The Head of Department: Department of Education, Free State Province v Welkom High School & Harmony High School

The governing bodies of Welkom High School and Harmony High School adopted pregnancy policies in 2008 and 2009 respectively, which required pregnant learners to take leave of absence from school. In 2010, two learners (D at Welkom and M at Harmony) fell pregnant and were required to take leave in accordance with the schools' pregnancy policies. D, a grade 9 learner, was required to take leave from September 2010 until the second term of 2011. M, a grade 11 learner, could not be re-admitted in the same year she left due to pregnancy. After complaints were lodged, the Head of Department (HOD) issued written directives to the principals instructing them to rescind the decisions and re-admit the learners immediately. The schools sought advice from FEDSAS and ultimately re-admitted the learners while challenging the validity of the HOD's instructions in court.

• Whether the HOD had authority to instruct school principals to act contrary to policies adopted by school governing bodies
• Whether the HOD could mount a collateral challenge to the validity of the pregnancy policies
• Whether administrative decisions of governing bodies remain valid until set aside by a court
• Whether the principle of legality constrained the HOD's powers
• The proper relationship between the HOD's authority over principals as employees and the governing body's governance functions under the South African Schools Act

Both appeals dismissed with costs. The high court order was amended to: (a) interdict the HOD from directing school principals to act contrary to the pregnancy policies for as long as they remain in force; and (b) entitle the learners concerned to attend formal classes, remain at school in their current grade, and be taught, learn and be examined.

The binding legal principles established are: (1) A provincial Head of Department does not have authority under the South African Schools Act to instruct a school principal to act contrary to a policy adopted by the school governing body, even if the policy is alleged to be unlawful or unconstitutional, because governance of public schools is vested in governing bodies while professional management is vested in principals under the HOD's authority. (2) Collateral challenges to administrative decisions are only available to persons threatened with coercive action by a public authority; a public authority cannot mount a collateral challenge to justify its own failure to comply with administrative decisions. (3) Until an administrative decision is set aside by a court in judicial review proceedings, it exists in fact and has legal consequences that cannot be disregarded - this applies even if the decision is unlawful or unconstitutional. (4) The principle of legality constrains all public functionaries, who may exercise no power beyond that conferred by law; a HOD's proper remedy when disagreeing with a governing body's policy is to seek judicial review, not to issue instructions to principals to disregard the policy.

The court observed that: (1) The constitutionality of the pregnancy policies was deliberately not addressed by the schools, who confined their case to the unlawfulness of the HOD's conduct, and this was a proper approach. (2) The court noted there was insufficient evidence on record to embark on a detailed analysis of the constitutionality of the pregnancy policies in any event. (3) The court acknowledged that the HOD had the purest of motives in trying to ensure that the learners were not denied access to education and was acting in what he believed to be the learners' best interests, but this could not justify what amounted to unlawful self-help. (4) The court noted that the scheme of the Schools Act contemplates a partnership between three parties: national government (Minister), provincial government (MEC and HOD), and parents/community (school governing body). (5) The court observed that allowing public functionaries to ignore administrative decisions they consider unlawful would be "a recipe for chaos" and would considerably compromise the proper functioning of a modern state.

This case is significant for clarifying the distribution of powers between provincial education departments and school governing bodies under the South African Schools Act. It established important principles regarding: (1) the distinction between governance functions (vested in governing bodies) and professional management (under the HOD's authority); (2) the limited nature of collateral challenges in administrative law; (3) the application of the principle from Oudekraal that administrative decisions remain valid until set aside by a court, even if unlawful or unconstitutional; (4) the principle of legality as a constraint on executive power in the education context; and (5) that public functionaries, even when acting with good motives to protect constitutional rights, cannot engage in self-help by ignoring administrative decisions they believe to be unlawful - they must seek court intervention. The case reinforces the autonomy of school governing bodies over governance matters while recognizing the need for judicial review where policies may be unconstitutional.