An ‘important purpose of section 34 [of the Constitution] is to guarantee the protection of the judicial process to persons who have disputes that can be resolved by law’ and that the right of access to court is ‘foundational to the stability of an orderly society. It ensures the peaceful, regulated and institutionalised mechanisms to resolve disputes, without resorting to self-help. The right of access to court is a bulwark against vigilantism, and the chaos and anarchy which it causes. Construed in this context of the rule of law and the principle against self-help in particular, access to court is indeed of cardinal importance’.The right guaranteed s34 would be rendered meaningless if court orders could be ignored with impunity:the underlying purposes of the right — and particularly that of avoidance of self-help — would be undermined if litigants could decide which orders they wished to obey and which they wished to ignore.
Sometimes people act in such unexpected ways that my normal stock explanations just don’t seem to fit. One such case is that of the pregnant and now married teenager who was first refused re-admission to
The principal and pupils of the school seemed deeply upset about allowing the pregnant pupil back, and the Department had to issue an order to allow her to continue her studies. The Department said that the teenager could not be discriminated against on the basis of her pregnancy or marital status.
Now my question is: why are people so upset about a pregnant married woman attending school. The problem is apparently not that she is pregnant, but that she is married.
I thought (as justice Sachs told us all at great length in the Fourie judgment on same-sex marriage) that marriage was considered a revered and wonderful institution in our country. I also thought that in our rather conservative society pregnant woman who marry the father of the child are thought of as morally superior to women who choose not to get married at all. In our society, there is a strong sense that it is much better to be unhappily married than to be a single mom.
Why then this antagonism towards the married mother? What is the perceived harm of allowing her to be enrolled at the school? The children interviewed on the radio claimed that by being married she became an adult and thus her presence somehow tainted the purity of their childhood. But these are 17 year olds who live in Rocklands in 2007 – not 17 year old Mormons from
The children also said that the principal had threatened to cancel the matric ball if the pregnant pupil would be allowed back, so one should take their words with a pinch of salt. Still, at least the principal felt so strongly about this that he has jeopardised his career to take this stand.
I think my question is legally relevant, because without providing a compelling reason for the ban, the school would not have a snowballs hope in hell to dispel the allegation that barring the pupil would constitute unfair discrimination.
In Constitutional terms, barring a pregnant married teenager from a school clearly constitutes discrimination on the basis of pregnancy and marital status. To justify this discrimination as not unfair the school will have to show that the purpose of the discrimination is so pressing and important that it overrides the potential affront of the dignity of the pregnant pupil.
Maybe readers of this Blog can provide me with insight as to why the married pupil’s presence at the school is seen as so terribly harmful to others. What kind of morality is at play here, or is there a practical explanation for this prejudice against the young mother to be?
Whatever the reasons, for me this case is also an interesting reminder that rights are mutually supporting and interdependent. When the right to education is read with the right not to be discriminated against, it becomes very difficult to justify the position of the principal in this case because here the pupil is being denied access to education because of the prejudice and discrimination.
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