Mandizvidza v Chaduka No & ORS 1999 (2) ZLR 375 (H)
Constitutional law, MR L T Biti for the applicant. The applicant, a woman, enrolled for a 3 year teacher training course at a college run by a church. Before entering, she signed a contract in which it was agreed that she would be withdrawn from the course if she became pregnant. After she had been on the course nearly 2 years, she married a man according to customary law, and shorty afterwards became pregnant. The respondent, the principal of the college, required the applicant to withdraw from the college but recommended that the rejoin the next year’s course.
The applicant sought a declaration that the policy of expelling or suspending pregnant students was unconstitutional, in that it contravened s23(1) of the constitution and that she should be allowed to sit her examinations. The respondents argued that the college was a private institution, not a public authority, that the relationship between the parties was contractual and should be regarded asa a matter of personal law, and that the colleges right of freedom of association entitled it to exclude those persons who did not conform with its requirements.
held, that the college had sufficient “public” features to bring it within the definition of a public office of public authority. These features were that education is a public concern ain which the government plays a controlling and regulatory role; that the ministry of higher education regulated the colleges academic activities that the lecturers received their salaries from the state; and that the students enrolled at the college were sponsored by the state.
held, further that the conduct of the college was patently discriminatory. It was not saved by the requirement that a male student who caused the pregnancy of a female student should also withdraw from the college. A married male student would not be affected if his wife became pregnant, while a married female student who became pregnant would have to withdraw from the college. In addition, the reality was that it was mostly if not only pregnant female students who were visited with the penalty. The condition of pregnancy was a certain fat, while all that faced a male student was at best an allegation that he was responsible for a pregnancy an allegation he could deny
held further that the lack of child car facilities could not be used to justify the requirement for pregnant students to withdraw; rather, the lack of facilities was itself a form of discrimination
held further, that the principle of freedom of contract was outweighed by the principle of fairness. In any event, students did not in reality contract freely. they had no choice but to accept the terms of the contract. The contract did not preclude students from engaging in sexual activities and pregnancy could occur even if the most rigorous of contraceptive methods were used. It was unfair to punish the consequence of sexual activities and not the conduct that leads to it. The clause also did not distinguish between married and unmarried women, which was unfair and discriminatory even by religious standards.
- held, furthe4r that the enforcement of the discriminatory clause would be contrary to public policy in a count where concerted effort have been and continue to be made to eliminate discrimination on the grounds of sex or gender. Pregnancy in itself would not frustrate the primary purpose f the college which is to train teachers.