Constitutional Court addresses state's interference in schools' affairs

INTERFERENCE by the state in the affairs of schools was given a knockout today (10 July 2013) by the Constitutional Court in the umpteenth court judgement that confirms that education heads may not give instructions to schools and school principals when these instructions are not in accordance with the law.

Today's judgement will hopefully bring an end to the so-called pregnancy case, which had its origins in 2011 when two Free State schools, Hoërskool Harmony and Welcome High, refused to admit two pregnant girls to school while they were pregnant, in accordance with the approved policy of the school governing bodies. The Head of the Free State's Education Department then forced both schools to readmit the learners. Both governing bodies are members of the Federation of Governing Bodies of South African Schools (FEDSAS).

"Although this case focuses on the abuse of power by state officials, we should not lose sight of the fact that school principals are again the victims of illegal state interference," says Dr Jaco Deacon, Deputy CEO of FEDSAS.

 "The court has reconfirmed the legal principle of legality, which implies that an official may only do that which he is authorised by law to do," says Deacon.

The initial judgement, also in favour of the FEDSAS members, included a court order according to which the Minister of Basic Education, Mrs Angie Motshekga, had 24 months to implement regulations that include clear guidelines for handling teenage pregnancies in schools.

"The Education Department's refusal to adhere to repeated confirmation of the original judgement now means that the deadline of 24 months has expired without the root of the problem - the handling of teenage pregnancies - being addressed," says Deacon.

He says teenage pregnancies are a huge social problem. "Governing bodies' policy regarding this matter usually involves that the girls may return to school after the pregnancy, but that they may not attend school while they are pregnant. This policy is aimed at protecting the pregnant teenagers as well as the rest of the learners because it is now the school's problem."

While awaiting reaction from the Minister, FEDSAS wishes to state clearly that this judgement by the Constitutional Court reconfirms the core of the Schools' Act. "The Schools' Act was written in such a way as to create a partnership between the state and governing bodies as well as other stakeholders in order to ensure quality education. When state officials act in a prescriptive manner it undermines not only the core values of the Schools' Act but also the Constitution."

Deacon says this judgement also reiterates that the South African education system rests upon the concept of "public schools" that is not at all the same as "state schools". "Public schools are run by governing bodies from the school community. The state is merely one of the role-players and does not have the authority to force school principals to act in ways that are not in accordance with the policies of the school governing body. These situations place improper and unnecessary pressure on school principals."

FEDSAS will continue to protect the core of the Schools' Act, namely that the interests of the child should be the primary directive in all situations. "This is about our children's constitutional right to quality education and we will not allow illegal state interference, inept state officials or any other stumbling block to prevent children from gaining access to this education."

Mr Marius van Rensburg was the instructing attorney while Advocates Niël Snellenburg and Johan du Toit SC acted in the Constitutional Court.

(FEDSAS is a voluntary association of school governing bodies of public schools and supports quality education in these schools. More than 1600 public schools are already members of FEDSAS).

Statement issued by Dr Jaco Deacon, Deputy CEO: FEDSAS, July 10 2013

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