South Africa: Expulsion of pregnant students violated constitutional rights

Many thanks to Godfrey Kangaude, LL.M. (UFS), LL.M. (UCLA), an LL.D. candidate at the University of Pretoria and Executive Director of Nyale Institute for Sexual and Reproductive Health Governance in Malawi, for summarizing this decision with Y. Kakhobwe in Legal Grounds III: Reproductive and Sexual Rights in Sub-Saharan African Courts, published by Pretoria University Law Press (PULP) in 2017.  228-pages online     Flyer with Table of Contents.     New online edition with links to decisions and analyses.

Head of Department, Department of Education, Free State Province v. Welkom High School & anotherHead of Department, Department of Education, Free State Province v. Harmony High School & another (CCT 103/12) [2013] ZACC 25, 2013 (9) BCLR 989(CC); 2014 (2) SA 228 (CC) (10 July 2013)   Constitutional Court of South Africa  Decision online.    Case summary by G. Kangaude and Y. Kakhobwe.

Two South African high schools had adopted policies that provided for automatic
exclusion of any student from school if it is found that she is pregnant. When in two separate instances the schools applied the policies to pregnant students, the Head of the provincial department of education intervened in the decisions of the school’s governing bodies and ordered them to ignore the pregnancy policy and reinstate the students. The respondents took the matter to the High Court which ruled that this official had no authority to tell the principals not to implement their adopted policy.  The
Supreme Court upheld the High Court’s decision.  The Constitutional Court of South Africa ruled that if school policies were unconstitutional, as these were, the Head of the provincial education department should have intervened, using the proper mechanisms provided by the Schools Act.
The Constitutional Court opined that these pregnancy policies prima facie violated constitutional principles, and violations should be addressed by the scheme of powers under the School Act.  The Court held that, first, the policies unjustifiably discriminated on the basis of pregnancy and sex.  Second, the policies limited the right to education by requiring that the student repeat an entire year.  Third, the policies prima facie violated students’ rights to human dignity, privacy, and bodily and psychological integrity by requiring them to report their own pregnancy or that of others.  Finally, the policies violated the best interests of the child because they failed to take into account the health and other needs of the pregnant student.
The Court did not make a declaration on the constitutional validity of the pregnancy policies since this issue was not placed properly before it, and also because the Court respected the scheme of powers in the School Act. However, the Court ordered the school governing boards to review their pregnancy policies.
The Court’s opinion follows several older African judgments such as Student Representative Council of Molepolole College of Education v. Attorney General [1995] (3) LRC 447), where the Botswana Court of Appeal held that a regulation that required a student to report pregnancy to the authorities, and would be obliged to leave the College or be expelled if this was a second occurrence, was unconstitutional as it was discriminatory on the basis of sex. Similarly, in Mfolo and Others v. Minister of Education,  [1992] (3) LRC 181,Bophuthatswana (South Africa, Supreme Court, Bophuthatswana and General Division), and in Lloyd Chaduka and Morgenster College v. Enita Mandizvidza, Judgment No. SC 114/2001; Civil Appeal No. 298/2000 (Zimbabwe, Supreme Court),   two African Supreme Courts held that regulations that required pregnant students to withdraw from college were unconstitutional.

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Compiled by the Coordinator of the International Reproductive and Sexual Health Law Program, reprohealth*law at utoronto.ca.   For Program publications and resources, see our website, online here.     TO JOIN THIS BLOG: enter your email address in upper right corner of this webpage, then check your email to confirm the subscription.

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