Last week the Constitutional Court ruled that the pregnancy policies of two schools in the Free State were exclusionary and unconstitutional but that the province’s head of department for basic education did not have the power to instruct its principals to ignore policy made by those school governing bodies – even if he or she was of the opinion that the policy was unconstitutional.
In a majority judgment penned by judge Sisi Khampepe with judge Johann van der Westhuizen and deputy chief justice Dikgang Moseneke concurring, the court ordered that the governing bodies of Welkom High School and Harmony High School review their policy for pregnant learners and report back to it on the progress made in bringing it in line with the Constitution by October 10, 2013.
To fulfill this, the school governing bodies and the department of basic education “must engage meaningfully with each other” the court further ordered.
The order, and the separate concurring judgment by judges Johan Froneman and Thembile Skweyiya, point to the very foundation of South Africa’s constitutional democracy and the jurisprudence developed by the court: the rule of law, the separation of powers and the importance of co-operative governance in the various spheres of the South African state, and life.
Co-operative governance, Khampepe wrote in her judgment “is a fundamentally important norm of our democratic dispensation” and one that “underlies the constitutional framework generally” and in this instance “has been concretised in the Schools Act as an organizing principle for the provision of access to education”.
Cooperative governance includes ordinary citizens playing a greater role in democracy’s everyday functioning – whether in the laws we make or how we run our schools. In its Doctors for Life judgment that called for the process of drawing up legislation to be more broadly inclusive of the public, the Constitutional Court emphasized the participatory nature of a functional democracy.
Khampepe in this judgment noted that the Schools Act “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 head of department and member of executive council, 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” and, thus, the democratic and equitable realization of the right to education.
The requirement for “meaningful engagement” between disaffected parties – often between government and citizenry – has also been emphasized by the Constitutional Court in judgments like Olivia Road, which dealt with evictions and the relocation of communities. It points again to a Constitutional vision of a society speaking more often, and more profoundly, with itself: government by participation, rather than the merely functional act of placing an X on a ballot every five years.
What is apparent in the matters between the two schools and the Free State basic education department is that communication between them became adversarial, rather than constructive, very quickly.
The Harmony Case

In the case of Harmony High School a 16-year old learner in grade ten fell pregnant in October 2009. After passing her grade ten examinations, she returned the following year and attended classes for grade 11 during the first and second terms. She gave birth during the 2010 school winter holidays before returning for the third term and part of the fourth term.
Harmony’s pregnancy policy does not allow a learner to return to school in the year that she has given birth, so in October 2010 the learner was informed that she would be excluded from school and only allowed back in 2011, when she would have to repeat grade 11.

 

After the learner’s mother approached the Free State basic education department, it, in turn, wrote to Harmony’s principal, requesting that the case be reviewed. In its letter, the department pointed out that learner pregnancy policies and interventions should be “rehabilitative and supportive” rather than “punitive”. Harmony’s school governing body decided not to review the case.
Following a meeting between the department, the school principal and the governing body on October 26, 2010 it was decided that the latter should reconvene to reconsider the case. But, before the governing body could reconvene, the school received a letter from the education department on October 28, containing what Khampepe found was an “unequivocal instruction” to the school and its governing body 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”.
It seemed both sides then decided, in street parlance, to “open a can of whip-ass” on the other. Harmony’s governing body decided not to rescind its decision to exclude the pupil and then notified the department of this. A meeting between the two parties followed but consensus was not reached. The Federation of Governing Bodies of South African Schools attempted to intervene but a meeting it had arranged between the two parties didn’t take place and the department eventually took the matter to the high court in an attempt to interdict the school. Pending the outcome of the case, however, the school did readmit the learner who completed grade 11 and was in grade 12 when the matter was heard in the high court.

 

The Welkom High School case

A grade nine learner at Welkom High School fell pregnant in 2010 and attended school until she was notified on September 16 that year that she was to remain at home until the end of the first term of 2011 – in effect, causing her to repeat grade nine.
The learner’s family wrote to basic education minister Angie Motshekga for assistance and there appeared to have been no response from her office. They further sought assistance from the Human Rights Commission, which wrote to the school indicating they had received a complaint and noted that the learner’s exclusion violated her constitutional right to education.
In a vein similar to that of the Harmony case, instructions from the department were sent to the school for the “immediate” return of the learner after she had given birth, the governing body in turn had refused to do so and scheduled meetings between the department and the school did not transpire.
The crux of the matter before the Constitutional Court, as presented by the two parties, was whether the head of the education department could instruct a school principal to ignore policy drawn up by a school governing body in terms of its powers under the Schools Act.

The Rule of Law

Khampepe’s judgment is a rule of law one with emphasis on the legality of the head of department’s actions and what the Schools Act allows governing bodies to do.
Khampepe found that the Schools Act “does not empower” a Head of Department “to act as if policies adopted by a school governing body did not exist”. The judgment reitterated that the Schools Act “obliges the head of department to engage in a comprehensive consultative process” with the governing bodies 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.
The Court found that the head of department did not observe the consultation requirements of the Schools Act, nor did it “purport to withdraw the policy-making functions” of the governing body. Rather, it delivered instructions to get the learners back to school.
The head of department had, in effect “usurped the power” to formulate policy that the co-operative governance requirements of the Schools Act had bestowed upon the school governing bodies, according to Khampepe. This was “a power he did not have”.
“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,” the judgment noted.

The Seperation of Powers

Khampepe further found that usurpation of policy-making by the head of department upset the “sensitive scheme of powers” which parliament had enacted through the Schools Act. This meant a violation of 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 [the Free State head of department for basic education, in this case] unless such laws are set aside by a court”.
While the court was not asked to determine the constitutionality of the two schools pregnancy policies, it noted that as per an earlier judgment (Hoerskool Ermelo) it has the power under Section 172(1)b of the Constitution to order any just and equitable remedy “that would place substance above mere form by identifying the actual underlying dispute between the parties.”
Khampepe subsequently found that the schools’ policies did in fact limit learners fundamental right to basic education; that it discriminated on the basis of gender; “violate[d] learners rights to human dignity, privacy and bodily and psychological integrity” and did not make the learners’ best interests of paramount importance.
In a separate judgment that supported and endorsed the outcome of the main judgment, judges Froneman and Skweyiya extrapolated on the “actual underlying dispute” which they felt was: “how best should the special needs of pregnant learners be accommodated in public schools?”

The People Shall Govern

They were highly critical of the “power play” that quickly evolved in both these matters between the school governing bodies and the department and underlined the “constitutional obligation on the partners in education to engage in good faith with each other on matters of education before turning to the courts”.
“Good faith engagement” according to Froneman and Skweyiya is of vital importance because “participation in decisions affecting the rights and interests of people is a general theme that runs throughout the Constitution”.
“Many provisions of the Constitution require the substansive involvement and engagement of people in decisions that may affect their lives,” they noted.
These requirements of “substansive involvement and engagement” runs through many of the Constitutional Court’s judgments covering a variety of issues, including political decision-making (Doctors for Life judgment), access to information (South African Broadcasting Corporation Ltd v National Director of Public Prosecutions and Others [2006]), freedom of expression (The Citizen Newspaper v Robert McBride [2011]), socio-economic rights (Occupiers of Saratoga Avenue v City of Johannesburg and Another [2012], and several other judgments), adequate housing (Blue Moonlight judgment) and protection from arbitrary eviction or demolition of homes (Abahlali baseMjondolo v Premier of KwaZulu-Natal and Others [2009]).
What this confirms is that the Constitutional Court’s democratic vision is not a narrowly simple one that requires the mere use of a pen every five years – an interpretation advanced by the majoritarian-peddlers in the ruling ANC. It is, rather, of an engaged nation talking with itself. It is governance of the people, by the people and for the people.

Photograph: Canwest News Service

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