Head of Department, Department of Education, Free State Province v Welkom High School and Others; Head of Department, Department of Education, Free State Province v Harmony High School and Others

School governing bodies of Welkom High School and Harmony High School adopted pregnancy policies providing for the automatic exclusion of pregnant learners. In 2010, learners at each school fell pregnant and were excluded in terms of these policies. The Head of Department (HOD) of the Free State Department of Education, believing the policies to be unconstitutional and contrary to departmental guidelines, instructed the school principals to readmit the learners with immediate effect. The governing bodies resisted, asserting that the HOD lacked authority to override their policies. Both schools sought interdictory relief in the High Court to restrain the HOD from instructing principals to act contrary to governing body policies. The High Court and Supreme Court of Appeal upheld the interdicts. The HOD applied for leave to appeal to the Constitutional Court.

Leave to appeal was granted. The Court confirmed that the HOD lacked authority to instruct principals to disregard governing body policies. The pregnancy policies were found to be prima facie unconstitutional and ordered to be reviewed. The respondent schools were directed to engage meaningfully with the HOD and to submit revised pregnancy policies to the Court.

The case clarifies the constitutional and statutory boundaries between provincial education authorities and school governing bodies, reinforcing the principle of legality in the exercise of public power. It affirms that learner pregnancy policies must comply with constitutional rights and underscores the need for cooperative governance in education. The judgment is a leading authority on school governance, executive oversight and the protection of pregnant learners’ rights.