, The Juridical Competence of School Governing Bodies in the Formulation of
Institutional Policy: An Interrogation of Learner Pregnancy Regulations within
South African Public Education
Introduction
The juridico-political architecture of post-apartheid South Africa vests in School
Governing Bodies (SGBs) a locus of authority that is simultaneously participatory and
circumscribed. Enshrined in the South African Schools Act 84 of 1996 (hereafter the
Schools Act), these bodies are endowed with the prerogative to formulate and
operationalise policies which govern the quotidian life of public schools. Yet, this power
is not unbounded: its exercise must be consonant with the imperatives of the
Constitution of the Republic of South Africa, 1996, which functions as the Grundnorm
of the legal system. Among the most vexed policy terrains is the regulation of learner
pregnancy—a domain fraught with socio-cultural, pedagogical, and constitutional
tensions.
This essay undertakes a doctrinal and jurisprudential exegesis of the SGB’s policy-
making authority in relation to pregnancy policies. It excavates the legislative
substratum, situates the discourse within constitutional norms, and interrogates
leading case law, most notably the seminal decision in Head of Department, Free State
Province v Welkom High School & Harmony High School (2013). The argument
advanced herein is that while SGBs possess a measure of autonomy to craft policies,
such autonomy is juridically contingent and must yield where its exercise collides with
the constitutional rights of learners.
The Legislative and Constitutional Framework
Constitutional Imperatives
The Constitution entrenches a panoply of fundamental rights that delimit the
permissible ambit of pregnancy policies. Section 29(1)(a) guarantees the right to basic
education in unequivocal and immediate terms, distinguishing it from other socio-
economic entitlements that are subject to progressive realisation (Jansen, 2015). To
truncate this right through exclusionary pregnancy policies constitutes a manifest
derogation.
Institutional Policy: An Interrogation of Learner Pregnancy Regulations within
South African Public Education
Introduction
The juridico-political architecture of post-apartheid South Africa vests in School
Governing Bodies (SGBs) a locus of authority that is simultaneously participatory and
circumscribed. Enshrined in the South African Schools Act 84 of 1996 (hereafter the
Schools Act), these bodies are endowed with the prerogative to formulate and
operationalise policies which govern the quotidian life of public schools. Yet, this power
is not unbounded: its exercise must be consonant with the imperatives of the
Constitution of the Republic of South Africa, 1996, which functions as the Grundnorm
of the legal system. Among the most vexed policy terrains is the regulation of learner
pregnancy—a domain fraught with socio-cultural, pedagogical, and constitutional
tensions.
This essay undertakes a doctrinal and jurisprudential exegesis of the SGB’s policy-
making authority in relation to pregnancy policies. It excavates the legislative
substratum, situates the discourse within constitutional norms, and interrogates
leading case law, most notably the seminal decision in Head of Department, Free State
Province v Welkom High School & Harmony High School (2013). The argument
advanced herein is that while SGBs possess a measure of autonomy to craft policies,
such autonomy is juridically contingent and must yield where its exercise collides with
the constitutional rights of learners.
The Legislative and Constitutional Framework
Constitutional Imperatives
The Constitution entrenches a panoply of fundamental rights that delimit the
permissible ambit of pregnancy policies. Section 29(1)(a) guarantees the right to basic
education in unequivocal and immediate terms, distinguishing it from other socio-
economic entitlements that are subject to progressive realisation (Jansen, 2015). To
truncate this right through exclusionary pregnancy policies constitutes a manifest
derogation.
