The constitutionality of the National Policy on the Prevention and Management of Learner Pregnancy in Schools has been highly contested at the Constitutional Court in Johannesburg, as a bench of Justices and Judges presided over a fictional case of a pregnant learner who was suspended from school after the discovery of her pregnancy. In the context of the case, the school went as far as scrolling through the learner’s cell phone to establish the identity of the father of the unborn child before taking its decision on the matter. In this case, the school decided to suspend the learner. The case was submitted to the Constitutional Court on 9 October 2022, as part of the 2022 National School Moot Court finals.

Deputy Minister for the Department of Justice and Constitutional Development, Mr John Jeffery, delivered the keynote address at the National Schools Moot Court. The South African Schools Moot Court Programme is a joint initiative of the Department of Basic Education (DBE), in partnership with the Department of Justice and Constitutional Development, and the South African Human Rights Commission (SAHRC), supported by the University of Pretoria. All high schools in the country are invited to enter a team of two learners, who argue both sides throughout the stages of the competition until the Constitutional Court delivers the final ruling. The Moot Court aims to create greater awareness in schools and communities in South Africa about the Constitution and the values that it embodies through active participation. The aim is also to encourage talented young people to consider pursuing law as a career.

The argument by the applicant was that the pregnant learner's rights were violated. These included the right to privacy, right to education, right to freedom of choice and right to dignity and freedom of association. Although the applicant team noted the disciplinary hearing measures taken by the school, in this instance, the hearing was deemed unfair and unreasonable since it overlooked the learner's rights holistically. In their submission, the applicant declared the suspension of the learner unconstitutional since the school resorted to punishing her, ignoring other existing measures set out in the Policy. The respondent team defended the school’s decision, saying that the learner was suspended to discipline her. The respondent team also argued that the suspension was also meant to send a strong message to other girl learners to be enlightened about the consequences of teenage pregnancy in schools. The Concourt has since ruled in the Applicant’s favour. The 2022 National Schools Moot Court Championship went to the Applicant team consisting of Jessi Francis and Nicole Mufudze from Western Cape Girls’ High School and their duo consisting of Luthando Zondi and Amahle Ngubani from Ntsikayethu Secondary School in the KwaZulu-Natal Province.

According to the Policy, the Basic Education Sector is expected to provide Comprehensive Sexuality Education, which includes sexual and reproductive health (SRH) services and access to effective contraceptive technologies in association with social sector partners, to empower learners to make informed choices and avoid unintended conception or having to seek the termination of pregnancy. It expects the sector to ensure the return and retention of learners, post-delivery, in an appropriate grade in the basic education system. The sector is also mandated to facilitate access or referral to antenatal care during learner pregnancy at the school-level in conjunction with other social sector partners and NGOs. The sector is also mandated to ensure that schools provide a stigma-free, non-discriminatory and non-judgemental environment for pregnant learners, pre- and post-delivery, to support their physical and psychological health and dignity.

In the same vein, the Constitution clearly states that learners cannot be expelled from school on the basis of their pregnancy. The Bill of Rights guarantees learners the right to basic education, despite their pregnancy or post-pregnancy status. No person, school, policy or practice may unfairly discriminate against learners based on their pregnancy or post pregnancy status or based on their access to pregnancy prevention or termination measures and/or access to healthcare services during and after pregnancy. In the case of the Moot Court argument, if the child's biological father was a pupil, he required counselling and guidance to exercise his rights and responsibilities. However, if the child's father was a teacher or a school staff member within the education system, suspension and disciplinary hearing would have been constitutionally expected. What remained unclear in the contestation is whether an adult who is not a school employee would also be bound by the protocols stated in the Policy and whether the education sector has jurisdiction to take that adult to task. Deputy Minister Jeffery congratulated the Moot Court winners and thanked the DBE and Provincial Education Departments for making the programme a success.