Lawful, reasonable and fair actions Prof Rika Joubert

2. Structure of the presentation Functions of the SMT in terms of the PAM Constitutional right to just administrative action and the PAJA Act Administrative actions that affect the rights of staff members Lawful, reasonable and fair procedures when disciplining learners

3. Personnel administrative measures (PAM) 4.3(d)THE AIM OF THE JOB: Deputy principal (i) To assist the principal in managing the school and promoting the education of learners in a proper manner. (ii) To maintain a total awareness of the administrative procedures across the total range of school activities and functions.

5. How to be lawful, reasonable and fair when� Receiving complaints about a teacher�s poor teaching skills. A teacher walks out of a staff meeting You hear rumours that a teacher is absent because he runs a private business. A teacher goes to the bank during school hours. A learner assault a teacher in her class

6. Just administrative action (s 33) Section 33 applies to all administrative actions Everyone has the right to administrative action that is lawful, reasonable and procedurally fair Everyone whose rights have been adversely affected by administrative action has the right to be given written reasons Administrative actions include all actions in which rules of law are applied to individuals � policy-making, discipline, settling disputes, control actions.

7. Promotion of Administrative Justice Act (PAJA) 3 of 2000 PAJA applies to all administrative actions Administrative action: the exercise of public power. Confined to decisions that adversely affects the rights of any person A decision (or failure to take a decision) is defined as a decision of an administrative nature made, proposed to be made, or required to be made when exercising public power Administrator, is any organ of state or any private (natural or juristic) person that takes an administrative action when exercising a public power or performing a public function

8. Meaning of the word �affect� Meaning of �affect� is ambiguous � either �deprive� or �determine� Threatens Example: refusing a request will not deprive a person of a right. The procedure followed to take a decision to refuse a request will affect a person�s rights.

9. Meaning of the word �rights� Rights are not restricted to Constitutional rights � include rights granted by legislation and private law rights such as contractual or delictual rights Personal interests, e.g. economic interests Legitimate expectation � regular practices

11. Procedural fairness Fair procedure depends on the circumstances of each case Common law of natural justice Audi alteram partem (fair hearing before making the decision) Nemo iudex in sua causa (decision must be impartial) If a decision impacts on an individual a hearing is necessary. A hearing is not always conducted by a full tribunal. If the decision affects a group it is not a requirement to enter into negotiations with everyone affected.

12. Substantive fairness Determines that there must be enough evidence to find a person guilty of an offence Refers to the appropriateness of the sanction for the specific misconduct

13. Decisions that are lawful, reasonable and fair What is fair depends on the circumstances of each case: adequate notice of the nature and purpose of the proposed action; a reasonable opportunity to make representations; a clear statement of the action; adequate notice of any right of review or internal appeal; and adequate notice of the right to request reasons.

14. Should you conduct a disciplinary hearing when�?? A learner is absent for more than two weeks without a medical certificate A learner swears at his teacher A boy sexually assaults a girl during break A learner cheats in the examination A learner is in possession of dagga

15. Types of misconduct Schedule 1 Disrupts teaching or functioning of school Insults dignity of staff member Cheats in examination, steal exam papers Indecency Sexually harasses another In possession of pornography Under influence of alcohol Schedule 2 Fails to comply with sanctions/punishment Forges documents/ fraud Trades in exam materials Theft / Assault Possession, consumes / deals illegal substances Possession of dangerous weapon Murder Rape Maliciously damage property

16. SASA, section 9  Serious misconduct � suspension � hearing within 7 school days. If found guilty- recommend expulsion to HoD- respond within 14 days If learner appeals � HoD to consult SGB alternative sanction- learner stay in school If HoD decides not to expel - refers back to SGB � alternative sanction Proposed amendment in 2010

17. Learner discipline case law De Kock v. DoE Western Cape and SGB High School Overberg � Cape High Court 12533 (1998) Principal and deputy were both members of the SGB Who investigated the misconduct Were members of the tribunal who found De Kock guilty Judge ruled the hearing illegal � gross irregularity: �The most obvious form of prejudice is that which arises when someone is both prosecutor and judge in the same case. This is contrary to every principle of fairness and justice.�

18. More case law Antonie v Governing Body, Settlers High School, and others 2002 (4) SA 738 (c) Suspension of learner from school - 'Serious misconduct' Why? Wearing headgear and growing dreadlocks according to Rastafarian custom Regulations relating to serious misconduct of learners and published as Provincial Notice (PN) 372 of 1997 Freedom of expression is more than freedom of speech. The freedom of expression includes the right to seek, hear, read and wear.

19. Final word The Sec 33 of the Constitution and PAJA requires that reasons MUST be given for administrative actions that adversely affects a person�s rights. However, once you have given a reason there is no duty to give further reasons should a person request more reasons.