Brave teen’s ConCourt pregnancy fight ends in victory

When 16-year-old Thembi* gave birth to a baby girl in January, there was no money for the 70km taxi trip to register the baby with ­authorities.

Kicked out of school for getting pregnant, Thembi has spent the better part of the last year at home.

She lives with her grandmother, aunt and a sibling in one of the townships built by the apartheid regime on the fringes of a far-flung Free State town.

The family make do with Thembi’s grandmother’s pension, as well as the money her mom earns as a domestic worker in Pretoria.

But Thembi’s story differs from those of thousands of pregnant school girls who turn up in South Africa’s classrooms every year.

On January 28 this year, with Thembi already missing her second year of Grade 10, the family dressed in their best clothes to meet Karabo Ngidi, an attorney from Pretoria.

Thembi didn’t know it then, but in little more than a month her story was to be heard before the justices of the Constitutional Court, South Africa’s highest court.

“I want to place before this court that we act for a 16-year-old schoolgirl in the Free State, who, through a similar policy, was excluded from school for two years,” Advocate Nasreen Rajab-Budlender said on Tuesday.

“She is aware of this case and wanted to participate.”

Both Rajab-Budlender and ­Ngidi were acting for the Centre for Child Law, which has asked the Constitutional Court to protect the rights of girls like Thembi to ­attend school when they get pregnant.

The litigation started when the Free State education department’s head of department (HOD) attempted to prevent the governing bodies of two ­well-off schools from sending two pregnant school girls home.

Both governing bodies had adopted “pregnancy policies”, which allowed for pregnant girls to be sent home.

The Supreme Court of Appeal eventually confirmed this order, but the question of whether the policies unfairly discriminated against girls was never at issue.

Thembi’s story changes this, ­because it shows the court that pregnant teenagers in isolated and poor areas are still being excluded from schools every day.

The familiar argument between the two governing bodies and the Free State education department focused on whether the HOD could legally tell the principals of the schools to disregard the policies of the school governing bodies.

But Thembi’s case has allowed the Centre for Child Law, along with the NGO Equal Education, to ask the Constitutional Court to declare such policies unconstitutional and to ensure that the rights of all pregnant girls are protected.

“(The girls), despite being pregnant and about to give birth, remain children themselves and are entitled to this court’s protection,” ­argued Rajaab-Budlender.

She quoted studies which indicate that teenage mothers who leave school are not likely to return and their children are, in turn, unlikely to be educated.

For Thembi, the ending has been a happy one.

She was allowed to return to school in February after lawyers’ letters informed the school that the policy would become subject to a constitutional challenge.

Ngidi said Thembi was eager to speak for other pregnant children, most of whom don’t come back to school.

Said Ngidi: “It can be hard when you work in our field, when you see the bravery of people in the toughest of circumstances.”

* Not her real name

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