On 10 July 2013, the Constitutional Court ruled in Head of the Free State Education Department v Welkom High School, Harmony High School and Others. This case has a significant bearing on how policies of school governing bodies are developed and implemented.
With government, civil society and school associations welcoming the Court’s decision for different reasons, it is important that schools understand what the implications of this case are for the development and implementation of policies at school level.
The governing bodies of two public high schools in the Free State Province (Welkom High School and Harmony High School) adopted pregnancy policies that required the exclusion of pregnant learners from attending school for a specified period of time.
Without testing the constitutionality of the schools’ pregnancy policies conclusively, the Constitutional Court found that the policies on face-value infringed the constitutional rights of pregnant learners, including their rights to human dignity, to receive a basic education and to be free from unfair discrimination. The Court ordered the two schools to review their pregnancy policies in the light of the Constitution, applicable legislation and government circulars and to engage meaningfully with the Head of the provincial Education Department in accordance with the co-operative governance provisions of the South African Schools Act.
What the case means for the development and implementation of policy at a school level
Importantly, the Constitutional Court clarified the respective roles and responsibilities of key stakeholders in the development and implementation of policies adopted by school governing bodies. The Court confirmed the following:
• Public schools in South Africa are run co-operatively by a partnership of school governing bodies (representing parents and learners), principals, Provincial Heads of Department and Ministers / MECs, and the Minister of Basic Education. Should disputes regarding school policy arise between school governing bodies and the education authorities, all parties to such disputes should resolve these through a comprehensive and well-documented process of consultation and negotiation before resorting to litigation;
• The governing body of a public school is empowered by the South African Schools Act to develop policies that guide the day-to-day management of the school and ensure that the school environment accommodates the needs of learners;
• The school principal – as part of the professional management of his/her school – is responsible for giving practical effect to applicable legislation and policy (including policies adopted by the school governing body). The school principal is an employee of the Head of the provincial Education Department but cannot override or contravene policies adopted by the school governing body at the instruction of the Head of the provincial Education Department; and
• The Head of the provincial Education Department is obliged to use the consultative procedures set out in Section 22 of the South African Schools Act to engage meaningfully with a public school where he/she considers the policies of that school unlawful and inadequate to protect and promote the best interests of learners. Should these procedures prove ineffective, the Head of the provincial Education Department may approach the courts for an order setting the relevant school policy aside. The Head of the provincial Education Department cannot instruct a school principal to contravene an existing policy of the school’s governing body, unless he/she, after consulting with the school governing body, lawfully withdraws the power of the school governing body to adopt that policy in terms of Section 22 of the South African Schools Act.
What schools should do to give practical effect to the judgment
School governing bodies should be encouraged to review all of their policies – not only their pregnancy policies – to ensure that they protect and promote the best interests of learners in all respects. Whilst governing bodies would argue that all of their policies are founded on this principle, it could be that certain provisions inadvertently discriminate against or stigmatise certain learners.
A school’s review of its policies should be guided by what is required by the Constitution, as well as applicable legislation and government circulars.
While the aim of a policy may be in the best interests of learners, the application of the policy may not support that aim. A policy review should therefore determine whether a policy – both in its aim and in its application – is in the best interests of learners.
The wording of each provision of a school policy should be tailored to support the specific needs of the school and its learners and should not have the effect of infringing the rights of learners.
Each provision of a school policy should be reviewed individually and then holistically in the broader context of the school’s policy framework to ensure that it complies with the specific requirements of applicable government notices and circulars, education-related legislation and the Constitution.
School policies should be flexible enough to accommodate individual cases and should not be so rigid that they prevent a school from acting in the best interests of every learner. They should limit the amount of time that learners are away from school to a minimum, maximise teaching and learning time wherever possible, and support the school in its efforts to provide a quality education.
For example, a school policy aimed at minimising the risk of learners engaging in gang-related activities while they are at school but which requires a learner considered by the principal in his/her sole opinion to be a member of a gang to be suspended summarily for a period of five school days pending a preliminary investigation into the matter could have the following undesirable effects:
• the learner would be prevented from attending school and receiving a basic education;
• the learner could be stigmatised as being a member of a gang regardless of whether the principal’s opinion is correct or not; and
• the policy would contravene the suspension provisions of the South African Schools Act in a number of ways, including , for example, the fact that the policy does not grant the learner a reasonable opportunity to make representations before he/she is suspended.
By testing each component of this school policy against the relevant provisions of applicable legislation (including all education-related legislation and the Constitution) and the relevant provisions of government circulars, the school could review and revise this policy to ensure that it achieves its stated aim in a way that does not infringe the rights of learners.
Schools need not wait for provincial education authorities to engage them on any of their policies nor do they need to wait for notice from their education union of the Constitutional Court decision before reviewing their policies.
In fact, it is in the best interests of learners that schools review their policies proactively and sooner rather than later.
School policies that are likely to come under scrutiny and be unlawful include policies that have the effect, whether intentional or not, of:
• unfairly discriminating against certain categories of learners;
• preventing learners from attending school and receiving a basic education;
• infringing on the rights of learners to human dignity, privacy and bodily and psychological integrity;
• stigmatising certain categories of learners; and/or
• undermining the best interests of any learner, particularly where the policy is unavoidably rigid in its application.
What the case means for independent schools
While the Constitutional Court case concerned the policies of two public schools, the principles upheld by the Court can be applied to the policies developed and implemented by independent schools. Like public schools, independent schools need to ensure that their policies protect and promote the constitutional rights of learners.
Unless provincial regulations state otherwise, the Head of a provincial Education Department does not have the legal authority to intervene in policy-related matters of an independent school.
That said, any policy of an independent school that infringes the constitutional rights of learners could be struck down by the courts upon application by an affected party.
Care should therefore be taken by independent schools to review their policies in line with the Constitution, applicable laws and best practice. Policy reviews can minimise the risk of legal action being taken against independent schools where their policies are found to infringe the rights of learners.
The balance of power: education authorities v school governing bodies
While the Constitutional Court in the Welkom High School case (with five of the nine judges concurring) has brought some clarity to the issue of who has rights and responsibilities to develop and implement school policies, the distribution of powers between school governing bodies and education authorities remains an issue before our courts. The important question of who has the right and responsibility to intervene in matters concerning the admission of learners, for example, will be answered by the Constitutional Court in the Rivonia Primary School case. Schools should follow these legal developments closely to ensure that their actions are supported by the law.
Mike was admitted as an attorney in 2009 and rose to the level of senior associate at Bowman Gilfillan before being appointed as the Head of the Education Ministry in the Western Cape Government. Mike now consults through Caveat Legal as a specialist on education law issues.