4/12/2013
SEPTEMBER V EGOLI HIGH SCHOOL
Written arguments for the Applicant
Nadia September (henceforth the Applicant), submits that the decision taken by School Governing Body (SGB) of
Egoli High School (henceforth the respondent) to not allow her to return to school after giving birth as stated in the
pregnancy policy present in the code of conduct adopted by the SGB was unconstitutional and requests that the court
re-admits her to the school without her serving the period of absence required of her as stated in the above
mentioned policy. The following written arguments aim to show that the policy has no legal applicability in my
client’s case are in favour of my client (Nadia) and they intend to prove that she is in fact the victim of an
unconstitutional and void school code of conduct.
Issue One
Synopsis of Issue One:
Issue One contains one point which aims to show that the school policy is in fact ‘void’ therefore making it
inapplicable in my client’s case so therefore my client should be allowed to return to school.
Firstly, the SGB’s policy on learner pregnancy states that: “A learner should exercise full responsibility for
parenting and that a period of absence of up to two years may be necessary for this purpose. No learner should be
readmitted in the same year they left school due to a pregnancy.” My client however, did not leave school due to her
pregnancy; she in fact did not leave school at all. The facts presented to both me and the court state that Nadia gave
birth to a healthy baby girl in April 2013 during the school holidays. They also state that she tried to return to school
after the school holiday therefore this policy does not apply to my client’s case due to the fact that she luckily
avoided breaking the rules stated in the policy by giving birth during the holidays. The policy is therefore void and is
inapplicable to my client’s case. Any policy which is void is of no legal applicability whatsoever: it is an absolute
nullity-the law treats it as if it had never existed. The school’s policy should be treated as thus and Nadia should
therefore be allowed to return to school.
Issue Two
Synopsis of Issue Two:
The following issue aims to show that the SGB’s policy is based on discrimination and is therefore unconstitutional.
Issue two discusses two points, with the first being how the school is unfairly discriminating against my client on the
basis of her gender as Tsepo is still allowed to attend school. The second point is how this discrimination is not only
affecting Nadia but all the other females in her school therefore breeding a sexist generation.
The respondent states that the policy is aimed at reducing the high number of teenage pregnancies in the school and
believes that it is therefore necessary to subject the girl who has fallen pregnant to a period of absence after she has
given birth in order for her to, as they say, exercise full responsibility for parenting. The policy however, allows the
boy to return to school and is therefore not effectively instilling any lessons to the pupils, which might reduce the
percentage of pregnancies. It is only disciplining the girls and is therefore unfairly one sided. By allowing Tsepo,
Nadia’s boyfriend and father of her child, to return to school they are in fact portraying that a boy can impregnate a
girl and get away with it because they receive no punishment at all. This brings us to the respondent’s first offence
which is the breeching of section 9, subsections 2 and 3[1] of the South African constitution which state that:
“Equality includes the full and equal enjoyment of all rights and freedoms. To promote the achievement of equality,
legislative and other measures designed to protect or advance persons or categories of persons, disadvantaged by
Done By: Astrid Roman & Kudzanai Mavetera
049
unfair discrimination may be taken. ” and “The state may not unfairly discriminate directly or indirectly against
anyone on one or more grounds, including race, gender, sex, pregnancy, marital status, ethnic or social origin, color,
sexual orientation, age, disability, religion, conscience, belief, culture, language and birth.”, respectively.
1
The Constitution of the Republic of South Africa Act 108 of 1996, Section 9 (2) & (3)
The respondent defends the policy by saying that it is not unfair that girls have to remain out of school but boys do
not, because girls are the ones who give birth and need to care for their babies. The ignorant and stereotypical views
that the respondent has shown in this statement are the exact type of views that we have been trying to rid society of
for a very long time. It is absurd to even imply that when a couple has a child, the mother bears more responsibility
in the rearing of the child, that is a straight form of sexism and a denunciation of gender equality and the respondent
is therefore guilty of a second breech which is the breeching of [2]The Promotion of Equality and Prevention of
Unfair Discrimination Act 4 of 2000 as they have discriminated against my client under the prohibited ground of
gender mentioned in section 1 (2) (a) of the above mentioned act. The respondent is unfortunately still living in the
20th century when women were housewives and men had to go to school and work and pay no mind to their
children, unfortunately this is no longer the case. The emotional, economical, mental and parental needs of a child
should be seen to equally by the mother and father of a child and as proven by research which will be later discussed
in issue four, dealing with the best interests of the child, it is in the best interests of any child to receive the equal
amount of time and caretaking from both parents. After seeing these facts, it is quite clear that the school policy is
unconstitutional on a gender discriminative basis.
The unconstitutionality of this policy, however, does not stop there, with these actions they are creating the
perception that males are superior to females therefore breeching [3]section 1 (2) (b) of the above mentioned act due
to the fact that the discrimination they are portraying causes or perpetuates systemic disadvantage. The policy
therefore does not only infringe on my client’s rights but all the other females in the school, amplifying its
unconstitutionality.
Issue Three
Synopsis of Issue Three:
Issue three focuses on how the policy infringes on Nadia’s dignity as she has been stigmatized. It will deal with two
issues, the first being how my client will now be treated as an outcast due to her getting pregnant and not being
allowed to continue with her education and the second being how this stigmatization will impact her not only now
but in the near and distant future as well.
Firstly, [4] Section 10 of the South African constitution states that: “Everyone has inherent dignity and the right to
have their dignity respected and protected”. The respondent’s first breech of this law was when the principal of the
school told my client she could not return to school but Tsepo could as he is not the one who got pregnant, my client
felt humiliated, hurt and disappointed, as if she had committed a horrible crime and was therefore being subjected to
this un-dignifying punishment . By refusing my client the right to return to school, the school is directly denying
Nadia this right. Any transgression that is punishable by something as severe as being denied return to school is seen
as a disgrace-able offence by modern day society and the perpetrator is subjected to enormous moral prejudice. This
is unfortunately happening to my client as her community and peers will now view her as “a teenager who is not
attending school with the rest of the children her age because she has a baby.” which I believe is not one or the most
dignified manners of being viewed by. As stated by Rampai J: [5] “Without encouraging schoolgirl pregnancies,
those who become pregnant should not be uncaringly treated as outcasts.” The respondent has unfortunately failed to
do this in my client’s case and they have also failed to respect and protect my client’s inherent dignity. As stated in
the book-[6]Child Law in South Africa by Trynie Boezaart, Chapter 18: The Impact of Constitutional Rights on
Education: “ Unfair discrimination has been defined by the Constitutional Court as unequal treatment that impairs
human dignity, or affects a person in a comparably serious manner. The right guaranteed by section 10 to have one’s
inherent dignity as a human being respected and protected is another fundamental right which underlies many if not
all other rights. The exercise of other rights comprises various manifestations of human dignity and as such human
dignity is the cornerstone for the protection of such other rights. Often, when another right is violated, the violation
also constitutes an infringement of human dignity.” After seeing this it is quite clear that this policy infringes more
than one of Nadia’s fundamental rights (right to dignity and right not to be discriminated against) and is therefore
unconstitutional.
049
Secondly, not allowing my client to continue with her education will not only affect her on the basis of dignity now
but for a very long time in the foreseeable future as well. Although my client is allowed to write her exams at the
end of the year, she will be unable to properly prepare for the exams without being able to attend her classes as she
her mother is not financially capable to hire a tutor for her, meaning she is inevitably going to fail the year.
2
The Promotion of Equality and Prevention of Unfair Discrimination Act 4 of 2000, Section 1 (2) (a)
The Promotion of Equality and Prevention of Unfair Discrimination Act 4 of 2000, Section 1 (2) (b)
4
The Constitution of the Republic of South Africa Act 108 of 1996, Section 10
5
Welkom High School and Another v Head, Department of Education, Free State Province, and Another case 2011 (4) SA 531 (FB)
6
Child Law in South Africa by Trynie Boezaart, Chapter 18
3
This means that when and if she does return to school she will be a year behind her peers and will therefore be a
laughing stock as is every other pupil who has to repeat a grade. A study undertaken by The University of Harvard
revealed that 80% of girls who leave school due to pregnancy do not return to school. There is therefore a huge
possibility that Nadia will not return to school therefore continuing to make her an outcast and laughing stock as
society has never viewed uneducated persons worthy of dignity and respect.
Issue Four
Synopsis of Issue Four:
Issue four deals with the policy’s infringement of Nadia’s right to education and how the limitation of this right is
not justified. It also deals with the best interests of the child as it is in Nadia’s child’s best interests that she be
allowed to return to school as soon as possible.
[7]
Section 29 (1) (a) of the constitution states that everyone has the right to a basic education including adult basic
education, the school is directly infringing on my client’s right to education by not allowing her to return to school.
The South West High Court however states that this is justified as it is in the best interests of other learners at the
school for learners who have given birth not to attend classes for the remainder of the year as they fear that other
learners (maybe those who have given birth in the past and served the period of absence) will see this as ‘unfair’ and
that this will give other learners the perception that it is okay to fall pregnant and this will breed ill-discipline among
the learners. [8]There is however, no reason to believe, nor has the school presented any evidence to show, that a
learner who is granted an exemption from the provisions of the code will be any less disciplined or that she will
negatively affect the discipline of others. The only confirmed effect of granting my client an exemption is that some
of the girls might feel it is unfair. While that is unfortunate, neither the Equality Act nor the Constitution require
identical treatment. They require equal concern and equal respect. They specifically recognise that sometimes it is
fair to treat people differently and in this case it is in my client’s best interests to return to school as her mother does
not earn a lot and cannot get her a tutor to help her prepare for the end of year exams. It is quite clear that impairing
on Nadia’s right to education is a form of unfair discrimination as it discriminates on her under the prohibited
[9]
grounds of pregnancy. The Promotion of Equality and Prevention of Unfair Discrimination Act states that any
practice, including traditional, customary or religious practice, which impairs the dignity of women and undermines
equality between women and men, including the undermining of the dignity and well-being of the girl child is unfair
discrimination. Ignoring my client’s right to education is a clear breech of this act as it also a form of limiting
women's access to social services or benefits, such as health, education and social security, which also not allowed
as stated in the above mentioned act. As stated in issue three, there is a big chance that Nadia will not return to
school. Judging from this, it can be said that the school is indirectly imposing the burden of illiteracy on my client
which is obviously unconstitutional.
[10]
Next is the issue of the best interests of Nadia’s child. Section 28 (2) of the constitution states that: a child's best
interests are of paramount importance in every matter concerning the child. In this case it is quite obvious that [11]the
best gift that can be given to my client’s baby is to ensure that her mother continues to learn, so that she can become
a better parent and be able to independently provide for her daughter in the near and distant future. The respondent
however believes that it is in the best interests of the child to be taken care of by her own mother but they have not
presented any evidence to show that allowing my client to return to school will cause her to neglect this duty. An
average school girl spends 7 hours at school and 8 hours sleeping, the remaining 9 hours left in Nadia’s day can and
will obviously be dedicated to the rearing of her child, which is, as popular research shows, a healthy amount of time
for a mother to spend with her child. The child is after all quite healthy and does not need a too much care. When
Nadia is not available, she will be taken care of, as we have stated, by Nadia’s mother who has more parenting
experience than Nadia herself. However , if Nadia does not return to school, though she will be spending more time
at home, she will be too preoccupied with preparing for the exams and other household duties that she will in fact
neglect the duties of child rearing as she will have too much on her plate. The respondent is unfortunately looking at
this situation narrow-mindedly. They have to consider the possibilities of something happening to Tsepo or Nadia’s
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mother in the future. As Nadia will still be in school or uneducated, she will not have the sufficient resources to take
care of the baby so it is obviously better for her to finish her education now when there is still someone to help her
take care of her child her having to juggle parenting and working all alone in the future.
They may not realise it now but the respondent is also infringing on many of the child’s rights by not allowing her
mother to return to school. Firstly, as the stated previously, there is a huge possibility that Nadia won’t return to
school.
7
The Constitution of the Republic of South Africa Act 108 of 1996, Section 29 (1) (a)
MEC for Education, KwaZulu-Natal and Others v Pillay 2008 (1) SA 474 (CC)
9
The Promotion of Equality and Prevention of Unfair Discrimination Act 4 of 2000, Section 8 (1) (d)
10
The Constitution of the Republic of South Africa Act 108 of 1996, Section 28 (2)
11
Welkom High School and Another v Head, Department of Education, Free State Province, and Another case 2011 (4) SA 531 (FB)
8
Nadia’s child will be stigmatized due to the fact that she might end up having an uneducated mother. In turn Nadia
may not be able to see to some of the child’s fundamental rights such as the right to education as she may not have
enough money to pay the child’s school fees. As time goes by, more of these rights that the respondent is infringing
will become clearer but it will be unfortunately too late so it is better for Nadia to be allowed to return to school in
order to avoid all these misfortunes and see to the best interest of the child.
Conclusion
After examining all the above issues, it is safe to conclude that the school’s policy is infringing not only on Nadia’s
rights but her child’s as well. The South West High Court had decided that the limitation of Nadia’s right to
education is justified but they did not consider the right to not be discriminated against, her right to have her dignity
respected and her child’s right to have her best interests looked after. After weighing these rights to the arguments
presented by the school, it will be absurd to say the limitation is still justified. It is quite obvious that the school
bases their policy on unfair discrimination and their policy is therefore unconstitutional and the court should readmit
my client without further delay.
Bibliography- as set out in the footnotes, references
1
The Constitution of the Republic of South Africa Act 108 of 1996, Section 9 (2) & (3)
2
The Promotion of Equality and Prevention of Unfair Discrimination Act 4 of 2000, Section 1 (2) (a)
3
The Promotion of Equality and Prevention of Unfair Discrimination Act 4 of 2000, Section 1 (2) (b)
4
The Constitution of the Republic of South Africa Act 108 of 1996, Section 10
5
Welkom High School and Another v Head, Department of Education, Free State Province, and Another case 2011
(4) SA 531 (FB)
6
Child Law in South Africa by Trynie Boezaart, Chapter 18
7
The Constitution of the Republic of South Africa Act 108 of 1996, Section 29 (1) (a)
8
MEC for Education, KwaZulu-Natal and Others v Pillay 2008 (1) SA 474 (CC)
9
The Promotion of Equality and Prevention of Unfair Discrimination Act 4 of 2000, Section 8 (1) (d)
10
11
The Constitution of the Republic of South Africa Act 108 of 1996, Section 28 (2)
Welkom High School and Another v Head, Department of Education, Free State Province, and Another case 2011
(4) SA 531 (FB)
049
SEPTEMBER V EGOLI HIGH SCHOOL
Written arguments for the Respondent
The School Governing Body of Egoli High School (henceforth the respondent), submits that its decision to not allow
Nadia September (henceforth the applicant) to return to school after giving birth was justly and that the school’s
policy on learner pregnancies which requires Nadia to serve a leave of absence of up to two years is not
unconstitutional and does not discriminate against her unfairly. My client (the respondent) requests that the court
does not readmit her to school until she has served the above mentioned leave of absence. The following arguments
aim to prove that the policy is not at all unconstitutional and although it does discriminate against her, it does not do
so unfairly.
Issue One
Synopsis of Issue One:
Issue one contains two points, the first being the legal applicability of the school’s policy on learner pregnancy and
how it is not ( as some will thin) void in terms of Nadia’s case. The second point deals with the fact the school’s
code of conduct is a contract that the applicant entered into when she began enrolment at the school and she is
therefore suppose to abide by the rules stated in policy without special exemption whatsoever.
Firstly, it has come to my attention that the applicant may think that the school policy is void, as the facts presented
to us and the court state that Nadia gave birth during the school holidays and tried to return to school after the
holidays. Many people will run to the assumption that due to the above stated fact, Nadia did not break the policy’s
rules as she did not leave school in order to give birth. This assumption is however incorrect, when a woman is
pregnant, she is only able to go to work or school (whatever the case might be) for a maximum of +/- 8 months. This
is due to physical constraints which arise from pregnancy, such as contractions and back pains, but to name a few.
The woman is therefore forced to take a leave of absence for a minimum +/- 1 month which is usually referred to as
maternity leave. The April school holidays have never been and will never be that long and from this it is quite clear
that although Ms September did give birth during the school holidays, she obviously left school during the term and
the policy is therefore not void and quite applicable in the applicant’s case.
Secondly, [1]section 8 (1) of the South African Schools Act states that subject to any applicable provincial law, a
governing body of a public school must adopt a code of conduct for the learners after consultation with the learners,
parents and educators of the school. Subsection 2 of the schools act carries on to say that a code of conduct referred
to in subsection (1) must be aimed at establishing a disciplined and purposeful school environment, dedicated to the
improvement and maintenance of the quality of the learning process.When a learner begins enrolment at a school,
he/she is given a copy of the school code of conduct which they are expected to read in order for them to be aware
of the rules that govern the school. In most if not all schools, the learners and their parents are asked to sign an
agreement which obligates the learner to abide by the rules and regulations stipulated in the code of conduct adopted
by that particular school, therefore acting as a legally binding contract. Nadia was well aware of the consequences of
getting pregnant but chose to ignore the rules in the school’s code of conduct which state that no learner can be
readmitted to school in the same year they left school due to a pregnancy. We acknowledge the fact that the
applicant has the right to education but with the right to education comes the responsibility to abide by the rules of
the institution in which you are learning. Nadia has failed to fulfil this responsibility and has therefore breeched the
contract she entered into when she started learning at Egoli High School. Due to this and other reasons which shall
be stated in following points, Nadia’s right to education is limited. The schools policy is not in any way
unconstitutional because if it was, the applicant should have challenged its constitutionality before she signed the
code of conduct in grade 8 and not now, only because she has failed to abide by the rules. The applicant’s action to
challenge its constitutionality is not only irresponsible but immature as well and in no way should she be given
special treatment as she is not the first girl at the school to fall pregnant and will not be the first to serve the leave of
absence required of her by the policy.
1
No. 84 of 1996: South African Schools Act, 1996, Section 8 (1) & (2)
Issue Two
049
Synopsis of Issue Two:
Issue two contains two points, the first being how the SGB’s policy does not unfairly discriminate against the
applicant on the basis of gender as the leave of absence required of her is just a mere form of maternity leave. The
second point deals with the fact that although Nadia has been stigmatised, this stigmatisation was not brought onto
the applicant by my client but by herself.
The applicant argues that the school’s pregnancy policy unfairly discriminates against her on the basis of her gender
as Tsepo, the father of her child, is still allowed to attend school. The applicant has however failed to recognise that
not being allowed to return to school is not a punishment but in fact a privilege. As stated in issue one, when a
working woman (or in Nadia’s case, a learner) is pregnant, when they are about to give birth they begin maternity
leave, whereby they are excused from work or school due to the fact that the physical burdens brought by pregnancy
restrain them from carrying on with school or work. Maternity leave does not end there, after giving birth mothers
continue with their maternity leave in order to exercise full responsibility of parenting. My client’s action to not
allow Nadia to return to school is actually a mere granting of this systematic maternal leave as when a child is in
his/her early stages of life they need to spend as much time with their mother as possible and never have we heard of
a father being granted maternal leave. As stated by the constitutional court in the case: [2] President of the Republic
of South Africa and Another v Hugo 1997 (4) SA 1 (CC): although no statistical or survey evidence has been
produced to establish this fact, there is no reason to doubt the assertion that mothers, as a matter of fact, bear more
responsibilities for child-rearing in our society than do fathers. This statement, of course, is a generalisation. There
will, doubtless, be particular instances where fathers bear more responsibilities than mothers for the care of children
and it is quite unfortunate that this is not the case with Nadia, Tsepo and their baby. The constitution recognizes that
people may be treated differently for valid reasons and therefore does not prohibit all discrimination, only unfair
discrimination. [3] Section 13, subsection 1, paragraphs a and b of The Promotion of Equality and Prevention of
Unfair Discrimination Act state that: If the complainant makes out a prima facie case of unfair discrimination- (a)
the respondent must prove, on the facts before the court, that the discrimination did not take place as alleged; or (b)
the respondent must prove that the conduct is not based on one or more of the prohibited grounds. I have proven
both on behalf of my client as my client is not discriminating against the applicant in any way but is in actual fact
granting her the right to which every mother is entitled to: maternity leave, and if it can be termed as discrimination,
this discrimination is systematic in nature and is therefore fair.
Next is the matter of the respondent infringing on the applicant’s dignity. [4] Section 10 of the South African
constitution states that: “Everyone has inherent dignity and the right to have their dignity respected and protected”.
The respondent has fully observed Nadia’s right to inherent dignity as its refusal to let her to return to school does
not in any way impair on this right. We accept that Nadia has been stigmatized but refuse to claim responsibility for
this, for if anyone is to blame for the applicant’s stigmatization, it is Nadia herself. Nadia’s decision to fall pregnant
is the reason she has been stigmatized by society as many of the adults in society today grew up in the 19th century
[5]
when the pregnancy of a schoolgirl was regarded as one of the worst transgressions a learner could commit. It was
seen as a symptom of serious ill-discipline. It was a punishable misconduct. The punishment was outright expulsion
from school. We have to be honest with ourselves and frankly admit that those old societal perceptions of schoolgirl
pregnancies are still alive and well in our society. There is still a great deal of intolerance towards pregnant
schoolgirls. My client is in fact protecting the applicant’s dignity as girls who return to school straight after giving
birth need a lot of moral support and assistance from the people around them and as stated in the above fact, due to
“old societal perceptions”, she will most probably not be given this by her society and will end up enduring much
hardship due to lack of support. If this is to happen and the applicant is to fail her current grade, it will lead to her
being even more stigmatized as she will be viewed as a failure which something modern society does not see as
being worthy of this inherent dignity therefore leading to her dignity being impaired not only now but in the future
as well. All these acts that will infringe on the applicant’s dignity will in no way be due to my client’s actions as
their actions are meant, as I have proven, to protect her therefore proving that their policy is not unconstitutional.
2
President of the Republic of South Africa and Another v Hugo 1997 (4) SA 1 (CC)
The Promotion of Equality and Prevention of Unfair Discrimination Act 4 of 2000, Section 13 (1) (a) & (b)
4
The Constitution of the Republic of South Africa Act 108 of 1996, Section 10
5
Welkom High School and Another v Head, Department of Education, Free State Province, and Another case 2011 (4) SA 531 (FB)
3
Issue Three
Synopsis of Issue Three:
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Issue three deals with three important points being: how, after weighing them against others’ rights, the limitation
of Nadia’s right to education is justified, the best interests of her child as a child’s best interest are of paramount
importance and the best interests of the applicant herself.
Firstly, when the South West High Court ruled in favour of the school’s pregnancy policy they noted that it is in the
best interests of other learners at the school for learners who have given birth to not attend school for the remainder
of the year. This is due to the fact that other learners will feel that it is unfair as she is not the first one to fall
pregnant and, judging by the fact that the SGB hasn’t encountered a problem like this in the past, they have all
adhered to the rules of the policy. It will give learners the perception that there are certain learners who are given
special treatment and this will lead to the breakdown of discipline in the school. [6] Section 8 (2) of the schools act
states that: A code of conduct referred to in subsection (1) must be aimed at establishing a disciplined and
purposeful school environment, dedicated to the improvement and maintenance of the quality of the learning
process. No learner is exempt from the obligation to comply with the code of conduct of the school he or she attends
and if Nadia is allowed to return to school, it will be a clear breech of this act. Furthermore, at an annual general
meeting of the Egoli High School in 2011, serious concern was expressed by parents about the high number of
teenage pregnancies at the school. It was therefore agreed at this meeting that the SGB’s policy on learner
pregnancies would be strictly applied. Readmitting Nadia to the school will do the exact opposite of this, it will give
other female learners the perception that it is okay to fall pregnant while still in school for there will be no
punishment. This is one of the reasons that Nadia’s right to education’s limitation is justified.
The other is that from the previous paragraph it is safe to conclude that the applicant is not the 1st learner from the
school to fall pregnant and the rest have served their leave of absence. Nadia’s right to education is therefore limited
due to the fact that [7] section 36 of the constitution states that the Bill of Rights are limited if granting these rights to
an individual will have a negative effect on the human dignity, freedom and equality of another individual. The
other girls who have served the leave of absence in the past will feel that they are unworthy because they were not
allowed to return to school but Nadia was and in turn they will be stigmatised by society due to the fact that society
will think that something is wrong with and that they are inferior to Nadia. This will be a direct breech of the
equality principle and it is therefore in the best interests of everyone for Nadia to not return to school for the time
being. Some will say that neither the equality act nor the constitution require identical treatment and that the
respondent has not presented any evidence that exempting the applicant from the policy’s rules will negatively affect
the discipline of others but this is exactly the same kind of situation that the world wide phenomenon “peer
pressure” grows from due to the fact that when children see someone do something wrong and they are not punished
for it, they think it’s right and in turn are influenced to do the same therefore breeding an attitude of: “if she did it,
why can’t I?”.
Second is the issue of the child’s best interests. [8] Section 9 of the constitution states that: in all matters concerning
the care, protection and well-being of a child, the standard that the child’s best interest is of paramount importance,
must be applied. Child being a person under the age of eighteen and this case the child is under 5 months old.
Accordingly, paediatricians label a baby’s first three months as the fourth trimester of pregnancy to emphasise how
needy and devoid of skills babies are at this stage. The first social smile, for example, does not appear until the
infant is 10-14 weeks old and the first phase of attachment begins at around 5 months old. It is therefore of
paramount importance that Nadia doesn’t return to school in order for her to see to the emotional and physical needs
of the fragile infant baby. It would be irresponsible for Nadia to leave the child’s side before she has even reached
the first phase of attachment. The applicant argues that her mother will take care of the baby when Nadia is at school
but it is much better for the child to be taken care of by her own mother and for her to be attached to her own mother
instead of other older female figures who the baby will not be with for long. Weighing this against Nadia’s right to
education, it is quite clear that the limitation is justified and the policy is in no way unconstitutional.
Lastly is the issue of the applicant’s best interests and how the SGB’s policy aims at protecting them as well.
6
No. 84 of 1996: South African Schools Act, 1996, Section 8 (2)
The Constitution of the Republic of South Africa Act 108 of 1996, Section 36 (1)
8
The Constitution of the Republic of South Africa Act 108 of 1996, Section 9
7
While many girls who become mothers before completing schooling consider academic qualifications to be very
important, they may not be able to succeed academically if the support they need to complete their studies is
insufficient. Usually, instead of getting support, the teen mothers endure misunderstandings and pressure. The teen
mothers may feel disempowered because they are stigmatised and consequently, they develop forms of resistance
which in most cases may foster their failure as learners. While it is no longer common to bar teen mothers from
continuing with their education, those who go back to school after the birth of their babies face a number of
challenges as learners and that makes it hard for them to succeed with their schooling. Nadia being adolescent
049
mother, will face difficulties and experience undue pressure from her parents, peers and teachers. She may receive
very little support from school. Teenage childbearing is often associated with numerous disruptions for girls when it
comes to school attendance The girls need tremendous support to untangle the disruptions and unfortunately, Nadia
will not receive this support now which is why she should take some time off for parenting and when the time is
right, she will return to school with the necessary support and endure success.
Conclusion
After examining all the above issues, it is safe to conclude that the school’s policy is not, as alleged, discriminating
against the applicant on the basis of gender but in fact protecting her and her baby’s interests. The South West High
Court’s decision that the limitation of Nadia’s right to education is justified, was correct as they considered her
baby’s and other learners rights as stated in the arguments above and after weighing these rights against the
applicant’s right to education, it would be irresponsible of the court to readmit Nadia to school before she has served
her leave of absence. It is quite obvious that the school bases their policy on fairness and their policy is therefore
constitutional as it looks out for the best interests of its learners.
Bibliography- as set out in the footnotes, references
1
No. 84 of 1996: South African Schools Act, 1996, Section 8 (1) & (2)
2
President of the Republic of South Africa and Another v Hugo 1997 (4) SA 1 (CC)
3
The Promotion of Equality and Prevention of Unfair Discrimination Act 4 of 2000, Section 13 (1) (a) & (b)
4
The Constitution of the Republic of South Africa Act 108 of 1996, Section 10
5
Welkom High School and Another v Head, Department of Education, Free State Province, and Another case 2011
(4) SA 531 (FB)
6
No. 84 of 1996: South African Schools Act, 1996, Section 8 (2)
7
The Constitution of the Republic of South Africa Act 108 of 1996, Section 36 (1)
8
The Constitution of the Republic of South Africa Act 108 of 1996, Section 9