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HOD Free State Department of Education v Welkom High School and Another

 

NAPTOSA welcomes the ruling of the Constitutional Court in the case of the Department of Education (Free State) v Welkom High School and Harmony High School.

 

The Constitutional Court was required to rule on two issues:

“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.”

 

The media have tended to focus on the pregnancy policies of the schools in question while ignoring a crucial aspect of the ruling which relates to the action of the HOD of the Free State Education Department.

 

The rulings were:

  • The appeal (by the Free State Department of Education) is dismissed – the Department’s actions were unlawful, 
  • The schools are to review their pregnancy policies by 10 October 2013

 

Winners and losers. The outright victory is the upholding of the Constitution and the prescripts of education legislation. The defined autonomy of the SGBs and the rights of pupils have been protected. The Free State Department of Education has for the third time been informed by the courts (High Court, Supreme Court of Appeal and the Constitutional Court) that their instructions to the school principals were not lawful and they had not followed the correct procedures that were available to them.

 

There are lessons to be learnt. The education departments must not allow their zeal to blind them to the legal processes which the law requires. This is not the first time that provincial departments have lost court battles for failing to follow the correct procedures. School Governing Bodies must also take note of the judgement and ensure that their policies are not in conflict with the law of the land and in particular the Constitution.

 

There are challenges for departmental officials, SGBs and school principals. This ruling as well as other court rulings have highlighted, directly or indirectly, the invidious position of the school principal who is an employee of the department but at the same time a member of the SGB and is required to implement the policies of the SGB. Departmental officials should be far more supportive of principals and not issue instructions which are not lawful. Many officials clearly do not know the law.  Principals must keep abreast of policy and legislation and guide the SGBs accordingly and the SGBs in turn should heed the guidance given to them regarding their governance responsibilities.

 

Health warning. The ConCourt ruling was not unanimous – a significant minority of the judges were of the view that the instruction to the principals was lawful, given the unconstitutionality of the pregnancy policies. The position of a school principal under such circumstances remains an area of concern.