Learner Discipline In Schools

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 Learner Discipline
In Schools

Rika Joubert

Centre for Education Law and Education Policy (CELP)

Pretoria 2008

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 Copyright © Centre for Education Law and Education Policy (CELP) 2005,
New Edition 2008

All rights reserved. No part of this publication may be reproduced or

transmitted in any form or by any means, electronic or mechanical, including
photocopy, recording or any information storage and retrieval system,
without the permission in writing from the publisher.

Critical readers: W Bray and JL Beckmann

CELP does not necessarily subscribe to the opinions of contributors

Series: Education Transformation

ISBN 0-620-25167-0

Learner Discipline In Schools

ISBN 0-620-25166-2

Published by: CELP, Room G-03, Lecture Building, Groenkloof Campus,

University of Pretoria, Pretoria 0002

Cover design: Profit Creative

Text layout and design: Didactical Design SA (Pty) Ltd - Didacsa

Printed by: LM Printers, Hercules, Pretoria

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 Contents
Preface .......................................................................................... 1
Chapter 1: Discipline and Effective Schools .................................... 3
Outline of this chapter ................................................................ 3
1.1 Discipline and punishment defined ....................................... 4
1.2 Creating a disciplined school environment ............................ 6
1.3 Whole-school approach ....................................................... 7

Chapter 2: Legal Framework for School Discipline .......................... 9

Outline of this chapter ................................................................ 9
2.1 Sources of law .................................................................... 9
2.2 Delegation of authority ........................................................ 13

Chapter 3: Discipline, Punishment and Human Rights .................... 15

Outline of this chapter ................................................................ 15
3.1 Influence of human rights on discipline ................................. 16
3.2 School discipline and the Bill of Rights .................................. 17
3.2.1 Explaining the word “right” ........................................................ 18
3.2.2 Accommodating Constitutional rights in the Code of Conduct ... 18
3.2.3 The limitation clause ................................................................... 25

Chapter 4: The Role of a Code of Conduct .................................... 27

Outline of this chapter ................................................................ 27
4.1 Purpose of a Code of Conduct ............................................. 27
4.2 Legal Requirements for a Code of Conduct ........................... 28
4.2.1 Duty of governing bodies ............................................................ 29
4.2.2 What is a Code of Conduct ......................................................... 30
4.2.3 Consultation ................................................................................ 30

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 4.3 Developing a Code of Conduct ............................................ 31
4.3.1 Awareness raising ........................................................................ 32
4.3.2 Drafting the Code of Conduct ..................................................... 33
4.3.3 Implementation ............................................................................ 34
4.3.4 Review ......................................................................................... 34
4.4 Components of a Code of Conduct ...................................... 34
4.4.1 Preamble ..................................................................................... 35
4.4.2 Mission statement ........................................................................ 36
4.4.3 Rules of conduct .......................................................................... 36
4.4.4 Drafting school rules .................................................................... 38
4.4.5 Disciplinary procedures ............................................................... 41
4.4.6 Appeal process ............................................................................ 41

Chapter 5: Due Process ................................................................. 43

Outline of this chapter ................................................................ 43
5.1 The content of the right to due process ................................. 44
5.1.1 Application of due process .......................................................... 44
5.1.2 Impartial tribunal ......................................................................... 45
5.1.3 Right of information ..................................................................... 47
5.1.4 Right to representation ................................................................ 47
5.2 The disciplinary hearing ...................................................... 48
5.2.1 Steps to be followed .................................................................... 48
5.2.2 Role of the chairperson ................................................................ 49
5.2.3 If the learner denies the charge ................................................... 49
5.2.4 Adjourn to consider ..................................................................... 50
5.2.5 Convey the decision .................................................................... 50
5.2.6 Appeal ......................................................................................... 50

Chapter 6: Forms of Punishment and the Legal Limits .................. 51

Outline of this chapter ................................................................ 51
6.1 Considerations for punishment ............................................ 51
6.2 Legal limits of punishment ................................................... 52
6.2.1 Corporal punishment ................................................................... 52
6.2.2 Expulsion and suspension ........................................................... 52

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 6.2.3 Suspension, expulsion and the right to education ...................... 58
6.2.4 Sending learners home ............................................................... 58
6.2.5 Detention .................................................................................... 58
6.2.6 Daily reports ............................................................................... 59
6.2.7 Behaviour management contracts ............................................... 59
6.2.8 Time-out ..................................................................................... 60
6.2.9 Withdrawal of privileges .............................................................. 60
6.2.10 Assigning extra work ................................................................. 61
6.2.11 Community work ...................................................................... 62
6.2.12 A points system ......................................................................... 62

Chapter 7: Conducting Searches ..................................................... 63

Outline of this chapter ................................................................ 63
7.1 Right to privacy ................................................................... 63
7.2 General legal requirements and limits ................................... 64
7.2.1 The standard of “reasonableness” .............................................. 66
7.3 Police and the canine searches ............................................. 69
7.4 Metal detectors .................................................................... 69
7.5 Cameras on School Grounds and in Classrooms .................... 69
7.6 Practical guidelines for conducting searches .......................... 70

Chapter 8: Bullying in Schools ....................................................... 71

Outline of this chapter ................................................................ 71
8.1 Nature of bullying ............................................................... 72
8.2 Who are the bullies and bullied? ........................................... 72
8.3 Responses to bullying .......................................................... 73
8.4 Combating bullying ............................................................. 73
8.5 Legal duty and liability ........................................................ 74

Chapter 9: Criminal Behaviour in Schools ...................................... 75

Outline of this chapter ................................................................. 75
9.1 Criminal capacity of learners ................................................ 75
9.2 Criminal and civil law .......................................................... 76

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 9.3 Drugs in schools ................................................................. 77
9.3.1 Conducting research .................................................................... 77
9.3.2 Drug testing ................................................................................. 78
9.3.3 General guidelines ....................................................................... 80
9.4 Crimes against persons and property .................................... 80
9.4.1 Vandalism .................................................................................... 80
9.4.2 Theft ............................................................................................ 81
9.4.3 Assault ......................................................................................... 81
9.4.4 Possession and use of firearms and dangerous weapons ............. 82
9.4.5 Sexual offences ............................................................................ 82

Chapter 10: Uniform and Appearance Issues .................................. 85

Outline of this chapter ................................................................ 85
10.1 Right to freedom of expression ........................................... 85
10.2 Uniform ........................................................................... 86
10.3 Hair ................................................................................. 87
10.4 Jewellery .......................................................................... 90

Appendix A: Appeal Form ............................................................... 93

Appendix B: Framework for a Code of Conduct ............................. 95
Appendix C: Survey on Bullying ..................................................... 101
Appendix D: Examples of a Policy on Drugs ................................. 103
List of Sources .............................................................................. 107

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 Preface

D iscipline is essential for effective teaching and learning. It is not

possible to teach or learn in an environment that is disorderly, dis-
ruptive and unsafe. Creating and maintaining a safe, disciplined
school environment is one of the many challenges facing principals
and educators in schools today. Many principals and educators are
finding it increasingly difficult to maintain discipline in schools in the
wake of new education legislation and regulations that regulate disci-
pline and punishment in schools. Although legislation, including the
Bill of Rights that protects learners from the abuse and the misuse of
punishment, is supported and necessary, the banning of corporal pun-
ishment in schools has been received with mixed feelings. Many prin-
cipals and educators find themselves unable to cope with large schools
and classes, especially where there has been a complete breakdown of
the culture of teaching and learning, and discipline. Moreover, many
educators have not been exposed to or trained in alternative discipli-
nary strategies. The new education legislation has also clamped down
on the way in which educators manage the discipline in schools and
mete out punishment by implementing far more rigorous procedures,
which must be followed.
The Bill of Rights as well as national and provincial education legisla-
tion have created a new rights culture in schools and changed the way
in which discipline is managed in schools today. However, this does
not mean that educators’ “hands are tied”, as is the perception among
many and that they have no control over learners.

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 The law has created a new legal context and it is important for princi-
pals and educators to know the law relating to school discipline and
punishment, and to be familiar with legal concepts, principles and pro-
cedures so that they can continue building and maintaining effective
schools.
The purpose of this monograph is to give an overview of the legal
framework for school discipline and punishment and to provide basic
information on a range of critical issues for easy reference.
Since the first edition of this monograph nine years ago, a variety of
amendments to education laws have been promulgated, of which
many have an impact on learner discipline. Court cases have regularly
been decided, and articles and books were published that all have to
be taken into account in this new edition.
Full acknowledgement is given to the initial author, Joan Squelch, still
a much appreciated colleague and friend, who now stays in Perth,
Australia. Parts of the original version have been left untouched, while
other parts have been adapted or taken out.
Rika Joubert (2008)

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 1
Chapter One

Discipline and Effective Schools

Outline of this Chapter

In this chapter the importance of good discipline for effective
schools is discussed and some of the factors that contribute to the
development of a disciplined school environment are highlighted.

G ood discipline is one of the key characteristics of an effective

school. Discipline underpins every aspect of school life and without
discipline effective teaching and learning cannot take place. Society
expects schools to be orderly and to produce well-educated and well-
behaves people. Public concern about poor school results, learner mis-
behaviour and dysfunctional schools is often reported in the media
and the subject of widespread debate. Society in general and parents
in particular expect schools to perform well and to maintain a high
level of discipline and safety and to keep disruptions to a minimum.

The fact that learner discipline constitutes an acute problem in South

African schools is also clear from studies conducted by De Klerk &
Rens (2003), Maree & Cherian (2004), Oosthuizen, Roux & Van der
Walt (2003); and from popular South African media reports with
headings such as “Inside city’s school from hell” (Bateman, 2007:1),
“Pupils still victims of brutality at school” (SAPA, 2006:6) as well as
from speeches delivered by the current Minister of Education, Naledi
Pandor with headings such as “Legislation supports the creation of

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 safer schools” (Department of Education: 20 Oct. 2006) and “School
discipline and safety” (Department of Education: 21 Nov. 2006).
While some educators feel unfulfilled and some are ready to leave
teaching because they can no longer tolerate dealing with disrespectful
and uncommitted learners, Charles (2002: 2) contends that there is on
the other hand great numbers of very successful educators, working in
all types of schools with all types of learners, who find teaching joyful
and rewarding.

1.1 Discipline and Punishment Defined

In the context of South African schooling discipline is often under-
stood more narrowly as punishment and as a result many mistak-
enly equate discipline with punishment. Dreikurs (1992:80) points
out that most people, educators and parents alike, use the word
“discipline” to mean control through punitive measures. “To many
people it signifies physical punishment; to others, rigid control of
rules and regulations and autocratic authority” asserts Dreikurs.
Through discipline, children are able to learn self-control, self-
direction, competence, and a sense of caring. Discipline is a posi-
tive approach to teach a child self-control and confidence. There-
fore, discipline techniques focus on what educators want the child
to learn, and what the child is capable of learning.
Discipline is a process, not a single act. Good discipline does not
happen by chance. It needs to be purposefully planned. It is the
basis for teaching children how to be in harmony with themselves
and get along with other people. The ultimate goal of discipline is
for children to understand their own behaviour, take initiative and
be responsible for their choices, and respect themselves and others.
In other words, children will internalize this positive process of
thinking and behaving.
Punishment, on the other hand, focuses on the misbehaviour and
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 may do little or nothing to help a child behave better in the future.
They maintain that the adult who punishes the child teaches the
child that the adult, rather than the child, is responsible for the way
the child behaves. While Kight and Roseboro (1998:2-3) believe
that punishment has negative effects on the children, such as in-
ducing shame, guilt, anxiety, increased aggression, lack of inde-
pendence and lack of caring for others, and greater problems with
parents, educators and other children. Punishment is a facet of dis-
cipline, that involves actions taken in response to inappropriate be-
haviour in order to correct or modify behaviour and to restore har-
monious relations. Discipline is more proactive in nature whereas
punishment is more reactive.

Discipline is about positive behaviour management aimed at pro-

moting appropriate behaviour and developing in learners self-
discipline and self-control. According to Rogers (1998:11) discipline
is “a teacher directed-activity whereby we seek to lead, guide, di-
rect, manage or confront a learner about behaviour that disrupt the
rights of others.” Rogers distinguishes between preventive disci-
pline, corrective discipline and supportive discipline. Preventive
discipline is concerned with basic rights and clear rules and conse-
quences. Corrective discipline refers to educators actions that are
carries out to correct disruptive, antisocial or deviant behaviour (i.e.
positive terminology for punishment). Supportive discipline is con-
cerned with ensuring that “correction” is received fairly and re-
establishing positive working relationships with disciplined learners.

Punishment, on the other hand, is a facet of discipline that in-

volved actions taken in response to inappropriate behaviour in
order to correct or modify behaviour and to restore harmonious
relations. Punishment takes many forms, some which are limited
by law. The types of punishment and their legal limits are dealt
with in Chapter Five.

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 1.2 Creating a Disciplined School Environment
Good discipline does not happen by chance. It needs to be pur-
posefully managed. Although there are various reasons for learners’
misbehaviour, the school environment is as much a factor as home
circumstances and personality. Therefore, it is necessary to create a
positive, disciplined school environment aimed at preventing disci-
plinary problems. The following factors are essential for preventing
disciplinary problems.

♦ Effective leadership
The school management team, especially the principal, are the sen-
ior administrators in a school and, as figures of authority, are ex-
pected to create an orderly, harmonious school environment and
lead by example.

♦ Clear communication
The principal and the school governing body must clearly commu-
nicate the school’s mission or educational philosophy and lay down
the values and standards that learners are expected to adhere to.
Schools prospects should contain a copy of the school rules and
possible punishments. Every parent and learner should also have a
copy of the school’s code of conduct (see Chapter Four). Parents
and learners must understand the consequences of breaking school
rules.

♦ Good planning by educators

Most discipline problems occur in the classroom and a major
source of problems is poor planning and preparation. Educators
who lack classroom management skills and do not plan their les-
sons have less control over their learners. Learners often display
inappropriate behaviour because they are bored, unmotivated or
find the schoolwork irrelevant or difficult. Good planning entails:

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 • knowing the learners
• preparing and planning lessons in advance
• setting work that is appropriate to learners’ age and ability
• arranging the classroom in an organised manner
• keeping up to date with the subject
• using appropriate teaching strategies and aids
• using a wide variety of teaching materials
• having clear and simple classroom rules

1.3 Whole-school Approach

Discipline or the management of behaviour is demanding and
complex and can best be achieved by a whole-school approach.
Discipline is not about focusing on an individual’s misbehaviour
when it occurs. Instead, it involves adopting a holistic and inte-
grated approach to developing and maintaining a positive learning
environment that encourages and affirms appropriate behaviour at
all times in all circumstances. Such a holistic approach involves
viewing the school as an integrated system and seeing how the
various interrelated parts can work together and contribute to sus-
tainable behaviour management. This implies involving the whole
school community in discipline. Lund (1996:3) cites the following
reasons for developing a whole-school behaviour policy:
• To provide an opportunity to put shared values about the ways
school communities should behave into practice.
• To develop a positive reputation for the school community.
• To enable members of the school community to behave appro-
priately towards each other and to co-operate in teaching and
learning.
• To provide a positive school ethos, conductive to teaching and
learning.
• To enable each learner to have an appropriate environment for

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 learning and each educator to have a suitable environment for
teaching.
• To define what is meant by appropriate and inappropriate be-
haviour.
• To enable appropriate rewards and punishments to be devel-
oped.

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 Outline of this Chapter
2
Chapter Two

Legal Framework for

School Discipline

This chapter describes the legal framework for school discipline

and punishment. The sources of law are described and discipli-
nary examples are given.

N ew legislation, for example the Schools Act (as amended) influence

the way in which discipline traditionally was maintained in schools.
Many learners have the misconception that their fundamental rights
protect them from any disciplinary measures at school. It is true that
education legislation, both national and provincial, as well as the Bill
of rights changed the way in which discipline is managed at schools. It
is also true that our society expects schools to ensure that learners be-
come well-educated and well-behaved citizens. In order to create a
safe, disciplined school environment, it has become necessary to in-
vestigate and implement the legal principles pertaining to discipline.

2.1 Sources of Law

Rules, regulations and legal principles that are relevant to school
discipline, and which form the basis of discipline policies and pro-
cedures are found in the following sources of law.

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 ♦ Legislation
Legislation law is made by an organ of the state vested with legisla-
tive authority (i.e. the power to do so). These laws are embodies in
writing and are known as “acts” (or statutes). Legislation originates
from national parliament and the nine provincial legislatures. Both
the national parliament and provincial legislatures generate ena-
bling or primary legislation from which secondary or subordinate
legislation flows. With regard to education, national and provincial
legislatures have concurrent powers (Schedule 4 of the Constitu-
tion). This means that they share powers with regards to primary
and secondary education. The following acts provide the legal
framework for school discipline:
• The Constitution of the Republic of South Africa, 1996 (hereafter
Constitution)
• The National Education Policy Act 27 of 1996
• The South African Schools Act 84 of 1996 (hereafter Schools
Act)
• The Children’s Act of 2005,
• The provincial acts of the respective provinces.
Chapter 2 of the Constitution (the Bill of Rights) and the provisions
in the Schools Act that pertain to discipline will be discussed in full
in the next chapters.

An example of subordinate legislation on discipline that was passed

by the national parliament is the Guidelines for the Consideration
of Governing Bodies in adopting a Code of Conduct of Learners
(Government Notice 766 of 1998).

♦ Common law
Common law is that part of the law that is not enacted by legisla-
tion, that is, non-statutory law. It has developed through historical
events or customs and is found in the works of legal writers and in

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 case law. South African common law developed from Roman-
Dutch law and English law.
Common law gives educators certain powers to discipline learners.
These powers derive mainly from the fact that we regard educators
as acting in loco parentis (i.e. in the place of the parent). In the ab-
sence of parents, educators assume certain rights and responsibili-
ties such as supervision and discipline. All the same, educators’
powers are not unlimited. An important common law principle that
regulates an educator’s actions is the rule of natural justice. The
rules of natural justice are now embodies in section 33 of the Con-
stitution. Because the rules of natural justice are so important for
school discipline, a brief explanation of each rule is given here.

♦ Rules of natural justice

The rules of natural justice usually find application in investigations
where the rights, privileges of freedoms of individuals could be af-
fected, for example, when a learner is suspended or expelled from
school. Anyone whose rights, freedoms or privileges are affected by
the action of an administrator must be given an opportunity to be
heard on the matter. This is the audi alteram partem rule. Any con-
sideration that may count against a party affected by a decision
must be communicated to him or her to enable the person to put
his or her case. The administrative organ (i.e. the principle or gov-
erning body) exercising the discretion (i.e. making the decision)
must give reason for its actions. The administrative organ must be
impartial and free from bias (See Chapter 3, par. 3.1)

♦ Case law
Case law comprises court decisions, the most important of which
are recorded in law reports. Case law provides important informa-
tion and guidelines on many educational issues. Courts play an
important role in interpreting primary and secondary legislation, for

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 example, clarifying concepts and principles, enforcing regulations,
reviewing procedures, resolving disputes and protecting people’s
rights.

Example: MEC for Education: Kwazulu-Natal v Pillay 2008 1 SA

474 (CC)
During the school holidays in September 2004 Ms Pillay gave
Sunali permission to pierce her nose and insert a small gold stud.
Sunali Pillay was not allowed to wear the nose stud as it was in
contravention of the Code of Conduct of Durban Girl’s High
School. Mrs Pillay wrote to the Department of Education seeking
clarity about its position, since she believed that the Governing
Body’s decision violated her daughter’s constitutional right to
practice her religious and cultural traditions. Ms Pillay was in-
formed that the MEC supported the School’s approach. Then Ms
Pillay took the matter to the Equality Court. The Equality Court
held that although a prima facie case of discrimination had been
made out, the discrimination was not unfair. This decision by the
Equality Court was taken on appeal by Ms Pillay to the Pieter-
maritzburg High Court. The High Court held that the conduct of
the School was discriminatory against Sunali and was unfair in
terms of the Equality Act. The School then applied for leave to
appeal to the Constitutional Court against the decision of the
Pietermaritzburg High Court. The Constitutional Court found that
Sunali was discriminated against on the basis of both religion and
culture in terms of section 6 of the Equality Act. The School’s
Governing Body was ordered to amend the Code of Conduct to
provide for reasonable accommodation for deviations from the
Code of Conduct on religious and cultural grounds and include a
procedure for the application and granting of those exemptions.

Various other court cases will be discussed in the following chap-

ters.

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 ♦ International law
International law is a body of rules and principles that govern the
relations between states. International law that is relevant to school
discipline is international human rights law. In terms of section 39
(1)(b) of the Constitution, when interpreting the Bill of Rights, a
court, tribunal or forum must consider international law. This does
not mean that courts must apply international law, but there is an
obligation to consider whether South African law is in line with in-
ternational law. For example, in a case dealing with corporal pun-
ishment, the courts may consider European Convention for the
Protection of Human Rights and Fundamental Freedoms.

♦ Foreign law
Foreign law include domestic law and case law of other countries.
In terms of section 39(1)(c) when interpreting the Bill of Rights, a
court, tribunal or forum may consider foreign law. In other words,
the courts are not obliged to consider or apply foreign law. How-
ever, South African courts, especially in the absence of South Afri-
can precedents or legal opinion, often refer to foreign law to assist
in developing legal arguments and clarifying legal principles and
concepts.

2.2 Delegation of Authority

Principals and educators have both original and delegated author-
ity to discipline and punish learners: original authority in terms of
their status as educators; delegated authority in terms of their posi-
tion in loco parentis, that is, to act in the place of the parent. This
has given educators the right to act as a reasonable parent when
supervising, disciplining and punishing children. The importance of
this doctrine, however, has diminished and is somewhat outdated.
The authority to manage school discipline and mete out punish-

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 ment is regulated by law and delegated to educators.
The chart below (Figure 1) shows how authority is delegated within
the legal framework:
Figure 1: Delegation of authority

The Minister of Education determines national education policy on

discipline in terms of the National Education Policy Act of 1996
and in keeping with the Constitution.

The South African Schools Act empowers a school governing

body to adopt a code of conduct.

Provincial education departments determine provincial legislation

and regulations on discipline in terms of national legislation.

The school principal and educators are empowered to discipline

learners in terms of legislation and the school’s code of conduct.

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 3
Chapter Three

Discipline, Punishment and

Human Rights
Outline of this Chapter
The purpose of this chapter is to explain the impact of the protec-
tions of human rights on discipline in schools. Over the years,
attitudes towards discipline and punishment have changed with
increasing attention being given to the protection of children’s
rights and freedoms.

W ith an increasing emphasis on the protection of basic human

rights and on the need to protect children against harsh and cruel
treatment attitudes towards discipline and punishment have changed
considerably since the middle of the 20th Century.
Considering the growing emphasis on the protection of human rights,
it was inevitable that increasing attention would be given to issues
such as child abuse and corporal punishment in schools. Inflicting
physical pain on children is no longer accepted as a form of control-
ling behaviour or of correcting inappropriate behaviour. By the
1980’s, corporal punishment had been banned in many democratic
countries. South Africa only recently joined the ranks when it out-
lawed corporal punishment in 1996. Besides corporal punishment,
human rights have also impacted on other areas of discipline such as
suspension, due process, conducting searches and detaining learners.
While views and values have changed drastically in modern times, this

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 attitude still forms part of the ethos of some schools and communities.
For example, in 1999, Christian Education South Africa (CESA), a
voluntary association of independent Christian schools, sought a court
order declaring section 10 of the South African Schools Act, 1996,
which prohibits corporal punishment, unconstitutional and invalid.
CESA argued that corporal punishment is sanctioned by common law
and forms part of the Christian beliefs of the parents. However, the
Port Elizabeth High Court held that none of the biblical passages that
CESA relied on suggested that people other than parents had a right
to use a rod. The court noted that guidelines found in the biblical pas-
sage were no longer appropriate, nor did they form part of Christian
religious doctrine (Christian Education SA v Minister of the Govern-
ment of the Republic of South Africa).
The Constitution of the Republic of South Africa, 1996, is the supreme
law of the country and education legislation, regulations and school
policies may not be in conflict with it. As already mentioned, chapter 2
of the Constitution contains the Bill of Rights. The following are some
of the provisions in the Bill of Rights that have a direct bearing on
school discipline and punishment:

3.1 Influence of Human Rights on Discipline

Although not primarily a human rights document, the UN Charter
laid the foundations for the adoption of the Universal Declaration
of Human Rights in 1948. This has since been followed by a num-
ber of significant human rights conventions, including the Interna-
tional Covenant on Civil and Political Rights (ICCPR), the Interna-
tional Covenant of Economic, Social and Cultural Rights
(ICESCR), the European Convention for the Protection of Human
Rights and Fundamental Freedoms (ECHR) and the Convention
on the Rights on the Child in 1999 (CRC).
The Constitution commits us to the establishment of a society
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 based on democratic values such as human dignity, equality and
freedom. As with all the values contained in the Constitution, our
rights come with the intention of not infringing on other people’s
rights. Furthermore, the Constitution also confirms the values of
“accountability, responsiveness and openness” (Section 1). Within
schools, the rule of law is the graduator of accountability, for it
holds us all to a common code of appropriate behaviour. Account-
ability means that we are all responsible for our individual behav-
iour. There can be no rights without responsibilities – whether as
parents, educators or learners.
Schools cannot function effectively if there is not mutual respect
between educators and parents, and effective learning cannot hap-
pen if there is not mutual respect between educators and learners.
Considering the growing emphasis on the protection of human
rights, it was inevitable that increasing attention would be given to
issues such as child abuse and corporal punishment in schools. Al-
though controversial, the use of corporal punishment is widely
viewed as a form of child abuse and its use is discouraged as a
means of punishment. Inflicting physical pain on children is no
longer accepted as a form of controlling behaviour and correcting
inappropriate behaviour. Besides its influence on corporal punish-
ment, human rights have also impacted on other areas of discipline
such as suspension, due process, conducting searches and detain-
ing learners.

3.2 School Discipline and the Bill of Rights

The Constitution is the supreme law of the country and therefore
all law, including education legislation, regulations and school poli-
cies may not be in conflict with it. Chapter 2 of the Constitution
contains the Bill of Rights. The following are some of the provisions
in the Bill of Rights that have a direct bearing on school discipline

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 and punishment.

3.2.1 Explaining the word “right”

Before discussing some of the rights that need to be considered in
school discipline, it is useful to examine the meaning of the term of
“rights”. Let us start by distinguishing between “rights, liberties and
freedoms” learners have. The word “liberties” tends to be very
broad and enables a person to do anything, which is not specifi-
cally prohibited by law. Fundamental “freedoms” which are stated
in the Bill of Rights normally include freedom of religion (section
15) and freedom of association (section 18) and freedom of expres-
sion (section 16). A “right” is something granted to a person, which
requires positive action from the government to ensure the right.
For example, the right to education (section 29), to privacy (section
14), to an environment that is not harmful to their health or wellbe-
ing (section 24).

3.2.2 Accommodating constitutional rights in the Code of Conduct

It is important to include essential rights guaranteed in the Constitu-
tion in the Code of Conduct and to indicate how each rights will be
dealt with in the school (see Government Notice 766 of 1998 on
which this discussion is based).

♦ Democracy
The Bill of Rights in the Constitution enshrines the rights of all peo-
ple and affirms the democratic values of human dignity, equality
and freedom. The school must protect, promote and fulfil the rights
identified in the Bill of Rights by ensuring that all learners and other
stakeholders at a school have the democratic rights to due process
and to participate in decision-making about matters affecting them
at the school.

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 ♦ Equality
No form of unfair discrimination against a learner or educator is
permitted and all learners shall enjoy equal treatment before the
law and shall receive equal protection and benefits of the law.
The concept “unfair discrimination” was analysed by the Constitu-
tional Court in Prinsloo v Van der Linde 1997 6 BCLR 759 (CC)
par 23 and 28 and defined as follows:
Treating persons differently in a way which impairs their funda-
mental dignity as human beings who are inherently equal in dig-
nity. Unfair discrimination refers to any situation where people
are treated differently without justification. Discrimination in
education on the basis of disability, sex and race may be some
of the most glaring examples of unfair discrimination.
The Sunali Pillay case (MEC for Education: Kwazulu-Natal v Pillay
2008 1 SA 474 (CC) analyses the concepts of equality and unfair
discrimination.
Ms Pillay gave Sunali permission to pierce her nose and insert a
small gold stud. When she returned to school after the holidays, Ms
Pillay was informed that her daughter was not allowed to wear the
nose stud as it was in contravention of the Code of Conduct. The
code of conduct of the Durban Girls’ High School (DGHS) stated
the following about wearing jewellery:
“Jewellery: Ear-rings – plain round studs/sleepers may be worn,
ONE in each ear lobe at the same level. No other jewellery may
be worn, except a wrist watch. Jewellery includes any
adornment/bristle which may be in any body piercing. Watches
must be in keeping with the school uniform. Medic-Alert discs
may be worn.”
Mrs Pillay explained that she and Sunali came from a South Indian
family that intends to maintain cultural identity by upholding the
traditions of the women before them. The insertion of the nose stud

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 was part of a time-honoured family tradition. It entailed that a
young woman’s nose was pierced and a stud inserted when she
reached physical maturity as an indication that she had become
eligible for marriage. Mrs Pillay took the case to the Equality Court.
This Court determined that the discrimination was not unfair. This
decision by the Equality Court was taken on appeal by Ms Pillay to
the Pietermaritzburg High Court. The High Court held that the
conduct of the school was discriminatory against Sunali and was
unfair in terms of the Equality Act.
In the appeal case against the decision of the High Court, that the
school discriminated against Sunali, the Department of Education
contended that the High Court erred in characterising the matter as
an equality claim within the contemplation of the Equality Act. It
argued that there can be no case for discrimination where it cannot
be said that there is a “dominant group” that is treated better than
Sunali.

However, the Constitutional Court held that the ground of discrimi-

nation is religion or culture as the school’s Code of Conduct has a
disparate impact on certain religions and cultures. The norm em-
bodied by the Code of Conduct is not neutral, but enforces main-
stream and historically privileged forms of adornment, such as ear
studs which also involve the piercing of a body part, at the expense
of minority and historically excluded forms. It thus places a burden
on learners such as Hindu’s who are unable to express themselves
fully and must attend school in an environment that does not com-
pletely accept them.

♦ Respect and dignity

Fundamentally, human rights are built on human dignity. Educa-
tors maintaining discipline in school should exercise care not to in-
fringe this right. Belittling, name-calling and humiliating learners in

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 front of their peers are examples of how learners’ dignity may be
infringed. Out of the values of human dignity flow the practices of
compassion, kindness and respect which are at the very core of
making schools places where the culture of teaching and the culture
of learning thrive. Violations of human dignity may occur during
disciplinary action, in the daily interaction between educators and
learners (which is an inherently unequal relationship), during initia-
tion programmes or ceremonies for newcomers to an institution,
during informal interactions on the playground where bullying is an
ever-present threat nowadays, and in any other relationship in
which the temptation to treat people with contempt is present.

♦ Freedom and security of the person (s 12)

This section provides that everyone has the right to freedom and
security of the person and the right to bodily and psychological in-
tegrity. This includes the right not to be tortured in any way and
not to be treated or punished in a cruel, inhuman or degrading
way. Therefore, in the school context, punishment may not be un-
reasonable, cruel or degrading. Punishment is considered to be un-
reasonable if:
• it is excessive and negligently administered;
• it results in physical or psychological injury;
• it is not in proportion to the offence;
• there is not sufficient cause for punishment; and
• it does not suit the age of the learner.
♦ Justice administration (s 33)
In terms of this provision everyone has the right to administrative
action that is lawful, reasonable and procedurally fair. Those whose
rights have been adversely affected by administrative action have
the right to be given written reason for the action. In the school
context, just administrative action is particularly relevant in the area

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 of school discipline. For example, when a governing body sus-
pends a learner, the learner is entitled to a fair hearing (administra-
tive action).

♦ Privacy
Every learner also has the right to have his/her privacy respected,
which includes the right not to have his/her person or property
searched or his/her possessions seized. However, the principal or
an educator has the legal authority to conduct a search based on
his/her reasonable suspicion (sufficient information) of any learner
or property in possession of the learner for a dangerous weapon,
firearm, drugs, or harmful dangerous substance, stolen property, or
pornographic material brought on to the school property. The
searcher must use search methods that are reasonable in scope and
could be performed in terms of Section 8A of the South African
Schools Act (see Chapter 7). During a search human dignity shall
be observed and persons of their own gender, preferably in the
presence of at least one other person shall search learners in pri-
vate. A record must be kept of the search proceedings and the out-
come.

♦ The right to basic education

The right to basic education is one of the basic rights guaranteed in
the Constitution. The Schools Act provides that education is com-
pulsory for learners from the year in which such learners reach the
age of 7 years until the last school day of the year in which such
learners turn 15 years or the ninth grade. The right to education
includes the right to attend all classes, to learn and be taught in all
approved subjects to be informed regularly about school progress,
to make use of all school facilities, and to have the potential of all
learners fully developed. The Schools Act also makes provision for
due process before a learner may be removed or expelled from a

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 school. The right of a learner to education cannot be taken away
when the learner is expelled from school. Therefore, in the case of
expulsion, the Head of Department must find a school place for an
expelled learner who is of school-going age. It is important to em-
phasise that a learner who falls pregnant may not be prevented
from attending school as such prevention will impinge on her Con-
stitutional right to education.

♦ Right to a safe school environment

Children’s rights, included in the Constitution (section 28) stipulate
that every learner has the right not to be treated or punishment in a
cruel, inhuman degrading manner. The Schools Act in section 10
abolishes corporal punishment and educators and learners have to
learn the importance of mediation and co-operation, to seek and
negotiate non-violent solutions to conflict and differences and to
make use of due process. Furthermore, learners have the right to a
clean and safe environment that is conductive to education. This
includes security of property, well-cared for school facilities, school
furniture and equipment, clean toilets, water and a green environ-
ment absence of harassment in attending classes and writing tests
and writing examinations.

♦ Freedom of expression
The right to freedom of expression in section 16 of the Bill of Rights
protects all forms of communication, including its contents and
those to whom it is addressed. Freedom of expression in the school
context is manifested in many ways (e.g. freedom to speak, to pub-
lish in the school magazine, to wear symbolic items, and through
dress and hairstyle). The right to freedom of expression is not abso-
lute and is normally balanced by competing rights and freedoms
and the public interest. In the education situation freedom of ex-
pression should be balanced by specific educational interests and

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 the competing rights and freedoms of other learners and educators
(e.g. the right of the learner or educator to have his/her personal
information kept private and confidential; the right of the learner or
educator to have his human dignity and integrity protected from
defamatory or racist propaganda; and protecting the public
(education) interest from expression that is harmful and defama-
tory. Freedom of expression can take different forms and includes
not only the written and spoken word, but also music, dress, sym-
bols, gestures and other forms of conduct by which someone’s
views are conveyed. It also includes the right of the individual not
to express any view, and pressure on a person to express a view on
a particular matter would violate his/her right to freedom of expres-
sion. However, learners’ rights to enjoy freedom of expression are
not absolute. When the expression leads to a material and substan-
tial disruption in school operations, activities or the rights of others,
this right can limited, as the disruption of schools in unacceptable.
Learners have the right to agreed procedures with the governing
body for expressing and resolving school-related grievances, in-
cluding due process a method of appeal and a right to assemble
peacefully on the school property at a time and place designated
by the principal. Problems or issues should, as far as possible, be
resolved at the school. In Danielle Antonie v Governing Body, The
Settlers High School & Head of Western Cape Education Depart-
ment (2002) (4) SA 738 a learner challenged the school governing
body’s decision to suspend her from school for five days. Having
converted to Rastafarianism, Danielle wore a dreadlock hairstyle
and a black cap. The school governing body charged the fifteen-
year-old Grade 10 learner with serious misconduct (and found her
guilty) of defiance of the school code of conduct that required that
“the hair must be tied up if below the collar”. The court ruled in her
favour and set the suspension aside, agreeing that the punishment

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 could have had both a negative effect on her development and her
future career, as well as infringed her dignity and self-esteem. Apart
from the question of human dignity, the court commended on the
application of the right to freedom of expression, explaining that it
is a constitutional right that has an effect on a school’s code of con-
duct. The court decided that that “freedom of expression” includes
aspects such as the freedom of choosing clothing and hairstyles.

♦ Freedom of religion, belief and opinion

Religious freedom is guaranteed in the Constitution. At the same
time provision is made that school-governing bodies can decide on
the religious observance to be implemented in the school. In this
regard the South African Schools Act (section 7) states that, subject
to the Constitution and any applicable provincial law, religious ob-
servances may be conducted at a public school under rules issued
by the governing body if such observances are conducted on an
equitable basis and attendance at them by learners and members
of staff is free and voluntary. The governing body of a school may
make rules regarding religious observances. As stated above, the
only limitation that is prescribed is that staff and learners may not
be forced to attend religious observances and that the observances
are conducted on an equitable basis. With regard to the religious
observances of their children, parents have the right to make re-
quests concerning dress, food and the participation in certain activi-
ties that are forbidden by a particular religion.

3.2.3 The limitation clause

Fundamental rights and freedoms are not absolute and may there-
fore be limited. For example, a learner does not have an absolute
right not to be searched while at school, because educators’ and
learners’ rights to safety and security of the person must be re-
spected and protected. Therefore, if a learner is believed to be car-

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 rying a gun, he or she may be searched. However, Bray (2005:29)
states that a law that limits a right is an infringement of that right. If
the limitation takes place in accordance with the provisions of the
Bill of Rights, such an infringement or limitation will be
“justifiable”.
In terms of section 36 of the Bill of Rights, rights may be limited
only in terms of law of general application and to the extent that the
limitation is reasonable and justifiable in an open democratic soci-
ety based on human dignity, equality and freedom. In the first in-
stance, this means that:
• rules of law that limit rights must be made known and must be
understandable
• laws that limit rights may not be made only for a specific person
or case
For example, a school governing body may not simply decide to
suspend a learner from school; there must be a legal rule of general
application that allows a governing body to suspend learners. The
Schools Act, in section 9, clearly authorises governing bodies to
suspend learners in certain circumstances and this applies to all
school learners.
In the second instance, there must be an appropriate balance be-
tween the limitation of the right and the purpose for which the right
is being limited. The following factors must be considered when
deciding whether the limitation of a right is reasonable and justifi-
able (s 36(1)):
• the nature of the right
• the importance of the purpose of the limitation
• the nature and extent of the limitation
• the relation between the limitation and its purpose
• whether there are less restrictive means to achieve the purpose.

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 4
Chapter Four

The Role of a Code of Conduct

Outline of this Chapter

The purpose of this chapter is to explain the legal requirements
for developing and implementing a code of conduct for schools
and to provide an outline of a basic code of conduct.

A ll public schools are required to have a code of conduct. This forms

part of a school’s domestic “legislation” and must be drafted within
the legal framework that was set out in Chapters Two and Three.

4.1 The Purpose of a Code of Conduct

A safe, secure and positive environment is a prerequisite for effec-
tive learning. Such an environment is possible only when respect
for self and others and the promotion of self-discipline are corner-
stones of all behaviours. Schools operating in such an environment
recognise that learners have needs to be met and work effectively
towards meeting these needs. These needs include the need for
belonging, affection, achievement, power, fun, but also to be safe
and secure. If these needs are not satisfied learners may look for
destructive means to draw attention to their needs. The way in
which learners behave has a direct impact on the discipline within
the school and school authorities have traditionally regulated the
behaviour of learners so as to ensure that the school environment
will be conducive to teaching and learning. However, traditional

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 mechanisms had been more concerned with punishment than re-
ward in maintaining school discipline.
Discipline is more than a response to negative behaviour. Disci-
pline could be approached from a more positive perspective in
which it is aimed at inculcating self-control, character, orderliness
and efficiency. Within such an approach, reward for positive be-
haviour is essential to support learners in developing such qualities
as self-control, obedience, responsibility and striving towards good
conduct. It is within such a context that a Code of Conduct for
learners should be seen.
Phrased differently, a Code of Conduct is aimed at creating a disci-
pline and purposeful school environment, dedicated to the im-
provement and maintenance of the quality of the learning process
in a context where learners feel safe and secure. School discipline
and a Code of Conduct are thus intricately linked and cannot really
be separated. The main purpose of a Code of Conduct for learners
is to create order and discipline and to inculcate self-discipline and
character.

4.2 Legal Requirements for a Code of Conduct

The legal basis for the development of a code of conduct is section
8 of the Schools Act. This section states:
(1) Subject to any applicable provincial law, a governing body of a
public school must adopt a code of conduct for the learners after
consultation with the learners, parents and educators.
(2) A code of conduct referred to in subsection (1) must be aimed at
establishing a disciplined and purposeful school environment, dedi-
cated to the improvement and maintenance of the quality of the
learning process.
(3) The Minister may, after consultation with the Council of Education
Ministers, determine the guidelines for the consideration of govern-
ing bodies in adopting a code of conduct for learners.

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 (4) Nothing contained in this Act exempts a learner from the obligation
to comply with the code of conduct of the school attended by such
learner.
(5) A code of conduct must contain provisions of due process safe-
guarding the interests of the learner and any other party involved in
disciplinary proceedings.

4.2.1 Duty of governing bodies

One of the more important aspects of the Schools Act relates to
establishment of school governing bodies. At the heart of this is the
idea of a partnership between all people with an interest in educa-
tion – parents, educators, learners, members of their local commu-
nities and various education departments. One of the tasks of a
school governing body is the adoption of a Code of Conduct for
learners after consulting with learners, parents and educators. Ac-
cording to Guidelines for the consideration of governing bodies in
adopting a code of conduct for learners (Department of Education.
1998. Government Notice 776 of 1998), the Code of Conduct –
“must inform the learners of the way in which they should con-
duct themselves at school in preparation for their conduct and
safety in civil society. It must set a standard or moral behaviour
for learners and equip them with the expertise, knowledge and
skills they would be expected to evince as worthy and responsible
citizens. It must promote the civic responsibilities of the school
and it must develop leadership. The main focus of the Code of
Conduct must be positive discipline; it must not be punitive and
punishment orientated but facilitate constructive learning.”

In other words, governing bodies do not have a choice in this mat-

ter. Even if the school has a code of conduct, it is still necessary to
revise and develop the code so that it is in keeping with the Bill of
Rights, Schools Act and provincial legislation.

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 4.2.2 What is a Code of Conduct
A Code of Conduct is a written statement of rules and principles
that apply to a specific group of people like professionals or learn-
ers within a school. The Code of Conduct establishes rules for co-
existence, order and interpersonal relationships in the school. The
intention is to create an environment in which learners behave with
courtesy, tolerance and consideration towards others, and refrain
from aggressive and abusive behaviour such as intimidation, bully-
ing, victimisation, physical or verbal abuse. A Code of Conduct
should therefore not only highlight the expectations, values and
beliefs of a group member, but should also contain a description of
the forms of conduct that will be encouraged as well as those forms
of conduct that will be encouraged as well as those forms of con-
duct that are undesirable and the response of the school to them. A
Code of Conduct should therefore include the school rules and res-
titution applicable if rules are not adhered to.
It is important to emphasise at this point that school rules are sub-
ordinate legislation directed at regulating actions between and
among learners; learners and the school; and learners and educa-
tors. Being sub-ordinate legislation, the Code of Conduct has legal
status, but must be subjected to the Constitution, the Schools and
provincial legislation. The Code of Conduct must reflect the consti-
tutional democracy, human rights and transparent communication,
which underpin South African society

4.2.3 Consultation
How the code of conduct is developed, written and enforced is
very important. The Schools Act recognises the importance of in-
volving the whole community in developing the code of conduct.
Section 8(1) clearly states that parents, educators and learners must

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 be consulted. These groups must be given an opportunity to give
their input. A discipline policy that is developed by a consensus of
the school community is more likely to work and be effective, than
one that is imposed from above by the principle of governing body.
A participatory decision-making process is likely to ensure a genu-
ine commitment on the part of educators, parents and learners to
successfully implement the code. An open discussion with educa-
tors, parents and learners will help bring about a better understand-
ing of their perceptions of and problems with discipline in the
school.

4.3 Developing a Code of Conduct

Although numerous approaches to the development of a Code of
Conduct and school rules could be identified, two deserve specific
attention. Traditionally, an authoritarian approach to the develop-
ment of rules and a Code of Conduct was followed. The basic as-
sumption in this approach is that the education manager (school
principal) has both the knowledge and the legitimate power to
make the rules of a school. This approach by its very nature has
great appeal as it gives the school principal/teacher a sense of secu-
rity and control. Although it may have a number of advantages
(e.g. it is less time consuming and thus has less impact on lesson
time), it may prompt student aversion and aggression. This may
even result in a situation where the school principal has to rely on
coercive power to ensure the effective implementation of the rules
laid down.
By contrast, a school may opt for a more inclusive process such as
is described by the Schools Act (section 8) and Government Notice
776 of 1998. The basic assumption of this approach is rooted in
democratic considerations (such as referent, expert and legitimate
power). The school principal and educators share ideas with learn-

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 ers and their parents in an effort to develop a social contract on
which the Code of Conduct and school rules will be based. As an
inclusive process to give learners a feel of ownership of rules and at
the same time it communicates respect for learners’ needs and
ideas. In the end, the school governing body must approve the
Code of Conduct developed.
Although schools will adopt different approaches to consultation,
the following process ensures that parents, educators and learners
are included from the outset and given the opportunity to discuss,
deliberate and review discipline needs and problems in the school.
The challenge to the discipline committee will be to strike a balance
between creating opportunities for discussion and moving though
the process quickly and efficiently.

4.3.1 Awareness rising

During this initial stage, newsletters can be used to inform the vari-
ous parties of the need to develop and/or revise the code of con-
duct, and to explain how the governing body plans to involve vari-
ous groups and individuals in the process.
Such an inclusive process normally involves a small group of stake-
holders (task team) that develop the basic principles, values and
rules that should apply within the school. This document is then
circulated and discussed with all the stakeholder groups and input
and suggestions are invited to refine the document. The guidelines
set out in Government Notice 776 of 1998 recommends that the
Code of Conduct should suit the development of the learners (i.e. it
should differentiate between primary and secondary school learn-
ers). It should be appropriate to the different school levels and
school types (e.g. technical high schools may have a need for cer-
tain rules that could be superfluous in another school). The lan-
guage used must be easily understandable to make the content ac-

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 cessible and the format should be user-friendly.

4.3.2 Drafting the Code of Conduct

Once sufficient information has been gathered, the discipline com-
mittee should draft a code of conduct as a consensus document. In
drafting a Code of Conduct, specific attention should be paid to
misconduct and restitution. It is also necessary to distinguish be-
tween misconduct and off-task behaviour. Off-task behaviour is
behaviour that is not necessarily disrupting the school or clad situa-
tion and includes behaviour such as daydreaming, doodling or talk-
ing. In contrast, misconduct is behaviour that interferes with the
orderly running of a school, classroom teaching, the rights of oth-
ers, in physically or psychologically unsafe, or destroys property.
Misconduct can furthermore be divided into minor infringements
(fiddling with a suitcase while the educator is talking), moderate
infringements (bunking class or not attending a lesson) and serious
misconduct (assault, drug trafficking).

In the event that a learner makes himself/herself guilty of miscon-

duct, proper restitution or punishment must be considered. Learn-
ers must understand why action is taken against them and why
their conduct is considered as misconduct and why they are to be
disciplined or punished. The punishment must suit the offence. Ef-
fective restitution will have the following characteristics:
• It will include a plan for future actions.
• The people involved will see it as adequate compensation.
• It will require effort on the part of the offender.
• It does not in any way encourage further offences.
• It will be natural and logic and relevant to the inappropriate ac-
tions.
• It will avoid harmful criticism and the creation of feelings or guilt
or anger.

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 • It will avoid feelings of resentment or being overextended.
A pre-established set of consequences is satisfactorily but ideally
true restitution allows all parties freedom to negotiate appropriate
consequences and avoid a situation where rules are rigidly applied
without taking the context and the character of the offender into
consideration. This does not mean that rules should not be consis-
tently applied, but it does mean that reasonableness and fairness
should also be considered while taking personal circumstances into
account in dealing with misconduct.

4.3.3 Implementation
After the consultation phase, the school governing body must
adopt the Code of Conduct before it becomes official policy. Once
it has been adopted, each stakeholder must receive a copy thereof.
The stakeholder must also be consulted when the Code of Conduct
is reviewed annually or when any amendments are made. Once
the Code of Conduct has been approved, every learner and parent
should receive a copy and sign acceptance thereof. All key stake-
holders should be committed to the Code of Conduct despite its
being directed specifically at learners.

4.3.4 Review
The code of conduct is not a static document. It should be re-
viewed and revised on an ongoing basis. As new discipline issues,
rules, regulations and procedures arise, these must be communi-
cated to the school and included in the code of conduct.

4.4 Components of a Code of Conduct

The Code of Conduct adopted by a school, could contain a set of
moral values, norms and principles which the school community
should uphold and promote as part of the roles and responsibilities

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 of various stakeholders in the creation of a proper learning environ-
ment in schools (Notice 776 of 1998). Furthermore, it should in-
clude the mission statement of the school, the school rules, must
define misconduct and due process to be followed when rules are
infringed and also provide for legitimate disciplinary measures.

4.4.1 The preamble

It was stated earlier that a Code of Conduct could be classified as
subordinate legislation. It is therefore essential to indicate the legal
basis (i.e. Constitution, Schools Act and provincial legislation) of
the Code of Conduct to ensure the legal status of the document.
The preamble should direct the Code of Conduct towards a culture
of reconciliation, teaching, learning and mutual respect and the
establishment of a culture of tolerance and peace in all school. In
this regard, the Code of Conduct should be linked to the Constitu-
tion and the South African Schools Act and reaffirm the basic rights
of learners.

The preamble to the Code of Conduct may, for example, empha-

sise that every learner has the right to learn and that no person has
the right to disrupt the learning of others. Similarly, it may state that
learners have freedom of self-expression, but that all learners are
expected to act and speak with courtesy and with respect for the
ideas, rights of learners, rights, and property of others. Apart from
reaffirming the rights of learners, the preamble may also state the
purpose and he intent of the Code of Conduct.
Example: In the Code of Conduct of Excellent High School it is
stated that:
“A school is a community. All members of the school seek to:
• provide learning opportunities so that students acquire the skills
and competencies necessary to participate and contribute to

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 society
• foster a respect for the rights and needs of others, while devel-
oping a sense of responsibility for one’s behaviour
• value individual and group achievement in all aspects of life
and celebrate success
• promote the benefits of helping and working co-operatively
with others
• provide a safe, happy, non-coercive, caring environment,
which is conductive to working and learning”.

4.4.2 Mission statement

A school must have a reason or existence that supersedes the sim-
plistic answer: “To provide education”. A mission statement is a
comprehensive statement of purpose that permeates everything a
school does and can be seen in all the daily activities of a school. It
succinctly describes the rationale for the school’s existence and the
aspirations of its people and thus serves as the strategic driving
force of all actions and plans to be developed by the school. A mis-
sion statement serves as the basis for school development planning,
sets strategic priorities for budget allocations and provides the
broad parameters within which a Code of Conduct should be
phrased.

4.4.3 Rules of conduct

We live in a time when learners are quick to remind educator of
their rights. Is has become commonplace to hear educators com-
plain about a sense of loss of control and discipline and to blame
the loss on the fact that learners have unbridled rights. This is a fal-
lacy. No rights are absolute. The Constitution makes it clear that
rights may be limited provided that the limitation is reasonable, jus-
tifiable and does not constitute any form of discrimination. All the
rules, including school rules, imply some form of limitation of

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 rights. The Schools Act (section 8(4)), makes it clear that nothing
shall exempt a learner from complying with the Code of Conduct
of the school. Furthermore, an educator at the school shall have
the same rights as a parent to control and discipline the learner ac-
cording to the Code of Conduct during the time the learner is in
attendance at the school, any classroom, school function of school
excursion or school related activities.

School rules are designed to regulate the general organisation of

the school, and the relationships between the principal, educators
and learners (Notice 776, 1998). Classroom rules are designed to
give effect specifically to the relationship between educators and
learners in the classroom. For the purpose of our discussion, school
rules and classroom rules will be discussed separately.
School rules should be based on the following important principles:
• School rules should be directed at effective teaching and learn-
ing. This implies that school rules should be directed at securing
the commitment of learners to learn and to develop their dull
potential (academically, occupationally, socially, spiritually and
in sport, art and culture). They should actively participate in the
learning process and decision making and have the opportunity
to talk about their problems. At the same time, learners can ex-
pect educators to maintain a high standard of professional ethics
and to be present to teach their classes, assist learners with learn-
ing difficulties, report on their progress and to look after their
well-being.
• School rules must fall within the confines of existing law and may
not contradict or contravene existing legislation. School rules
should also be consistent with the Code of Conduct as a whole.
Burden (1995) argues that all disciplinary regulations must be
substantiated on the basis of being reasonable and necessary.
Oosthuizen et. al. (2000) concurs with this as they state that
school rules must be equitable, fair and reasonable and that the
rules of natural justice must apply in applying school rules.

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 • Learners should be involved with the formulation of school and
classroom rules and school rules must be stated in precise terms
to ensure that all parties know exactly what is meant by a specific
rule. Oosthuizen et. al. (2000) also stresses the importance of
school rules to be comprehensive.
• School rules cannot be divorced from the disciplinary system to
be used in the school. The consequences of breaking the rules
and the punitive measures or restitution that will apply if rules
are infringed must be clearly stated. It is essential to remember
that school rules should make provision for fundamental fairness
and fair warning and that the punishment must fit the offence. It
is important that all learners know and adhere to school and
classroom rules. Ignorance of these rules is not an acceptable
excuse (see Notice 776 of 1998). Learners may not be punished
for the acts of others.
• School rules should make provision to accommodate the needs
and expectations of the community and school environment, the
wishes of parents, and the school type and school level.
• School rules will remain applicable unless revised. In revising
school rules, which could be done on an annual basis, a fair no-
tice period for revision must be given and all stakeholders must
consulted.
• Every learner should be provided with a copy of the school rules
at the beginning of each school year and young learners at pri-
mary school should be informed verbally of school rules.

4.4.4 Drafting school rules

In drafting school rules, schools should address the following cate-
gories of rules:
• Rules relating to learner behaviour towards educators, learner
leaders and fellow learners. Examples of this type of rule include:
“Learners should at all times act politely, with honesty and obe-
diently. When learners encounter adults, whether visitors, par-
ents of staff they must stand if they are seated and must greet the
adult politely.”

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 • Orderliness and punctuality. Maintaining order and discipline is
of cardinal importance for effective learning. Rules of this nature
are aimed at reaffirming learners’ commitment to do their
schoolwork during classes, complete assigned homework and
catch up on work missed because of absence. Disruption of the
school or teaching and learning situation is unacceptable. Typi-
cal rules of this type include: “The school starts at 07:45 and no
late coming will be allowed. Learners must line up in neat rows
at their respective classrooms immediately after the bell has rung
for the start of the school or after breaks.”
• Security and care of school property. Schools are intended to be
used by all the learners attending the school and it is the obliga-
tion of every learner to protect and carefully use all the facilities
and equipment so that others that come after them can also en-
joy the benefit of the facilities (Notice 776). Specific school rules
should promote the care and security of the school property and
it should be made clear that damage or destruction of property is
a punishable offence. A few examples of school rules in this re-
gard are: “School property and the property of others may not
be removed, damaged, defaced or dirtied. Learners who damage
or write on desks, walls, doors or any other surface will be held
liable for all repair costs incurred.”
• Safety for learners. The school environment should be such that
learners are free of fear of being intimidated, victimised of as-
saulted. Verbal and/or written threats directed at any learner/
teacher/non-teaching staff member should be strictly forbidden.
There should be a relationship of mutual trust and respect be-
tween learners and educators. Any product, materials or goods
that may be harmful to the health and welfare of learners should
be prohibited on the school grounds (see Schools Act, section 8A
and the Regulations for Safety Measures at Public Schools
(2001) as amended in 2006
• Typical rules aimed at securing the safety of learners, include:
“Fighting, harassment, verbal abuse and foul language are strictly
forbidden. The use, as well as the possession of any tobacco
product, is forbidden. To be in possession of, passing on, hiding,

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 using, displaying alcohol and/or drugs is strictly forbidden. Being
in possession of, using or spreading pornographic/offensive ma-
terial, on the school grounds or on public transport, is strictly for-
bidden. Explosive devices are strictly prohibited on the school
grounds. Dangerous weapons, or replicas thereof, are not al-
lowed on the school grounds. Causing of false alarms in connec-
tion with the presence of explosives or regarding the breaking
out of fires is strictly prohibited.”
• School attendance. The right of learners to basic education
places the obligation on them to attend school regularly during
school hours. Should a learner be absent his/her parent or legal
guardian must notify the school to explain the absence. Typical
rules that cover school attendance include: “All learners must
attend school daily and must be on the school premises by
07:30. Learners who arrive at school late must obtain a letter of
permission from the teacher in charge of the latecomers before
they will be allowed into their register class. Learners may not
leave the school grounds during breaks. A learner may not be
absent from a lesson or the school grounds without permission
from the principal. A learner who has been absent must hand an
absentee letter, from his/her parent/guardian. In the event of
learners being absent for three of more consecutive school days,
a medical certificate must be provided. Wherever possible par-
ents should inform the school by telephone of the reasons for
absence.”
• Cleanliness and care for school. Rules pertaining to cleanliness of
the school grounds. Classrooms and other areas are important to
promote a feeling of pride and respect for the school among
learners. These rules should also promote a sense of care for the
school. Typical rules of this nature include: “Refuse must be
thrown into refuse bins on the school grounds or into the waste
bins in the classroom. Water and electricity may not be used un-
necessarily. Taps must not be left dripping and lights may not be
left on without reason.”
• Dress code. School rules should also include rules pertaining to
school uniforms, hair rules, and wearing of jewellery. These rules

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 are very often written in terms of the unique needs of the school
and community, but may include rules like: “The learners’ hair
must always be clean and neat. Learners may not colour, dye,
bleach or highlight the hair. No extravagant hairstyles (e.g. Rasta
hair and dread locks) will be tolerated. No moustaches and/or
beards are allowed and facial hair must be shaved.”(See Chapter
Ten)
• Rules of a general nature. The unique circumstances of a school
and the school type may demand that certain rules are made
that may apply only to the specific school. These rules may in-
clude rules relating to the use of cars, motorcycles, bicycles and/
or public transport to ensure the safety of the learners. It could
also include rules pertaining to special facilities and areas in the
school. In this regard a school may develop rules for the use of
the school library, laboratories, workshops, gymnasium, sport-
fields and sport-equipment. Rules may also cover the event of
learners falling ill during school hours and making use of the
sickbay.

4.4.5 Disciplinary procedures

The Schools Act requires the code of conduct to include appropri-
ate disciplinary procedures, that is, the steps that will be followed
when disciplining learners. Procedures must operate fairly to ensure
learners are treated fairly and justly, and not punishment for of-
fences they did not commit. In other words, the code of conduct
must provide for “due process” of safeguards against unfair and
arbitrary treatment. This is discussed in Chapter Five.

4.4.6 Appeal process

The Schools Act also recognises the right to appeal. Learners and
their parents may appeal against a disciplinary decision with which
they are not satisfied. For example, if a governing body suspends a
learner he or she may lodge an appeal with the principal or discipli-
nary committee, and learners and parents may appeal to the Mem-

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 ber of the Executive Council (MEC) against a decision to expel a
learner (s 9(4) of the Schools Act). Therefore, the appeal procedure
should be included in the code of conduct.

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 Outline of this Chapter
5
Chapter Five

Due Process

In this chapter the meaning and content of due process is ex-

plained and practical guidelines on how to conduct a disciplinary
hearing are given.

I n terms of section 8(1) of the Schools Act, it is an obligatory duty of

school governing bodies to adopt a code of conduct and within the
code of conduct make provision for due process (s 8(5)). The term
“due process” is uncommon in South African legal literature. It is
found in American legal literature and specifically the Fifth and Four-
teenth Amendments to the Constitution of the United States, which
require the state to provide “due process” to an individual prior to tak-
ing from that person “life, liberty and property” (Kemerer & Walsh,
1994:238).
Although the concept is not defined in the Schools Act, it essentially
means fair procedure – a process that should meet the standards of
fundamental fairness. The inclusion of the term due process in the
Schools Act raises the question of whether it is synonymous with our
law rules of natural justice (see Chapter Three). While both concepts
encompass the principles of procedural fairness, they are not synony-
mous.

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 5.1 The Content of the Right to Due Process
Due process encompasses the rules of natural justice as well as all
the principles of procedural fairness that are contemplated under
section 33 of the Bill of Rights, in order to give individuals the full
benefit of their rights. Therefore, when applying due process in
practice, for example when a learner is suspended of misconduct,
governing bodies will need to comply with the basic elements of
procedural fairness, as discussed below, which are found in com-
mon law and statute and protected by the Constitution. Due proc-
ess includes both procedural due process, which refers to the ap-
propriateness and fairness of rules. The distinction is important be-
cause the actions of a school governing body will not only be re-
viewed in terms of the procedures it followed, but the rules applied
by the governing body and decisions taken may also be reviewed
for reasonableness and fairness.

5.1.1 Application of due process

When applying due process in practice, for example before a
learner can be suspended for misconduct, the governing body will
need to comply with the basic elements of procedural fairness. Due
process includes both procedural process and substantive due proc-
ess.
Procedural due process refers to fair procedures that include the
following steps:
• The learner must be informed, in a language that is understand-
able to him/her, of the charge against him/her before the discipli-
nary hearing takes place.
• The learners must be given the opportunity to stat his/her case.
In this respect the principle of audi alteram partem is important.
• The learners must be allowed to be represented.
• Reasons must be given for the decision take by the disciplinary

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 committee.
• The learner has the right to appeal against the decision.
Substantive due process refers to the appropriateness and fairness
of the rules.
In some disciplinary cases, it is necessary to conduct a preliminary
investigation to collect evidence, which will determine whether or
not there are sufficient grounds for a disciplinary enquiry (hearing).
This also applies to cases of serious misconduct, for example, if a
learner is alleged to be selling drugs at school.
A disciplinary hearing that is substantively fair needs to give clear
reason for the disciplinary action. In other words, before conduct-
ing a disciplinary hearing the school must have enough evidence
and good reason for the hearing to take place. The actions taken
against the learner must be appropriate to the specific offence and
the age of the learner. The type of punishment that the Disciplinary
Committee decides on must not be too severe for the offence that
was committed.
It is important to realise that, even if a learner commits a very seri-
ous offence, the decision of the governing body to suspend the
learner, could be set aside if it fails to give the learner a hearing.

5.1.2 Impartial tribunal

In serious cases, especially when dealing with suspension, it would
be necessary to allow a special disciplinary committee, of which the
principal may still be a member, to hear the case. Generally, any
educator, parent or learner who was involved in the incident that
led to the suspension should not be involved in any decision re-
garding the incident. They could, however, be called as witnesses.
Whenever disciplinary proceedings are pending before any govern-
ing body, and it appears to such governing body that it would ex-

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 pose a witness under the age of 18 years to undue mental stress or
suffering if he or she testifies at such proceedings, the governing
body may, if practicable, appoint a competent person as an inter-
mediary in order to enable such witness to give his or her evidence
through that intermediary (Schools Act, section 8(7). If a governing
body appoints an intermediary under subsection (7), the governing
body may direct that the relevant witness must give his or her evi-
dence at any place which –
(a) is informally arranged to put that witness at ease;
(b) is arranged in a manner in which any person whose presence
may upset that witness, is outside the sight and hearing of that
witness; and
(c) enables the governing body and any person whose presence is
necessary at the relevant proceedings to hear, through the me-
dium of any electronic or other devices, that intermediary as
well as that witness during his or her testimony (subsection 9).
The parties to a hearing should consist of at least the following
people:
• Chairperson (often the chairperson of the SGB)
• Principal and/or deputy principle
• Educator
• Parent governors
• Learner representative (in secondary schools)
• Accused learner
• Witnesses
The principal may act as the prosecutor or appoint any educator to
represent the case against the learner. Remember if the principal
acts as the prosecutor then he/she may not be part of the discipli-
nary Committee during the hearing!
In the case of Michael de Kock v HoD of the Department of Educa-

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 tion in the Western Cape, the Governing Body of the High School
Overberg and the Minister of Education (case 12533/98) it is clear
that school principals need to be careful how they play their dual
role in disciplinary hearings. In this case both the principal and
deputy principal had caught a boy with dagga in his possession
and had confronted him with such possession. During the discipli-
nary hearing both of them had given evidence before the discipli-
nary committee and had been cross-examined by the boy’s attor-
ney and after the principal himself had actively taken part in cross-
examining the boy. The Court held that gross irregularity had taken
place in that the principal and deputy principal simultaneously
acted as witness, prosecutor and judge. Therefore, it cannot be said
that the boy had a fair trial before the disciplinary committee as
required by section 9 of the Schools Act.

5.1.3 Right to information

The fundamental right to information is necessary for the exercise
or protection of any right is provided for in section 32 of the Con-
stitution. At common law, the audi alteram partem rule also re-
quires that all relevant information, especially of a prejudicial na-
ture, be communicated to the person who may be affected by an
administrative decision. This ensures that the person concerned
may prepare for his or her case, and will not be unfairly prejudiced.
In practice this means that the learners and their parents must have
access to all information about the alleged misconduct that the
school intends to use during the disciplinary hearing.

5.1.4 Right to representation

A party to a hearing is usually entitled to legal representation only
where such assistance is necessary to ensure a fair hearing. It is ac-
cepted, though, that a person who is party to a complex case or

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 situation, which has serious consequences, may not be able to
properly put his or her case without assistance. Therefore, when a
statute does not provide for legal representation, cognisance should
be taken of the person’s position and competence to put his or her
case. A learner must be accompanied by his or her parent or a per-
son designated by the parent at disciplinary proceedings, unless
good cause is shown by the governing body for the continuation of
the proceedings in the absence of the parent or the person desig-
nated by the parent (section 8(6)).

5.2 The Disciplinary Hearing

A disciplinary hearing is similar to a court case held at a school.
The tribunal of Disciplinary Committee appointed by the SGB must
follow due process in conducting the hearing.

5.2.1 Steps to be followed

The following steps should be followed:
• The learner must be informed in a written notice of the charges
against him of her. There must be enough particulars of the al-
leged misconduct. Particulars of the place, date and time of hear-
ing must be given. The learner must be given enough time to
prepare for the hearing.
• Further particulars, which the learner may reasonably, require to
properly defend himself of herself must be provided in time.
• The learner may be represented or assisted by a legal adviser,
parent, educator, member of the Representative Council of
Learners or other suitable person.
• A person who investigated a complaint/ alleged misconduct can-
not chair a hearing into such complaint/alleged misconduct.
• At the beginning of the hearing the prosecutor must explain the
charge to the learner.
• The Chairperson of the Disciplinary Committee must then ask

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 the learner whether he/she admits or denies the charge as set
out. The learner must then respond. Should the learner fail to
respond, the learner will be deemed to have denied the charge.
• If the learner admits to the charge, the following procedure must
be followed.

5.2.2 Role of the chairperson

• The Chairperson must question the learner with reference to the
alleged facts comprising the misconduct.
• If, upon questioning the learner, it appears that his/her version
totally differs from the facts outlined by the prosecutor, or if the
Chairperson is not satisfied that the learner is really guilty of the
charge, the Chairperson must write down that the learner denies
the charge.
• If the Disciplinary Committee, or the majority of its members, is
satisfied that the learner is guilty of the charge, the Disciplinary
Committee must recommend to the SGB to find the learner
guilty of the charge.

5.2.3 If the learner denies the charge

• The prosecutor may call witnesses or present other evidence in
respect of the allegations against the learner;
• The learner, or his/her representative, may question any witness
and examine any evidence presented by the prosecutor;
• After all the evidence has been led against the learner, the
learner or his/her representative may call witnesses or present
other evidence in support of his/her denial of the charge;
• The prosecutor may question any witness and examine any evi-
dence presented on behalf of the learner;
• The Disciplinary Committee may question any witness or exam-
ine any evidence at any time;
• After all the evidence has been presented, first the prosecutor
and then the learner or his/her representative may address the
Disciplinary Committee.

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 5.2.4 Adjourn to consider the facts
After listening to both sides of the case, the Disciplinary Committee
must adjourn the hearing to a specified time and date. During this
adjournment the Disciplinary Committee must decide whether, the
learner has been proved guilty of the charge.

5.2.5 Convey the decision

• After careful deliberation, the Chairperson must convey the deci-
sion, punishment and the reasons for the decision to the parties
present. The reasons must be fair, just and based on relevant
information.
• If the Disciplinary Committee (who was appointed by the SGB)
decides that the learners should be expelled from the school,
The SGB must make a recommendation to the Head of Depart-
ment and must suspend the learner from the school pending the
decision of the Head of Department on whether the learner is to
be expelled.
If the Disciplinary Committee decides to suspend the learner, the
suspension takes immediate effect unless the Head of Department
orders otherwise. Where the learner is suspended, as a correctional
measure, a copy of the record, with a suitable covering letter, must
be send to the District Office. The school must keep one copy of
the documentation presented at the hearing and letters send to the
learner and his/her parents.

5.2.6 Appeal
• A learner or his/her parents may appeal to the Head of Depart-
ment against the Disciplinary Committees findings of guilt
against a penalty of suspension (See Schools Act, section 9 (4).
• If the learner is found not guilty of the charge, the Disciplinary
Committee must, if the learner so requests, publish its findings in
the school.

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 6
Chapter Six

Forms of Punishment and

Legal Limits
Outline of this Chapter
In this chapter various types of punishment are described. The
legal consequences and limits are pointed out.

W hile positive school rules are needed for schools to be effective, it

is also necessary to have punishments (corrective discipline) for
those who break the rules and disrupt school activities. The types of
sanctions that schools may impose are determined and regulated by
law. While some punishments are lawful others such as corporal pun-
ishment and confinement, are prohibited. Moreover, some punish-
ments that are permissible must be used with caution.

6.1 Consideration for Punishment

When a learner is punished, it is necessary for the educator to:
• explain what school rule was broken;
• explain the consequence of breaking the rule;
• explain the punishment; and
• record the punishment, especially for serious incidents and pun-
ishments.
At common law, punishment should be:
• fair and reasonable

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 • in proportion to the offence
• lawful; and
• consistently applied.
Lund (1996:43-45) also states that disciplinary incidents should be
dealt with as soon as possible and that punishment should not be
given in anger or in haste. Moreover, once the punishment has
been administered, the case must be closed and learner and educa-
tor should start again with a clean slate to discourage the educator
and/or learner from holding a grudge.

6.2 Legal Limits of Punishment

Punishment is a penalty or corrective measure inflicted on a person
who has transgressed a school rule and is guilty of misconduct.
When learners break school rules there are various punishments
that might be used; some are totally illegal, others are only margin-
ally lawful.

6.2.1 Corporal punishment

Section 10 of the Schools Act prohibits the use of corporal punish-
ment in public and private schools. Corporal punishment includes
slapping, pushing or shoving, and rough handling. Parents may not
give the principal or educators permission to use corporal punish-
ment on their children; nor may parents (instead of a principal or
educator) administer corporal punishment to their own children on
school property. Anyone who ignores this regulation commits an
offence and can be charged in a court of law.

6.2.2 Expulsion and suspension

School authorities may exclude learners from school whose con-
duct interferes with or disrupts the function of the school, who ha-
bitually defy school rules, who pose a threat to other learners or

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 educators and whose conduct is wilfully insubordinate. Their exclu-
sion may be of a temporary (suspension) or permanent nature
(expulsion). Suspension and expulsion are, however, reserved for
serious offences and misdemeanours which demonstrate persis-
tence and wilfulness in pursuing the offending behaviour:

♦ In terms of section 9 of the Schools Act:

The Schools Act in Section 9 determines the following with regard
to suspension and expulsion of learners: (the amendments to the
1996 Schools Act are indicated in brackets)
(1) The governing body may, on reasonable grounds and as a pre-
cautionary measure, suspend a learner who is suspected of seri-
ous misconduct from attending school, but may only enforce such
suspension after the learner has been granted a reasonable oppor-
tunity to make representations to it in relation to such suspension.
[Subs. (1) amended by s. 7 of Act 48/99 and substituted by s. 2 of Act 24/2005]
(1A) A governing body must conduct disciplinary proceedings in the
manner contemplated in section 8 against a learner within seven
school days after the suspension of such learner.
[Subs. (1A) inserted by s. 2 of Act 24/2005]
(1B) If disciplinary proceedings are not conducted within seven school
days after the suspension of a learner, the governing body must
obtain the approval of the Head of Department for the continua-
tion of the suspension of such learner.
[Subs. (1B) inserted by s. 2 of Act 24/2005]
(1C) A governing body may, if a learner is found guilty of serious
misconduct during the disciplinary proceedings contemplated in
section 8 -
(a) impose the suspension of such learner for a period not longer
than seven school days or any other sanction contemplated in
the code of conduct of the public school; or
(b) make a recommendation to the Head of Department to expel
such learner from the public school.
[Subs. (1C) inserted by s. 2 of Act 24/2005]
(1D) A Head of Department must consider the recommendation by
the governing body referred to in subsection (1C)(b) and must

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 decide whether or not to expel a learner within 14 days of receiv-
ing such recommendation.
[Subs. (1D) inserted by s. 2 of Act 24/2005]
(1E) A governing body may suspend or extend the suspension of a
learner for a period not longer than 14 days pending the decision
by the Head of Department whether or not to expel such learner
from the public school.
[Subs. (1E) inserted by s. 2 of Act 24/2005]
(2) A learner at a public school may be expelled only -
(a) by the Head of Department; and
(b) if found guilty of serious misconduct after disciplinary pro-
ceedings contemplated in section 8 were conducted.
[Subs. (2) substituted by s. 2 of Act 24/2005]
(3) The Member of the Executive Council must determine by notice
in the Provincial Gazette -
(a) the behaviour by a learner at a public school which may con-
stitute serious misconduct;

(b) disciplinary proceedings to be followed in such cases;

(c) provisions of due process safeguarding the interests of the
learner and any other party involved in disciplinary proceed-
ings.
(4) A learner or the parent of a learner who has been expelled from a
public school may appeal against the decision of the Head of De-
partment to the Member of the Executive Council within 14 days
of receiving the notice of expulsion.
[Subs. (4) substituted by s. 2 of Act 24/2005]
(5) If a learner who is subject to compulsory attendance in terms of
section 3(1) is expelled from a public school, the Head of Depart-
ment must make an alternative arrangement for his or her place-
ment at a public school.
(6) A learner who has appealed in the manner contemplated in sub-
section (4), must, pending the outcome of the appeal, be given
access to education in the manner determined by the Head of
Department.
[Subs. (6) added by s. 2 of Act 24/2005]

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 (7) The Head of Department, in determining the manner of atten-
dance contemplated in subsection (6) -
(a) must take reasonable measures to protect the rights of other
learners at the public school: and
(b) may consider an alternative method of providing education to
the learner contemplated in subsection (6).
[Subs. (7) added by s. 2 of Act 24/2005]
(8) If the Head of Department decides not to expel a learner as con-
templated in subsection (2), the Head of Department may, after
consultation with the governing body, impose a suitable sanction
on the learner.
[Subs. (8) added by s. 2 of Act 24/2005]
(9) If the Head of Department decides not to impose a sanction on
the learner, the Head of Department must refer the matter back to
the governing body for an alternative sanction in terms of the
code of conduct contemplated in section 8, other than expulsion.
[Subs. (9) added by s. 2 of Act 24/2005]

(10) The governing body must implement the sanction contemplated

in subsection (8).
[Subs. (10) added by s. 2 of Act 24/2005]

♦ Offences that may lead to suspension

In terms of Guidelines for the Consideration of Governing Bodies in
Adopting a Code of Conduct for Learners (1998) offences that may
lead to suspension include, but are not limited to, the following:
(a) conduct which endangers the safety and violates the rights
of others;
(b) possession, the threat or use of a dangerous weapon;
(c) possession, use, transmission or visible evidence of narcotic
or unauthorised drugs, alcohol or intoxicants of any kind;
(d) fighting, assault and physical bullying;
(e) immoral behaviour or profanity;
(f) falsely identifying oneself;
(g) harmful graffiti, hate speech, sexism, racism;

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 (h) theft or possession of stolen property including test or ex-
amination papers prior to the writing of tests or examina-
tions;
(i) unlawful action, vandalism, or destroying or defacing
school property;
(k) disrespect, objectionable behaviour and verbal abuse di-
rected at educators or other school employees and learners;
(l) repeated violations of school rules or the code of conduct;
(m) criminal and oppressive behaviour such as rape and gender
based harassment;
(n) victimisation, bullying and intimidation of others;
(o) infringement of examination rules; and
(p) knowingly and wilfully supplying false information or falsify-
ing documentation to gain an unfair advantage at school.
In 2000 the Department of Education published a document
“Alternatives to Corporal Punishment: A practical guide for educa-
tors. This document provides guidelines for drafting a code of con-
duct and dealing with misconduct.

The document suggests the following alternatives to corporal pun-

ishment to be carried out at different levels of misconduct:

♦ Level 1 - Misconduct inside the classroom

Failing to be in class on time, bunking classes, failing to finish
homework, failing to respond to reasonable instructions, being dis-
honest with minor consequences.
Disciplinary action carried out by class educators: verbal warnings,
community service, demerits, additional work, detention, etc.

♦ Level 2 - Misconduct by breaking school rules

Frequently repeating Level 1 misconduct and not responding to
disciplinary measures taken by the educator, smoking or carrying

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 tobacco, leaving school without permission, using abusive lan-
guage, interrupting education in the classroom, showing disrespect
for another person, minor vandalism such as graffiti, being dis-
honest with more serious consequences.
Disciplinary action carried out by higher authorities, such as the
head of department, for example, disciplinary talk with the learner,
talks with parents or guardians, written warnings, daily report taken
by learner and signed by educators, etc.

♦ Level 3 - A serious misconduct or serious violation of

school codes
Repeating Level 2 misconduct, where action taken by the school
authorities is considered ineffective, inflicting minor injury on an-
other person. gambling, being severely disruptive of classes, forging
documents or signatures with minor consequences, using racist,
sexist or other discriminatory behaviour, possessing pornographic,
racist or sexist materials, possessing dangerous weapons, theft,
vandalism, cheating during exams, etc.
On this level disciplinary action carried out by the principal or re-
ferred to an outside agency for counselling is recommended.
Learners should receive written warnings of the possibility of sus-
pension from the school, referral to a counsellor or community ser-
vice.

♦ Level 4 - Very serious misconduct or very serious vio-

lations of school codes
Repeating Level 3 misconduct where disciplinary action has been
ineffective, threatening another person with a dangerous weapon,
causing intentional limited injury to another person, verbally threat-
ening another person’s safety, engaging in sexual abuse, selling
drugs, possessing or using alcohol or drugs or being drunk , dis-

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 rupting the entire school etc. On this level a formal disciplinary
hearing should take place.

6.2.3 Suspension, expulsion and the right to education

Learners have a right to basic education and are also compelled to
attend school by law. Therefore, suspension and expulsion do not
prevent a learner who is within the compulsory school-going age
from attending another school. In the case of expulsion, the Head
of Department of a province must find a place for an expelled
learner until the learner is beyond the compulsory school-going
age.

6.2.4 Sending learners home

A learner may not be sent home for trivial reasons such as incorrect
uniform or not having the necessary books, unless the learner is
being wilfully disobedient. Removal from school may only be done
for serious offences; this amounts to suspension and it must there-
fore be done in accordance with the regulations.

6.2.5 Detention
Detention may take the form of isolation during class, during break
or after school. Imposing detention must, however, be done in a
fair and reasonable way, and should also be guided by common
sense. Before detaining a learner, it is important to consider a few
legal implications. Too often educators detain learners after school
without thinking about the consequences. This is not to say that
learners may not be detained, but it must be done in a responsible
way. Educator could find themselves in serious trouble if they de-
tained a child after school for misbehaving as a result the child is
stranded at school or has to walk home because he or she has
missed the school bus or taxi. Some of the most important factors
to bear in mind are:
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 • the seriousness of the offence;
• the age of the learner
• the distance the learner has to travel home; and
• the availability of transport.
When arranging detention, educators should give the learner and
parents fair warning in writing, the use of detention in a school
should be included in the school rules and brochures, and made
known to all the learners and parents. The detention room must
also be a place where learners are required to do serious work.
Educators who send learners to detention should set work for the
learners.

6.2.6 Daily reports

Disruptive learners may be required to report to the principal or
another senior educator on a daily basis for a specific period of
time. This should make learners realise that they are being closely
watched. Alternatively, a learner may be required to carry a report
sheet that is complete by each of the learner’s educators and then
handed to the principal or deputy principal at the end of the day.

6.2.7 Behaviour management contacts

A written contract may be drawn up between the educator and
learner (and the parent if need be), that sets out specific goals for
the learner, with appropriate conditions. A contract implies a two-
way process and the school should undertake to provide the neces-
sary counselling and/or a behaviour management support pro-
gramme. Withdrawal of a learner from the school may not be a
term in the contract. The normal procedures for suspension must
be followed and complied with.

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 6.2.8 Time-out
Time-out is another common method of punishing learners. If a
learner is very disruptive or violent, abusive, refuses to settle down
and is preventing the educator from teaching, he or she can be re-
moved from the classroom or isolated from the other learners.
However, when a learner is required to stand or sit in a corner,
possibly with his or her back to the class, or to stand next to the
educator’s desk or sit at a desk that has been isolated from the oth-
ers, it is more likely to humiliate the person and provoke resent-
ment than to correct behaviour positively. Educators then run the
risk if infringing the child’s right to dignity (s10 of the Bill of Rights)
and the right “not to be treated or punished in a cruel, inhuman
and degrading way” (s12(1)(e) of the Bill of Rights). Alternatively,
learners are often instructed to stand outside the classroom until the
next lesson begins or until the educator decides to call them back
into the classroom. This may result in the learner wandering off and
getting up to even more mischief or standing at the window per-
forming antics to attract the attention of classmates.
If educators are going to use time-out so that learners can “cool
off” and reflect on their misbehaviour, there should be a time-out
room where the learners are sent and where they can be super-
vised. This may, for example, be an office next to the secretary or
principal’s office. Educators should avoid sending learners out of
the classroom too often and for long periods at a time, as this
would be unlawful. By placing a learner outside the classroom the
learner is being deprived of his or her right to education.

6.2.9 Withdrawal of privileges

A learner may be punished by withdrawing certain privileges, for
example, preventing a learner from participating in sport or cultural

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 activity, going on a school trip or being a class representative. If a
privilege is withdrawn, care must be taken to follow due process
and to ensure that the learner’s schoolwork is not compromised.
For example, a learner should not be prevented from watching a
film that is part of the English syllabus.
In the case Western Cape Residents' Association obo Williams and
Another v Parow High School 2006 (3) SA 542 (C) the school in-
formed all grade 12 learners at the beginning of the school year,
that attendance of the matric farewell function was a privilege and
would be accorded only to those learners whose conduct, both
academic and otherwise, merited it. The school then did not invite
a learner to this function. The school decided that because of her
disciplinary problems and lack of respect for authority, she had for-
feited her right to attend the function. The Court held that the
granting of privilege as a reward for good behaviour was one of the
tools that could be used to teach students discipline and respect for
authority. Withholding privilege was not an infringement of the stu-
dent's rights to equality and dignity. In fact, granting a privilege to a
student who had not earned it might constitute an infringement of
the rights to equality and dignity of those learners who had earned
it. Obviously, the right to freedom of expression did not entitle a
learner to be ill-disciplined or rude.

6.2.10 Assigning extra work

Giving learners additional written schoolwork, for example writing
an essay, copying sections from a textbook of doing extra maths, is
a common form of punishment. However, educators also need to
be careful when assigning extra school work. Although this is not
unlawful, it does detract from the value and purpose of schoolwork
and can result in learners developing negative attitudes towards a
particular subject. Moreover, educators must be careful not to pun-

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 ish learners for poor work performance, for example, for not com-
pleting work, where it may be because of lack of understanding
and ability. Extra work may also be counter-productive in motivat-
ing learners to work diligently.

6.2.11 Community work

Learners may be given community work as a means of punish-
ment. This may include cleaning classrooms and toilets, washing
windows, picking up litter and weeding the garden. It may also in-
volve learners helping out at a charity organisation. This is espe-
cially useful for learners who appear to lack responsibility and con-
sideration for others. Community work must be supervised and
should not be done during class time.

6.2.12 A points system

Many schools use a system whereby points are either awarded for
good behaviour or deducted for misbehaviour. For example, learn-
ers begin a school year with 500 points and thereafter points are
deducted for misbehaviour. Alternatively, learners begin with zero
points and then accumulate points for good behaviour. The main
criticism against such a system is that there is often great deal of
inconsistency in the way in which points are rewarded or deducted.
The fact that the consequence will only be applied after the learner
who misbehaved has attained a number of negative points, thus
taking such as the long period before consequences can be applied
indicates some flaws in the system. Some schools do not have ade-
quate resources to employ this strategy as a disciplinary measure.
Moreover, learners, especially in the secondary school, are inclined
not to take the system seriously.

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 Outline of this Chapter
7
Chapter Seven

Conducting Searches

In this chapter the requirements and legal limits of conducting

searches in schools are discussed. While learners have the right
not to be searched, this right can be limited in the school context
in the interest of school health and safety.

P rincipals and educators are often faced with the dilemma of

whether or not to search learners and their property. When con-
ducting searches and seizures, it is important to take cognisance of the
Bill of Rights, specifically the child’s right to privacy (s 14) and the
right to respect and protect his or her dignity (s 10).

7.1 Right to Privacy

In terms of section 14 of the Constitution, everyone has the right to
privacy, which includes the right not to have:
(a) their person or home searched;
(b) their property searched
(c) their possessions seized;
(d) the privacy of their communication infringed.
At first glance it would appear that principals and educators may
not search learners and their property, or confiscate items belong-
ing to the learners as this would be contrary to the spirit and con-

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 tent of section 14. However, in terms of section 36 (limitation of
rights) this may be limited to reasonable and justifiable limitations
imposed by law of general application. This right might be limited
where it might be necessary in certain circumstances for school offi-
cials to conduct searches of persons and property, for example,
when searching for illegal drugs, alcohol or dangerous weapons.

7.2 General Legal Requirements and Limits

In terms of the Schools Act section 8A:
8A. Random search and seizure and drug testing at schools
(1) Unless authorised by the principal for legitimate educational pur-
poses, no person may bring a dangerous object or illegal drug
onto school premises or have such object or drug in his or her
possession on school premises or during any school activity.
(2) Subject to subsection (3), the principal or his or her delegate may,
at random, search any group of learners, or the property of a
group of learners, for any dangerous object or illegal drug, if a fair
and reasonable suspicion has been established -
(a) that a dangerous object or an illegal drug may be found on
school premises or during a school activity; or
(b) that one or more learners on school premises or during a
school activity are in possession of dangerous objects or illegal
drugs.
(3) (a) A search contemplated in subsection (2) may only be
conducted after taking into account all relevant factors,
including -
(i) the best interest of the learners in question or of any
other learner at the school;
(ii) the safety and health of the learners in question or of any
other learner at the school;
(iii) reasonable evidence of illegal activity; and
(iv) all relevant evidence received.
(b) When conducting a search contemplated in subsection (2), the
principal or his or her delegate must do so in a manner that is
reasonable and proportional to the suspected illegal activity.

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 (4) Where a search contemplated in subsection (2) entails a body
search of the learners in question, such search may only -
(a) be conducted by -
(i) the principal, if he or she is of the same gender as the
learner;
(ii) by the principal’s delegate, who must be of the same
gender as the learner;
(b) be done in a private area, and not in view of another learner;
(c) be done if one adult witness, of the same gender as the
learner, is present; and
(d) be done if it does not extend to a search of a body cavity of
the learner.
(5) Any dangerous object or illegal drug that has been seized must be -
(a) clearly and correctly labelled with full particulars, including -
(i) the name of learner in whose possession it was found;
(ii) the time and date of search and seizure;
(iii) an incident reference number;
(iv) the name of person who searched the learner;
(v) the name of the witness; and
(vi) any other details that may be necessary to identify the
item and incident;
(b) recorded in the school record book; and
(c) handed over to the police immediately to dispose of it in terms
of section 31 of the Criminal Procedure Act, 1977 (Act No. 51
of 1977).
(6) If the police cannot collect the dangerous object or illegal drug
from the school immediately, the principal or his or her delegate
must -
(a) take the dangerous object or illegal drug to the nearest police
station; and
(b) hand the dangerous object or illegal drug over to the police to
dispose of it in terms of section 31 of the Criminal Procedure
Act, 1977 (Act No. 51 of 1977).
(7) The police officer who receives the dangerous object or illegal
drug must issue an official receipt for it to the principal or to his or
her delegate.

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 In the first instance, the purpose of the search is of the utmost im-
portance. Before a search is carried out, there must be reasonable
suspicion that a crime has been committed or is about to be com-
mitted. There must be enough reliable information to justify a
search and it must be deemed necessary for maintaining discipline.
Secondly, it is important to consider the place being searched. One
has to take care not to infringe a person’s right to privacy and dig-
nity. The closer the search is to the person, the higher the risk of
privacy invasion. The highest degree of invasion would be a strip-
search and should be avoided, while a lower degree of invasion is
searching a school desk. Thirdly, the person doing the search must
have the authority to do so. Boys and girls should be separate and
searched by a person of the same gender.

7.2.1 The standard of “reasonableness”

Because of inadequate legal reference in South Africa, we can at
this stage only speculate on what the court’s definition of reason-
ableness would be. It is, however, a factor which must be consid-
ered when faced with such issues. Therefore, it may be constructive
to consider international trends.
The reasonableness standard was applied in a USA case, New Jer-
sey v TLO 469 U.S. 325 (1985), one of the few school search and
seizure cases decided by the US Supreme Court. In this case a
teacher saw a learner and a friend smoking in a toilet. This was a
violation of a school rule. The learners were questioned by the vice
-principal. The first learner admitted to smoking, but TLO denied
smoking and to being a smoker. The principal then asked to see
TLO’s purse which she reluctantly provided. After opening the
purse, the principal immediately saw a packet of cigarettes. Posses-
sion of cigarettes was not a violation of school rules, but it did sup-
port the eye witness testimony that TLO had been smoking. Once

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 the principal had removed the cigarettes, he noticed rolling papers,
which he associated with marijuana use. He then conducted a thor-
ough search of the purse and discovered a small quantity of mari-
juana, a pipe, numerous one dollar bills, plastic bags, a list of peo-
ple who owed money and two letters implicating her in drug sales.
The evidence was turned over to the police and delinquency
charges were filed. Although TLO at first confessed to selling drugs,
she later claimed that the evidence provided by school officials
should be suppressed because the items were seized in violation of
her Fourth Amendment right which protects the right of citizens “to
be secure in their persons, houses, papers and effects against un-
reasonable search and seizure.”

In deciding the case, the Supreme Court held that the Fourth
Amendment applies to searches conducted by public school offi-
cials. It was decided that to meet constitutional scrutiny, such
searches need to be reasonable. In examining the events leading
up to the search, the Court ruled that the search would be found
reasonable if it were: (1) justified at its inception, i.e. were there
reasonable grounds for suspecting that the search would turn op
evidence that the learner had violated either the law or a school
rule and (2) reasonably related in scope to the circumstances that
justified the search in the first place, i.e., were the measures
adopted reasonably related to the objectives of the search and not
excessively intrusive in the light of the age and sex of the learner
and the nature of the offence. In the TLO case both searches were
held to be reasonable. The report that she was smoking justified the
first search for cigarettes, while the discovery of rolling papers
prompted a reasonable suspicion that the purse contained mari-
juana. The Court found that a reasonable suspicion was sufficient
considering the relative minor intrusion into the learner’s privacy
(Camp et al, 1989).

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 Once the standard of reasonable suspicion has been met, reason-
able scope is considered. The place or person identified through
reasonable suspicion has a direct bearing on the scope of the
search. The closer the search comes to the person, the higher the
intrusiveness and, as a result, the higher the scope of the search.
A very high degree of intrusiveness would be a strip-search of a
person. The lowest degree would be the search of an inanimate
object such as a desk. Educators, delegated by the principal, who
intend conducting searches, should decide on the degree of intru-
siveness.
A search of a learner’s personal belongings, such as a bag and
purse requires a higher standard of protection than a search of a
desk, because it involves personal belongings in which the learner
has a higher expectation of privacy. While desks are the property of
the school, personal belongings are the property of the learner.
When a school employee actually touches a learner’s clothing while
engaged in a search, the search becomes more invasive. Thus
searching pockets or doing a pat-down or strip-search might impact
on the learner’s dignity which is protected by section 10 of the
Constitution.
The most controversial search of learners is the strip-search and in
general is considered impermissible. In the USA for instance, the
courts have determined that strip-searches require more than just
“reasonable suspicion”. Because of the intrusive nature of strip-
searches, school officials should have “probable cause” (i.e. a high
level of justification) that the learner is in possession of illegal sub-
stances or a weapon that may threaten the safety of other learners.
A body cavity search is the most serious and intrusive and should
never be conducted by school officials or educators.

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 7.3 Police and Canine Searches
With the increasing problem of drugs in schools today, school offi-
cials are turning to the police and their trained dogs to sniff out
drugs in schools. Police require a valid search warrant before they
may conduct a search in a school. There is no clear policy on ca-
nine searches in schools. Looking abroad, in the USA, come courts
have expressed reservations about canine searches and have been
reluctant to accept canine searches in some circumstances as it was
considered to be too intrusive of a learner’s rights to privacy.

7.4 Metal Detectors

Metal detectors used for conducting searches are commonly found
in airports, courthouses, shopping centres and some businesses.
Although based on “suspicionless searches”, they are permissible
because they are designed to protect the public and they are di-
rected at everyone and not at a particular person. In response to
the growing problem of crime and violence in schools, more
schools are considering using metal detectors or scanning devices
to screen learners. This is controversial and costly in terms of
equipment and personnel. However, if metal detectors are in gen-
eral permissible, a public institution such as a school should be able
to use metal detectors if they are intended to protect the safety of
learners and personnel, as well as the general public, and to reduce
the level of crime and violence in schools.

7.5 Cameras on School Grounds and in Classrooms

In many schools CCTV cameras have been installed in corridors
and in classrooms to protect learners, staff members and the school
property. School governing bodies may decide to install these cam-
eras to monitor learners’ behaviour and to act as a deterrent
against school violence and vandalism. Before installing these cam-

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 eras the purpose and advantages thereof should be discussed with
all staff members and learners.
Installing cameras in classrooms, corridors and school grounds is
not an invasion of the privacy of staff members or learners. How-
ever, if these cameras are used for unreasonable policing of educa-
tors it might lead to concerns and unhappiness.

7.6 Practical Guidelines for Conducting Searches

• Educators and other school officials can be held liable is a
learner can show that the person conducting the search acted
with malice and was unfair.
• Prior to undertaking a search, the principal or educator must
have reasonable suspicion that one or more learners have en-
gaged in a wrongful act.
• Searches should be authorised by the principal.
• Schools should have a clear set of rules and regulations dealing
with searches and seizures.
• If a learner refused to be searched, and it is not a matter of ur-
gency, call the parents or guardian. If the parent refuses, hand
the matter over to the police.
• Strip-searches are generally not permitted and must be avoided.
• If the police are conducting the search, the school authorities
should ensure that a proper search warrant is obtained.
• Parents and learners must be informed of the school’s proce-
dures for conducting searches.

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 Outline of this Chapter
8
Chapter Eight

Bullying in Schools

Bullying in schools is a serious problem that needs to be dealt

with in the code of conduct or a separate policy. In this chapter
the nature and consequence of bullying are discussed and the
legal implications for school governors are highlighted.

B ullying is one of the most underestimated problems in schools to-

day. It is something that people prefer to ignore and simply pass off
as nasty children picking on others. Bullying, however, is serious and
prevalent in many schools. Behr (2000:47) in a study conducted at
middle to upper-class school in Gauteng Province found that 45.5% of
608 learners experienced bullying at least once a year. 84% testified
that they witnessed events of bullying once, while almost half wit-
nessed bullying on three or more occasions that year. Similarly, De
Wet (2006) in her study that was conducted in the Free State province
states that bullying is a reality in the daily life of most of the learners.

In South Africa, the majority of schools, if not all, experience bullying.

This is still experienced even after the government has encouraged all
schools to have a code of conduct for learners that also address bully-
ing problems. Nearly 40% of South African children are victims of bul-
lying and children who are bullied are victims of bullying and may
even commit suicide. Also bullies are more likely to be arrested for
committing a crime and more likely to abuse their spouses in later life.

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 Bullying happens in every school regardless of race or class
(Department of Education, 1999).
Research on bullying in England suggests that four out of five children
are affected by bullying and in a study involving 25 secondary
schools, 83% of the boys and 67% of the girls admitted to bullying
behaviour. Similar research in the USA indicates that one in seven
learners is either a bully or has been a victim of a bully. In research
conducted in primary schools in South Carolina, of the 2 289 learners
surveyed on bullying, tow-thirds said they had been bullied, more
than 64% thought bullying was a problem and more than 83% said
that they would like school more if bullying was dealt with. In South
Africa, the research on bullying completed by De Wet (2003, 2005
and 2008) confirms that bullying is part of the daily lives of children in
schools and more so in school hostels.

8.1 Nature of Bullying

Bullying has profound consequences for the bullied. Although the
definitions of bullying vary, it does come in many forms raging
from subtle verbal comments and negative gestures to overt physi-
cal aggression. Reports on bullying cite examples of learners being
physically assaulted, in some instances resulting in death, some
have been thrown down staircases and others locked in closets.
Bullying does not have to be physical. It can be psychological or
emotional, and very subtle, which can be even more distressing
than physical abuse.

8.2 Who are the Bullies and Bullied?

A characteristic feature of bullying is that it is unprovoked and re-
peated behaviour. Victims of bullying often display vulnerable fea-
tures, such as anxiety, shyness and insecurity, and/or they may be
overweight, physically small or handicapped in some way. Bullies,

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 on the other hand, are often underachievers and prone to antiso-
cial behaviour. The effects of bullying on learners are far-reaching.
They often become withdrawn, fearful, anxious, depressed and in-
secure, and develop stress-related symptoms such as persistent
headaches and stomach ailments. Some children have even con-
templated or committed suicide. Moreover, the effects of bullying
can be long-lasting, and may persist into adult life.

8.3 Response to Bullying

A real problem with bullying is that educators and parents often
don’t spot bullying, or they brush it aside as nasty behaviour, not
wishing to make too much out of it. This is made worse by the fact
that children who are bullied are afraid to speak out of fear of fur-
ther bullying. Parents who know their children are being bullied are
also sometimes reluctant to approach the school because they feel
intimidated and fear that their children might be victimised even
more. But, bullying needs to be brought into the open and dealt
with. This will require a joint effort by educators, parents, learners
and professional welfare workers. Bullying can be reduced if
schools are aware of the problem and have a policy in place for
dealing with bullies and the bullied.

8.4 Combating Bullying

All schools should have anti-bullying strategies, starting with the
school’s code of conduct. Schools can have a separate policy on
bullying, as an addendum to the code of conduct, or it can be in-
corporated into the overall code of conduct, provided it is very
clear. Questionnaires on bullying are useful for gathering informa-
tion about the extent and nature of bullying in a school. This infor-
mation can be used as a springboard for identifying problem areas,
creating awareness, developing lessons for classroom discussion

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 and developing anti-bullying strategies. To find out about the ex-
tent of bullying in your school, conduct a basic survey using the
checklist provided in Appendix C.

8.5 Legal Duty and Liability

Schools cannot afford to be complacent about bullying. The school
has a legal duty to provide children with a safe and secure environ-
ment, and to protect them from deviant behaviour that affects their
well-being and infringes their basic rights to security, human dig-
nity, privacy and education. A question that arises is whether an
educator or principal is negligent if he or she fails to take the neces-
sary steps to prevent bullying and to impose adequate levels of dis-
cipline. If the negligence can be proved, it is certainly possible for
schools to be held liable.
The legal rules that control and direct the management and opera-
tion of bullying in South African public schools are part of the Bill
of Rights, international children’s rights conventions, common law
(law of delict, the educator’s duty of care, the in loco parentis prin-
ciple), case law and criminal law. A thorough knowledge of the
phenomenon “bullying” is necessary to enable educators to identify
the applicable legal rules contained in the legal sources discussed in
previous chapters.

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 9
Chapter Nine

Criminal Behaviour in Schools

Outline of this Chapter

The purpose of this chapter is to briefly explain the legal content
of some of the more common crimes committed by learners at
school, and the legal capacity of learners.

C rime and violence are on the increase in schools and educators

have to deal with a range of criminal acts perpetrated by learners.
Some of the more prevalent crimes include drug abuse, vandalism,
theft, assault and sexual offences. Such criminal misconduct must be
reported by the school and investigated by the police, and referred to
the court if necessary.

9.1 Criminal Capacity of Learners

Learners, like all citizens, are subject to the laws of the country. But,
depending on their age, learners vary in criminal capacity, or crimi-
nal accountability. However, under certain circumstances they can
be held liable for their unlawful act on school premises. A person
has capacity if he or she has the “mental abilities require by the law
to be held responsible and liable for his [her] unlawful con-
duct” (Snyman, 1995:145). The mental abilities, which a person
must have, are the ability to appreciate the wrongfulness of the
conduct and the ability to conduct oneself in accordance with such
appreciation of the wrongfulness of the conduct (Snyman,

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 1995:146). If a person lacks these abilities, he or she cannot be
held criminally liable for an unlawful act or omission.
Criminal capacity may be completely or partially absent because of
age. For instance, a child who is under the age of 7 (who has not
had a 7th birthday) lacks criminal capacity and therefore cannot be
held liable for unlawful conduct. After a child’s 7th birthday but be-
fore completing the 14th year (i.e. he or she has not had a 14th
birthday), the child is rebuttably presumed to lack criminal capac-
ity. In other words, the child is presumed to lack capacity but he or
she could be held liable (accountable) if the State can prove be-
yond reasonable doubt that the child was capable of appreciating
the nature and consequences of his or her conduct. Therefore, a 12
year-old learner who vandalises school property can be held liable
if it is proved that the learner was aware what he or she was doing,
was wrong. After the age of 14, a child has full capacity and there-
fore can be held liable for unlawful conduct.

9.2 Criminal and Civil Law

Criminal law is part of public law and deals with crimes directed
against public interests such as theft, rape, assault and murder. In
criminal law the State prosecutes the offender and metes out the
punishment. Civil law forms part of private law and deals with
delicts (wrong acts) directed at private interest. In civil law a private
party institutes legal action with the result that a guilty party may be
ordered to pay damages to the injured party. For example, if an
educator carelessly (negligently) injures a learner at school, the
matter is usually decided by a civil court action against the educa-
tor in his or her personal capacity.
Criminal acts committed by learners may give rise to both criminal
and civil actions. For example, if a learner stabs and seriously in-
jures another learner, the stat may prosecute the learner for assault
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 and the parents of the injured learner may also institute a civil ac-
tion for damaged to pay for hospital fees, for example. If the school
and/or state take no action against the learner who has committed
a crime, the parents acting on behalf of the injured learner may still
institute a civil action against the offender for damages.

9.3 Drugs is Schools

The presence of drugs in schools is a major concern and keeping
schools free of drugs is one of the more difficult tasks facing school
personnel. The use and abuse of drugs among school children and
the availability of drugs in schools is on the increase. Catching cul-
prits is one of the real difficulties in eradicating drugs in schools.
Often educators have a very good idea that learners are using or
selling drugs, but simply do not have the evidence. Also, learners
are often afraid to report other learners who are dealing with drugs
for fear of victimisation by the offenders. As difficult and as un-
pleasant as the task may be, school personnel have little option but
to tackle the drug issue head on and to keep their schools free of
drugs. After all, possession, use and sale of illegal drugs are criminal
offences and learners, like all citizens, are subject to the laws of the
country.

9.3.1 Conducting searches

Conducting searches is one of the few means available to school
personnel to find out if a learner is in possession of drugs. How-
ever, school principals are often reluctant to conduct searches be-
cause they are concerned about infringing learners’ rights to pri-
vacy and dignity, and the right to freedom from illegal searches.
But, there is no absolute right to privacy or to be free from all
searches. These rights must be balanced against the right and duty
of school personnel to provide learners with a disciplined, orderly

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 and secure school environment. The law therefore recognises that
searches are a means of maintaining discipline and enforcing
school rules. See Chapter Seven,

9.3.2. Drug testing

The Schools Act (s. 8) states the following with regard to random
drug testing in schools:
(8) The principal or his or her delegate may at random administer a
urine or other non-invasive test to any group of learners that is on
fair and reasonable grounds suspected of using illegal drugs, after
taking into account all relevant factors contemplated in subsection
(3).
(9) A learner contemplated in subsection (8) may be subjected to a
urine or other non-invasive test for illegal drugs only if -
(a) the test is conducted by a person of the same gender;
(b) it is done in a private area and not in view of another learner;
(c) one adult witness, of the same gender as the learner, is pre-
sent;
(d) the sample is clearly and correctly labeled with full particulars
as contemplated in subsection (5), with the necessary changes;
and
(e) a device contemplated in subsection (11) is used.
(10) The principal or his or her delegate must -
(a) within one working day, if practicable, inform the parent that a
random test or search and seizure was done in respect of his
or her child; and
(b) inform the learner and his or her parent of the result of the test
immediately after it becomes available.
(11) The Minister must -
(a) identify the device with which the test contemplated in subsec-
tion (8) is to be done and the procedure to be followed; and
(b) publish the name of this device, and any other relevant infor-
mation about it, in the Gazette.
(12) A learner may be subjected to disciplinary proceedings if -

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 (a) a dangerous object or illegal drug is found in his or her posses-
sion; or
(b) his or her sample tested positive for an illegal drug.
(13) Any disciplinary proceedings in respect of a learner must be con-
ducted in terms of the code of conduct contemplated in section 8.
(14) No criminal proceedings may be instituted by the school against a
learner in respect of whom -
(a) a search contemplated in subsection (2) was conducted and a
dangerous object or illegal drug was found; or
(b) a test contemplated in subsection (8) was conducted, which
proved to be positive.
[S. 8A inserted by s. 7 of Act 31/2007]

The purpose of the National Policy on the Management of Drug

Abuse by Learners in Public and Independent Schools and Further
Education and Training Institutions (Published under General No-
tice 3427 in Government Gazette 24172 of 13 December 2002) is
to help and support not only those learners who abuse drugs, but
also the majority of learners and staff who do not use drugs but
who may be affected by the usage of drugs by others, while assist-
ing and supporting learners with a drug problem, as long as they
are prepared to co-operate with educators and other professionals
involved in the treatment and rehabilitation process.

Testing for drugs is one way of determining if a learner is using

drugs. In some countries, school districts have approved drug test-
ing programmes in schools. In South Africa no decision has been
made yet about the device (see Schools Act, s. 11) that may be
used for drug testing. Until such time as there is clarity on this issue,
schools may not subject learners to compulsory drug testing. A
learner, who is a minor, may also not give the school permission to
administer a drug test. If the school principal knows, or is fairly cer-
tain, that learners are taking drugs, he or she may advice or request
parents to have their children tested. Schools may not test learners

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 for drugs without parents’ permission.
If a learner has been found guilty of using, possessing or selling
drugs and is disciplined, part of the requirements for staying at the
school of being re-admitted may be compulsory participation in a
drug awareness and rehabilitation programme, and regular testing
arranged by the parents or guardian.

9.3.3 General guidelines

• Schools should have a policy on drugs that is additional (an ap-
pendix) to the general code of conduct (see Appendix D).
• Educators, parents and learners must be informed of the school’s
procedures for conducting searches.
• Educators and learners should know what procedures to follow
in emergency situations.
• A team of support staff should be identified and trained to pro-
vide counselling to learners. This team should consist of at least a
senior person in management, a school governor, a school psy-
chologist or guidance educator and a representative from a drug
rehabilitation organisation.
• Drug education programmes should be an ongoing initiative in
schools.

9.4 Crimes Against Persons and Property

In this section, a brief explanation is given of some of the most
common criminal acts occurring in schools and the consequences
that these acts may have.

9.4.1 Vandalism
Vandalism is the malicious damage to property is one of the most
prevalent crimes committed against schools. A person commits ma-
licious injury to property he or she unlawfully and intentionally
damages movable or immovable property belonging to another.

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 This crime overlaps with certain instances of theft and arson.
Therefore, learners who deliberately break windows and doors of
classrooms, burn school buildings, destroy desks and equipment,
commit a crime and may be liable for their actions (see criminal
capacity above). If learners are found guilty of vandalism, the
school can require the parents to make reparations by replacing
damaged property or by paying for the damage to be repaired.

9.4.2 Theft
Theft of school property and the property of others is all too com-
mon in schools today. A person commits theft if he or she unlaw-
fully and intentionally appropriates (removes/takes) that belong to
another person (natural of juristic person). Learners may be sus-
pended or expelled for theft provided the correct procedures have
been followed (see s. 8 of the Schools Act). Cases of theft should
be reported to the police and criminal action may be instituted
against the learner.

9.4.3 Assault
Assault is a crime against bodily integrity. It involves the unlawful
and intentional use of force, directly or indirectly, against another
person or inspiring a belief in another person that force is immedi-
ately to be applied to him or her (Snyman, 1995). Therefore, in
certain circumstances, bullying can also amount to assault (see
Chapter eight). Assault can be committed even though there is no
physical impact on the person’s body. It can be committed if X
threatens Y with immediate violence. For example, a learner threat-
ens to beat up an educator if the educator does not pass him or
her, and the educator genuinely believes and fears the threat. If the
educator did not believe the learner, there is no assault. If a learner
threatens an educator or fellow learner with a firearm and the treat

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 is believed to be real, the fact that the firearm might be loaded or a
fake (e.g. a toy gun) will not afford the learner a defence. School
personnel are cautioned not to dismiss incidents of assault as mere
“playground scuffles” but to take strict action where necessary an
appropriate.

9.4.4 Possession and use of firearms and dangerous weapons

An increasing number of learners are bringing firearms and other
dangerous weapons, which are creating a threat to the safety and
security of all learners and school personnel. The school’s code of
conduct should spell out the types of weapons that are prohibited
and which will be confiscated. Objects such as knives, daggers and
spears that are designed to be used as weapons are readily identifi-
able as dangerous weapons and can be immediately confiscated.
However, other objects that are not weapons but could be used as
weapons such as scissors, cricket bats, screwdrivers and stones may
be designated as dangerous weapons and confiscated if the learner
has or intends to use them as a weapon. Learners may be searched
if there is reasonable suspicion to believe that they are in posses-
sion of firearms or other dangerous weapons.

9.4.5 Sexual offences

In their report on school-based violence the South African Human
Rights Commission says sexual and gender-based violence occurs
in educational settings with most incidences targeted against girls
by male educators and class-mates. There are also increased re-
ports of violence being targeted against lesbian, gay, bisexual and
trans-gendered young people. Sexual and gender-based violence
can be exacerbated by the government’s failure to enact and imple-
ment laws that provide learners with explicit protection from dis-
crimination (South African Human Rights Commission, 2008).

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 Inappropriate and unlawful sexual relationship between learners
and educators, and between learners are commonplace is schools.
The Sexual Offences Act of 1957 creates a number of offences re-
lating to sexual intercourse or sexually indecent acts. Of particular
relevance is section 14, which prohibits sexual intercourse or the
performance of immoral or indecent acts with youths below a cer-
tain age, even with their consent. Section14(1) provides that any
male person commits an offence if he has or attempts to have sex-
ual intercourse with a girl under the age of 16; commits or attempts
to commit an indecent act with such a girl (or boy under the age of
19); or entices such a girl or boy to commit an immoral or indecent
act. Consent by the girl of boy is not a defence. If a male has inter-
course with an underage girl without her consent, it amounts to
rape. The punishment for the crime is imprisonment or a fine. In
schools, this seems to be a particular problem and is often ignored.
If the male learner is deemed to have criminal capacity, he can be
punished in a court. Section 14(3) deals exactly with the same con-
duct as section 14 (1) but with the sexes reversed. Thus section 14
(3) punishes sexual intercourse or indecent acts committed by fe-
males in respect of boys under sixteen and girls under 19.

The South African Council for Educators (SACE) regulates the eth-
ics of professional behaviour of educators through a Code of Con-
duct for Educators. The Code of Conduct for educators determines
that educators should promote gender equality and refrain from
any form of sexual relationship with the learners or sexual harass-
ment (physical or otherwise) of learners. The Employment of Edu-
cators Act, Act 76 of 1998 clearly spells out in section 17 (g) that
sexual harassment of learners by educators is a form of serious mis-
conduct.
In K v Minister of Safety and Security, a 20-year old female was
stranded far from home after her boyfriend abandoned her. Three

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 policemen in uniform offered to take her home. Her gratitude
turned into horror when they subsequently raped her. In its judg-
ment the Constitutional Court said the opportunity to commit a
crime would not have arisen but for the trust the applicant placed
in the policemen and the nature of their employment. When the
policemen in uniform raped the applicant, they were simultane-
ously failing to perform their duties to protect the applicant. They
not only did not protect her, they infringed her rights to dignity and
security of the person (Constitution, sections 10, 12). In doing so
their employer the Minister of Safety and Security and their duty to
protect was not met. The common-law principle of vicarious liabil-
ity holds an employer liable for the wrongful deeds (delicts) com-
mitted by its employees where the employees are acting in the
course and scope of their duties as employees. Therefore the re-
spondent is vicariously liable for the conduct of the policemen.
Similarly, a school is responsible for the care and welfare of its
learners. Teachers and especially the school principal are entrusted
with the care and safety of the learners. Abusing the special posi-
tion in which their employment places them by sexually abusing
learners would hold the school and the Department of Education
liable.
School principals have a duty to protect learners from sexual of-
fences and not to sweep the matter under the table. The code of
conduct must clearly set out the rules and consequences regarding
sexual offences. For example, in an incident involving the rape of a
schoolgirl, a school governing body suspended two boys who con-
fessed to committing the crime. After a hearing and discussion with
the parents concerned, the governing body decided that 8 days
suspension was sufficient with no further action taken (confidential
report). In this case the governing body clearly failed in its duty to
ensure that appropriate action is taken.

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 10 Chapter Ten

Uniform and Appearance Issues

Outline of this Chapter

In this chapter the disciplinary issues relating to school uniform
and learners’ appearance are discussed.

D isputes and conflict between educators and learners about learn-

ers’ uniforms, hairstyles and general appearance have existed for
as long as there have been schools. In fact, if one thinks about it, prin-
cipals and educators spend an inordinate amount of time inspecting,
measuring, cajoling, detaining and punishing learners for irregular
items of clothing, hairstyles and hair lengths.

10.1 Right of Freedom of Expression

Section 16 of the Bill of Rights accords learners the right to free-
dom of expression. Widely defined, freedom of expression is more
than just freedom of speech. Freedom of expression includes the
right to speak, read, hear and wear. Therefore, it is extended to
forms of expression as seen in a learner’s choice of clothing and
hairstyles. In the school context, freedom of expression is mani-
fested in several ways, for example, in the freedom to speak (oral
expression), to publish (written expression), to wear symbolic items
(e.g. buttons advertising a particular political party) and through
dress and hairstyle. However, the right to freedom of expression is

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 not unlimited and may be restricted or limited in the school con-
text. For example, vulgar words and racial and sexual insults are
not protected speech. Freedom of expression which leads to a sub-
stantial disruption in school activities or infringes the rights of other
can be limited. In other words, complete freedom of expression on
the part of learners is inconsistent with the school situation. Rights
are not absolute and are qualified by the operational needs of the
school.
Section 36 of the Constitution makes provision for the limitation of
rights provided it is reasonable and justifiable in an open democ-
ratic society. Factors that must be taken into account when limiting
individual rights include: the nature of the right, the importance of
the purpose of maintaining an orderly teaching/learning environ-
ment, ensuring the safety of learners and educators, and enforcing
regulations that are necessary for the proper functioning of the
school. While the courts will generally defer to respect or comply
with the authority of the school officials to determine and enforce
reasonable disciplinary rules and regulations, school officials may
not violate learners’ constitutional rights. Thus, the onus is on
school officials to demonstrate that the limitation of learners’ rights
is reasonable and for a valid purpose (see Chapter two, par 2.1).

10.2 Uniform
A school may prescribe a uniform and can insist that learners wear
the uniform during school hours, on school trips and for official
school activities after school hours. A learner may be punished for
refusing to wear the prescribed uniform. However, a learner should
not be sent home. When punishing a learner for not wearing a uni-
form or for wearing prohibited items, he or she must not be humili-
ated in any way. A learner may not be punished if the parent/
guardian cannot afford to buy a school uniform.

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 Although the requirement to wear a school uniform does not deny
learners the right to freedom of expression, schools need to be
flexible and make provision for learners to wear items of clothing
that are culturally significant and important, for example, permitting
Muslim girls to wear their headscarves or trousers. In deciding on
what items of clothing or other insignia will be allowed, the school
governing body should consult widely with parents, religious lead-
ers and appropriate organisations. A school has the right to prohibit
clothing that is offensive and outrageous.

10.3 Hair
It would appear that the seemingly harmless rule regulating hair-
styles is one of the most contentious school rules, and one that is
regularly transgressed. To add to the woes of principals and educa-
tors, learners are now beginning to defend their choice of hairstyle
and oppose the hair rule on the grounds of their constitutional right
to freedom of expression (s 16).
In Danielle Antonie v Governing Body of the Settlers High School
and Head Western Cape Education Department (2002) (4) (SA
738) a learner challenged the School Governing Body’s decision to
suspend her for five school days. Having converted to Rastafari-
anism, Danielle wore a dreadlock hairstyle and a black cap. The
School Governing Body charged the fifteen-year-old Grade 10
learner with serious misconduct that required that “the hair must be
tied up if below the collar”.
Even though the applicant was not in class when she filed suit, her
lawyer argued that the suspension had brought about a blot on her
name and negative bearing on her permanent record.
The applicant, a fifteen year-old Grade 10 female learner who em-
braced the principles of the Rastafarian religion, grew her hair in

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 dreadlocks and covered her hair by wearing a cap. Although she
had several times asked the principal’s permission to wear this hair
style to school, he forbade it. She was suspended from school for
five days for serious misconduct because she had disobeyed the
code of conduct for learners and disrupted the school. According to
the school’s code of conduct learners’ hair had to be neat and tidy
and this was specifically detailed in ten subsections of the code of
conduct. Not one of these, however, prohibited the growing of
dreadlocks and wearing the headgear.
The Guidelines for a Code of Conduct for Learners (Government
Notice 776 of 1998) recommends that a code of conduct should
contain a set of moral values, norms and principles for developing
learners into responsible citizens. In this case the principal juxta-
posed the learner’s individual right to freedom of expression
against the standards of the community and refused permission to
wear dreadlocks, associated with the Rastafarian belief. One can
assume that the school community viewed wearing a prescribed,
neat hairstyle as an important aspect of the learners conduct. Ap-
plying the learner’s best interests-perspective, the challenge for edu-
cation managers in similar situations is to decide how to afford re-
spect to the learner’s right to freedom of expression without contra-
dicting the norms and values of the community as reflected in the
schools code of conduct.
The court argued that the growing of dreadlocks was prohibited by
the code of conduct for learners. However, to assess this prohibi-
tion in a rigid manner would be in contrast with the values and
principles of justice, fairness and reasonableness. The applicant’s
need to indulge in freedom of expression could not been seen as
serious misconduct punishable by suspension. The school argued
that the wearing of headgear and dreadlocks has caused disruption
and uncertainty at school, but the court found that the school had

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 not acted in a spirit of mutual respect, reconciliation and tolerance,
hence the setting aside of its defence by the court.
The court ruled in her favour and set the suspension aside, agree-
ing that the punishment could have both a negative effect on her
development and her future career, as well as submerge her dignity
and self-esteem. Apart from the question of human dignity, the
court commented on the application of the right to freedom of ex-
pression, explaining that it is a constitutional right that has an effect
on a school’s Code of Conduct. The court decided that “freedom
of expression” includes aspects such as the freedom of choosing
clothing and hairstyles.
A simple fear that the disruption might occur is not sufficient
(Tinker v Des Moines Independent Community School (1969) 393
US 503, 89 S.C.T. 733). The test provides a means for balancing
the individual’s right to free expression against the collective rights
of learners to an orderly school environment. In this regard, educa-
tors will, no doubt, have considerable influence in deciding what
constitutes an “orderly school environment” and what limits are
reasonable.
However, in terms of the “substantial disruption test”, restricting
hairstyles and length may prove more difficult. Although hair rules
are considered a necessary part of engendering a positive school
image, self-discipline and ensuring a degree of conformity, it is diffi-
cult to demonstrate non-conformity will result in disorderly and dis-
ruptive behaviour in the school. For instance, in the USA the circuit
courts of appeal have upheld the rights of learners to wear their
hair as they please. In one case in which a school policy that pro-
hibited “unusually long hair” was declared unconstitutional, the
First Circuit Court of Appeals argued that there was “no inherent
reason why decency, decorum, or good conduct” required a boy to

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 wear his hair short. Or does compelled conformity to conventional
standards of appearance seem a justifiable part of the educational
process (Richards v Thurston, 424 F 2d 1281 (1st Gr. 1970)).

There are conflicting views on whether or not learners’ hair length

and styles deserve constitutional protection on the basis of freedom
of expression. While there may be a need to adopt a more flexible
and sensible approach to the issue of hair, school may impose rules
restricting hairstyles. However, school rules and regulations, in gen-
eral, that are vague, unreasonable and not sufficiently connected to
the needs and interests of the school may well be overturned by the
courts.

10.4 Jewellery
Schools may also limit the wearing of jewellery. Jewellery that is
offensive, outrageous and dangerous may be prohibited. For ex-
ample, neck chains and earrings can be a danger for learners taking
part in physical activities and rings and bracelets pose a danger in
workshops. Rules concerning jewellery should also not be discrimi-
natory.
In MEC for Education: Kwazulu-Natal v Pillay 2008 1 SA 474 (CC)
Sunali Pillay was, until the end of 2006 a learner at Durban Girl’s
High School (DGHS). During the school holidays in September
2004 Ms Pillay gave Sunali permission to pierce her nose and in-
sert a small gold stud. When she returned to DGHS after the holi-
days, Ms Pillay was informed that her daughter was not allowed to
wear the nose stud as it was in contravention of the code of con-
duct of the school. In May 2005, Ms Pillay was informed that the
MEC supported the School’s approach.
Ms Pillay took the matter to the Equality Court and obtained an
interim order restraining the school from interfering, intimidating,

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 harassing, demeaning, humiliating or discriminating against Sunali.
However, the Equality Court held that although a prima facie case
of discrimination had been made out, the discrimination was not
unfair. The Court held that no impairment to Sunali’s dignity or of
another interest of a comparably serious nature had occurred and
concluded that DGHS had acted reasonably and fairly. This deci-
sion by the Equality Court was taken on appeal by Ms Pillay to the
Pietermaritzburg High Court.
The High Court accordingly set aside the decision and order of the
Equality Court and replaced it with an order declaring “null and
void” the School’s “decision, prohibiting the wearing of a nose
stud, in school, by Hindu/Indian learners” (Pillay v MEC for Educa-
tion, KwaZulu-Natal 2006 6 SA 363 (EqC); 2006 10 BCLR 1237
(N)). The School then applied for leave to appeal to the Constitu-
tional Court against the decision of the Pietermaritzburg High
Court. The primary argument of the School was that allowing Su-
nali to wear the nose stud or allowing others like her similar exemp-
tions would impact negatively on the discipline in schools and, as a
result, on the quality of the education they provide.
Langa CJ found that Sunali was discriminated against on the basis
of both religion and culture in terms of section 6 of the Promotion
of Equality and Prevention of Unfair Discrimination Act (4 of
2000). The discrimination has had a serious impact on Sunali and,
although the evidence shows that uniforms serve an important pur-
pose, it does not show that the purpose is significantly furthered by
refusing Sunali her exemption. Allowing the stud would not have
imposed an undue burden on DGHS. A reasonable accommoda-
tion would have been achieved by allowing Sunali to wear the
nose stud. He therefore confirmed the High Court’s finding of un-
fair discrimination. This judgement does not abolish school uni-
forms; it only requires that, as a general rule, schools should make

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 exemptions for sincerely held religious and cultural beliefs and
practices.
In the same case O’Regan J held that, although the applicant ar-
gued that the nose-stud was part of religious practice, it is clear that
its primary significance to her family arises from its associative
meaning as part of their cultural identity, rather than from personal
religious beliefs. The applicant has established that the wearing of
the nose-stud is a matter of associative cultural significance, which
was a matter of personal choice at least for the learner in this case,
but that it is not part of a religious or personal belief of the appli-
cant that it is necessary to wear the stud as part of her religious be-
liefs.
She however, confirmed that a code of conduct is entitled to estab-
lish neutral rules to govern the school uniform. The only cogent
complaint to be directed at the code of conduct of DGHS is its fail-
ure to provide expressly for a fair exemption procedure. The princi-
ple of reasonable accommodation (See Pillay-case (EqC) and (N)
above) requires schools to establish an exemption procedure that
permits learners, assisted by parents, to explain clearly why it is that
they think their desire to follow a cultural practice warrants the
grant of an exemption. An exemption process would require learn-
ers to show that the practice for which they seek exemption is a
cultural practice of importance to them, that it is part of the prac-
tices of a community of which they form part and which in a signifi-
cant way constructs their identity.

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 A Appendix A

Appeal Form

If you wish to appeal against the decision of the governing body

to suspend your child, please complete this form and return it to:

Name: _____________________________________ Date: ___________

Address: ____________________________________________________

Dear ____________

I wish to appeal against the decision of the governing body to

suspend my child from school.

Name of child: ____________________________ Grade: ____________

Name of School: _____________________________________________

Ground for appeal: ___________________________________________

____________________________________________________________
Please state the grounds on which you wish to appeal.
I understand that my appeal will be heard by an impartial appeals
committee and that I have a right to attend the hearing.

______________________
Parent/guardian
I can be contacted at: __________________________________________
(Telephone number(s) and/or address)

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 T
B
Appendix B

Framework for a Code of Conduct

he following is a framework for a code of conduct that can be used

as a basis for developing your school’s code of conduct. Examples
of the basic components are given.

Preamble
“Starlight” School’s Code of Conduct is based on the following
principles:

• Disciplined behaviour is essential for the well-being of the school

and the successful achievement of the school’s objectives.
• The code of conduct is based on educational principles that aim
to allow the school to function as a harmonious community.
• The code of conduct aims to establish a safe and secure
environment.
• The code of conduct endorses the basic rights of educators to
teach and maintain orderly learning environments, and the rights
of learners to learn in a secure, non-threatening environment.
• The code of conduct is aimed at promoting a climate of mutual
self-respect, self-discipline and responsible behaviour.
• Disciplinary action will be fair, appropriate and consistently
applied. It will be aimed at corrective measures and not
punitive action.

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 General School Rules
All learners must:
• Behave in accordance with the code of conduct.
• Comply with the school attendance requirements.
• Dress according to the school’s dress code.
• Treat others with respect and dignity.
Learners may not:
• smoke;
• be in possession of illegal drugs and alcohol;
• be in possession of any form of dangerous or illegal weapon;
• threaten another person physically of verbally;
• use racist, offensive or derogatory language;
• sexually harass another person;
• bully;
• steal; or
• vandalise school property.

Disciplinary Procedure
The disciplinary procedure involves three stages of disciplinary ac-
tion, combined with the various forms of permissible sanctions.
• Level 1: Verbal warning
• Level 2: Written warning
• Level 3: Disciplinary hearing

Disciplinary Hearing
(1) When serious offences are committed and verbal and/or writ-
ten warnings are inadequate, the disciplinary committee will
hold a disciplinary hearing before a decision is taken on what
sanction should be imposed.

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 (2) The hearing will be conducted according to procedurally fair
rules.
(3) The hearing will be held within a reasonable time after the
event.
(4) The learner’s parents (or guardian) will be notified in writing of
the offence which the learner has allegedly committed.
(5) The learner and parents will be notified in writing of the date,
time and venue of the hearing.
(6) During the disciplinary hearing the learner will have the right
to:
• be represented or assisted by an adult;
• be furnished with information relating to the charge;
• present his or her case (i.e. to be heard); and
• call witness.
(7) The disciplinary committee shall keep a record of the proceed-
ings and of the evidence.
(8) The disciplinary committee shall make the final decision.
(9) The learner and his or her parents (or guardian) will be in-
formed in writing of the decision and be furnished with the
reasons thereof.

Procedures for Disciplinary Appeals

(1) If a learner or parent is dissatisfied with the disciplinary deci-
sion, excluding expulsion, he or she may appeal in writing to
the principal or chairperson of the school governing body.
(2) The principal or governing body shall appoint a board of ap-
peals and arrange for the appeal to be heard within fourteen
(14) days, unless otherwise agreed to by the parties.
(3) The learner will have the rights to be represented or assisted by
an adult.
(4) No person who served on the disciplinary hearing which
found the learner guilty may serve on the board of appeal.

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 (5) A learner, or a parent of a learner, who has been expelled
from the school may appeal to the Member of the Executive
Council against the decision off the Head of Department.
(6) The hearing of an appeal shall be conducted according to fair
administrative practice.

Categories of Offences
The offences are categorised according to the seriousness of the
offence. (Please note that this is not intended to be a complete list
of offences.)

Category A: General offence

• Failure to observe school rules
• Arriving late for school/class
• Misuse of school property
• Using insulting or offensive language
• Insolence

Category B: Serious offences, including criminal offences

• Truancy
• Smoking
• Bullying or intimidation
• Fighting or behaving in a violent manner
• Being in possession of dangerous weapons
• Malicious damage to school property
• Assault or attempted assault
• Being in possession of, using or selling illegal drugs
• Being in possession of and drinking alcohol on school premises
• Theft
• Sexual harassment

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 Sanctions
Minor sanctions
A range of recognised disciplinary measures may be used by
educators to maintain discipline in the school and their classrooms.
These include:
• a word of warning;
• a reprimanding look;
• withdrawal of privileges;
• additional work;
• referral to a senior member of staff.

Detention
Learners may be detained during break or after school. If a learner
is given detention after school:
• parents must be given fair warning in writing.
• learners must be supervised during detention.
Suspension
Learners may be suspended from school by the governing body
after a fair hearing as a correctional measure for a period not
longer than one week or pending a decision by the Head of
Department whether or not to expel a learner (s 9 of the
Schools Act).

Expulsion
Expulsion may only be used in the case of very serious offences.
Only the Head of Department may expel a learner from a public
school.

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 Corporal Punishment
No corporal punishment may be administered to any learner.
Parents may not give educators permission to use corporal
punishment (s 10 of the Schools Act).

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 CAppendix C

Survey on Bullying
1. Have you been bullied at school this term?
2. How many times have you been bullied this term? Once
Yes No
Twice Often
3. Was it done by one child or a group of children? One Group

4. Have you seen anyone else being bullied at school this term? Yes No

5. How many times? Once Twice Often

6. Was it done by one child or a group of children? One Group

7. Have you bullied anyone at school this term? Yes No

8. How many times? Once Twice Often

9. Where you on your own or with a group? Own Group

Never Sel- Some- Often

10. How often have you been bullied by being: dom times

10.1 Called hurtful names

10.2 Teased in an unkind way

10.3 Kicked and hit

10.4 Pushed and shoved around

10.5 Treated with harm

10.6 Lied about in a malicious way

10.7 Made to hand over money, lunch or belongings

10.8 Excluded from taking part in activities on purpose

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 11. How do you feel when you are bullied?

I am not bothered 1
I feel mostly angry 2
I feel mostly sad 3
I feel mostly ashamed 4

12. How did you feel about yourself when you were bullied?

I felt better about yourself 1

I felt the same about myself 2

I felt worse about myself 3

13. How has bullying affected you?

I stay at home 1
I get ill 2
I cannot sleep 3
I feel anxious 4
I am afraid to go to school 5
I get headaches 6
I feel stressful 7

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 Purpose
D
Appendix D

Examples of a Policy on Drugs

The purpose of this policy is to provide for the regulation of and

procedures for eradicating drugs in the school.

Definitions
“Drug” shall mean any dependency-producing substance, any
dangerous dependency-producing substance or any undesirable
dependency-producing substance.
“Possess” shall include keeping or storing the drug, for having it in
custody or under control or supervision.
“Sell” shall mean to offer, possess or expose the drug for sale.

General
The use and possession of illegal drugs, and selling drugs on school
property is a criminal offence.

Disciplinary Procedures
(1) If there are reasonable grounds to believe that a learner is in
possession of drugs on or about the school or during official
school activities, the learner must be reported to the principal.
(2) The principal shall inform the learner of the allegation and pro-
vide the learner with an opportunity to respond to the allega-
tion and to present his or her side of the story.

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 (3) Depending on the circumstances and the need for haste, the
principal may authorise a search to be conducted of the
learner and/or his or her property, and school property.
(4) The principal shall inform the parent (guardian) by telephone
(wherever possible), confirmed by a letter, and a meeting shall
be arranged with the parent/guardian to discuss the matter.
(5) If a learner is found to be in possession of drugs a disciplinary
hearing shall be arranged to hear the matter.
(6) After due process, if a learner is found guilty of using, posses-
sion of selling drugs on or about the school or during official
school activities, the learner shall be suspended for the maxi-
mum period of one week of given an appropriate alternative
punishment.
(7) If a learner is suspended for possessing, using or selling drugs
on or during official school activities, the principal shall notify
the parents (guardian) in writing of the suspension and its du-
ration. A copy of the letter shall be sent to the provincial Head
of Department.
(8) Should it be necessary to suspend a learner more than twice
during a school year for possessing, using or selling drugs, the
principal shall inform the parents (guardian) that the matter
has been referred to the provincial Head of Department who
will decide whether or not to expel the learner.
(9) Any learner who is found guilty of possessing, using or selling
drugs on or about the school or during official school activities,
shall be required to participate in a drug counselling and reha-
bilitation programme.
(10) Detailed records shall be kept of all cases of drugs in the school
showing the name of the learner concerned, the date, the date,
the nature of the offence, the procedures that were followed
and, in the case of a search, the manner in which a search was
conducted.

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 Emergency Procedures
If a learner is under the influence of drugs, the following procedures
must be followed:
(1) The parent (guardian) must be informed and consulted on
what action the school must take.
(2) If time does not permit or the parent (guardian) is not avail-
able, medical assistance shall be obtained.
(3) If a learner must be admitted to hospital:
• an ambulance must be called
• if an ambulance is not available, the learner shall be taken
to hospital by an authorised member of staff.
(4) A detail record of the action taken by the school shall be kept.

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 List of Sources

Articles and Books

Bateman, B. 2007. Pretoria News, 28 May, p.1.

Bray, W. 2005. Human rights in education. Pretoria: Centre for

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Charles CM. 2002. Building Classroom Discipline, 7th Edition. Boston,

USA: Allyn and Bacon.

De Clerk, J & Rens, J. 2003. The role of values in school discipline.

Koers, 68(4):353-371.

De Wet, C. 2005. Educator recognition of and intervention in school

bullying situations: the perspectives and experiences of Free State
educators and learners. Acta Criminologica, 18(2) p.44 - 55.

Department of Education. 2001. Alternatives to corporal punishment:

The Learning Experience- A practical Guide for Educators. Pretoria:
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Department of Education. 2002. National Policy on the Management

of Drug Abuse by Learners in Public and Independent Schools and
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Dreikurs, R, Grunwald, BB & Pepper, FC. 1982. Maintaining Sanity in the

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 Kight, D & Roseboro, J. 1998. Positive Guidance and Discipline. North
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Lund, R. 1996. A whole-school behaviour policy. London: Kogan Page.

Maree, JG & Cherian, L. 2004. Hitting the headlines- The veil on corporal
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Rogers, B. 1998. You know the fair rule. London: Pitman.

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 Government Printer.

Republic of South Africa. 1996. The Constitution of the Republic of South

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Christian Education SA v Minister of the Government of the Republic of
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K v Minister of Safety and Security 2005 (6) SA 419 (CC)

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Pillay v MEC for Education, KwaZulu-Natal 2006 6 SA 363 (EqC); 2006

10 BCLR 1237 (N)

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 Tinker v Des Moines Independent Community School (1969) 393 US
503, 89 S.C.T. 733.

Western Cape Residents' Association obo Williams and Another v

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