14.1.1Legislative and Policy Framework
ACTS
- The Criminal Procedure Act, Act 51 of 1977 as amended [CPA]
- The South African Schools Act, No. 84 of 1996 [SASA]
GUIDELINES
- Guidelines for the consideration of governing bodies in adopting a Code of Conduct for Learners, as published in Government Gazette No 18900 of 15 May 1998 [NG SGB CC]
- Guide to Drug Testing in South African Schools [NG DT]
CIRCULAR
- Circular S13 of 2017: Repeal of the proviso restricting accounting to learners offering mathematics only [S13/2017]
14.1.2Framework for the Development of School Policy on Random Search and Seizure and Drug Testing at Schools
- Unless authorised by the principal for legitimate educational purposes, 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.
- Subject to subsection (c) below, 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-
- that a dangerous object or an illegal drug may be found on school premises or during a school activity; or
- that one or more learners on school premises or during a school activity are in possession of dangerous objects or illegal drugs.
- A search contemplated in subsection (b) above, may only be conducted after taking into account all relevant factors, including-
- the best interest of the learners in question or of any other learner at the school;
- the safety and health of the learners in question or of any other learner at the school;
- reasonable evidence of illegal activity; and
- all relevant evidence received.
When conducting a search contemplated in subsection (b), the principal or his or her delegate must do so in a manner that is reasonable and proportional to the suspected illegal activity.
- Where a search contemplated in subsection (b) entails a body search of the learners in question, such search may only-
- be conducted by-
- the principal, if he or she is of the same gender as the learner; or
- by the principal’s delegate, who must be of the same gender as the learner;
- be done in a private area, and not in view of another learner;
- be done if one adult witness, of the same gender as the learner, is present; and
- be done if it does not extend to a search of a body cavity of the learner.
- be conducted by-
- Any dangerous object or illegal drug that has been seized must be-
- clearly and correctly labelled with full particulars, including-
- the name of learner in whose possession it was found;
- the time and date of search and seizure;
- an incident reference number;
- the name of person who searched the learner;
- the name of the witness; and
- any other details that may be necessary to identify the item and incident;
- recorded in the school record book; and
- handed over to the police immediately to dispose of it in terms of section 31 of the Criminal Procedure Act, 1977 (Act 51 of 1977).
- clearly and correctly labelled with full particulars, including-
- If the police cannot collect the dangerous object or illegal drug from the school immediately, the principal or his or her delegate must-
- take the dangerous object or illegal drug to the nearest police station; and
- 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 51 of 1977).
- 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.
- 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 (c).
- A learner contemplated in subsection (h) may be subjected to a urine or other non-invasive test for illegal drugs only if-
- the test is conducted by a person of the same gender;
- it is done in a private area and not in view of another learner;
- one adult witness, of the same gender as the learner, is present;
- the sample is clearly and correctly labelled with full particulars as contemplated in subsection (5), with the necessary changes; and
- a device contemplated in subsection (k) is used.
- The principal or his or her delegate must-
- 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
- inform the learner and his or her parent of the result of the test immediately after it becomes available.
- The Minister must-
- identify the device with which the test contemplated in subsection (h) is to be done and the procedure to be followed; and
- publish the name of this device, and any other relevant information about it, in the Gazette. (GN 1140 IN and GG 31417 of 19 September 2008)
- A learner may be subjected to disciplinary proceedings if-
- a dangerous object or illegal drug is found in his or her possession; or
- his or her sample tested positive for an illegal drug.
- Any disciplinary proceedings in respect of a learner must be conducted in terms of the code of conduct contemplated in section (h).
- No criminal proceedings may be instituted by the school against a learner in respect of whom-
- a search contemplated in subsection (2) was conducted and a dangerous object or illegal drug was found; or
- a test contemplated in subsection (h) was conducted, which proved to be positive.