The role of school governing bodies in promoting the best interests of the child in schools

Abstract

The “best interests of the child” principle is recognised in many international human right instruments. For instance, the United Nations Convention on the Rights of the Child1 (CRC) and African Charter on the Rights and Welfare of the Child (ACRWC) both of which are leading instruments on the rights of children make provision for it. In terms of both the CRC and ACRWC, the “best interests of the child” are to be given primary consideration in all dealings with children.2 Both instruments have been signed and ratified by South Africa. The Constitution of the Republic of South Africa,1996 has incorporated the “best interests of the child” providing under its section 28(2) that the “child’s best interests are of paramount importance in every matter concerning the child”.3 Despite such universal recognition of the principle, a legislative framework that regulates the South African schooling system is silent on the “best interests of the child”, giving priority rather to the school’s best interests. School Governing Bodies (SGBs), which are the highest decision-making organs in school governance, are required by the South African Schools Act4 (SASA) to promote the best interests of their schools.5 Unfortunately what is in the best interest of the school may not always be in the “best interests of the child”. The SASA’s silence on the principle, therefore, raises constitutional challenges in the entire schooling system of South Africa. In the past years, SGBs adopted school policies which in their views, were in the best interest of their schools, only to be rejected later by the courts for their inconsistence with the Constitution. For instance in Pillay v KZN Minister of Education and Others6 the school refused to allow a learner to wear a nose-stud to express her religion. The Constitutional Court had to decide whether the learner was discriminated against by the school’s code of conduct. The Court held that the learner was discriminated against by the on religious and cultural grounds. It was held that schools are obliged to affirm and accommodate diversity in a reasonable manner. In Head of Department of Education, Free State Province v Welkom High School and Others7, two high schools in the Free State adopted policies which excluded pregnant learners. The Court had to determine the legality of these pregnancy policies. Consequently, it was found that they violated section 28(2) of the Constitution, which explicitly provides that “a child’s best interests are of paramount importance in every matter concerning the child”. The above examples illustrate the nature of constitutional challenges in the schooling system caused by the SGBs’ failure to accord due recognition to the “best interests of the child” due to the SASA’s silence on the principle. The study discussed the role of SGBs in promoting the “best interests of the child” in schools. In the absence of a clear legislative framework mandating SGBs to promote the “best interests of the child” in schools, the research will analyse the nature and scope of the “best interests of the child” principle as contained in international treaties, the Constitution, legislation and case law in order to assess whether an obligation rests on SGBs to promote the “best interests of the child” in schools.