was addressed to, among others, principals
and “SGB chairpersons”. The circular is called:

“MANAGEMENT AND GOVERNANCE CIRCULAR NO 18 OF 2010”. It
was issued and signed by the Superintendant-General
161
(SG): R S Malope on 26 April 2010. It dealt with the prevention and
management of learner pregnancy in schools.
[183] In the circular the Superintendant-General stated that the
Measures for the Prevention and Management of Learner Pregnancy
in
Schools (Measures), which had been issued by the National Department
of Education in 2007, had caused confusion. He said that
the
circular was intended to make clear what the Free State HOD’s
stance was on how schools should handle incidents of
learner
pregnancies. The SG, inter alia, said in the circular: “This
circular serves to reiterate the policy of the Department
that
learners cannot be expelled from school due to pregnancy. It is
therefore imperative that all schools should have a policy
on the
prevention and management of learner pregnancy”. In another
part of the circular the SG pointed out that “in
the event
that the learner falls pregnant, the Department promotes continued
access to education for boys and girls.”
[184]
Later in the circular the SG pointed out that “[t]he intention
should be to keep the learner at school for as long
as it is
medically possible with the support of parents or guardians, and
where a learner must be out of school there must be
provision for
academic support.” He also pointed out that the measures were
not meant “to be punitive but to be rehabilitative
and
supportive of the pregnant learner and protect the rights of the
unborn child.” The SG also said:
“
Furthermore,
after the learners have given birth, they should be encouraged to
return to school as soon as they can so that they
can complete their
education, and also be protected from falling pregnant again. . . .
Each case needs to be resolved quickly
to avoid secondary
victimization of the affected learner and parents or guardians.”
This
circular must be taken as either the policy of the HOD, Free State,
as contemplated in section 16A(3)(b) of the Schools
Act or an
instruction of the HOD, Free State, as contemplated in section
16A(3)(a) to principals of schools in the Free State,
including the
principal of Welkom High School on how they should handle incidents
of learner pregnancies in their schools.
162
[185] The
chairperson of the school governing body, Mr T E Mathibe, addressed
a letter to Mrs Kitching of the provincial Department
of Education
dated 11 October 2010 in which he said that the school governing
body had not expelled the learner but had “interrupted
the
academic progress of the learner to the benefit of all concerned.”
[186] By
a letter dated 20 October 2010 the Free State HOD instructed the
principal of the school to allow the learner back at
school with
immediate effect. In that letter the HOD, Free State, said that
NMD’s case had been brought to his attention.
He said that, if
the decision to let the learner stay at home for the remainder of
the year was based on the Measures, he wished
to advise the
principal “to rescind it and inform the learner to return to
school [within] 5 days of receiving this letter.”
The HOD,
Free State, went on to say that his decision was informed by the
following:
“•
MG
Circular No 18 of 2010 which clearly stipulates for the learner to
return to school as soon as possible.
•
Chapter
2 of the Constitution, section 9(3) which states clearly that the
state may not unfairly discriminate directly or indirectly
against
anyone on one or more grounds, including . . . gender, sex [or]
pregnancy . . . .
The
School being an organ of State can therefore not discriminate
against any pregnant learner.
•
In
terms of Chapter 2 of the
South African Schools Act, section
9(1)
there are only two ways in which a learner can be involuntarily
excluded from attending classes, namely, suspension and
expulsion
after finding the learner guilty of a misconduct as stipulated in
the Code of Conduct.” (Emphasis added.)
In the
concluding paragraph of the letter the HOD wrote:
“
In
view of the above it is clear that no learner should be kept from
school due to pregnancy. You are therefore instructed to
allow the
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.”
[187]
After this instruction the school governing body received advice to
“re-admit” NMD to the school on a temporary
basis
pending an urgent application that the school governing body was to
make to the High Court. NMD was then allowed back to
school.
Mr Radebe said in his affidavit that the conduct of the HOD,
Free State, created “uncertainty and undermines
the school
governing body’s functioning.” He also said that the
Free State HOD’s conduct rendered the school
governing body’s
learner pregnancy policy superfluous.
The appeal
[188] The
dispute between the school governing body and the Free State HOD
arose because the school governing body had sought
to enforce its
learner pregnancy policy and the Free State HOD sought to resist the
enforcement of that policy or that part of
the policy which involved
the exclusion of a pregnant learner from school because he believed
that the policy or the relevant
part of the policy was in breach of
the Constitution, legislation and the policy of the provincial
Department of Education. The
Free State HOD, therefore, contends
that the school governing body had no power to make a policy which
required the exclusion
of a learner from school owing to pregnancy.
He argued that he was, therefore, entitled to instruct the principal
to allow the
learner back at school. The school governing body
contends that it had the power to adopt and enforce the learner
pregnancy policy
and the Free State HOD had no power or right to
instruct the principal to act in conflict with that policy.
[189] The
Free State HOD contended that this case is not just about whether he
was entitled to issue the instruction that he issued
to the
principal but, first and foremost, it is about whether the school
governing body had power to make a learner pregnancy
policy at all
or to make a learner pregnancy policy that included provisions
inconsistent with an Act or the Constitution. The
school governing
body adopted a different approach. It said that the lawfulness or
otherwise of its learner pregnancy policy
or of any of the
provisions of the policy was not an issue that the Court was called
upon to decide because the Free State HOD
did not bring a
counter-application in the High Court for an order declaring the
policy unlawful and setting it aside. It contended
that the only
question before the Court was the lawfulness or otherwise of the
Free State HOD’s instruction to the principal.
Quite clearly,
the parties have adopted divergent approaches on how the Court
should determine the dispute.
[190] In
Head of Department, Mpumalanga Department of Education and
Another v Hoërskool Ermelo and Another
163
(
Ermelo
) the school and the school governing body took the
attitude that that case was about the principle of legality and the
proper
exercise of administrative power, and not about the language
policy of the school. The HOD and the Minister in that case adopted

a different stance. They contended that the core of the dispute was
the appropriateness of the school’s language policy
which in
effect had a disparate impact of excluding learners who chose to be
taught in English. This Court, through Moseneke DCJ,
said: “I
agree that issues of legality and administrative justice do arise
pointedly and call for resolution. It is, however,
also true that
the exclusive-language policy arises just as sharply.”
164
Later he said: “In my view, it would be both unrealistic and
unjust to look at only one of these two scrambled issues.”
165
In the present case as well I think that both the lawfulness of the
learner pregnancy policy or at least some of its provisions
and the
lawfulness of the Free State HOD’s instruction need to be
considered. Accordingly, I decline the school governing
body’s
invitation to focus only on the lawfulness of the Free State HOD’s
instruction to the principal and not extend
the inquiry into the
lawfulness of the learner pregnancy policy or at least some of its
provisions.
[191] If
the learner pregnancy policy was, or at least its relevant
provisions were, unlawful or if the school governing body
had no
power to make the policy or the relevant provisions, there can be no
doubt that the Free State HOD was entitled, if not
obliged, to
instruct the principal not to act in breach of the law or the
Constitution and, in my view, that should be the end
of this matter.
Accordingly, it seems to me that ordinarily, the inquiry should
consider the lawfulness of the policy or its
relevant provisions
before the lawfulness of the Free State HOD’s instruction can
be considered. However, I find it convenient
to start with the
question of whether the Free State HOD had power to issue the
instruction to the principal.
The Free State HOD’s power to give the principal an
instruction
[192] The
school governing body went to the High Court to obtain an order that
the Free State HOD had no authority to give the
principal the
instruction that he gave him, an order interdicting the Free State
HOD from doing so and an order that the HOD’s
instruction was
unlawful. In considering this question I think that the starting
point has to be the relationship between the
Free State HOD and the
principal. That relationship is an employment relationship. The Free
State HOD is the employer of the
principal and the principal is an
employee of the Free State HOD.
166
For a long time our law has been and continues to be that an
employer has the right to give an instruction to his or her employee

and that the employee is obliged to obey his or her employer’s
instruction. The only exception to this rule is that the
employee is
not obliged to obey the employer’s instruction where the
instruction is unlawful or unreasonable. In the last-mentioned

scenario the onus is upon the employee to show that the instruction
is unlawful or unreasonable. If the employee cannot show
that the
instruction was unlawful or unreasonable, he is obliged to obey it.
[193] The
employer’s right to issue instructions to his or her employee
is very important because, for example, as a general
proposition, he
is in law vicariously liable for the actions of the employee
performed within the course and scope of his or
her employment. As a
result of his employee’s conduct within the course and scope
of his or her employment which infringes
third parties’
rights, the employer is vicariously liable and may be ordered to pay
large sums in damages and legal costs.
Therefore,
it may be necessary for the employer to protect its rights and
interests by taking steps designed to prevent the commission
of acts
which may render him vicariously liable.  Issuing instructions
to an employee to desist from committing such acts
is one of the
preventative steps open to an employer.
[194] In
the present case the employee, namely, the principal, has not filed
any affidavit to the effect that the HOD’s
instruction was
unlawful or unreasonable or that he considered it unlawful or
unreasonable. Accordingly, this matter must be
decided on the
footing that the employee to whom the HOD issued the instruction did
not dispute the lawfulness or reasonableness
of the HOD’s
instruction. It is the school governing body which contends that the
HOD had no authority to issue the instruction
that he issued to his
employee.
[195] To show that the HOD had no authority to issue the
instruction, the school governing body has only relied upon its
alleged
power to send the learner on a “leave of absence”
from school or on its alleged power to “interrupt” the

learner’s schooling owing to her pregnancy. I use the phrases
“leave of absence” and “interrupt”
because
those are the phrases that the school governing body and the
principal used to describe the school governing body’s

exclusion of the learner from school that was intended to be from
16 September 2010 to April 2011. This means that the school

governing body’s approach is that it was entitled or had the
power to issue the learner pregnancy policy and to send the
learner
on a “leave of absence” or to “interrupt”
the learner’s schooling, as it did, in terms
of its policy,
and that, therefore, the HOD could not have been entitled or could
not have had the power to instruct the principal
to allow the
learner back at school. This approach is not necessarily correct
because there could be a situation, as I think
there is in the
present case, where legislation makes provision that in the event of
a conflict between an instruction from the
HOD and an instruction
from the school governing body, the principal is obliged to carry
out the HOD’s instruction.
167
The
MEC, HOD and the principal
[196]
There are certain provisions of the Schools Act that relate an HOD
and the principal that I think need to be given special

consideration. Section 2(2) of the Schools Act provides that an MEC
and an HOD exercise any power conferred upon them by or under
the
Schools Act after taking full account of the applicable policy
determined in terms of the National Education Policy Act.
168
In
Ermelo
this Court held that the HOD and MEC exercise
“executive control over public schools through principals.”
169
Section 16 of the Schools Act bears the heading: “Governance
and professional management of public schools”. Section
16(1)
vests the governance of a public school in a governing body
“[s]ubject to this Act”. Section 16(3) obliges
the
principal to undertake “the professional management of a
public school . . . under the authority of the Head of Department”.

Section 16A(1)(a) provides that “[t]he principal of a public
school represents the Head of Department in the governing
body when
acting in an official capacity as contemplated in sections 23(1)(b)
and 24(1)(j).”
[197]
Section 16A(2) inter alia provides:
“
The
principal must—
(a) in
undertaking the professional management of a public school as
contemplated in section
16(3), carry out duties which include,
but are not limited to—
(i) the implementation of all
the educational programmes and curriculum activities;
(ii) the management of all
educators and support staff;
(iii) the management of the use
of learning support material and other equipment;
(iv)
the performance of
functions delegated to him or her by the Head of Department in terms
of this Act;
(v) the safekeeping of all
school records; and
(vi)
the implementation of
policy and legislation
;
(b) attend and participate in
all meetings of the governing body;
(c) provide the governing body
with a report about the professional management relating to the
public school;
(d) assist the governing body
in handling disciplinary matters pertaining to learners;
(e) assist the Head of
Department in handling disciplinary matters pertaining to educators
and support staff employed by the Head
of Department;
(f)
inform the governing
body about policy and legislation
”. (Emphasis added.)
There can
be no doubt that one piece of legislation that a principal is
required by section 16A(2) to implement is the Schools
Act.
Section 16A(2)(a)(vi) is an express provision making it obligatory
for a principal to implement policy and legislation.
[198]
Section 16A(3) reads as follows:
“
The
principal must assist the governing body in the performance of its
functions and responsibilities, but such assistance or
participation
may not be in conflict with
—
(a)
instructions of the Head
of Department
;
(b)
legislation or policy
;
(c)
an obligation that he or
she has towards the Head of Department, the Member of the Executive
Council or the Minister
; or
(d) a provision of the
Employment of Educators Act, 1998 (Act No. 76 of 1998), and the
Personnel Administration Measures determined
in terms thereof.”
(Emphasis added.)
[199] In
my view section 16A(3) draws the limits of what a principal may do
and may not do in his or her interaction with the
school governing
body of his or her school. On the one hand, it obliges him or her to
“assist the governing body in the
performance of its functions
and responsibilities”, but, on the other, it makes it clear
that such assistance or participation
in any responsibilities or
functions of the governing body “
may not be in conflict
with
instructions of the Head of Department
”,
“
legislation or policy
” or “an obligation
that he or she has towards the Head of Department, the Member of the
Executive Council or the
Minister”. (Emphasis added.) Section
16A(3)(a) is a clear indication that it was contemplated that the
relationship between
a school governing body and the HOD could
result in the principal being faced with conflicting instructions
given by the school
governing body and the HOD. It was then decided
to include this provision so that the functioning of the school
would not be
adversely affected by any uncertainty that the
principal would otherwise have as to which instruction he should
carry out. The
purpose of section 16A(3) is to ensure that there is
no uncertainty. Its effect is that the HOD’s instruction
prevails
over any contrary instruction from the school governing
body. Section 16A(3) provides clear “proof”, if “proof”

is required, that the HOD has power, not only to issue instructions
to a principal, but also to issue an instruction to him that
may be
contrary to an instruction of the school governing body. This
position remains until at least the school governing body
has gone
to court and obtained an order declaring such instruction unlawful
or setting it aside. The rationale for this provision
was to make it
clear that in such a case the decision of the HOD prevails until
then.
[200]
Section 16A(3)(b) makes it clear that the principal may not be
required by the school governing body to assist it in anything
that
is in conflict with legislation or policy. In this case the school
governing body sought to have the principal act in conflict
with
legislation. As if the provisions of section 16A(3)(a) and (b) were
not enough, provision was also made in section 16A(3)(c)
that a
school principal may not act in conflict with any obligation that he
or she has towards the HOD. It seems that section
16A(3)(c) may have
been meant to cover any other obligation.
[201] In
my view section 16A(3)(c) includes the obligation on the part of the
principal to obey the instructions of the HOD which
arise from their
employment relationship. If ever there was any doubt that an HOD has
the power to issue an instruction to a
school principal, the
provisions of section 16A(3)(c) remove that doubt. Once this is
accepted, anyone contending that, although
an HOD has such power,
that power did not include the power to issue the instruction that
the Free State HOD issued in this case
has to show what the basis is
for excluding the instruction in this case from that wide power. In
my view there is no doubt that
the Free State HOD had the power to
issue the instruction that he issued in the present case.
The
obligation of the state under section 7(2) of the Constitution
[2002]
Section 7(2) of the Constitution provides that “[t]he state
must respect, protect, promote and fulfil the rights
in the Bill of
Rights.” The Free State HOD is a functionary of the state.
Section 7(2) of the Constitution obliges
him as a functionary
of the state to give protection to anyone whose rights entrenched in
the Bill of Rights are threatened or
infringed, particularly, when
he is approached and asked to provide such protection. In this case
the learner’s uncle,
Mr MD, wrote to, among others, the MEC
for Education in the Free State and asked for the learner to be
protected from the violation
of her rights in the Constitution by
the school. In fact Mr MD threatened legal action against the
education authorities if this
was not done. The MEC must have passed
the letter on to the Free State HOD who then initially asked Mrs
Kitching to approach
the principal about the matter. As I said
earlier, Mrs Kitching sent the principal a copy of Mr MD’s
letter. In his letter
Mr MD had written: “This is not only a
discriminatory act on [the school’s] part as defined by
international law
but is in contravention of the clear and
unambiguous directive of the Constitution in relation to an
individual’s right
to education.”
[203] In
Minister of Home Affairs and Others v
Tsebe and Others
170
(
Tsebe
)
this Court held that, when a person in this country is wanted by
another state for crimes that could lead to the imposition of
the
death sentence if he or she was found guilty of such crimes in that
country, section 7(2) imposes an obligation on the government
of the
Republic to refuse to extradite or hand over that person to such a
state unless that state gave the government an undertaking
that, if
he were found guilty and sentenced to death, the death sentence
would not be executed. Along the lines of that reasoning,
it seems
to me that, when a learner’s right to a basic education in the
Bill of Rights is violated or is about to be violated,
that learner
or someone else on his or her behalf is entitled to approach the HOD
and ask him to intervene and ensure that the
learner’s right
is not violated. In such a case, if, indeed, the learner’s
rights are threatened or are being violated,
the HOD is obliged by
section 7(2) of the Constitution to come to the protection of the
learner. It cannot be that the HOD’s
obligation under section
7(2) to provide protection to the learner against the violation of
her rights suddenly ceases to be
of force and effect once there is a
policy of a school governing body providing for such violation.
[204] The
effect of this Court’s decision in both
Mohamed
171
and
Tsebe
is that the state is obliged not to facilitate in
any way the violation of anyone’s right to life, the right to
human dignity
and the right not to be treated or punished in a
cruel, inhuman or degrading way. If the state facilitates a
violation of those
rights, it acts in breach of section 7(2). In
Mohamed
the facilitation took the form of the co-operation
that the South African immigration authorities gave to the US
authorities to
effect Mr Mohamed’s removal from South
Africa to the USA well-knowing that he would face capital charges in
the USA.
In the present case it was the role played by the principal
in the implementation of the learner pregnancy policy that
facilitated
the violation of the learner’s rights. If, in
Tsebe
, the Government had granted Botswana’s request
for the extradition of Mr Tsebe and Mr Tsebe had been sentenced
to
death in Botswana and that sentence was executed, South Africa
would have facilitated the violation of Mr Tsebe’s right to

life and human dignity and that would have been a breach by the
Executive of its section 7(2) obligation. I cannot see how one
could
say that section 7(2) placed an obligation upon the Executive not to
facilitate the violation of Mr Tsebe’s right
in that scenario
but say that when a learner approaches an HOD and asks for
protection when her right to a basic education in
the Bill of Rights
is threatened or violated by a principal at the instance of the
school governing body, the HOD is not under
an obligation to give
the learner protection under section 7(2).
[205] In
this case the learner has a right “to a basic education”
which is entrenched in section 29 of the Bill of
Rights. That right
can be limited only in terms of a law of general application in
accordance with section 36 of the Constitution.
172
If the limitation is not authorised by a law of general application,
the limitation of the right is unjustifiable and, therefore,

constitutes an infringement of the learner’s right. In
excluding the learner from school, the school governing body limited

the learner’s right to a basic education. In so far as the
exclusion was effected in terms of the school governing body’s

learner pregnancy policy, the exclusion was an unjustifiable
limitation and, therefore, an infringement of that right because
it
was done in terms of a policy and a policy is not a law.
[206] In
their respective letters, one written to the principal by the Free
State HOD and the other written by Mr MD to, among
others, the MEC
for Education, both the Free State HOD and Mr MD made it clear
that the learner’s exclusion from school
was an infringement
of her right to education in terms of the Constitution. Accordingly,
when the school governing body and the
school brought their
application to the High Court, they knew well that the Free State
HOD’s case included a contention
that the school governing
body’s conduct in excluding the learner from school was an
infringement of the learner’s
right to education provided for
in the Bill of Rights. The school governing body had ample
opportunity to address this contention
in its founding affidavit
when it sought to challenge the Free State HOD’s instruction
in the High Court but it elected
not to deal with it. When the Free
State HOD filed his answering affidavit in the High Court he
repeated this contention. The
exclusion of the learner from school
against her will and that of her parents as a result of her
pregnancy was an unjustifiable
limitation of the learner’s
right to a basic education and, therefore, an infringement of that
right.
[207] The
Free State HOD was entitled to take the view that the exclusion of
the learner from school was a violation of her rights
in the
Constitution. The view was correct and he was obliged, in the light
of section 7(2), to protect the learner’s right
by instructing
the principal to allow the learner back at school.
[208] The
school governing body, as an organ of state, also has an obligation
to respect, protect and promote the rights entrenched
in the Bill of
Rights. Therefore, irrespective of whether the school governing body
had the power to make a learner pregnancy
policy, that power could
not be exercised inconsistently with its constitutional obligations.
Since the learner pregnancy policy
violated the learner’s
right to a basic education provided for in section 29 of the
Constitution, the school governing
body acted in breach of its
section 7(2) obligations.
[209] The
right to a basic education is not the only right of the learner that
has been violated due to her exclusion from school.
Section 9(1),
(2) and (3) of the Constitution reads as follows:
“
Equality
(1) Everyone is equal before
the law and has the right to equal protection and benefit of the
law.
(2) Equality includes the full
and equal enjoyment of all rights and freedoms. To promote the
achievement of equality, legislative
and other measures designed to
protect or advance persons, or categories of persons, disadvantaged
by unfair discrimination may
be taken.
(3) The state may not unfairly
discriminate directly or indirectly against anyone on one or more
grounds, including . . . gender,
sex, pregnancy”.
To give
effect to the right to equality entrenched in section 9 of the
Constitution, the Promotion of Equality and Prevention
of Unfair
Discrimination Act
173
(PEPUDA) was enacted. PEPUDA seeks to, among other things, prevent
and prohibit unfair discrimination, promote equality and eliminate

unfair discrimination.
[210] The
term “discrimination” is defined as follows in PEPUDA:
‘“
[D]iscrimination’
means any act or omission,
including
a policy
,
law, rule, practice, condition or situation which directly or
indirectly—
imposes burdens, obligations
or disadvantages on; or
withholds benefits,
opportunities or advantages from,
any person on one or more of
the prohibited grounds”.
174
(Emphasis added.)
The
“prohibited grounds” are listed in the definition of the
phrase “prohibited grounds” in section 1
of PEPUDA. One
of the listed grounds is pregnancy. Section 6 of PEPUDA reads:
“Neither the State nor any person may unfairly
discriminate
against any person.” Section 8 reads in relevant part:
“
Subject
to section 6, no person may unfairly discriminate against any person
on the ground of gender, including—
. . .
(f) discrimination on the
ground of pregnancy;
(g) limiting women’s
access to social services or benefits, such as health, education and
social security”.
[211] In
my view the school governing body’s decision in terms of the
learner pregnancy policy that the learner was to be
excluded from
school for the period 16 September 2010 to April 2011 was without
justification and constituted unfair discrimination
against the
learner on the ground of pregnancy. I would, therefore, conclude
that on the ground that the principal was taking
part or had taken
part in the exclusion of the learner from school in terms of the
learner pregnancy policy of the school governing
body and,
therefore, engaged in conduct constituting unfair discrimination,
the Free State HOD was not only entitled but obliged
to intervene
and instruct the principal to allow the learner back at school. I
now turn to the question whether the school governing
body had the
power by way of a policy determination to require that a learner who
is pregnant be excluded from school for the
periods envisaged in the
learner pregnancy policy.
Did
the school governing body have power to exclude the learner from
school?
[212] The
learner pregnancy policy stipulates, among other things, that a
learner who is pregnant must be given a “leave
of absence”
from school. The leave of absence is imposed on the learner and her
parents and is not consensual. Its duration
can go up to more than
12 months depending on the month in which the learner gives birth.
The policy stipulates that the learner
may not return to school in
the same year in which she gives birth and may only return to school
in the year following the year
in which she gives birth. Obviously,
this will mean that the learner is prevented from writing the end of
year examinations for
the grade which she was doing when she was
given the “leave of absence”.
[213] The
above means that, if the learner gives birth in April and she is in
matric, she will not be allowed to continue her
schooling for the
rest of the year and will have to return to school the following
year and repeat matric. In fact, if a learner
were to be excluded
from school in October of 2013 and she gave birth early in January
of 2014, she would lose two years of schooling.
She would lose 2013
because she would have been excluded from school in October and,
therefore, before the end of year examinations.
She would lose 2014
because she would have given birth during 2014 and the learner
pregnancy policy says that a learner may not
return to school in the
year in which she gives birth even if she is in matric when she is
excluded. Accordingly, in terms of
the policy, she would only be
allowed to return to school in 2015.
[214] No
explanation has been given by the school governing body to justify
these drastic provisions of its learner pregnancy
policy. They are,
undoubtedly, aimed at punishing the learner for falling pregnant
irrespective of the circumstances under which
she may have fallen
pregnant. Forcing a learner to be out of school for such long
periods is completely unjustified and is extremely
detrimental to
her future.
[215] The
inquiry to determine the dispute between the Free State HOD and the
school governing body also requires that we determine
whether the
school governing body had the power to adopt or enforce its learner
pregnancy policy or at least to enforce that
part of its learner
pregnancy policy which required the exclusion of a pregnant learner
from school for the periods contemplated
in the policy. This is
necessary because, if it is found that the school governing body had
no power to adopt or enforce such
a policy or at least that part of
the policy which requires the exclusion of a pregnant learner from
school for the periods contemplated
in the policy, that would be the
end of the matter since, even in the absence of section 16A(3)(a) of
the Schools Act, the Free
State HOD would have been entitled to
issue the instruction that he issued to the principal. The purpose
of the instruction was
to ensure that the learner’s right to a
basic education entrenched in the Bill of Rights was not violated.
[216]
Before I can embark upon the inquiry whether or not the school
governing body had the power to require the exclusion of
a pregnant
learner from school for the periods envisaged in the policy, it is
necessary to first consider the nature of a policy
and the
relationship between a policy and legislation.
[217] In
Akani Garden Route (Pty) Ltd v Pinnacle Point Casino (Pty) Ltd
175
(
Akani
) the Supreme Court of Appeal had to consider the
relationship between policy and legislation. It indicated that any
course or
programme of action adopted by a government may consist of
general or specific provisions and, because of this, the Court did
not consider it prudent to define the word “policy”
either in general or in the context of the Act under consideration

in that matter. The Court went on to say:
“
I
prefer to begin by stating the obvious, namely that laws,
regulations and rules are legislative instruments, whereas policy

determinations are not. As a matter of sound government, in order to
bind the public, policy should normally be reflected in
such
instruments.
Policy
determinations cannot override, amend or be in conflict with laws
(including subordinate legislation). Otherwise the separation

between Legislature and Executive will disappear
.
Compare
Executive
Council, Western Cape Legislature, and Others v President of the
Republic of South Africa and Others
[1995] ZACC 8
;
1995
(4) SA 877
(CC)
(1995 (10) BCLR 1289)
in para [62]. In this case,
however, it seems that the provincial legislature intended to
elevate policy determinations to the
level of subordinate
legislation, but leaving its position in the hierarchy unclear”.
176
(Emphasis added.)
In
Minister of Education v Harris
177
this Court referred to this passage with approval. Later on, the
Supreme Court of Appeal also said in
Akani
:
“
One
thing, however, is clear: policy determinations cannot override the
terms of the provincial Act for the reasons already given.
Where,
for instance, the provincial Act entrusts the minister with the
responsibility of determining the maximum permissible
number of
licences of any particular kind that may be granted in a particular
area (section 81(1)(d)), the cabinet cannot
regulate the matter
by means of a policy determination, something it did. Likewise,
where section 37(1)(l) empowers the board
to impose conditions
relating to the duration of licences, the cabinet cannot prescribe
to the board by way of a policy determination
that, for instance,
casino licences shall be for a period of ten years, something else
it did.
In
other words, the cabinet cannot take away with one hand that which
the lawgiver has given with another
.”
178
(Emphasis added.)
Although
this passage was not considered by this Court in
Harris
, its
thrust seems to me to be consistent with the thrust of the passage
quoted from
Akani
which this Court approved. In any event it
reiterates a sound principle.
[218]
Although the issue that this Court was called upon to decide in
Ermelo
is different from the issue we are called upon to
decide in the present case, two common features in both cases are
the extent
of the powers of the school governing body and the extent
of the powers of an HOD. In
Ermelo
the main issue was whether
the HOD in that case had power to withdraw from the school governing
body its power to determine a
language policy. In the present matter
the main question is whether or not the school governing body had
power to adopt a learner
pregnancy policy or at least a learner
pregnancy policy that has provisions that are inconsistent with an
Act or the Constitution
and, whether, where such a policy has been
adopted by the school governing body, its provisions prevail over an
Act or the Constitution.
[219] The
decision of the Supreme Court of Appeal in
Akani
is in line
with certain statements made by this Court in
Ermelo.
In
Ermelo
this Court inter alia said:
“
Put
otherwise, the statute devolves power and decision-making on the
school’s medium of instruction to a school governing
body.
It
would, however, be wrong to construe the devolution of power as
absolute and impervious to executive intervention when the
governing
body exercises that power unreasonably and at odds with the
constitutional warranties to receive basic education and
to be
taught in a language of choice
.
The Constitution itself enjoins the
State
to ensure effective access to the right to receive education in a
medium of instruction of choice
.”
179
(Footnote omitted and my emphasis.)
Of even
greater importance is the fact that this Court went on to say in
Ermelo
:
“
What
is more, the governing body’s extensive powers and duties do
not mean that the HoD is precluded from intervening, on
reasonable
grounds, to ensure that the admission or language policy of a school
pays
adequate heed to section 29(2) of the Constitution. The requirements
of the Constitution remain peremptory
.”
180
(Emphasis added.)
[220] In
Ermelo
this Court held that the governing body’s
extensive powers did not mean that the HOD was precluded from
intervening to
ensure that the admission or language policy of a
school paid adequate heed to section 29(2) of the Constitution. In
the present
case it can also be said that, if the school governing
body had power to make a learner pregnancy policy, its power did not
mean
that the Free State HOD was precluded from intervening to
ensure that no learner’s rights entrenched in the Bill of
Rights,
including the right to a basic education, were violated.
[221] If
this Court adopted, as I think it should, the view that in the
present case, the HOD was entitled and obliged to intervene
to
ensure that the principal and the school governing body paid
“adequate heed to” sections 9 and 29 of the
Constitution,
the Schools Act and PEPUDA, that would be in line with
what this Court said in the above passage in
Ermelo.
In other
words, with changes necessitated by the context, one can say in the
present case, using the statement from
Ermelo
, that “the
governing body’s extensive powers and duties do not mean that
the HOD is precluded from intervening, on
reasonable grounds, to
ensure that [the learner pregnancy policy] of a school pays adequate
heed to [section 29(1)(a)] of
the Constitution. The
requirements of the Constitution remain peremptory.”
181
Accordingly, this statement that was made by this Court in
Ermelo
in relation to the power of the HOD to intervene when the school
governing body makes an admission or language policy that is

inconsistent with the Constitution applies equally to the
intervention of the Free State HOD when he realised that the school
governing body’s policy was in breach of the Constitution. In
other words what this Court said in this passage in
Ermelo
applies with equal force to the present case.
[222] In
Ermelo
this Court also emphasised that the power of the
governing body to determine a language policy is not absolute but
the policy
“is made, in so many words, ‘subject to the
Constitution, [the Schools Act] and any applicable provincial
law’.”
182
(Footnote omitted.) This shows yet again that this Court has already
decided that a policy cannot prevail over an Act and the

Constitution. This Court went on to say that the qualifier “subject
to the Constitution and [the Schools Act] . . . is
obviously
superfluous in relation to the Constitution because all law is
subservient to our basic law.” (Footnotes omitted.)
It said
that “the qualifier” emphasises that the power to
fashion a policy on the medium of instruction must be accorded

contours that fit into the broader ethos of the Constitution and
cognate legislation. “In addition, it seems plain that
the
power must be understood and exercised subject to the limitation or
qualification the Schools Act itself imposes.”
183
[223] In
Ermelo
this Court also said:
“
It is
therefore clear that the determination of language policy in a
public school is a power that in the first instance must
be
exercised by the governing body. The power must be exercised subject
to the limitations that the Constitution and the Schools
Act or any
provincial law laid down. Even more importantly, it must be
understood within the broader constitutional scheme to
make
education progressively available and accessible to everyone, taking
into consideration what is fair, practicable and enhances
historical
redress.”
184
[224] It
was implied in this Court’s judgment in
Ermelo
that in
determining a language policy the school governing body was required
to ensure consistency with relevant provisions of
the Constitution
and the Schools Act. Referring to the approach that had been adopted
by the governing body in
Ermelo
in determining language
policy, this Court said:
“
That
approach, as I have said before, is not consistent with the relevant
provisions of the Constitution and the Schools Act.
A
school is obliged to exercise its power to select a language policy
in a manner that takes on board the provisions
of section 29(2) of the Constitution, section 6(2) of the Schools
Act and the norms and standards prescribed by the Minister.”
185
(Emphasis added.)
[225]
Although in this last sentence the obligation therein referred to is
said to be that of a school, the governing body must
have been
intended because in terms of the Schools Act it is the governing
body that has the power to determine a language policy.
By parity of
reasoning one can say that the obligation referred to in the last
sentence of the passage applies to the governing
body as well when
it determines a learner pregnancy policy, if it does have that
power. In the present case the school governing
body acted in breach
of that obligation.
Did the exclusion from school constitute an expulsion?
[226] In
seeking to determine whether the school governing body had the power
or right to make a policy determination that required
the exclusion
of a pregnant learner from school, it is necessary at this stage to
consider whether the exclusion of a learner
from school constituted
an expulsion or suspension of the learner from school. Bearing in
mind that the policy is to the effect
that a learner who has been
given “leave of absence” is not to return to school in
the year in which she gives birth,
it seems to me that it can be
said that the learner is expelled from school for the academic year
in which she is excluded from
school but is re-admitted once the
period of exclusion has expired. If one approaches the exclusion in
this way, it would be
consistent with the terminology of
re-admission to the school which the principal and the school
governing body used in this
case to describe the learner’s
intended return to the school in April 2011.
[227] In
terms of section 9(2) of the Schools Act only the HOD has the power
to expel a learner from school.
186
Even then, such expulsion must follow a disciplinary procedure
prescribed in section 9 of the Schools Act. The school governing

body had no power or right to make a policy determination that in
effect constituted an expulsion of the learner from the school
for
the specific academic year. As the Supreme Court of Appeal said in
Akani
, a policy determination cannot take with one hand that
which legislation has given with the other.
187
The school governing body had no power to make a policy
determination that is in conflict with an Act. In purporting to do

so, it acted unlawfully. It also had no power to require the
principal to carry out its unlawful policy determination. In doing

so it acted unlawfully.
Did the exclusion constitute a suspension?
[228] The
exclusion can also be viewed as a suspension of the learner from
school. It may be viewed as a suspension to the extent
that the
learner was prevented from attending school for a certain period
but, after the expiry of that period, she would be
allowed to return
to school. The use of the term “leave of absence” by the
principal and the school governing body
to describe the period of
the learner’s exclusion from school fits well with the notion
of a suspension. Sometimes when
someone is not allowed to continue
with his or her normal duties or responsibilities, some entities say
that such a person has
been given “special leave”. In
this case the verb “interrupt” was also used by the
school governing body
and the principal. They said the learner’s
studies were interrupted. There may, therefore, be more
justification in regarding
the exclusion as a suspension than as an
expulsion, particularly because it seems that the learner was
guaranteed “re-admission”
to the school after the expiry
of the period of exclusion. This exclusion could well have been
called a suspension because it
seems to have all the essential
elements of a suspension.
[229] The
question that arises is whether the school governing body had the
power or right to require a learner, by way of policy
determination,
to be suspended from school due to pregnancy or to be suspended from
school at all. In terms of section 9(1) of
the Schools Act the
school governing body’s power to suspend a learner from school
is limited to those cases where “a
learner is suspected of
serious misconduct” and in respect of whom disciplinary
proceedings are contemplated. It is not
the school governing body’s
case in the present matter that it was suspecting the learner of
serious misconduct nor is
it its case that it contemplated
conducting disciplinary proceedings against the learner when it gave
her the so-called “leave
of absence” and, thus, excluded
her from school. Since the Schools Act does not give the school
governing body any power
to suspend a learner for any reasons other
than the reason given in section 9(1), the school governing
body had no power
to make a policy determination which was in
conflict with section 9(1) of the Schools Act. In purporting to
amend the Act by
way of a policy, the school governing body acted
unlawfully and sought to exercise power that it did not have.
Did the power to adopt a code of conduct give the school
governing body the power to issue the policy?
[230]
There was an argument to the effect that the school governing body
derived its power to make the learner pregnancy policy
from the fact
that under section 8 of the Schools Act it has power to adopt a code
of conduct for learners. Section 8(1) reads
as follows:
“
Subject
to any applicable provincial law, a governing body of a public
school must adopt a code of conduct for the learners after

consultation with the learners, parents and educators of the
school.”
This
provision does not give a school governing body power to adopt a
learner pregnancy policy. It gives it power to adopt a code
of
conduct. It may well be that, if a school governing body had adopted
a code of conduct and the code of conduct had a section
dealing with
learner pregnancy, this argument may have had some merit, but a
governing body which has not adopted a code of conduct,
such as the
school governing body of Welkom High School, cannot rely upon
section 8 to justify issuing a learner pregnancy policy.
However,
even if the school governing body of Welkom High School had adopted
a code of conduct containing a section dealing with
a learner
pregnancy policy, such policy would not have helped it in this case
because the exclusion of a learner from school
is a limitation of
the learner’s right to a basic education entrenched in the
Bill of Rights and in terms of section 36
of the Constitution a
limitation of such a right is not justifiable if it is not provided
for in a law of general application
which a policy is not.
188
[231]
Furthermore, section 8(1) requires that a code of conduct be adopted
“after consultation with the learners, parents
and educators
of the school.” It is not part of the school governing body’s
case that its learner pregnancy policy
was adopted as a code of
conduct “after consultation with the learners, parents and
educators of the school”. In
fact no evidence has been put up
to show that it was adopted by the school governing body itself
despite the fact that the Free
State HOD challenged the school
governing body in his answering affidavit to produce evidence of a
meeting in which this learner
pregnancy policy was adopted. The
contention that section 8 gave the school governing body power
to issue the learner pregnancy
policy is misplaced.
[232] The
main judgment concludes that in terms of the Schools Act “the
Welkom and Harmony governing bodies were empowered,
pursuant to
their governance responsibilities and their authority to adopt codes
of conduct, to adopt pregnancy policies for
their respective
schools.”
189
As I understand the judgment, that conclusion is based, largely, on
the place occupied by a governing body in relation to the
governance
of the school and the specific powers it has in relation to the
adoption of a code of conduct. As I have already said,
in my view,
section 8, which gives a school governing body the power to adopt a
code of conduct for learners, does not give it
such power. However,
even if it did give it such power—
(a) that would not help the school governing body’s case in
the present matter because it has not adopted a code of conduct;
(b) that power could not include power to adopt a policy that is
inconsistent with the Constitution or the Schools Act; in other

words, even if the school governing body did have the power to adopt
a learner pregnancy policy in general, it did not have power
to
adopt a policy that had clauses that would subject a learner to
unfair discrimination based on gender or pregnancy or that
would be
inconsistent or conflict with legislation such as the Schools Act
and PEPUDA.
To the
extent that the school governing body included in its learner
pregnancy policy provisions which are inconsistent with the

Constitution or legislation, it acted ultra vires and thus violated
the principle of legality.
Did the school governing body’s power to adopt an admission
policy include the power to exclude a learner from school owing
to
pregnancy?
[233] The
school governing body also contended that it derived its power to
exclude the learner from school from the fact that
in terms of
section 5(5) of the Schools Act it has power to determine the
admission policy of the school. Section 5(5) reads
as follows:
“
Subject
to this Act and any applicable provincial law, the admission policy
of a public school is determined by the governing
body of the
school.”
The
school governing body said that in the absence of a clear policy on
the learner pregnancy policy issued by the Free State
HOD, it was
“entitled to determine an admission policy on an ad hoc basis
with regards to the further school attendance
of the pregnant
Learner.” In saying this the school governing body seems to
admit that ordinarily it does not have the
power to make a learner
pregnancy policy and the Free State HOD had that power and that
it only determined such policy because
the Free State HOD had
failed to determine it. The school governing body also said that it
was of the “humble opinion”
that it was “entitled
to enforce such an admission decision (policy), amongst others to
ensure a disciplined and purposeful
school environment”. The
reference to a “disciplined and purposeful school environment”
seems to be taken from
section 8(2) of the Schools Act which
provides that a code of conduct, which section 8(1) obliges a school
governing body to
adopt, “must be aimed at establishing a
disciplined and purposeful school environment”.
[234] The
school governing body’s reliance upon section 5(5) of the
Schools Act as giving it power to exclude from school
during the
year a learner who was admitted to the school at the beginning of
the year – presumably in terms of the admission
policy of the
school – is misplaced and nothing more needs to be said about
it.
[235] The
school governing body also relied upon some unexplained discretion
to justify its decision to exclude the learner from
school. In the
founding affidavit Mr Radebe said in part: “This decision
was taken in the discretion of the Welkom
High [school governing
body]
inter alia
in view of [NMD]’s advanced stage of
pregnancy and upon the authority as provided for in the [Schools
Act] dealing with
the admission of Learners.” The answer to
this contention is that the provisions of the Schools Act which
empower a school
governing body to determine an admission policy
relate to whether a learner may be admitted to the school and does
not relate
to an effective suspension of a learner who has been
admitted to the school. In any event, while a school governing body
has
power to determine an admission policy in terms of the Schools
Act, the latter Act, quite clearly, gives the HOD and not the school

governing body the power to expel a learner from school. The Schools
Act does not confer upon a school governing body the power
to in
effect suspend a learner’s schooling for the reason it was
done in this case. In any event the school governing body’s

learner pregnancy policy is not part of an admission policy of the
school adopted by the school governing body.
[236] In
my view it is not strictly necessary in the present case to decide
whether or not as a general proposition a school governing
body has
power to make a learner pregnancy policy. What is critical is to
determine whether the school governing body had power
to make a
policy that requires a learner to be excluded from school at all or
to be excluded from school in the circumstances,
under the
conditions and for the periods contemplated in the learner pregnancy
policy. Even if a school governing body has power
to make a learner
pregnancy policy, it certainly has no power to make a policy that
includes provisions that are inconsistent
with the Constitution or
legislation such as the Schools Act or PEPUDA. The main judgment is
in agreement with this. To a question
which is formulated in the
main judgment as being whether the Schools Act authorises “governing
bodies to adopt pregnancy
policies that have exclusionary effects,
that are premised on rigid application and that do not take
sufficient account of constitutional
rights”, the main
judgment answers: “This question must be answered in the
negative.”
190
[237] I
am of the opinion that, once one accepts that the school governing
body did not have the power to make a policy that has
the effects to
which reference is made above, it should follow, as the night
follows the day, that in making a policy with such
effects, the
school governing body in this case acted unlawfully and in the light
of section 16A(3)(a) and (b) of the Schools
Act, the Free State HOD
was not only entitled but obliged to instruct the principal not to
carry out or implement an unlawful
act, decision or policy. It is
difficult to understand the basis for the view that the Free State
HOD had no right to issue the
instruction that he issued in this
case when it is accepted that the school governing body had no power
to make a policy requiring
the exclusion of a pregnant learner from
school and that section 16A(3)(a) does show that an HOD has power to
issue instructions
to a principal.
[238]
After answering the above question, the main judgment points out
that the issue will be dealt with later.
191
However, it expresses the view that the Court is concerned in the
present case with determining whether the Courts below were
correct
in granting the interdictory relief restraining the Free State HOD
from conducting himself in a particular manner in
relation to the
respondent schools. It then says: “We therefore need to
determine what the Schools Act empowers the HOD
to do when faced
with policies adopted by school governing bodies that prima facie
(on the basis of the HOD’s analysis)
offend the Constitution
and the Schools Act”.
192
As already indicated, in my view, once it is accepted, as the main
judgment seems to do, that the school governing body’s
policy
was unlawful and unconstitutional in so far as it required the
exclusion of a pregnant learner from school, it logically
follows
that the principal was obliged not to implement that policy and the
HOD was not only entitled but obliged to give the
instruction that
he did to ensure that the principal did not act unlawfully and
unconstitutionally.
[239] The
main judgment then expresses the view that the HOD’s course of
action in such a situation is not “to act
as if those policies
do not exist.”
193
It says that the Schools Act rather obliges the HOD to engage in a
“consultative process with the governing body and then,
if
there are reasonable grounds for doing so, to take over the
performance of the particular governance function in terms of

section 22, in order to give effect to the relevant constitutional
rights and the objectives of the Act.”
194
This approach raises two questions. The one is: what will prevail
between the school governing body’s policy and an Act
or the
Constitution in the meantime while the consultation process is going
on? The other question is: if there are no reasonable
grounds for
the HOD to withdraw the function from the school governing body, is
it the school governing body’s policy or
the Act and the
Constitution that will prevail? In other words will the principal in
the meantime be required to comply with
the school governing body’s
policy or with the Act and the Constitution? The main judgment fails
to address the question
of what the HOD is required to do where
there are no reasonable grounds for him to withdraw the function of
the school governing
body and yet the school governing body is
requiring the principal to implement an unconstitutional and
unlawful policy in violation
of a learner’s rights entrenched
in the Bill of Rights and the learner or her parents appeal to the
HOD to intervene to
protect the learner’s rights or where they
threaten legal action.
[240] As
indicated earlier, the main judgment takes the view that the
question for determination is not whether school governing
bodies
have authority or power under the Schools Act “to adopt
pregnancy policies that have exclusionary effects . . .
and that do
not take sufficient account of constitutional rights”. As will
have been seen above, I see the matter differently.
I take the view
that that is the first and most critical question that we are called
upon to decide because, if the school governing
body did not have
the power or authority to make such policies and we all agree, as I
think we do, that the policy in question
had such “exclusionary
effects” and was a policy that failed to “take
sufficient account of constitutional
rights”, then the school
governing body’s conduct was in breach of the principle of
legality, was unlawful and unconstitutional
and the judgment of this
Court should give effect to that conclusion. My view that no school
governing body has power to make
policies that are inconsistent with
the Constitution is in line with what this Court said in
Ermelo
.
All public power is subject to the Constitution and must be
exercised in the light of the Constitution.
195
Furthermore, section 16 of the Schools Act, which vests the
“governance of every public school . . . in its governing
body”, opens with the words “subject to this Act”
before it goes on to vest the governance of a public school
in its
governing body. Section 16(1) reads: “Subject to this Act, the
governance of every public school is vested in its
governing body
and it may perform only such functions and obligations and exercise
only such rights as prescribed by the Act.”
I have quoted
above a passage from what this Court said in
Ermelo
196
about the phrase “subject to”, namely, that it qualifies
the power that the governing body has and means that that
power must
be exercised subject to other provisions of the Act.
[241] In
addition to the phrase “subject to this Act”, section
16(1) goes a step further and makes it crystal clear
that a school
governing body may only perform functions and exercise rights that
are “prescribed by the Act.” It
follows from this
provision that a school governing body may not adopt a learner
pregnancy policy that is inconsistent with the
Schools Act.
Accordingly, in performing its functions a school governing body may
not go against a provision of the Schools Act.
[242]
Furthermore, I am unable to agree with the proposition that, instead
of instructing the principal to allow the learner back
at school,
the Free State HOD should have invoked section 22 of the Schools
Act. Section 22 reads as follows:
“
(1)
The Head of Department may, on reasonable grounds, withdraw a
function of a governing body.
(2) The Head of Department may
not take action under subsection (1) unless he or she has—
(a) informed the governing body
of his or her intention so to act and the reasons therefor;
(b) granted the governing body
a reasonable opportunity to make representations to him or her
relating to such intention; and
(c) given due consideration to
any such representations received.
(3) In cases of urgency, the
Head of Department may act in terms of subsection (1) without prior
communication to such governing
body, if the Head of Department
thereafter—
(a) furnishes the governing
body with reasons for his or her actions;
(b) gives the governing body a
reasonable opportunity to make representations relating to such
actions; and
(c) duly considers any such
representations received.
(4) The Head of Department may
for sufficient reasons reverse or suspend his or her action in terms
of subsection (3).
(5) Any person aggrieved by a
decision of the Head of Department in terms of this section may
appeal against the decision to the
Member of the Executive Council.”
[243] I
do not think that the power conferred upon an HOD in section 22 of
the Schools Act is there for use by an HOD in a situation
such as
this one where there is a difference of opinion between an HOD and a
school governing body on whether the school governing
body has a
certain power. Obviously, the HOD cannot withdraw a function from a
school governing body when he thinks that the
school governing body
does not even have such a function. In any event section 22 does not
place an obligation on an HOD to withdraw
a function from a school
governing body. It confers upon him power to withdraw a function as
an option which he may or may not
use in a particular situation. The
use of the word “may” in section 22(1) indicates that
the HOD is not obliged to
use the power to withdraw a function of a
school governing body but may, in his discretion, do so in the
circumstances contemplated
in the section. The main judgment deals
with the matter as if section 22(1) places an obligation on the HOD
to withdraw a function
of a governing body. In my view no
justification exists for treating section 22(1) as if it places such
an obligation upon an
HOD.
[244] In
my view section 22 is there for use by an HOD in a case where a
school governing body has failed without any acceptable
reasons to
perform a function it is required by the Schools Act to perform or
where it does not have the capacity or expertise
necessary for it to
perform that function. In this case there is no suggestion that the
school governing body has no capacity
to formulate a learner
pregnancy policy but the issue is that the one that it has issued
includes provisions which are inconsistent
with the Constitution and
legislation. All the school governing body requires here is correct
advice. That is no ground for the
Free State HOD to withdraw the
function from the school governing body if it has such a function.
In any event it was not the
school governing body’s case in
the papers that the Free State HOD should have invoked section 22.
Accordingly, the Free
State HOD has not been given an opportunity to
be heard on a case based on section 22. As the Supreme Court of
Appeal correctly
said recently through Wallis JA in
Sterklewies
(Pty) Ltd t/a Harrismith Feedlot v Msimanga and Others
:
197
“
It
cannot be emphasised too often that courts are, generally speaking,
bound by the issues that the parties to litigation have
formulated
and it is not open to them to deal with and determine cases on a
different basis. That is particularly the case where
the court is a
court of review of what has transpired in a lower court, as is the
position with the land claims court when exercising
its jurisdiction
under section 19(3) of the Act.”
198
Wallis JA
then referred to
CUSA v Tao Ying Metal Industries and Others
199
where this Court also said that, subject to a case where a point of
law is apparent from the papers in which the Court may raise
such
point mero motu, “
the role of the reviewing court is
limited to deciding issues that are raised in the review
proceedings. It may not, on its own,
raise issues which were not
raised by the party who seeks to review an arbitral award
.”
200
(Emphasis added.) These statements by this Court apply with equal
force to all matters brought to court by way of motion proceedings.
High Court
[245] In
the High Court the school governing body’s case was that the
HOD had no power to issue the instruction to the principal
in
disregard of its learner pregnancy policy. The Free State HOD’s
defence was that the school governing body had no power
to adopt
such a policy, particularly a policy which required the exclusion of
a pregnant learner from school and that the exclusion
was in breach
not only of legislation but also of the Constitution. The Free State
HOD said that, for those reasons, and for
the fact that he was the
principal’s employer and because of the provisions of the
Schools Act, he had the power to give
the instruction that he gave
to the principal. The Free State HOD also contended that in terms of
section 7(2) of the Constitution
he was obliged to come to the
assistance and protection of the learner whose constitutional right
to a basic education was being
violated by the implementation of the
policy.
[246] The
High Court took the view that it was not open to the HOD to
challenge the lawfulness and constitutionality of the learner

pregnancy policy or that part of it that required the exclusion of a
learner from school because he had not brought a counter-application

for such orders. The High Court accordingly took the view that it
would not consider the Free State HOD’s contention that
the
school governing body’s conduct in seeking to exclude the
learner or the policy or the relevant provisions of the policy
were
unlawful.
[247] The
High Court concluded that it was persuaded that “the action
taken by the [HOD] was not sanctioned by the applicable

legislation”.
201
It went on to say that the instruction given by the Free State HOD
to the principal “did not . . . constitute proper exercise
or
performance of any appropriate function in terms of the school’s
legislation.”
202
It said that the Free State HOD was “not . . . empowered by
legislation to merely direct the principal to ignore the policy

adopted by the school governing body and to act contrary to such a
policy on the grounds that in more ways than one, the pregnancy

policy was not in harmony with the law.”
203
[248] The
High Court relied on the principle of legality for its conclusion.
204
I have immense difficulty with the notion that a policy document
produced by a school governing body may make provisions that
are
inconsistent with an Act and even the supreme law of the country,
the Constitution. I also have difficulty with the notion
that, where
a policy or some of its provisions are inconsistent with an Act or
the Constitution, it is the provisions of the
policy that prevail
over an Act or the Constitution and yet a policy is not even
subordinate legislation. I would have thought
that the correctness
of the proposition that a school governing body may not make a
policy that is in conflict with an Act, not
to speak of one in
breach of our supreme law, is not open to debate. I would also have
thought that if a policy is or some of
its provisions are,
inconsistent with an Act or the Constitution, such a document would
be subservient to the Act and our supreme
law.
[249] I
have even more difficulty with the proposition that if, in a case
where a school governing body has issued a policy that
is, or that
contains provisions that are, inconsistent with an Act or the
Constitution, the HOD instructs the principal not to
act in breach
of an Act or the Constitution, his conduct is in breach of the
principle of legality. In such a case I would have
thought that the
HOD is acting in compliance with the principle of legality and that
the conduct that is in breach of the principle
of legality is
conduct requiring the principal to comply with the school governing
body’s policy that is in conflict with
an Act or the
Constitution.
205
[250] The
High Court later said that what it was called upon to decide “was
really not the unlawfulness of the pregnancy
policies adopted and
implemented but rather the lawfulness of the instruction given.”
206
It said that the Free State HOD and the amici curiae urged it to
decide the “unlawfulness of the pregnancy policies”.
It
said:
“
But
there was no avenue open to me to get there. None of the respondents
had filed any counter-application to challenge the pregnancy

policies adopted by the schools.”
207
In my
view it was not necessary that the Free State HOD make any
counter-application to have the pregnancy policy declared unlawful

or invalid before the High Court could pronounce upon the lawfulness
or otherwise of either the issuing of the policy by the
school
governing body or the lawfulness of the specific provisions of the
policy requiring the exclusion of a pregnant learner
from school.
Not only was the High Court entitled to pronounce upon that issue,
but it was in fact obliged to do so because of
the nature of the
defence put up by the Free State HOD.
[251] In
terms of the policy the school governing body required the principal
to act unlawfully and unconstitutionally. The principal
was
entitled, if not obliged, to say to the school governing body: I
refuse to carry out this policy or instruction or requirement

because it is an unlawful instruction! The Free State HOD was not
only entitled but also obliged to make sure that his employee
and
representative, the principal, did not act unlawfully or did not
carry out any unlawful instruction from anyone including
the school
governing body and that he did not take part in the violation of the
learner’s constitutional right to a basic
education. That was
a legitimate defence which the High Court was obliged to consider
and pronounce upon. Furthermore, the provisions
of section 16A(3)(a)
and (b) of the Schools Act make it clear that an HOD may issue
instructions to the principal.
[252] The
High Court relied upon the decision of the Supreme Court of Appeal
in
Minister of Education, Western Cape, and Others v Governing
Body, Mikro Primary School, and Another
208
(
Mikro
). It said that in that case the Supreme Court of
Appeal said that, since the Free State HOD was not a professional
manager of
the school, he could not manage its affairs as if he were
its principal. The High Court went on to hold that “[t]he
direct
order by the senior functionary to reverse, as he did, the
decision of the school principal whose sole responsibility it was to

professionally manage the school was procedurally flawed.”
209
I think, in saying this, both the Supreme Court of Appeal in
Mikro
and the High Court in the present case, lost sight of the fact
that the Schools Act expressly provides that a principal carries
out
his responsibility of the professional management of the school
“under the authority of the Head of Department.”
210
[253] The
High Court expressed the view that the Free State HOD should have
made an urgent application for an order declaring
the school
governing body’s learner pregnancy policy or the exclusion of
the learner from school unlawful or unconstitutional
and not to
issue the instruction that he issued to the principal. In my view
the Free State HOD did not need to go to court.
He is the ultimate
functionary responsible for the professional management of the
school which the principal exercises under
his authority. As a
senior manager and leader of the provincial Department of Education
he must take such steps as are reasonably
necessary to ensure that
the principal does not act in breach of the law and the Constitution
and, where he becomes aware that
the principal is acting in breach
of legislation and the Constitution, he must issue an instruction to
make sure that the principal
observes the law and the Constitution
and need not go to court first before he can issue such an
instruction. Section 16A(3)(a)
of the Schools Act makes it clear
that it contemplates that an HOD may issue instructions to a
principal. This being the case,
it would be very strange if the HOD
may not issue an instruction that the principal must not act in
breach of an Act and the
Constitution. I think the notion that the
HOD has no power to issue such an instruction to a principal is
completely untenable.
Supreme
Court of Appeal
[254] The Supreme
Court of Appeal agreed with the conclusion of the High Court that
the Free State HOD had no authority or power
to issue the
instruction that he issued to the principal in disregard of the
school governing body’s learner pregnancy
policy. It amended
that part of the order of the High Court which declared the learner
pregnancy policy to be valid by interdicting
the Free State HOD from
directing the principal to act in a manner contrary to the school
governing body’s learner pregnancy
policy for as long as the
learner pregnancy policy remained in force.
[255] The Supreme
Court of Appeal referred to its decision in
Oudekraal Estates
(Pty) Ltd v City of Cape Town and Others
211
(
Oudekraal
) and said that in that case it had held that a
person has the right to raise a collateral challenge to the validity
of an administrative
act where he or she is threatened with coercive
action by a public authority.
212
The Supreme Court of Appeal then quoted the following passage from
Oudekraal
:
“
When
construed against the background of principles underlying the rule
of law a statute will generally not be interpreted to
mean that a
subject is compelled to perform or refrain
from
performing an act in the absence of a lawful basis for that
compulsion
.
It is in those
cases
─ where the subject is sought to be coerced by a public
authority into compliance with an unlawful administrative
act ─
that the subject may be entitled to ignore the unlawful act with
impunity and justify his conduct by raising what
has come to be
known as a ‘defensive’ or a ‘collateral’
challenge to the validity of the administrative
act.
”
213
(Emphasis added.)
[256] With the last
sentence of this passage in mind, the Supreme Court of Appeal went
on to say in the present case:
“
There
is no act that the HOD is compelled to perform or refrain from
performing in consequence of the pregnancy policies. Neither
is
there any coercive action directed at him consequent upon the
implementation of the pregnancy policies. The learners could
have
mounted a collateral challenge in order to resist attempts by the
schools to prevent them from attending school, had the
schools for
instance applied to interdict them from doing so.”
214
[257] Like the High
Court, the Supreme Court of Appeal refused to consider the HOD’s
contention that the learner pregnancy
policy was unlawful and
unconstitutional or at least that those of its provisions which
required the exclusion of a learner from
school owing to pregnancy
were unlawful and unconstitutional. In my view the passage quoted
above contains the finding upon which
the Supreme Court of Appeal
refused to consider the Free State HOD’s defence. It later
said:
“
In my
view, the fact that a collateral challenge was not available to the
HOD puts paid to this argument. Secondly, the passage
I have quoted
from
Mkangeli
is to
the effect that when a constitutional challenge is properly before a
court, it must deal with it. In this case, because
the HOD was not
entitled to raise a collateral challenge, the constitutionality of
the pregnancy policies was not properly before
the court a quo.”
215
[258]
The finding of the Supreme Court of Appeal that precluded it from
considering the Free State HOD’s defence is the
finding that
“[t]here is no act that the HOD is compelled to perform or
refrain from performing in consequence of the pregnancy
policies.
Neither is there any coercive action directed at him consequent upon
the implementation of the pregnancy policies.”
216
The view I take on this point differs from that
of the Supreme Court of Appeal. The enforcement or implementation of
the school
governing body’s learner pregnancy policy required
the principal to exclude the pregnant learner from school for
certain
periods. The policy of the school governing body required
this to be carried out or executed by the principal. If the
principal
was required by the school governing body to implement the
policy, he was required to implement it in his capacity as an
employee
and representative of the Free State HOD at the school. In
those circumstances, the Free State HOD was entitled to raise the

defence because he was objecting to his employee or representative
being required to do something unlawful or something he considered

to be unlawful. Therefore, this is a case which falls within the
last sentence of the passage quoted above from
Oudekraal
and the Supreme Court of Appeal and
the High Court should have considered the Free State HOD’s
defence. In my view, if the
High Court and the Supreme Court of
Appeal had considered the Free State HOD’s defence, they may
have concluded that excluding
the learner from school in accordance
with the school governing body’s policy would have been
unlawful and unconstitutional
and that, therefore, the Free State
HOD was entitled to instruct the principal as he did. It was because
those two Courts considered
themselves precluded from considering
the Free State HOD’s defence that they reached the conclusion
that they reached.
[259]
To deal with the Free State HOD’s contention that, as the
principal’s employer, he was entitled to issue the
instruction
to him, the Supreme Court of Appeal said that that argument was
flawed and was a recipe for chaos because “it
ignores the fact
that . . . the adoption of a code of conduct is a governance issue
that falls within the domain of the governing
body. It does not fall
within the professional management of a public school that must be
undertaken by the principal under the
authority of the HOD.”
217
[260] In my view this
proposition misses the point inherent in the Free State HOD’s
contention. The Free State HOD’s
contention was and remains
that the school governing body’s policy required the principal
to do something unlawful when
it required him to exclude the learner
from school as envisaged in the policy. In so far as the school
governing body’s
reply to this contention was that it had the
power to adopt a code of conduct and in the code of conduct it could
require the
exclusion of pregnant learners from school, the Free
State HOD’s argument was this: the school governing body does
not
have power to adopt a code of conduct containing provisions that
are inconsistent with legislation or the Constitution and the

requirement that the learner be excluded from school owing to
pregnancy falls into that category.
[261]
So even if the school governing body had power to adopt a code of
conduct, and, in this case it has not claimed to have
adopted a code
of conduct, its power was limited to adopting a code of conduct that
is consistent with the Schools Act and the
Constitution. In this
regard section 8 of the Schools Act, which gives the governing body
of a public school the power to “adopt
a code of conduct”,
makes it clear that that power is given “subject to this Act”
which is a reference to the
Schools Act. Accordingly, such a code as
may be adopted by the school governing body may not be inconsistent
or in conflict with
other provisions of the Schools Act. The Schools
Act gives the ultimate power to suspend a learner from school for
longer than
seven days and the power to expel a learner from school
only to the HOD.
218
So, a code of conduct adopted by the school
governing body may not purport to take this power away from the HOD
and give it to
the school governing body because that would render
the code inconsistent with the Schools Act.
[262] The Supreme
Court of Appeal also held that the Free State HOD had acted in
breach of the principle of legality in issuing
the instruction that
he issued in the present case. The principle of legality required
both the HOD and the school governing
body to exercise only those
powers they have in law. In my view the HOD did not act in breach of
the principle of legality but
the school governing body did.
[263] In
Ermelo
the
Supreme Court of Appeal held that the function of determining a
language policy for a school belonged to the governing body
of the
school alone and the HOD had no power whatsoever to revoke that
function under the Schools Act and his only remedy was
judicial
review. This Court disapproved of that view and reasoning. In the
present case the Supreme Court of Appeal also adopted
the reasoning
that the power to determine a learner pregnancy policy belonged to
the school governing body alone and that the
HOD’s remedy, if
he was unhappy about it, was a judicial review to have the policy
set aside. Just as this Court disapproved
of that reasoning in
Ermelo
, I am of the opinion that in the present matter that
reasoning should also be rejected.
[264] In
their judgment Froneman and Skweyiya JJ conclude that the
appeal should be dismissed. They base that conclusion
on the
principles of co-operative governance and inter-governmental
relations. That judgment takes the view that the parties
had an
obligation to engage with each other before the Free State HOD could
issue the instruction and before the school governing
body could go
to court. I am unable to agree that the matter should be decided on
this basis. This is a point that was not taken
by either party in
the papers. If the matter is decided on this basis the Free State
HOD loses the case on the strength of a
point on which he has never
been given an opportunity to be heard. This is contrary to the
tenets of fairness embodied in the
principle of
audi alteram
partem
.
[265]
In the circumstances I would grant leave to appeal, uphold the
appeal, set aside the decision of the Supreme Court of Appeal
and
that of the High Court and replace the decision of the High Court
with an order dismissing the school governing body’s
and
Welkom High School’s application. I would not make any order
of costs in this matter as the matter raises important

constitutional issues. I would also have made a similar order in the
Harmony High School matter.
For
the Applicant: Advocate M Chaskalson SC and Advocate B Mene
instructed by the State Attorney.
For
the Respondents: Advocate J Du Toit SC and Advocate N Snellenburg
instructed by M J Van Rensburg.
For
the First Amicus Curiae: Advocate A Breitenbach SC and Advocate T
Masuku instructed by Equal Education Law Centre.
For
the Second Amicus Curiae: Advocate N Rajab-Budlender instructed by
the Centre for Child Law.
1
AAA
Investments (Pty) Ltd v Micro Finance Regulatory Council and Another
[2006] ZACC 9
;
2007 (1) SA 343
(CC);
2006 (11) BCLR 1255
(CC) at
para 68;
Minister of Health and Another NO v New Clicks South
Africa (Pty) Ltd and Others (Treatment Action Campaign and Another
as Amici
Curiae)
[2005] ZACC 14
;
2006 (2) SA 311
(CC);
2006 (1)
BCLR 1
(CC) at para 613;
President of the Republic of South
Africa and Others v South African Rugby Football Union and Others
[1999] ZACC 11
;
2000 (1) SA 1
(CC);
1999 (10) BCLR 1059
(CC) at para
148; and
Fedsure Life Assurance Ltd and Others v Greater
Johannesburg Transitional Metropolitan Council and Others
[1998]
ZACC 17
;
1999 (1) SA 374
(CC);
1998 (12) BCLR 1458
(CC) at para 56.
2
For
ease of reference I shall refer to Welkom, Welkom governing body,
Harmony and Harmony governing body collectively as “the

respondent schools”.
3
84
of 1996 (Schools Act).
4
There
was a discrepancy between the parties regarding the Welkom learner’s
age.
5
An
institution established in terms of Chapter 9 of the Constitution to
promote human-rights objectives.
6
See
[9] above where the 2010 Circular is discussed.
7
Supreme
Court of Appeal judgment at para 28.
8
Section
167(3)(b) read with section 167(6) of the Constitution. See also
Head of Department, Mpumalanga Department of
Education and Another v Hoërskool Ermelo and Another
[2009] ZACC 32
;
2010 (2) SA 415
(CC);
2010 (3)
BCLR 177
(CC) (
Hoërskool Ermelo
)
at paras 37 and 42-4.
9
Section
29(1) of the Constitution provides:
“
Everyone has the right
¾
to a basic education, including adult basic education;
and
to further education, which the state, through
reasonable measures, must make progressively available and
accessible.”
10
Section
10 of the Constitution.
11
Id
section 14.
12
Id
section 12(2).
13
Id
section 9(1).
14
Section
9(3) of the Constitution states:
“
The state may not unfairly discriminate directly
or indirectly against anyone on one or more grounds, including race,
gender,
sex, pregnancy, marital status, ethnic or social origin,
colour, sexual orientation, age, disability, religion, conscience,
belief,
culture, language and birth.”
15
Section
7(2) of the Constitution.
16
Hoërskool
Ermelo
above n 8 at para 45. See also
MEC for Education, KwaZulu-Natal, and Others v Pillay
[2007] ZACC 21
;
2008 (1) SA 474
(CC);
2008 (2) BCLR 99
(CC) (
Pillay
)
at paras 121-3
.
17
Hoërskool
Ermelo
above n 8 at para 55. The
Preamble to the Schools Act states that the statute’s purpose
is to provide for a uniform system
for the “organisation,
governance and funding of schools”.
18
Section
16A(2)(a)(i) of the Schools Act.
19
Id
section 16A(2)(a)(ii).
20
Id
section 16A(2)(a)(iv).
21
Id
section 16A(2)(a)(vi).
22
Id
section 20(1)(a).
23
Id
section 20(1)(c).
24
Id
section 20(1)(d).
25
Id
section 20(1)(g).
26
Id
section 16A(1)(a).
27
Id
s
ection 3(3).
28
Id
sections 3(5) and 4.
29
Id
section 3(6)(b).
30
Id
section 5(5).
31
Id
section 5(1)-(3).
32
Id
section 5(4)(c).
33
Id
section 5(6)-(9).
34
Id
section 6(1) and (2) and section 6B.
35
Id
s
ection 8(1) and (3).
36
Id
section 9(1), (1A) and (1B).
37
Id
section 9(1C)(a).
38
Id
s
ection 9(2)(a).
39
Id
section 9(1E).
40
Id
section 9(1C)(b) and (8)-(10).
41
The
sections read as follows:
“
22 Withdrawal of functions
from governing bodies
(1) The Head of Department may, on reasonable grounds,
withdraw a function of a governing body.
(2) The Head of Department may not take action under
subsection (1) unless he or she has
—
(a) informed the governing body of his or her intention
so to act and the reasons therefor;
(b) granted the governing body a reasonable opportunity
to make representations to him or her relating to such intention;
and
(c) given due consideration to any such representations
received.
(3) In cases of urgency, the Head of Department may act
in terms of subsection (1) without prior communication to such
governing
body, if the Head of Department thereafter
—
(a) furnishes the governing body with reasons for his
or her actions;
(b) gives the governing body a reasonable opportunity
to make representations relating to such actions; and
(c) duly considers any such representations received.
(4) The Head of Department may for sufficient reasons
reverse or suspend his or her action in terms of subsection (3).
(5) Any person aggrieved by a decision of the Head of
Department in terms of this section may appeal against the decision
to the
Member of the Executive Council.
. . .
25 Failure by governing body to perform functions
(1) If the Head of Department determines on reasonable
grounds that a governing body has ceased to perform functions
allocated
to it in terms of this Act or has failed to perform one or
more of such functions, he or she must appoint sufficient persons to

perform all such functions or one or more of such functions, as the
case may be, for a period not exceeding three months.
(2) The Head of Department may extend the period
referred to in subsection (1), by further periods not exceeding
three months
each, but the total period may not exceed one year.
(3) If a governing body has ceased to perform its
functions, the Head of Department must ensure that a governing body
is elected
in terms of this Act within a year after the appointment
of persons contemplated in subsection (1).
(4)
If a governing body fails to perform any of its functions, the
persons contemplated in subsection (1) must build the necessary

capacity within the period of their appointment to ensure that the
governing body performs its functions.
”
42
Id
section 22(1) and (2).
43
Id
section 22(3).
44
Hoërskool
Ermelo
above n 8 at paras 68 and 71.
45
Id
at para 87.
46
Section
25(1) of the Schools Act.
47
See
the discussion of the two sections in
Hoërskool
Ermelo
above n 8 at paras 84-8.
48
Id
at para 56.
49
76
of 1998
(Educators Act)
.
50
Id
s
ection 3(1)(b), read with the definition of
“employer” in section 1.
51
Section
8(2).
52
The
Oxford English Dictionary
2 ed (Oxford University Press, Oxford
1989).
53
Hoërskool
Ermelo
above n 8 at para 57 (footnote
omitted).
54
Id
at para 79 (footnote omitted).
55
See
[37]-[40] above for a discussion of sections 16 and 16A of the
Schools Act.
56
Of
course, this characterisation is neither cast in stone nor fully
descriptive of all rights and obligations of the relevant
partners.
The Schools Act makes it clear that, in certain circumstances,
governing bodies perform administrative functions (for
example,
their role in relation to disciplining learners) while, in other
circumstances, government officials may provide policy
guidance (for
example, in relation to the determination of national norms and
standards for school funding).
57
See,
for example,
Sebola and Another v Standard Bank of South Africa
Ltd and Another
[2012] ZACC 11
;
2012 (5) SA 142
(CC);
2012 (8)
BCLR 785
(CC) at para 62 and
Rossouw and Another v Firstrand Bank
Ltd
[2010] ZASCA 130
;
2010 (6) SA 439
(SCA) at paras 24-7
.
58
See
the “Guidelines for the Consideration of Governing Bodies in
Adopting a Code of Conduct for Learners” published
by the
Minister under GN 776 in
Government Gazette
18900 of 15 May
1998 (1998 Guidelines). The 1998 Guidelines state that the purpose
of a code of conduct is to “promote
positive discipline,
self-discipline and exemplary conduct, as learners learn by
observation and experience” and that a
code should “
clarify
and promote the roles and responsibilities of various stakeholders
in the creation of a proper learning environment in
schools.
”
Item 3.9 of the Guidelines goes on to state that “[a] learner
who falls pregnant may not be prevented from attending
school. A
pregnant girl may be referred to a hospital school for pregnant
girls.” See also the 2007 “Measures for
the Prevention
and Management of Learner Pregnancy” (2007 Measures). It would
seem that the 2007 Measures were not published
by the National
Department of Basic Education in the Government Gazette, but were
nevertheless circulated to public schools.
The 2007 Measures suggest
“management interventions” of a general nature,
indicating an intention that individual
schools should adopt
policies that are appropriate for their particular circumstances.
59
Hoërskool
Ermelo
above n 8 at para 56.
60
Section
8(3) of the Schools Act.
61
See
above n 58.
62
Hoërskool
Ermelo
above n 8 at paras 80-1.
63
The
content of this section is set out in full in n 41 above.
64
Hoërskool
Ermelo
above n 8 at paras 20-1 and 31.
65
Id
at para 61.
66
Id
at para 78.
67
Id
at para 99.
68
Id
at paras 73 and 93.
69
Camps
Bay Ratepayers’ and Residents’ Association and Another v
Harrison and Another
[2010] ZACC 19
;
2011 (4) SA 42
(CC);
2011 (2) BCLR 121
(CC) at para 28.
70
See
paragraph 3 of the 2010 Circular as referred to in [9] above.
71
Minister
of Education, Western Cape, and Others v Governing Body, Mikro
Primary School, and Another
[2005]
ZASCA 66
;
2006 (1) SA 1
(SCA) (
Mikro
)
at para 43.
72
See
the discussion of this issue in
Hoërskool
Ermelo
above n 8 at paras 63-81.
73
Section
9(1C) of the Schools Act, read with subsections (2) and (4).
74
Id
s
ection 21(1)-(3).
75
Id
section 25(1).
76
Glenister
v President of the Republic of South Africa and Others
[2011] ZACC 6
;
2011 (3) SA 347
(CC);
2011 (7)
BCLR 651
(CC) (
Glenister
)
at para 105.
77
Carmichele
v Minister of Safety and Security and Another (Centre for Applied
Legal Studies intervening)
[2001] ZACC 22
;
2001 (4) SA 938
(CC);
2001 (10) BCLR 995
(CC) at para 44.
78
Minister
of Safety and Security v Van Duivenboden
[2002]
ZASCA 79
;
2002 (6) SA 431
(SCA) at para 20.
79
S
v Makwanyane and Another
[1995] ZACC 3
;
1995 (3) SA 391
(CC);
1995 (6) BCLR 665
(CC) at para 10
.
80
Chief
Lesapo v North West Agricultural Bank and Another
[1999]
ZACC 16
;
2000 (1) SA 409
(CC);
1999 (12) BCLR 1420
(CC) at paras
17-8. See also
Pharmaceutical
Manufacturers Association of SA and Another: In re Ex
parte President of the Republic of South
Africa and Others
[2000] ZACC 1
;
2000
(2) SA 674
(CC);
2000 (3) BCLR 241
(CC) at paras 90-4, where the
President could not revoke his own objectively irrational decision.
Rather, he was obliged to have
recourse either to Parliament or to
the courts.
81
Motswagae
and Others v Rustenburg Local Municipality and Another
[2013]
ZACC 1
;
2013 (2) SA 613
(CC);
2013 (3) BCLR 271
(CC) at para 14 and
Chief Lesapo
above n 80 at paras 17-8.
82
Glenister
above n 76 at para 190.
83
I
therefore refrain from expressing any view on this issue.
84
Glenister
above n 76 at para 189.
85
Section
3(1)(b) of the Educators Act.
86
Section
16A(3)(a) of the Schools Act.
87
Smit
v Workmen’s Compensation Commissioner
1979 (1) SA 51
(A)
at 61E-F.
88
See
the application of
Mikro
above n 71 in [80] above.
89
See,
for example,
S v Mostert
[2005] ZAKZHC 27
at 6 and
S
v Banda and Others
1990 (3) SA 466
(BG) at 494.
90
There
are numerous examples in the Schools Act where an HOD and school
governing body interact, and the principal is bound to
follow the
HOD even if the school governing body is of a different opinion on
the issue.
For instance, a possible dispute
between the school governing body and the HOD regarding: the
suspension or termination of a member
of the school governing body
by the HOD for an alleged breach of the governing body’s code
of conduct (section 18A(5));
the ability of an educator or
principal to discharge his job properly (section 20(1)(eA));
school property (section 20(1)(g));
the allocation of
additional functions to the school governing body (section 21(2));
and exemptions from school fees (section
40(2)).
91
Hoërskool
Ermelo
above n 8 at para 97.
92
Id.
93
See,
for example,
Maphango and Others v Aengus Lifestyle Properties
(Pty) Ltd
[2012] ZACC 2
;
2012 (3) SA 531
(CC);
2012 (5) BCLR 449
(CC) at para 48 and
Director of Public Prosecutions, Transvaal v
Minister of Justice and Constitutional Development, and Others
[2009] ZACC 8
;
2009 (4) SA 222
(CC);
2009 (7) BCLR 637
(CC) (
DPP
v Minister of Justice
) at paras 41-3.
94
See,
for example,
Hoërskool Ermelo
above n 8 at para
101;
DPP v Minister
of Justice
above n 93 at paras 64-5 and 67; and
Hoffman v
South African Airways
[2000] ZACC 17
;
2001 (1) SA 1
(CC);
2000
(11) BCLR 1211
(CC) at para 45.
95
Section
9(3) of the Constitution.
96
Id
section 29(1).
97
Id
section 10.
98
Id
section 14.
99
Id
section 12(2).
100
See
Harksen v Lane NO and Others
[1997] ZACC 12
;
1998 (1) SA 300
(CC);
1997 (11) BCLR 1489
(CC) at para 46.
101
Section
9(5) of the Constitution.
102
Id
section 10.
103
Id
section 14.
104
Id
section 12(2).
105
See
S v M
(Centre for Child Law as Amicus Curiae)
[2007]
ZACC 18
;
2008 (3) SA 232
(CC);
2007 (12) BCLR 1312
(CC) at paras 24
and 64.
106
Section
28(2) and the best interests of the child standard were considered
by this Court in
DPP v Minister of Justice
when it decided to
confirm the invalidity of statutory provisions found invalid by a
High Court, even though the Court simultaneously
held that the High
Court had improperly considered the constitutionality of the
provisions. See
DPP v Minister of Justice
above n 93 at
paras 64-5.
107
2002
(4) SA 877
(TPD) at 883E-G.
108
Pillay
above n 16 at para
185.
109
See
Hoërskool Ermelo
above
n 8 at para
57 where this Court states:
“
A governing body is
democratically composed and is intended to function in a democratic
manner. Its primary function is to look
after the interest of the
school and its learners. It is meant to be a beacon of grassroots
democracy in the local affairs of
the school. Ordinarily, the
representatives of parents of learners and of the local community
are better qualified to determine
the medium best suited to impart
education and all the formative, utilitarian and cultural goodness
that comes with it.”
(Footnotes omitted.)
110
See
[113] – [116] above.
111
The
school governing bodies of both Welkom High School and Harmony High
School.
112
Section
28 reads: “A child’s best interests are of paramount
importance in every matter concerning the child.”
113
Head
of Department, Mpumalanga Department of Education and Another v
Hoërskool Ermelo and Another
[2009] ZACC 32
;
2010 (2) SA
415
(CC);
2010 (3) BCLR 177
(CC) (
Ermelo
).
114
Id
at para 97.
115
Doctors
for Life International v Speaker of the National Assembly and Others
[2006] ZACC 11
;
2006 (6) SA 416
(CC);
2006 (12) BCLR 1399
(CC)
(
Doctors for Life
).
116
Id
at para 101.
117
Id
at para 115.
118
Matatiele
Municipality and Others v President of the Republic of South Africa
and Others
(1)
[2006] ZACC 2
;
2006 (5) SA 47
(CC);
2006
(5) BCLR 622
(CC) and
Matatiele Municipality and Others v
President of the Republic of South Africa and Others (2)
[2006]
ZACC 12
;
2007 (1) BCLR 47
(CC).
119
Oriani-Ambrosini,
MP v Sisulu, MP Speaker of the National Assembly
[2012] ZACC 27
;
2012 (6) SA 588
(CC);
2013 (1) BCLR 14
(CC) (
Ambrosini
).
120
Schubart
Park Residents
’
Association and Others v City of
Tshwane Metropolitan Municipality and Another
[2012] ZACC 26
;
2013 (1) SA 323
(CC);
2013 (1) BCLR 68
(CC) at para 43.
121
For
a critical discussion see Liebenberg “Engaging the paradoxes
of the universal and particular in human rights adjudication:
The
possibilities and pitfalls of ‘meaningful engagement’”
(2012) 12(1)
African Human Rights Law Journal
1.
122
Doctors
for Life
above n 115 at para 55 and
Albutt v Centre for the
Study of Violence and Reconciliation, and Others
[2010] ZACC 4
;
2010 (3) SA 293
(CC);
2010 (5) BCLR 391
(CC) at para 65.
123
South
African Broadcasting Corp Ltd v National Director of Public
Prosecutions and Others
[2006] ZACC 15
;
2007 (1) SA 523
(CC);
2007 (2) BCLR 167
(CC) at paras 27-9.
124
Minister
of Health and Another NO v New Clicks South Africa (Pty) Ltd and
Others (Treatment Action Campaign and Another as
Amici Curiae
)
[2005] ZACC 14
;
2006 (2) SA 311
(CC);
2006 (8) BCLR 872
(CC) at
para 113.
125
The
Citizen 1978 (Pty) Ltd and Others v McBride (Johnstone and Others,
Amici Curiae
)
[2011] ZACC 11
;
2011 (4) SA 191
(CC);
2011
(8) BCLR 816
(CC) at para 141 and
Khumalo and Others v Holomisa
[2002] ZACC 12
;
2002 (5) SA 401
(CC);
2002 (8) BCLR 771
(CC) at
para 21.
126
South
African Transport and Allied Workers Union and Another v Garvas and
Others
[2012] ZACC 13
;
2013 (1) SA 83
(CC);
2012 (8) BCLR 840
(CC) at para 66.
127
Occupiers
of Saratoga
Avenue
v City of Johannesburg Metropolitan Municipality and Another
[2012] ZACC 9
;
2012 (9) BCLR 951
(CC) (
Blue
Moonlight 2
);
Pheko and
Others v Ekurhuleni Metropolitan Municipality
[2011] ZACC 34
;
2012 (2) SA 598
(CC);
2012 (4) BCLR 388
(CC);
City of
Johannesburg Metropolitan Municipality v Blue Moonlight Properties
39 (Pty) Ltd and Another
[2011] ZACC 33
;
2012 (2) SA 104
(CC);
2012 (2) BCLR 150
(CC) (
Blue
Moonlight 1
);
Abahlali
baseMjondolo Movement SA and Another v Premier of the Province of
KwaZulu-Natal and Others
[2009]
ZACC 31
;
2010 (2) BCLR 99
(CC
);
Residents
of Joe Slovo Community, Western Cape v Thubelisha Homes and Others
(Centre on Housing Rights and Evictions and Another,
Amici
Curiae
)
[2009] ZACC 16
;
2010 (3) SA 454
(CC);
2009 (9) BCLR 847
(CC);
Occupiers of 51 Olivia Road, Berea Township and 197 Main
Street Johannesburg v City of Johannesburg and Others
[2008]
ZACC 1
;
2008 (3) SA 208
(CC);
2008 (5) BCLR 475
(CC);
President
of the Republic of South Africa and Another v Modderklip
Boerdery (Pty) Ltd
and Others (Agri SA and Others,
Amici Curiae
)
[2005] ZACC 5
;
2005 (5) SA 3
(CC);
2005 (8) BCLR 786
(CC);
Port
Elizabeth Municipality v Various Occupiers
[2004] ZACC 7
;
2005 (1) SA 217
(CC);
2004 (12) BCLR 1268
(CC) (
PE
Municipality
); and
Government
of the Republic of South Africa and Others v Grootboom
and Others
[2000] ZACC 19
;
2001 (1) SA 46
(CC);
2000 (11) BCLR 1169
(CC)
(
Grootboom
).
128
Id.
129
Id.
130
Section
189
of the
Labour Relations Act 66 of 1995
and
National Union of
Metalworkers of South Africa and Others v Fry’s Metals (Pty)
Ltd
[2005] ZASCA 39
;
[2005] 3 All SA 318
(SCA).
131
Mashavha
v President of the Republic of South Africa and Others
[2004]
ZACC 6
;
2005 (2) SA 476
(CC);
2004 (12) BCLR 1243
(CC) at para 20.
132
Minister
of Education (Western Cape) v Mikro Primary School Governing Body
[2005] ZASCA 66
;
2006 (1) SA 1
(SCA) (
Mikro Primary School
)
at para 20.
133
Id.
134
Id
at paras 21-2.
135
Ermelo
above n 113 at paras 77-8 and 81.
136
27
of 1996. See
section 3(1).
137
">
137
Id
section 3(4)(n).
138
84
of 1996. See
section 8(3).
139
">
139
Section
5(1) of the Policy Act and section 8(3) of the Schools Act.
140
Section
10(2) of the Policy Act.
141
The
Preamble to the Schools Act provides:
“
Whereas the achievement of
democracy in South Africa has consigned to history the past system
of education which was based on
racial inequality and segregation;
and whereas this country requires a new national system for schools
which will redress past
injustices in educational provision, provide
an education of progressively high quality for all learners and in
so doing lay
a strong foundation for the development of all our
people’s talents and capabilities, advance the democratic
transformation
of society, combat racism and sexism and all other
forms of unfair discrimination and intolerance, contribute to the
eradication
of poverty and the economic well-being of society,
protect and advance our diverse cultures and languages, uphold the
rights
of all learners, parents and educators, and promote their
acceptance of responsibility for the organisation,
governance
and funding of schools in partnership with the State; and whereas it
is necessary to set uniform norms and standards
for the education of
learners at schools
and the organisation, governance and funding of schools throughout
the Republic of South Africa”. (Our emphasis.)
142
Ermelo
above n 113 at para 56.
143
Id
at para 61.
144
Id
at paras 73-5.
145
See
[130] above.
146
Ermelo
above n 113 at para 97.
147
The
order in
Ermelo
provides in relevant part:
“
4. The school governing body
of Hoërskool Ermelo must—
1. review and determine a language policy in terms of
section 6(2) of the Schools Act and the Constitution;
2. by not later than Monday 16 November 2009 lodge with
this Court an affidavit setting out the process that was followed to
review
its language policy and a copy of the language policy.
5. The Head of Department: Mpumalanga Department of
Education must by not later than Monday 16 November 2009 lodge a
report with
this Court setting out the likely demand for grade 8
English places at the start of the school year in 2010 and setting
out the
steps that the Department has taken to satisfy this likely
demand for an English or parallel-medium high school in the circuit

of Ermelo.”
148
In
this judgment where reference is made to “pregnant learners”
this includes learners who have given birth but are
still affected
by the pregnancy policies as a result of their pregnancy.
149
General
Notice 776 in
Government Gazette
18900 of 15 May 1998.
150
See
[132] above.
151
National
Gambling Board v Premier, KwaZulu-Natal and Others
[2001] ZACC
8
;
2002 (2) SA 715
(CC);
2002 (2) BCLR 156
(CC) at para 36.
152
See
[65] above.
153
See
[109] – [116] above.
154
84
of 1996.
155
Unless
the context indicates the contrary, reference to the Constitution in
this judgment is a reference to the Constitution of
the Republic of
South Africa, 1996.
156
I
have chosen not to use the full name of the learner in order to
protect her identity.
157
Also
for the purpose of protecting the learner’s identity, I have
chosen not to give her mother’s surname.
158
For
the purpose of protecting the learner’s identity, I have also
chosen not to give NMD’s uncle’s full name.
159
This
is an abbreviation for Member of the Executive Council. See section
125(1) and (2) and section 132 of the Constitution.
160
Section
29(1)(a) of the Constitution reads as follows: “Everyone has
the right to a basic education, including adult basic
education”.
161
It
is understood that this title is sometimes used for the Head of
Department or Director-General.
162
Section
16A(3)(a) and (b) of the Schools Act
reads
as
follows:
“
The principal must assist the governing body in
the performance of its functions and responsibilities,
but
such assistance or participation may not be in conflict with
—
instructions
of the Head of Department
;
legislation
or policy
”
. (Emphasis added.)
163
[2009]
ZACC 32; 2010 (2) SA 415 (CC); 2010 (3) BCLR 177 (CC)
.
164
Id
at para 39.
165
Id
at para 40.
166
S
ee
section 3(1)(b)
of the
Employment of Educators Act 76 of 1998
.
167
Section
16A(3) of the Schools Act.
168
27
of 1996.
169
Ermelo
above n 163 at para 56.
170
[2012]
ZACC 16
;
2012 (5) SA 467
(CC);
2012 (10) BCLR 1017
(CC).
171
Mohamed
and Another v President of the Republic of South Africa and Others
(Society for the Abolition of the Death Penalty in South Africa
and Another Intervening)
[2001] ZACC 18
;
2001 (3) SA 893
(CC);
2001 (7) BCLR 685
(CC) (
Mohamed
).
172
Section
36 reads:
“
Limitation of rights
(1) The rights in the Bill of Rights may be limited
only in terms of law of general application to the extent that the
limitation
is reasonable and justifiable in an open and democratic
society based on human dignity, equality and freedom, taking into
account
all relevant factors, including—
(a) the nature of the right;
(b) the importance of the purpose of the limitation;
(c)
the nature and extent of the limitation;
(d)
the relation between the limitation and its purpose; and
(e)
less restrictive means to achieve the purpose.
(2) Except as provided in subsection (1) or in any
other provision of the Constitution, no law may limit any right
entrenched
in the Bill of Rights.”
173
4
of 2000
.
174
Section
1(viii) of PEPUDA.
175
[2001]
ZASCA 59
;
2001 (4) SA 501
(SCA).
176
Id
at para 7.
177
[2001]
ZACC 25
;
2001 (4) SA 1297
(CC);
2001 (11) BCLR 1157
(CC)
at
para 10.
178
Akani
above n 175 at para 7.
179
Ermelo
above n 163 at para 78.
180
Id
at para 81.
181
Id.
182
Id
at para 59.
183
Id.
184
Id
at para 61.
185
Id
at para 99.
186
Section
9(2) of the Schools Act reads as follows:
“
A learner at a public school may be expelled
only—
(a) by the Head of Department; and
(b) if found guilty of serious
misconduct after disciplinary proceedings contemplated in section
8 were conducted.”
187
Akani
above
n 175 at para 7.
188
In
Governing Body of the Juma Musjid Primary School and Others v
Essay NO and Others
[2011] ZACC 13
;
2011 (8) BCLR 761
(CC) in
which this Court inter alia said:
“
The right to a basic
education in
section
29(1)(a)
may be limited only in terms of a law of general
application which is “reasonable and justifiable in an open
and democratic
society based on human dignity, equality and
freedom.” (Footnote omitted.) (Para 37.)
189
See
[70] above.
190
Main
judgment at [71].
191
For
the question and answer referred to herein, see the last sentence of
[236].
192
See
[72] above.
193
Id.
194
Id.
195
Ermelo
above n 163 at para 78.
196
See
[223] above.
197
[2012]
ZASCA 77
;
2012 (5) SA 392
(SCA).
198
Id
at para 26.
199
[2008]
ZACC 15
;
2009
(2) SA 204
(CC);
2009 (1) BCLR 1
(CC).
200
Id
at
67.
201
High
Court judgment at para 33.
202
Id.
203
Id.
204
Id
at para 35.
205
This
Court said in
Fedsure Life Assurance Ltd and Others v Greater
Johannesburg Transitional Metropolitan Council
and Others
[1998] ZACC 17
;
1999 (1) SA 374
(CC);
1998 (12) BCLR 1458
(CC)
at para 56:
“
[I]t is a fundamental
principle of the rule of law, recognised widely, that the exercise
of public power is only legitimate where
lawful. The rule of law –
to the extent at least that it expresses this principle of legality
– is generally understood
to be a fundamental principle of
constitutional law.” (Footnote omitted.)
This
Court went on to say at para 58:
“
It seems central to the
conception of our constitutional order that the Legislature and
Executive in every sphere are constrained
by the principle that they
may exercise no power and perform no function beyond that conferred
upon them by law.”
As
this principle applies to organs of state as well, it applies to a
school governing body.
206
High
Court judgment at para 36.
207
Id.
208
[2005]
ZASCA 66
;
2006 (1) SA 1
(SCA).
209
High
Court judgment at para 43.
210
Section
16 of the Schools Act.
211
[2004]
ZASCA 48
;
2004 (6) SA 222
(SCA).
212
Supreme
Court of Appeal judgment at para 13.
213
Oudekraal
above n 211 at para 32 quoted in the Supreme Court of Appeal
judgment at para 13.
214
Supreme
Court of Appeal judgment at para 14.
215
Id
at para 19.
216
Id
at para 14.
217
Supreme
Court of Appeal judgment at para 22.
218
Section
9(2)(a) of the Schools Act.