Pregnant and out of school contracts – untenable

July 1st, 2017
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By Nicholas Mgedeza

It is well known that within both the public and private school system, there are schoolgirls that fall pregnant during their tenure as students. This has culminated in some schools seeking ways to curb this perilous trend by petitioning and compelling girls to undertake not to fall pregnant during their time as students. The contract generally includes a breach clause, which stipulates that in the event a girl falls pregnant, she agrees to automatic expulsion from the school. The objective of this article is to analyse and determine whether such contracts are tenable and justifiable.

Background and current position

With reference to the Sowetan newspaper article (Bongekile Macupe ‘Pupils forced to promise they will not fall pregnant’ www.sowetanlive.co.za, accessed 1-6-2017), it states: ‘A Mpumalanga high school is forcing girl pupils to sign a form committing that they will not fall pregnant and if they do; they should be kicked out’ bears concrete testimony. One of the grade 10 pupils at DM Motsaosele Secondary School in KwaGuqa, Witbank told the Sowetan that: ‘They said if we fall pregnant after signing the form we will be kicked out. I feel it’s unfair because sometimes mistakes happen and you don’t mean to fall pregnant. So what am I supposed to do at home if I’m kicked out of school?’ Moreover, Business Day (Michelle Gumede ‘Motshekga addresses vandalism and student pregnancy’ www.businesslive.co.za, accessed 1-6-2017) reported that according to the 2015 Annual School Survey, an estimated 15 470 students fell pregnant in that year, with some of the girls being in primary school. The majority of the girls who fell pregnant were between the ages of 14 and 18.

Contracts

Party autonomy is conferred on the general principle of contracts, which finds expression in the doctrine of pacta sunt servanda. This approach leaves space for the doctrine of pacta sunt servanda to operate, but at the same time allows the court to decline to enforce contractual terms that are in conflict with constitutional values, even though the parties may have consented to them. In the Zimbabwean High Court matter of Mandizvidza v Chaduka NO and Others (ZH) (unreported case no HH236-99, 24-11-1999) (Gwaunza J), the applicant was a woman enrolled for a three year teacher training course at a college run by a church. Part of her sponsorship came from the state. Before enrolling in the course, she signed a contract in which it was agreed that she would be withdrawn from the course if she became pregnant. In her second year of the course she married a man according to customary law, and shortly thereafter she fell pregnant. The respondent, the principal of the college, required the applicant to withdraw from the college. The applicant sought a declaration that the policy of expelling or suspending pregnant students was unconstitutional and that she should be allowed to write her examinations. Ultimately, the court ruled that the clause of this nature is untenable and contrary to public policy.

Constitutional position

Section 29(1) of the Constitution tersely provides that: ‘Everyone has the right –

(a) to a basic education, including adult basic education; and

(b) to further education, which the state, through reasonable measures, must make progressively available and accessible.’

Section 9(3) of the Constitution prohibits the state from unfairly discriminating against anyone on one or more grounds that are specified in the subsection. The preamble of Promotion of Equality and Prevention of Unfair Discrimination Act 4 of 2000 (the Act) stated, inter alia, that s 9 of the Constitution provides for the enactment of national legislation to prevent or prohibit unfair discrimination and to promote the achievement of equality. Section 1 of the Act denotes ‘equality’ as the ‘full and equal enjoyment of rights and freedoms as contemplated in the Constitution’ and includes de jure and de facto equality and also equality in terms of outcomes. Furthermore, the Act unequivocally defines ‘prohibited grounds’ as –

‘(a) race, gender, sex, pregnancy, marital status, ethnic or social origin, colour, sexual orientation, age, disability, religion, conscience, belief, culture, language and birth; or

(b) any other ground where discrimination based on that other ground –

(i) causes or perpetuates systemic disadvantage;

(ii) undermines human dignity; or

(iii) adversely affects the equal enjoyment of a person’s rights and freedoms in a serious manner that is comparable to discrimination on a ground in paragraph (a).’

Section 8 lucidly provides that ‘no person may unfairly discriminate against any person on the ground of gender, including –

(d) 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;

(e) any policy or conduct that unfairly limits access of women to land rights, finance, and other resources;

(f) discrimination on the ground of pregnancy;

(g) limiting women’s access to social services or benefits, such as health, education and social security.’

Moreover, s 5(1) of the Schools Act 84 of 1996 states that ‘[a] public school must admit learners and serve their educational requirements without unfairly discriminating in any way’.

The right to education imposes on those bound by the right negative duties not to interfere with the educational processes in which bearers of the right are involved, but also, and in particular, positive duties to provide access to, means, facilities and support for basic and further education. Although the right to ‘basic education, including adult basic education’ is not qualified in the text of the provision, the right may be limited if the requirements of s 36 of the Constitution are complied with (IM Rautenbach ‘Introduction to the Bill of Rights’ Bill of Rights Compendium (Durban: Lexis Nexis 1996) at 1A76). Ngcobo J stated in Barkhuizen v Napier 2007 (5) SA 323 (CC) ‘… the proper approach to the constitutional challenges to contractual terms is to determine whether the term challenged is contrary to public policy as evidenced by the constitutional values, in particular, those found in the Bill of Rights.’ In the matter of Head of Department, Department of Education, Free State Province v Welkom High School and Others 2014 (2) SA 228 (CC), the governing bodies of the respondent schools adopted pregnancy policies for their respective schools providing for the automatic exclusion of any learner from school in the event of her falling pregnant. When each of the schools excluded a pregnant learner in terms of the policies, the applicant ordered the schools to readmit the learners who had been excluded. The schools successfully approached the High Court to interdict the applicant from interfering with the implementation of the policies. On appeal to the Supreme Court of Appeal (SCA), the award of the interdict was, in both cases, upheld by that court, subject to certain limitations not imposed by the High Court. The applicant sought to appeal to the Constitutional Court (CC). The CC held at paras 113-116 as follows: ‘First, the policies differentiate between learners on the basis of pregnancy. Because the differentiation is made on the basis of a ground listed in s 9(3) of the Constitution, it is both discrimination and presumptively unfair. Furthermore, the policies differentiate between male learners and female learners. A male learner at Welkom may only be given a “leave of absence” for paternity purposes if the pregnant learner can prove that he is the father of the unborn baby. … [T]herefore, the policies lead to presumptively unfair discrimination on the basis of sex.

Second, the policies limit pregnant learners’ fundamental right to basic education in terms of s 29 of the Constitution, by requiring them to repeat up to an entire year of schooling. …

Third, the policies prima facie violate learners’ rights to human dignity, privacy and bodily and psychological integrity by obliging them to report to the school authorities when they believe they are pregnant. In addition, all other learners are required to report to school authorities when they suspect that a fellow learner is pregnant. The policies thus have the effect of stigmatising pregnant learners for being pregnant and creating an atmosphere in which pregnant learners feel the need to hide their pregnancies rather than seek help from school authorities for medical, emotional and other support.

Fourth, by operating inflexibly, the policies may violate s 28(2) of the Constitution, which provides that a child’s best interests are of paramount importance in every matter concerning the child. The policies require that pregnant learners must leave school for the remainder of the year in which they give birth, without regard to the health of the learner, the point in the school year at which she gives birth, arrangements she has made for appropriate care for her new-born, the wishes of the learner and her parents, or her capacity to remain in school. The policies are designed in such a way as to give the school governing bodies and principals no opportunity to consider the best interests of pregnant learners.’

Clearly, the CC condemned the policies that expel a pregnant female pupil from the school. (See also Head of Department, Mpumalanga Department of Education and Another v Hoërskool Ermelo and Another 2010 (2) SA 415 (CC)).

Applicable policy

The 2007 national policy on Measures for the Prevention and Management of Learner Pregnancy (the policy) provided that ‘[n]o learner should be re-admitted in the same year that they left school due to a pregnancy’. In a nutshell, this policy required the pupil who has conceived to take leave of absence. The policy asserts the Constitutional rights of pregnant learners to continue and complete their basic education without stigma or discrimination. Specifically, it confirms that there should be no exclusion of pregnant learners who must be allowed to remain in school during their pregnancies and return as soon as possible after giving birth as is appropriate for both the learner and her child. For its part, the school is required to accommodate the reasonable needs of the learner to ensure that her right to education is not disrupted or ended by pregnancy or birth.

Conclusion

The contract wherein the parties agree that, should the female pupil conceive the ultimate effect will be expulsion from the school for that particular year are, in principle, unlawful (as they are contrary to public policy) and do not pass constitutional muster. Furthermore, the policy gives the green light to the pregnant learners to continue and complete their basic education without stigma or discrimination. This policy is progressive in content in that it explicitly makes the provision for comprehensive sexuality education and it affirms that the adage ‘if you educate a woman you educate a nation’ holds true. Likewise, on balance of inconvenience, the repercussions of girls dropping out of school due to pregnancy cannot be underestimated. As the nation we must be concerned about improving the educational rights of girls who become pregnant in relative to the overflowing oppression, which will culminate in the dropouts being at the bottom of the economic level and faced with bleak futures.

Nicholas Mgedeza BPRoc (Unisa)  Cert in Provincial and Local Governmnet (Unisa) Cert in Commercial Law (LEAD) Mediation (LEAD) is an attorney at the state attorney in Pretoria.

This article was first published in De Rebus in 2017 (July) DR 52.

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