Head of Department, Department of Education, Free State Province v Welkom High School and Another; Head of Department, Department of Education, Free State Province v Harmony High School and Another [2013] ZACC 25

This case, which was eventually heard by the Constitutional Court, involved two schools whose policy was to automatically exclude pregnant learners for the year in which they gave birth. This meant that learners would fail to complete their grades and would have to repeat the grade the following year. The Constitutional Court had to decide on whether the head of a provincial education department may instruct a principal not to implement a school governing body policy that would result in the unlawful suspension of a learner.

Equal Education (EE), represented by EELC, was admitted as a friend of the court. EE submitted that no learner should be suspended or expelled from school because of pregnancy andHeads of Department are under a duty to ensure that all learners’ constitutional rights are protected.

The Constitutional Court made it clear that differentiating between learners on the basis of pregnancy constituted unfair discrimination. Furthermore, and significantly, the Court recognised that such policies infringe upon various rights of children, including a learner’s right to basic education.