South Africa: South Gauteng High Court, Johannesburg

REPUBLIC OF SOUTH AFRICA

IN THE HIGH COURT OF SOUTH AFRICA

GAUTENG DIVISION

LOCAL SEAT, JOHANNESBURG

CASE NO:   39001/ 18

DATE OF HEARING : 3 MAY 2019

NOT REPORTABLE

NOT OF INTEREST TO OTHER JUDGES

REVISED

WRIGHT J

1.    The applicant is the mother of a learner, Ms N who was in Grade 11 at the first respondent school in 2018. The applicant is married to Ms N’s father who is a practicing attorney.

2.    On 25 March 2018 the school, in the person of the Chair of a disciplinary hearing into the conduct of Ms N recorded a finding of guilty on five counts and imposed a sanction of expulsion of Ms N, not from the school but from the boarding house. Ms N’s parents took this finding on internal appeal. The outcome, on 18 April 2018 was to some extent favourable to Ms N in that, while the guilty findings were upheld, a final written warning replaced the boarding house expulsion.  

3.    The charges at the initial hearing included disregard of house rules, for example late-coming, swearing in school uniform and disrespect towards staff.

4.    In prayer 1 of the notice of motion an order is sought declaring irregular the initial disciplinary hearing and the final written warning issued on internal appeal. It is not alleged that any irregularity occurred during the internal appeal process.  Regarding the initial hearing, the complaints are that the applicant, prior to the hearing requested more time to consider the charges, she had sought detail relating to the charges and she had sought copies of witness statements made by other learners and who might testify against Ms N at the hearing. A complaint was also raised in the internal appeal  that Ms N was not allowed to call witnesses in her defence. The Chair of the hearing proceeded nevertheless with the enquiry, resulting in the guilty findings and the sanction of expulsion from the boarding house. The names of the witnesses who allegedly would have been called to testify for Ms N were not supplied by the applicant, either in the notice of internal appeal or in the present case, nor is it alleged anywhere what they would have said. The answering affidavit baldly denies the complaints   and alleges that they do not have to be dealt with as the sanction was altered on internal appeal. A document dated 25 March 2018 and prepared and signed by the Chair bears out the applicant’s allegations.

5.    The Chair called five witnesses, all of them members of staff. At the end of the hearing the applicant was afforded an opportunity to address the Chair. She did so and stated that Ms N should apologise for her behaviour. Ms N then apologised. The Head Executive of the school, on internal appeal, confirmed the guilty findings but reduced the sanction of expulsion from the boarding house to one of final written warning. He did so as he thought that the sanction of expulsion from the boarding house was too harsh.  

6.    Under clause 6 of the school’s “Policy On Learner Discipline And Disciplinary Procedures” when a serious infringement possibly warranting learner suspension or expulsion occurs, or in the case of a further alleged infringement by a learner with a valid final warning on his/ her file, the school may conduct a formal disciplinary hearing to consider the allegations and if necessary, determine appropriate measures to be taken against the learner. Under clause 6.1 the parents are to receive sufficient information prior to the hearing to ensure that they are properly informed of the complaint, the seriousness of the allegations and the school’s intention to convene a formal hearing. Under Clause 6.5 the hearing is to be conducted in a proper manner that conforms to the rules of natural justice. Under clause 6.5.3 the learner and the parents should be presented with all facts and information relating to the allegations being made against the learner. Under Clause 6.5.4 they should be given the opportunity to question evidence presented by the school and are entitled “to present their own perspective and explain/defend the relevant actions.” This last requirement, read with the provisions in clause 6.5 require, in my view that if evidence is led against a learner she should be allowed to lead evidence to counter the evidence against her. Were this not the case, natural justice would be lacking.

7.    Under clause 7.3 an internal appeal is to be fully motivated, detailing the grounds for appeal “and providing the Reviewer with any additional or new evidence they wish to submit in support of the appeal. Should new evidence come to light, the Reviewer  may recommend a re-Hearing which will then follow process.” The notice of appeal, apparently drafted by Ms N’s attorney father contains no such detail.  The names of the potential witnesses and what they would have said in the initial enquiry were known to the applicant and her husband and should clearly have been set out in the notice of appeal and in the present application. Given that this information was lacking in the internal appeal, the Head Executive could not reasonably have been expected to weigh the internal appeal on any basis other than that used by him. It is not necessary for me to decide if the sanction of a final written warning is justified on the facts admitted by Ms N at the initial hearing, and for which she apologised at the applicant’s behest.  This is because the Head Executive, albeit understandably, based his decision at least partially on the guilty findings which were tainted by a failure of natural justice. This failure carried through to the internal appeal.

8.    In prayer 2, what is sought is an order that a different, later disciplinary hearing for Ms N, held on 10 September 2018 be declared unlawful. In prayer 3, an order is sought declaring the consequent internal appeal decision and procedure irregular. On 10 September 2018 a disciplinary hearing was convened into Ms N’s alleged conduct. The enquiry was chaired by an independent person. Ms N was represented by her mother, who is the applicant and by her father, a practicing attorney. The outcome was Ms N’s expulsion from the boarding school. There is no allegation of irregularity in the appeal itself.  The essence of the complaint is that, immediately prior to the initial hearing on 10 September 2018 Ms N’s father was not afforded sufficient opportunity to examine the statements of witnesses to be called by the school to testify against Ms N. It would appear that initially the chair was reluctant to furnish Ms N’s father with these statements. However, he relented and Ms N’s father had between 10 – 20 minutes to consider the statements, together with the applicant and Ms N prior to commencement of the hearing. During the hearing three witnesses testified against Ms N. She testified and called a witness. It is clear from the papers that Ms N’s father, clearly a trained legal mind, had ample opportunity to cross-examine, to lead his daughter and to make any submission that he wished. In my view, given the very short length of the written witness statements, Ms N’s father had ample time to consider his position and to prepare prior to commencement of the proceedings.  He had a full opportunity to defend Ms N. Ms N was not prejudiced in any way and it cannot be said that any irregularity, let alone an unfair one tainted the proceedings. For these reasons prayers 2 and 3 fall to be dismissed.

9.    Regarding costs, while the applicant has achieved limited success the later decisions by the school stand. In these circumstances, it is fair that the parties bear their own costs.

ORDER:

1.    The decisions of 25 March 2018 recording findings of guilty and imposing a sanction of expulsion from the boarding school are reviewed and set aside.

2.    The decisions of 18 April 2018 upholding the findings of guilty and imposing a sanction of a final written warning are reviewed and set aside.

3.    Prayers 2 and 3 are dismissed.

4.    Each side to pay their own costs.