SERIOUS MISCONDUCT

RULES AND PROCEDURE

 1.                   What follows is subject to any provisions of the South African Schools Act or Regulations relating to the subject.  Before the following rules and procedure can be applied, the school must satisfy itself that whatever action it proposes is in compliance with the aforementioned Act and any relevant Regulations.

2.                   In what follows:

(a)                 “Days” means days of the week, and excludes Saturdays, Sundays, public holidays and school holidays;

(b)                 “Misconduct” on the part of a learner includes the following:

(i)                   Misconduct committed on the premises of the school or of another school, whether during or outside of school hours;

(ii)                 Misconduct committed during any school activity, irrespective of whether it is committed within or outside the premises of the school, and whether it is committed during or outside of school hours;  and

(iii)                Any conduct, committed in or out of school uniform and within or outside of the school premises, which tends to bring the school into disrepute, or which interferes with the governance, authority and proper administration of the school, or which interferes with the conditions necessary for any school activity, or which is otherwise prohibited by the Code of the school.

3.                   Serious misconduct that might lead to suspension and/or expulsion falls into two categories, viz: 

(a)                 Schedule 1, being conduct which by itself is serious enough that it might lead to suspension and which, if repeated, might lead to expulsion;  and

(b)                 Schedule 2, being conduct which by itself is serious enough that it might lead to expulsion.

4.                   Schedule 1 misconduct is serious offence which might by itself lead to suspension but not necessarily to expulsion.  It includes a learner intentionally and without just excuse –

(a)                 seriously  threatening, disrupting or frustrating teaching or learning in the classroom or outside of the classroom but on the school grounds, or in school extra-curricular activities;

(b)                 engaging in a conspiracy to disrupt the proper functioning of the school through collective action;

(c)                  insulting the dignity of any other person (including learners or educators).   This includes making racist remarks;

(d)                 distributing, or being in the possession of, any test or examination material that may enable the learner in question or any other person to gain an unfair advantage in a test or examination;

(e)                 cheating in a test or examination or any other form of assessment such as assignments;

(f)                  engaging in any act of public indecency;

(g)                 sexually harassing any other person (including a fellow learner or an educator);

(h)                 being found in possession of, or distributing, pornographic material;

(i)                   being under the influence or in the possession of alcohol  or seeking to distribute same; 

(j)                   being guilty of any other misconduct which, reasonably judged, constitutes serious misconduct in the context of a school.

5.                   Schedule 2 misconduct is serious misconduct which by itself or by virtue of the repeated nature thereof, is serious enough to possibly justify suspension or expulsion.  It includes the following:

(a)                 being guilty of misconduct as contemplated in Schedule 1 after having been found guilty of the same or similar misconduct on at least two previous occasions;

(b)                 failure to comply with a punishment of suspension as a correctional measure;

(c)                  intentionally and without just excuse –

(i)                   forging any document or signature to the potential or actual prejudice of the school;

(ii)                 trading in any test or examination question paper or in any test or examination material;

(iii)                attempting to bribe, or actually bribing, any person in respect of any test or examination to enable the learner or another person to gain an unfair advantage therein;

(iv)                engaging in fraud;

(v)                 engaging in theft, or otherwise acting dishonestly to the prejudice of another person;

(vi)                being in possession of, or consuming, or dealing in, any illegal substances or other harmful substances;

(vii)              being in possession of, or using, or transmitting, narcotic or unauthorised drugs or visible evidence of such possession, use or transmission;

(viii)             being in possession of any dangerous weapon;

(ix)                assaulting or threatening to assault another person;

(x)                 holding any person hostage;

(xi)                engaging in any sexual activity which amounts to an offence in law;  or

(xii)              maliciously damaging property;

(d)           any other conduct which, reasonably judged, constitutes serious misconduct in the context of the school such as to possibly justify expulsion.

6.                   In the event of a learner being alleged to be guilty of serious misconduct as outlined above, the Principal must take a decision as to whether the charges of misconduct are so serious as to justify possible suspension or expulsion.

The decision is to be made in the light of the gravity of the alleged misconduct, the relevant history and circumstances of the learner in question, and any other circumstances that might be material to deciding whether the situation is sufficiently grave as to justify possible suspension or expulsion.  The Principal must be particularly guided by the best interests of the school and its community, and the question of whether sufficient evidence exists to believe that the learner is guilty.

7.                   If in the opinion of the Principal, the circumstances do not justify possible suspension or expulsion, then the matter will be dealt with in such a manner as the Principal deems appropriate including, but not limited to, being dealt with in terms of the merit system, the ‘time out’ class, or any other appropriate disciplinary steps, including internal suspension (separation from class).

8.                   If the Principal is of the view that the alleged misconduct might be serious enough to justify suspension or expulsion, then:

8.1                The matter must be referred to the Governing Body (including a committee generally or specifically delegated thereto by the Governing Body).

8.2                In what follows, reference to “the Governing Body” must be regarded as reference to the Governing Body or a committee as outlined in 8.1 above, as the case might be.

8.3                The Governing Body may, on reasonable grounds and as a precautionary measure, suspend the learner from attending school either

(a)                 as a correctional measure for a period of not longer than 1 (one) week;  or

(b)                 in consultation with the Head of Department, pending a decision as to whether the learner is to be expelled from the school,

but may only enforce such suspension after the learner has been granted a reasonable opportunity to make representations to it in relation to such suspension.

8.4                If a learner is suspended as outlined in 8.3 above, then disciplinary proceedings must be instituted against that learner within 7 (seven) school days after the commencement of the suspension.

8.5                The Governing Body must, in conjunction with the Principal, decide whether to institute disciplinary proceedings, and in doing so it must take into account the considerations outlined in 6 above.

8.6                If the Governing Body, in conjunction with the Principal, decides to institute disciplinary proceedings for possible suspension and/or expulsion, then:

(a)                 The learner must be given no less than 5 (five) days’ written notice of the hearing into the alleged misconduct, unless:

(i)                   the Governing Body directs, with good cause, that shorter notice period shall apply;  and

(ii)                 there is no prejudice caused to the learner by the shorter notice period;

(b)                 The notice must:

(i)                   be given by the Governing Body or the Principal;

(ii)                 be given to the learner by delivering a copy thereof to the learner and to the parents or parent of the learner at the address of the learner as indicated in the school register;

(iii)                inform the learner of the charge or charges, containing sufficient particularity of the date or dates, place or places and nature of the alleged serious misconduct to enable the learner to identify the incident or incidents in question and to be able to respond thereto;

(iv)                inform the learner of the place, date and time of the hearing;

(v)                 unless notification thereof was given separately, inform the learner of provisional suspension in terms of 8.3 above, if any, the reasons therefore and any other matter required in connection with the provisional suspension;  and

(vi)                inform the learner of the rights of the learner in terms hereof.

8.7                Upon notification by the Principal or the Governing Body to a learner that disciplinary action is instituted against that learner, the Governing Body must appoint a Disciplinary Committee and designate one of the members of the Disciplinary Committee as Chairperson to adjudicate the allegation of serious misconduct.

8.8                Subject to 8.9 below, the Disciplinary Committee must comprise of three persons who are either members of the Governing Body or persons who are eligible to be elected as members of the Governing Body.

8.9                The appointment of persons to a Disciplinary Committee is subject to the following conditions:

(a)                 If, in the view of the Chairperson of the Governing Body, insufficient members of the Governing Body or persons who are eligible to be elected as members of the Governing Body are for whatever reasonable suitable to sit on the Disciplinary Committee, then the Governing Body (or any person or committee delegated thereto by the Governing Body) may appoint suitable outside persons to sit on the Disciplinary Committee.

(b)           Subject to (a) above:

(i)                   The Chairperson of the Disciplinary Committee must be a parent member or community member of the Governing Body;

(ii)                 The Principal or a learner at the school are not eligible to be members of the Disciplinary Committee;  and

(iii)                No person may be appointed to the Disciplinary Committee if that person has personal knowledge of or any interest in any matter before the Disciplinary Committee.

8.10             The learner shall be entitled to be represented by his or her parent or parents and/or guardian and, if the Disciplinary Committee so allows, by any other person.

8.11            If the learner fails to appear before the Disciplinary Committee after due notice and without just cause for not attending the hearing, the hearing may continue in the absence of the learner.

8.12            The Disciplinary Committee must keep a full and accurate record of all proceedings before it.

8.13            The evidence-leader must commence proceedings at the hearing by setting out the charge or charges against the learner.

8.14           The Chairperson of the Disciplinary Committee must ask the learner whether the learner pleads guilty or not guilty to the charge or charges.  The learner must respond thereto.  Should the learner fail to respond, the learner will be deemed to have pleaded not guilty to the charge or charges.

8.15            If the learner pleads guilty to the charge or charges:

(a)                 The Chairperson must question the learner with reference to the alleged facts comprising the misconduct as outlined by the evidence-leader in order to satisfy the Disciplinary Committee that the learner is indeed guilty of the charge or charges;

(b)                 If, upon questioning the learner, it appears that the version of the learner materially differs from the facts as outlined by the evidence-leader, or if the Chairperson is otherwise not satisfied that the learner is guilty of the charge or charges, the Chairperson must enter a plea of not guilty in respect of the charge or charges on behalf of the learner;

(c)                  If the Disciplinary Committee, or the majority of its members, is satisfied that the learner is guilty of the charge or charges, the Disciplinary Committee must find the learner guilty of the charge or charges.

8.16           If the learner pleads not guilty to the charge or charges:

(a)                 The evidence-leader may call witnesses or present other evidence on oath in respect of the allegations against the learner;

(b)                 The learner or the representative of the learner may question any witness and examine any evidence presented by the evidence-leader;

(c)                  After all the evidence has been led against the learner, the learner or the representative of the learner may call witnesses or present other evidence on oath in support of the defense;

(d)                 The evidence-leader may question any witness and examine any evidence presented on behalf of the learner;

(e)                 The Disciplinary Committee may question any witness or examine any evidence at any time;

(f)                  After all the evidence has been presented, first the evidence-leader and then the learner or the representative of the learner may address the Disciplinary Committee as to the guilt or otherwise of the learner;

(g)                 The Disciplinary Committee must thereafter adjourn the hearing for not more than 2 (two) school days to a specified place, date and time in order to decide whether, on a balance of probabilities, the learner is guilty or not guilty of the charge;  and

(h)                 At the date and time contemplated in sub-paragraph (g), the Disciplinary Committee must inform the learner of the findings of the Disciplinary Committee.

8.17         If the learner is found guilty of the charge or charges, the evidence-leader and the learner or the representative of the learner may present evidence before the Disciplinary Committee relevant to an appropriate penalty, including but not limited to evidence of the personal circumstances of the learner, the general record of past conduct of the learner at the school, the nature and seriousness of the misconduct in question, and the interests of the school community.

8.18         Learners found guilty of serious misconduct as specified in Schedule 1 may not be expelled, but may be suspended or provisionally suspended.

8.19         No learner may be expelled unless:

(a)                 The learner is found guilty of serious misconduct specified in Schedule 2;  and

(b)                 Expulsion is appropriate, taking all of the relevant circumstances into account.

8.20        The Head of Department may, in exceptional circumstances, authorise a departure from paragraphs 8.18 and 8.19 above.

8.21        Immediately after considering any evidence presented in terms of paragraph 8.17 above, the Disciplinary Committee must impose on the learner an appropriate penalty, and inform the learner thereof in writing.

8.22       If the Disciplinary Committee decides that the learner should be expelled from the school, it must make a recommendation to that effect to the Head of Department, and may (in consultation with the Head of Department) suspend the learner from the school pending the decision of the Head of Department on whether the learner is to be expelled.

8.23       Where a Disciplinary Committee recommends expulsion, it must direct the Principal to submit to the Head of Department the full record of proceedings and a report compiled by the Disciplinary Committee in respect of the learner.  The report must include all relevant details including the full name, date of birth and grade of the learner, a summary of the evidence presented and of the findings of the Disciplinary Committee both as to the alleged misconduct, and as to sentence, and its reasoning.