Johannesburg - A school governing body has no legal right to exclude pregnant pupils from school, the Constitutional Court heard on Tuesday.
“Whatever the power of governing bodies to add pregnancy policies, they cannot have the power to exclude pregnant learners from schools,” said lawyer Matthew Chaskalson.
He is appearing for the Free State education department head, in a case about two schools which tried to keep pregnant pupils away until the year after their babies were born.
Chaskalson said that even in terms of a code of conduct, a school could not issue such an order.
A code of conduct could deal with sexually inappropriate conduct, but could not exclude a pupil in the same way as a pregnancy policy.
In terms of the law, the longest suspension allowed pending the completion of a disciplinary matter is 14 days.
Asked whether a child should be allowed to give birth at school, Chaskalson replied that pregnancy and childbirth involved fundamental rights, and that not allowing a birth at school would be a justifiable limitation of a right.
The case involved the pregnancy policies of Welkom High School and Harmony High School.
The policy excludes pupils when they are pregnant and makes them leave school for the rest of the year that they give birth, irrespective of whether they are well enough to go back to school, or have the capacity to catch up on missed work.
It permits them to return the next year to re-do the year.
The Free State education head of department tried to intervene on the grounds that this was unconstitutional and also illegal.
It was unconstitutional because it breached pupils' rights to education, and was illegal because pupils had to attend school until a certain age.
The head of department argued that, as the principals' boss, they should have complied with his instructions.
However, the schools contend that his telling them what to do regarding their pregnancy policy infringed on the powers of their governing bodies.
The Free State High Court ruled against the department and said the head of department could order the schools to change governing bodies' policies if he had a problem with them, or could apply for a court order to do so.
Although the case of the two pupils who were originally excluded was eventually resolved, the head of department wants the Constitutional Court to address the issue so that he does not have to approach a court every time a pupil is kept out of school by a school governing body after giving birth.
Chaskalson said forcing the head of department to go to court every time there was a disagreement would be a waste of money which could be better spent on a feeding scheme, for example.
Also, expecting parents to take on school governing bodies was not the answer either.
The mother of one of the pupils who sparked the case had to hitchhike to Bloemfontein to take it further because she did not have money for taxi fare.
“It is fanciful to think she and other parents in her position would be able to approach the high court to protect her children from having their rights violated,” said Chaskalson.
He said the current national provision relating to pregnancy at schools was that pupils should return as soon as possible. - Sapa