This was an application before the Constitutional Court of South Africa by the Head of Department of the Department of Education of the Free State Province (“HOD”) for leave to appeal against a judgment of the Supreme Court of Appeal. The matter concerned two high schools, Welkom High School and Harmony High School in the Free State (“Respondents”), and their respective school governing bodies (“SGBs”).  

Both schools had adopted policies that automatically prohibited any female student from attending school if the school discovered that she was pregnant. After the school applied the policies to pregnant students in two separate incidents, the HOD intervened in the decisions of the SGBs and ordered the schools and their governing bodies to ignore the pregnancy policy and reinstate the students. Respondents took the matter to the High Court which ruled that the HOD did not have the authority to tell the principals to go against an adopted policy of the SGBs, nor could Applicant interfere in the decisions of the schools implementing these policies. The Supreme Court upheld this decision. 

This decision follows several others from African jurisdictions, such as Student Representative Council of Molepolole College of Education v. Attorney General [1995] (3) LRC 447), where the Botswana Court of Appeal held that a regulation that required a student to report pregnancy to the authorities, and would be obliged to leave the College or be expelled if this was a second occurrence, was unconstitutional as it was discriminatory on the basis of sex. Similarly, in Mfolo and Others v. Minister of Education, Bophuthatswana (South Africa, Supreme Court, Bophuthatswana and General Division), [1992] (3) LRC 181, and in Lloyd Chaduka and Morgenster College v. Enita Mandizvidza (Zimbabwe, Supreme Court), Judgment No. SC 114/2001; Civil Appeal No. 298/2000, the two Courts held that regulations that required pregnant students to withdraw from college were unconstitutional. 

Pregnancy in colleges and schools has been perceived as the problem of the pregnant student, that she has mistimed it, or in the case of unmarried girls and women, that it was morally wrong to be pregnant before marriage. As a result, policies on student pregnancy have been designed to “discourage” others from becoming pregnant and have been rather punitive on pregnant students and young mothers. This also perpetuates the stigma against pregnant and young mothers. This case and the ones referred to above encourage states to change the attitude of duty-bearers and align policies with fundamental rights and freedoms.  

An important consideration that the Court brought up is that the pregnancy policies failed to consider the best interests of the child (the pregnant student or young mother below the age of 18), including her health, arrangements she has made to take care of the newborn, and her wishes generally. This line of thought has far reaching implications. For instance, what would it mean to have policies that would support arrangements about taking care of a learner’s new born or baby, including breastfeeding? What wishes of the pregnant student or young mother should be taken into account? This may involve measures that require allocation or reallocation of resources beyond simply allowing pregnant students and young mothers to remain in the school system, and addressing the pattern of bias and discrimination that has operated against pregnant students and young mothers in schools.