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

Two public high schools in Welkom, Free State (Welkom High School and Harmony High School) adopted pregnancy policies in 2008/2009 requiring automatic exclusion of pregnant learners from school for the remainder of the year in which they gave birth. In 2010, two learners fell pregnant and were excluded pursuant to these policies. The Head of Department of Education (HOD) instructed the principals to readmit the learners immediately, arguing the policies violated constitutional rights to education and equality. The school governing bodies refused, contending they had authority to adopt such policies and the HOD had no power to override them. The schools approached the High Court for interdictory relief preventing the HOD from instructing principals to act contrary to their policies.

• Whether a school governing body has power to adopt a pregnancy policy that excludes pregnant learners from school
• Whether such exclusionary pregnancy policies violate constitutional rights to basic education, equality, dignity, privacy and bodily integrity
• Whether the Head of Department has authority to instruct school principals to disregard policies adopted by school governing bodies
• Whether the HOD's obligations under section 7(2) of the Constitution to protect rights in the Bill of Rights empowered him to issue such instructions
• Whether the HOD was required to follow section 22 procedures of the South African Schools Act to withdraw governing body functions before intervening
• The relationship between policy determinations and legislation/the Constitution
• The principles of co-operative governance in education

Leave to appeal granted. Appeal dismissed. Order: (1) School governing bodies must review pregnancy policies in light of the judgment; (2) By 10 October 2013, lodge affidavits with the Court setting out review processes and provide copies of revised policies; (3) Applicant and respondents must engage meaningfully to give effect to the order; (4) No order as to costs. The interdict restraining the HOD from instructing principals to act contrary to pregnancy policies remained in place, but the policies required review for constitutional compliance.

The binding legal principles established are: (1) School governing bodies have power to adopt pregnancy policies as part of their governance functions under sections 16(1) and 8 of the South African Schools Act; (2) However, any policy adopted by a governing body must comply with the Constitution and the Schools Act - policies cannot override or conflict with legislation or constitutional rights; (3) Pregnancy policies that automatically exclude learners without flexibility or individual consideration prima facie violate constitutional rights to equality (section 9), basic education (section 29(1)(a)), dignity (section 10), privacy (section 14), bodily integrity (section 12(2)), and fail to give paramountcy to the best interests of the child (section 28(2)); (4) A Head of Department cannot simply instruct principals to ignore governing body policies, even if unconstitutional, without following proper procedures under section 22 of the Schools Act (withdrawal of function) or approaching courts for review; (5) The principle of legality requires all organs of state, including HODs, to exercise only those powers conferred by law and to follow prescribed procedures; (6) Section 16A(3) of the Schools Act establishes that where there is conflict between HOD instructions and governing body policies, principals must follow HOD instructions, but this does not authorize the HOD to bypass statutory procedures; (7) The principles of co-operative governance (section 41 of Constitution) require meaningful engagement between education partners before resorting to unilateral action or litigation; (8) Policy determinations are not legislation and cannot override statutory provisions - where legislation allocates specific powers (e.g., suspension/expulsion under section 9), policies cannot redistribute those powers.

Several important observations were made: (1) The Court noted the historical legacy of racially segregated education under apartheid and the transformative project of realizing the right to education for all (per Hoërskool Ermelo); (2) Khampepe J observed that timely engagement between parties might have prevented litigation entirely - both sides showed insufficient commitment to co-operative resolution; (3) The judgment noted statistics showing two-thirds of learners subject to pregnancy policies before 2010 at Harmony never returned to complete secondary education, demonstrating real-world impact; (4) Froneman and Skweyiya JJ extensively discussed indigenous roots of participatory democracy (imbizo/lekgotla) and the constitutional commitment to participation in decision-making affecting people's rights; (5) The Court noted confusion at national and provincial levels about pregnancy policy, with conflicting guidance documents (1998 Guidelines, 2007 Measures, 2010 Circular); (6) Observations that well-resourced and under-resourced schools may need different approaches to supporting pregnant learners, justifying school-level policy particularization; (7) Zondo J observed that policy cannot be used to limit rights in the Bill of Rights - only "law of general application" can justify limitations under section 36; (8) Comment that school governing bodies function as "beacons of grassroots democracy" in education; (9) Observation that the litigation became a "power play" about ultimate authority rather than focusing on learners' best interests; (10) Discussion of whether exclusion constitutes "expulsion" or "suspension" under the Schools Act, with analysis of terminology used ("leave of absence", "interrupt"); (11) Reference to vicarious liability concerns potentially motivating HOD intervention.

This case is significant for: (1) Clarifying the division of powers between provincial education departments and school governing bodies under the South African Schools Act; (2) Establishing that while governing bodies have authority to adopt policies including pregnancy policies, such policies cannot violate constitutional rights or conflict with legislation; (3) Confirming that pregnancy policies automatically excluding learners prima facie violate multiple constitutional rights (equality, education, dignity, privacy, bodily integrity, best interests of child); (4) Emphasizing the importance of procedural compliance and co-operative governance in education - even when policies appear unconstitutional, proper statutory procedures (section 22) must be followed; (5) Balancing the state's section 7(2) duty to protect rights with the rule of law requirement to follow proper procedures; (6) Providing guidance on permissible and impermissible approaches to learner pregnancy in schools; (7) Illustrating the tension between achieving substantively correct outcomes and following procedurally correct processes in constitutional democracy. The case demonstrates the Court's commitment to both protecting vulnerable learners' rights and maintaining the carefully balanced partnership structure for school governance created by the Schools Act.