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Chapter 10

LEARNER MATTERS

10.1 DISCIPLINARY MATTERS

10.1.1Legislative and Policy Framework

ACTS

  • The Bill of Rights, Chapter 2, [Act No. 108 of 1996 [BoR]
  • The South African Constitution Act 108 of 1996 [SAC]
  • The South African Schools Act, No. 84 of 1996 [SASA]
  • The National Education Policy Act, 1996 (Act No. 27 of 1996) [NEPA]
  • Further Education and Training Act No. 98 of 1998 [FETA]
  • Further Education and Training Colleges Amendment Act 2013 [FETC]

 

GUIDELINES

  • Guidelines for the consideration of Governing Bodies in adopting a Code of Conduct for Learners (Published under General Notice 776 in Government Gazette 18900 of 15 May 1998) [NG SGB CC]

 

POLICY

  • Admission Policy for ordinary public schools [NP ADP]

EasternCape

REGULATIONS

  • EC Regulations Relating to Behaviour by Learners in Public Schools [Reference B1 EC BEHAVIOUR]

FreeState

ACTS

  • Free State School Education Act, (Act No. 2 of 2000) [Reference B2 FS EDACT]

Gauteng

CIRCULARS

  • Circular 4 of 2014 Prohibition of Corporal Punishment in Public Schools (Reference B3 4/2014]
  • Circular 3 of 2014 The prohibition of public schools from releasing learners from school during internal assessments/examinations [Reference List B3 3/2014]

NorthWest

ACTS

  • North West Schools Education Act, Act no. 3 of 1998 [Reference B8 NW EDACT 3/1998]

 

REGULATIONS

  • Regulations relating to the Disciplinary Proceedings Dealing with Misconduct of Learners – (Provincial Notice 7014 of 2011) [Reference B8 7014/2011]

WesternCape

REGULATIONS

  • Regulations relating serious misconduct of learners at public schools, extract from Western Cape Provincial Gazette, No. 5190, 31 October 1997 [Reference B9 5190/1997]

Also see “IMPORTANT ADDITIONAL ASPECTS OF THE WESTERN CAPE REGULATIONS ON SERIOUS MISCONDUCT” at the end of this document.

10.1.2Framework for the Development of School Policy on Disciplinary Matters

(See Reference List C CONDUCT, for an example of a Code of Conduct for a school)

  1. Code of conduct
    • Section 8 of the South African Schools Act provides that a governing body of a public school must adopt a Code of Conduct. The Code of Conduct must aim at establishing a disciplined and purposeful environment to facilitate effective education and learning in schools and nothing contained in this Act exempts a learner from the obligation to comply with the code of conduct of the school attended by the learner. The Code of Conduct must be subject to the Constitution of the Republic of South Africa, 1996, the South African Schools Act, 1996 and provincial legislation. It must reflect the constitutional democracy, human rights and transparent communication which underpin South African society.
    • The Code of Conduct must inform the learners of the way in which they should conduct themselves at school in preparation for their conduct and safety in civil society. It must set a standard of moral behaviour for learners and equip them with the expertise, knowledge and skills they would be expected to demonstrate 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 oriented but it should facilitate constructive learning.
    • Each school must develop its own Code of Conduct. In formulating a Code of Conduct as a consensus document and before adopting it, the governing body must involve the parents, learners, educators, and non-educators at that school. After the adoption of the Code of Conduct, each stakeholder must receive a copy thereof. The above stakeholders must also be consulted when the Code of Conduct is reviewed annually or when any amendments are made.
    • The purpose of a Code of Conduct is to promote positive discipline, self-discipline and exemplary conduct, as learners learn by observation and experience.
      The Code of Conduct must suit the development of the learners and be appropriate to the different school levels. The language used must be easily understandable to make the content accessible. The format should be user-friendly.
    • The Code of Conduct must contain a set of moral values, norms and principles which the school community should uphold.
      • The preamble to a Code of Conduct
        The preamble to a Code of Conduct should contain the principles, philosophy and ethos contained in the preamble to the South African Schools Act.  Reference should be made to the fact that, while the State has the obligation to make education available and accessible, this must be complemented by the commitment and acceptance of responsibility by the other partners in education, inter alia, learners, educators and parents.
        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 schools.
      • The legal authority for the control and discipline of learners
        In terms of section 3(4)(n), of the National Education Policy Act, Act No. 27 of 1996, the Minister of Education must determine national education policy for the control and discipline of learners at education institutions.  This policy shall be directed at the advancement and protection of the fundamental rights of every person guaranteed in the Bill of Rights in the Constitution of the Republic of South Africa 1996, Act No. 108 of 1996.  The South African Schools Act, Act No. 84 of 1996, section 8(1) empowers a governing body of a school to maintain discipline in a school. The Code of Conduct must prescribe behaviour that respects the rights of learners and educators.
        Learners must understand that action may be taken against them if they contravene the Code of Conduct.

        • When action is taken against learners they should be informed why their conduct is considered as misbehaviour or misconduct and why they are to be disciplined or punished. The punishment must suit the offence.  Nothing shall exempt a learner from complying with the Code of Conduct of the school.
        • An educator at the school shall have the same rights as a parent to control and discipline the learner according to the Code of Conduct during the time the learner is in attendance at the school, any classroom, school function or school excursion or school related activities.
        • The principal or an educator, upon reasonable suspicion (sufficient information), has the legal authority to conduct a search 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. (A search may be performed in terms of the following Acts of general application: Control of Access to Public Premises and Vehicles Act, Act No. 53 of 1985; Drugs and Drug Trafficking Act 140 of 1992; Arms and Ammunition Act, Act No. 75 of 1969). During a search human dignity shall be observed and learners shall be searched in private by persons of their own gender, preferably in the presence of at least one other person. A record must be kept of the search proceedings and the outcome.
        • A learner who falls pregnant may not be prevented from attending school. A pregnant girl may be referred to a hospital school for pregnant girls.

10.1.3Principles and Values underpinning Disciplinary Matters

  • Democracy
    The Bill of Rights in the Constitution of the Republic of South Africa, Act No. 108 of 1996, enshrines the rights of all people 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. All learners and partners at a school have the democratic right to due process and to participate in decision-making about matters affecting them at the school. They also have the right to have their views heard about these matters.

    • Non-discrimination and equality
      No person may unfairly discriminate against a learner. All learners shall enjoy equal treatment before the law and shall receive equal protection and benefits of the law.
    • Privacy, respect and dignity
    • Every learner has inherent dignity and has the right to have his/her human dignity respected. That implies mutual respect including respect for one another’s convictions and cultural traditions. Every learner also has the right to privacy, which includes the right not to have his/her person or property searched or his/her possession seized. However, the principal or an educator may search learners based on his/her reasonable suspicion followed by the use of search methods that are reasonable in scope.
  • Non-violence and the freedom and security of a person
    • Every learner has the right not to be treated or punished in a cruel, inhuman or degrading manner. Corporal punishment has been abolished. 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 of law.
    • Learners have the right not to be locked up in solitary confinement or detention.
    • The philosophy of the disciplinary system is based on human dignity and on respect and consideration for others and not on fear or assault.
  • Freedom of expression and right to demonstrate and present petitions
    • Freedom of expression is more than freedom of speech. The freedom of expression includes the right to seek, hear, read and wear. The freedom of expression is extended to forms of outward expression as seen in clothing selection and hairstyles. However, learners’ rights to enjoy freedom of expression are not absolute. Vulgar words, insubordination and insults are not protected speech. When the expression leads to a material and substantial disruption in school operations, activities or the rights of others, this right can be limited as the disruption of schools is unacceptable.
    • Learners have the right to agreed procedures with the governing body for expressing and resolving school-related grievances, including 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.
    • However, the disruption of schools is unacceptable.
  • School environment
    Learners have the right to a clean and safe environment that is conducive to education. Security of property, well-cared for school facilities, school furniture and equipment, clean toilet facilities, water and a green environment, absence of harassment in attending classes and writing tests and examinations, all create an atmosphere that is conducive for education and training.
  • Education
    • The Constitution enshrines the right of every one to education and to further education which the State must make progressively available and accessible;
    • The South African Schools Act provides that education is compulsory 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, whichever comes first. It also makes provision for due process before a learner may be removed or expelled from a 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,
    • In cases of suspension and expulsion, placement in an alternative school setting, e.g. reassignment to another class, correctional education under supervision after school hours, a special school for learners with behavioural disorders, etc., are options which could be considered in conjunction with a school psychologist or a social worker. Suspension with the intent to expel a learner is part of a process to be decided by the Head of Department. The governing body may suspend a learner as a punitive measure if due process has been followed.
      Education and learning can be successful if the learners are committed to self-development, education and learning, and the educators are dedicated to education and teaching.
    • 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.
  1. Rights and responsibilities of learners
    • School and classroom rules
      • School rules are designed to regulate the general organisation of the school, and relationships between the principal, educators and learners. Classroom rules are designed to give effect specifically to the relationship between educators and learners in the classroom, and may include classroom interactions and management;
        learners must be involved in the formulation of school and classroom rules and must conform to such rules;
        all rules are to be consistent with the overall Code of Conduct, be clear and understandable and make provision for fair warning;
      • each learner should be provided with a copy of the school rules at the beginning of each school year;
        younger learners at primary schools should be informed verbally of school rules;
        classroom rules should be posted in the classroom. The consequence for breaking the rules should also be included. The punishment must fit the offence and be graded to make provision for repeated offences. These rules should make provision for fundamental fairness and fair warning; and
        learners must be expected to know and to adhere to school and classroom rules. Ignorance of these rules is not an acceptable excuse.
    • Learning and school work
      Learners must commit themselves to do their school work during classes, complete assigned homework and catch up on work missed because of absence. Disruption of schools is unacceptable.
    • Security and care of school property
      As the school has been developed for the use of all the learners attending the school, it is the privilege and obligation of every learner to protect and carefully use all the facilities and equipment so that others who come after them can also enjoy the privilege. The parent or legal guardian of anyone who intentionally misuses, damages or defaces any school property should replace it or pay for the property so damaged.  Destruction of property is a punishable offence.
    • 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.
        Learners have the responsibility to learn and develop their full potential, i.e. academic, occupational, social, sport, spiritual, art and cultural potential. They should actively participate in the learning process and decision making and have the opportunity to talk about their problems.
      • Learners can expect educators to maintain a high standard of professional ethics and to be present to teach their classes, assist them with their learning difficulties, report on their progress and look after their well-being. There should be a relationship of mutual trust and respect between learners and educators.  Victimisation of the one by the other is unacceptable.
      • The Learner Representative Council should represent the interests and views of the learners within the school. They should also promote proper conduct of learners but do not have the authority or right to punish other learners.
        A school may establish a liaison mechanism between learners and educators.
  2. Responsibilities of parents with respect to the Code of Conduct
    • The ultimate responsibility for learners’ behaviour rests with their parents or guardians. It is expected that parents will
      • support the school, and require learners to observe all school rules and regulations and accept responsibility for any misbehaviour on their part; and
      • take an active interest in their children’s schoolwork and make it possible for the children to complete assigned homework.
    • Parents should attend meetings that the governing body convenes for them.
    • Parents have the right to take legal action against any educator, learner or person who unlawfully violates the constitutional rights of their children e.g. corporal punishment, injury to a child, etc

10.1.4Maintaining Discipline

  1. Discipline
    • Discipline must be maintained in the school and the classroom to ensure that the education of learners proceeds without disruptive behaviour and offences. Its goal is to teach and lead learners to self-discipline.
    • The disciplinary process must be expeditious, fair, just, corrective, consistent and educative. Where possible the parent should be informed and involved in the correction of the learner’s behaviour. Learners should be protected from abuse by adults or other learners.
    • Restraint is the act of controlling the actions of learners when such actions may inflict harm to others or to the learner, or violate the rights of other learners or educators. Educators may use reasonable measures where necessary to prevent a learner from harming him/herself or others.
    • The South African Schools Act, 1996, empowers school authorities to discipline learners, but it is beyond the law to delegate this authority to fellow learners. Learners are partners with other members of the school and are not in charge of the school.
    • Every educator is responsible for discipline at all times at the school and at school related activities. Educators have full authority and responsibility to correct the behaviour of learners whenever such correction is necessary at the school. Serious misconduct must be referred to the principal of the school. However, a mechanism must be created at schools to handle disciplinary problems to reduce the load of the principal.
    • Any corrective measures or disciplinary action must be commensurate with the offence/infraction. Corrective measures may become more severe with subsequent repeated infractions. Suspension or expulsion may follow. Learners should not think that they cannot be suspended or expelled simply because it is their first offence or infraction of a rule or policy, but such decision should be taken by the right authority.
    • In cases where a learner cannot adjust to the school and where his/her behaviour is objectionable in that it violates the rights of others, he/she will be referred to the principal. Through consultation with his/her educators, and the site of learning based team in consultation with the parents or guardians every effort should be made to assist him/her to adjust. This will include referral to the education support services for treatment. If all these efforts fail, the principal will refer the matter to the governing body, which may make a decision in the best interest of the learner and the other learners at the school.
  2. Punishment
    Punishment is a corrective measure or a penalty inflicted on an offender who has to suffer the consequences of misconduct in order to maintain the orderly society of the school.  Corporal punishment shall not be administered and a person who contravenes is guilty of an offence and liable on conviction which could be imposed for assault
  3. Dispute resolution
    Educators as disciplinarians must resolve disciplinary problems which are not serious enough to be referred to the principal. A liaison mechanism, or objective and impartial adjudicator between learners and educators, should be set up to resolve disputes. In cases where learners are involved in gangs, the principal should not confront them but the governing body should set up a negotiation mechanism.
  4. Prevention, proactive advice, counselling, penalties and corrective measures
    In cases of minor offences corrective measures may be applied. These measures could include one or more of the following:

    • verbal warning or written reprimand by an educator or a principal;
    • supervised school work that will contribute to the learner’s progress at school, the improvement of the school environment, provided that the parents are timeously informed and the security of the child is assured;
    • performing tasks that would assist the offended person;
    • agreed affordable compensation;
    • replacement of damaged property; and
    • suspension from some school activities, e.g. sport, cultural activities.
      Suspension from school should only be considered after every effort has been made to correct the behaviour of the learner.
  5. Offences that may lead to suspension
    Provincial regulations must be consulted in the compilation of a list of offences which may lead to suspension of a learner.

    • Offences that may lead to such suspension include, but are not limited to the following:
      • conduct which endangers the safety and violates the rights of others;
      • possession, threat or use of a dangerous weapon;
      • possession, use, transmission or visible evidence of narcotic or unauthorised drugs, alcohol or intoxicants of any kind;
      • fighting, assault or battering;
      • immoral behaviour or profanity;
      • falsely identifying oneself;
      • harmful graffiti, hate speech, sexism, racism;
      • theft or possession of stolen property including test or examination papers prior to the writing of tests or examinations;
      • unlawful action, vandalism, or destroying or defacing school property,
      • disrespect, objectionable behaviour and verbal abuse directed at educators or other school employees or learners;
      • repeated violations of school rules or the Code of Conduct;
      • criminal and oppressive behaviour such as rape and gender based harassment;
      • victimisation, bullying and intimidation of other learners;
      • infringement of examination rules; and
      • knowingly and wilfully supplying false information or falsifying documentation to gain an unfair advantage at school.
    • Suspension and expulsion
      • A governing body may, after a fair hearing, suspend any learner from school or from a hostel who has been found guilty of contravening stipulations of the Code of Conduct:
        • for a period not longer than 5 school days; or
        • for a reasonable period not exceeding one week, pending a decision by the Head of Department on the recommendation of the governing body as to whether or not the learner is to be expelled from the school.
        • A learner who is suspended or expelled from a hostel is not necessarily suspended or expelled from the school concerned.
        • Learner who has been expelled, or his/her parent, may appeal against the decision of the Head of Department to the Member of the Executive Council, within seven days of the decision to expel him/her.
      • SASA as amended by the Basic Education Law Amendment Act No 15 of 2011 in Section 9(11)(a) determines as follows:
        “(11) (a) If an appeal in terms of subsection (4) by a learner who has been expelled from a public school is upheld by the Member of the Executive Council, the Member of the Executive Council must ensure that a suitable sanction is then imposed on the learner within 14 days of the date on which the appeal was upheld.
        (b) For the purposes of the imposition of a suitable sanction contemplated in paragraph (a), the provisions of subsections (8) and (9) apply with the changes required by the context.”

        • In cases of disciplinary transfer, the Head of Department must find a school place for a learner until the learner is beyond compulsory school-going age, as the right of a learner to basic education cannot be violated.
        • All decisions leading to suspension or expulsion must take cognisance of applicable laws, e.g. a learner whose parent is unable to pay the school fees determined by the governing body may not be suspended from classes or expelled from the school.
    • Due process
      • The South African Schools Act makes provision for due process including a fair hearing before a learner may be suspended from the school by the governing body. Due process guarantees a learner a fair hearing before a learner may be suspended for a period of one week or be-expelled from the school by the Head of the Department.
      • Any learner alleged to have violated any rule that may require suspension or expulsion, must be brought to the principal. The principal shall hear the evidence and then decide on the action to be taken. Such action must include that the principal must inform the parents in writing of the proposed action and arrange for a fair hearing by a small disciplinary committee (tribunal) consisting of members designated by the governing body. This tribunal must not be intimidating to the learner. In the case of very young learners special arrangements must be made for the hearing and the parents or guardians could represent the learners.
      • The disciplinary committee so appointed must conduct the hearing in accordance with the provincial regulations laid down by the Member of the Executive Council.
      • The Principal can under no circumstances be the ‘investigator’ and the Chairperson (or a member of the panel) in the disciplinary. His only possible role after investigating, could be that of initiator / ‘prosecutor’.
      • For the hearing the learner must –
        • be informed of and understand the charges of which written notice should be given at least five days before the time also indicating the date, time and place of the hearing;
        • receive such particulars on the charges as he/she may be entitled to according to law, if he/she so requests:
        • get the opportunity to be heard and tell his/her side of the story and to present the relevant facts;
        • not be prohibited from being represented by legal counsel, in which case written explanation of the charges must be given, or, in less serious cases the learner may be represented by a member of the LRC, parent, guardian or educator;
        • be heard by an impartial person(s);
        • be treated with dignity during the process;
        • be informed in writing of the decision of the governing body on whether or not he/she is guilty of misconduct, and the penalty to be imposed in the case of suspension or expulsion; and
        • have the right to appeal to the MEC if he/she is aggrieved by the decision of the governing body.
      • The governing body must keep a record of the proceedings of the hearing, and
        • may inform, in writing, the Head of Department of its decision to suspend a learner; or
        • must inform the Head of Department within twenty-four hours of its recommendation for expulsion of the learner.
      • Subject to any provincial law a learner may only be expelled by the Head of Department.
  6. Serious misconduct and the law
    Serious misconduct which may include offences according to the law must be investigated by the police and referred to the Court if necessary. Serious misconduct must be handled in terms of the government notice and regulations promulgated by the Member of Executive Council in the Provincial Gazette of the province concerned.
  7. Compulsory attendance
    • Subject to the South African Schools Act and any applicable provincial law, every parent must cause every learner for whom he or she is responsible to attend a school from the first school day of the year in which such learner reaches the age of seven years until the last school day of the year in which such learner reaches the age of fifteen years or the ninth grade, whichever occurs first.
    • The Minister must, by notice in the Government Gazette, determine the ages of compulsory attendance at school for learners with special education needs.
    • Every Member of the Executive Council must ensure that there are enough school places so that every child who lives in his or her province can attend school as required by subsections (1) and (2).
    • If a Member of the Executive Council cannot comply with subsection (3) because of a lack of capacity existing at the date of commencement of this Act, he or she must take steps to remedy any such lack of capacity as soon as possible and must make an annual report to the Minister on the progress achieved in doing so.
    • If a learner who is subject to compulsory attendance in terms of subsection (1) is not enrolled at or fails to attend a school, the Head of Department may –
      • investigate the circumstances of the learner’s absence from school;
      • take appropriate measures to remedy the situation; and
      • failing such a remedy, issue a written notice to the parent of the learner requiring compliance with subsection (1).
        FREE STATE

        In order to ensure compulsory school attendance, the MEC may designate officers on the staff establishment of the Department to act as school attendance officers and he or she may determine their powers and duties.

    • Subject to this Act and any other applicable law –
      • any parent who, without just cause and after a written notice from the Head of Department, fails to comply with subsection (1), is guilty of an offence and liable on conviction to a fine or to imprisonment for a period not exceeding six months; or
      • any other person who, without just cause, prevents a learner who is subject to compulsory attendance from attending a school, is guilty of an offence and liable on conviction to a fine or to imprisonment for a period not exceeding six months.
        FREE STATE

        A person who, during school hours, employs a learner who is subject to compulsory school attendance, shall be guilty of an offence and liable on conviction to a fine or to imprisonment fora  period not exceeding six months.

        A person who hinders or obstructs a school attendance officer in the performance of his or her functions, shall be guilty of an offence and liable on conviction to a fine or to imprisonment for a  period not exceeding six months.

    • Exemption from compulsory attendance
      • A Head of Department may exempt a learner entirely, partially or conditionally from compulsory school attendance if it is in the best interests of the learner.
      • Every Head of Department must maintain a register of all learners exempted from compulsory school attendance.

10.1.5Initiation Practices

No principal, educator or learner may allow or participate in any act or practice which involves initiation practices or may cause or contribute to the humiliation, degradation, harassment, assault, crimen injuria, intimidation or maltreatment of learners.

There should be a relationship of mutual trust and respect between learners, and between learners and educators. Victimisation of the one by the other is unacceptable, and peer pressure cannot be regarded as a justification for engaging in acts of victimisation.

The Learner Representative Council should represent the interests and views of all the learners and promote proper conduct of learners. However, no learner has the right or authority to punish other learners.

Learners should be protected from abuse by adults or other learners and learners’ behaviour must be free of any violence and in line with the democratic values of human dignity, equality and freedom.

  1. Responsibilities of principals and governing bodies
    A principal must ensure that no initiation practices take place in his or her school, including hostels, or during any school activities away from the school premises. The principal must put systems in place to encourage learners to bring such practices to his attention and to ensure that such learners be free from victimisation. The Head of Department must ensure that this system is in place in every school in his or her province.
    The principal, as head of the institution in terms of section 16(3) of the Act, has a primary responsibility to ensure that learners are not subjected to crimen injuria, assault, harassment, maltreatment, degradation, humiliation or intimidation from educators or learners and must protect learners from such practices. A principal must also take reasonable steps to ensure that such practices are not caused by peer pressure.
    A disciplinary system is based on human dignity and on respect and consideration for others and not on fear or assault. Educators have a duty to care for and protect learners from violence because of their in loco parentis status.
    If any initiation practices or acts take place through the actions of learners, the school governing body as the authority responsible for the discipline of learners, must take appropriate action in terms of section 8 of the Act or a Code of Conduct to prevent such practices and to protect learners from such practices.
    If any initiation practices or acts take place in a school and members of staff are involved or allow such actions to take place or fail to take the necessary precautions to prevent such practices from taking place, the employer must take disciplinary actions in terms of applicable law against such perpetrators.
  2. Responsibilities of educators
    Educators must protect, promote and respect the rights of learners.
    Every educator is responsible to assist the school governing body with discipline at the school and school related activities.
    Every educator has a duty to control the actions of learners when such actions may inflict harm to others or to the learner, or violate the rights of other learners or educators. Educators must take reasonable measures where necessary to prevent a learner from harming himself or herself or others.
    In cases where a learner cannot adjust to the school and where his or her behaviour is objectionable in that it violates the rights of others, an educator has the obligation to refer such a learner to the principal and to inform the learner’s parents and the school governing body.
    An educator at the school has the same rights and obligations as a parent to protect, control and discipline a learner according to the Code of Conduct during the time the learner is in attendance at the school, or at any school function, school excursion or school related activity.
  3. Prohibition of corporal punishment and initiation practices
    A person may not administer corporal punishment to a student/learner.  Any person who contravenes is guilty of an offence and liable on conviction to a sentence which may be imposed for assault.
    A person may not conduct or participate in initiation practices at public and private further education and training institutions.  Any person who contravenes is guilty of misconduct and disciplinary action must be instituted against such a person.  In addition, a person may institute civil action against a person or a group who manipulated and forced that person to conduct or participate in any initiation practices.
    For the purposes of this Act, “initiation practices” means any act which in the process of initiation, admission into, or affiliation with, or as condition for continued membership of a school or a further education and training institution, a group, intramural or extramural activities, inter-institution sports teams, or organisation –

    • endangers the mental or physical health or safety of a person;
    • undermines the intrinsic worth of human beings by treating some as inferior to others;
    • subjects individuals to humiliating or violent acts which undermine the constitutional guarantee to dignity in the Bill of Rights;
    • undermines the fundamental rights and values that underpin the Constitution;
    • impedes the development of a true democratic culture that entitles an individual to be treated as worthy of respect and concern; or
    • destroys public or private property.
      In considering whether the conduct or participation of a person in any initiation practices falls within the definition above, the relevant disciplinary authority must take into account the right of the student not to be subjected to such practices.

      IMPORTANT ADDITIONAL ASPECTS OF THE WESTERN CAPE REGULATIONS ON SERIOUS MISCONDUCT

      • The disciplinary hearing takes place before a disciplinary committee
      • The disciplinary committee consists of :
        • An SGB member who chairs it
        • At least two other SGB members
        • At least five members in total
      • It may not include learners, the principal or anyone with a possible conflict of interest: (learners or the principal, though they may not be on the disciplinary committee, may be used as witnesses, and the principal may be the “prosecutor”)
      • Documentation
        • Both parents and learners must be given written notice of a hearing
        • Receipt of the notice must be acknowledged
        • The notice must provide the following:
          • Five school days’ notice of the hearing
          • Enough information on the alleged misconduct for the learner to prepare a defence
          • What the learner will be charged with
          • The learner must be informed that:
            • S/he has the right to be accompanied by his/her parents and to be represented by another person, including a lawyer if so desired
            • S/he will be allowed to question both witnesses and the chairperson
            • S/he will have access to all relevant documents and information, and must be given such access
      • During the hearing only those who are formally and legally members of the Hearing Committee, or who are presenting the case, presenting evidence or are part of the hearing (such as the charged learner and/or his/her representatives) may be present in the room.
      • If the governing body recommends expulsion, the following documents must be provided to the department:
        • The minutes of the meeting at which the decision was taken
        • A copy of the learners’ record, including any previous interventions by the school and the learners’ response to such interventions
        • Reasons for recommending expulsion
        • A full record of the proceedings of the disciplinary committee and the governing body
        • Any written representation submitted by the learner, the parents of the learner or the learners’ representative
        • Copies of any correspondence between the school and the learners’ parents
        • Administrative information
          • The Head of Education has fourteen days to respond to the school’s recommendation
          • The learner may be suspended from attending school during these fourteen days
          • If the Head of Education turns down the recommendation for expulsion, an alternative sanction from the school’s code of discipline must be imposed

 

10.1.6Cell Phone Policy

Cell phones play an increasingly important role in the lives of learners and schools have to accommodate the implications of this change in their policy. See Chapter 10.10

Also see Chapter 1.3 Developing of Policies