‘A learner disciplinary hearing is an opportunity that is given to a learner to state his/her case during the disciplinary process’
(Mollo 2015:16). It is important that members of the disciplinary committee listen to what the learner is saying during the disciplinary hearings. ‘During a disciplinary hearing, the common law rules of natural justice, as developed and applied by the courts, should be considered’ (Burns 1999:168–169; Joubert 2015:122; Shauer 1976:48). Oosthuizen and De Wet (2016) state that:
There are two basic rules of natural justice, namely, audi alteram partem and nemo iudex in propria causa. The common law principle of audi alteram partem such as the right to state your side of the story constitute the basis for reasonable and fair disciplinary action. (p. 84)
During the hearing, the principles of ‘nemo iudex in propria causa, which means no one is able to be a judge in his or her own case’
should also be taken into consideration (Oosthuizen & De Wet 2016:84).
In addition to the members of the disciplinary committee, participants such as the prosecutor, accused learner, parent(s), representative(s) and witnesses should participate in the disciplinary hearing (DBE 2008:18; Joubert 2015:134–135).
‘The best interest of a child’ (Republic of South Africa 1996a:s. 28) is of paramount importance when conducting a hearing. This means that the hearing should aim at helping an accused learner to improve his or her behaviour. During the
hearing, it should be in the mind of the disciplinary committee members that every decision that is taken should be corrective and be accompanied by a rehabilitation programme. The rehabilitation programme can be conducted by a school or a learner can be referred to an external service provider. Even when a learner is removed permanently from school, the principal should advice parents to take the learner to a rehabilitation centre when there is a need. Parents should pay for the external service provider if they do not offer free services.
In Mollo (2015:139), most of the participants (n = 22/24) were not able to mention the fair hearing procedure in detail.
On the basis of this finding, it is important that principals should be knowledgeable about the ‘procedures that should be followed during a disciplinary hearing’, so that they can advise the disciplinary committee (Mollo 2015:82). The due process steps should form part of the policy that is used to instil a culture of obedience and self-control in schools. It is expected from the disciplinary committee chairperson that he or she makes sure that the hearing procedures are strict but fair.
At the beginning of the disciplinary hearing, the chairperson should welcome everyone present and introduce them. The chairperson must create an atmosphere that is conducive for a fair hearing. ‘If there are preliminary matters, they should be dispensed with as soon as possible’ (Oosthuizen et al. 2015:190).
Avoidance of the preliminary matters can lead to the decision of the hearing being rendered null and void. Preliminary matters may include (Oosthuizen et al. 2015):
[A] request for postponement, a request to summons or notify one of the witnesses to a hearing, or an objection because of partiality of one of the disciplinary committee members. (pp. 190–191)
If the objection is factual, the chairperson may postpone the hearing and if there is nothing that can lead to postponement, the hearing should proceed (DBE 2008:17; Oosthuizen et al.
2015:190–191).
As the hearing proceeds, the ‘chairperson must inform the learner of his/her rights’ (DBE 2008:17). The rights that are applicable to the hearing include but are not limited to (Republic of South Africa 1996a):
[T]he right to equality (Section 9), human dignity (Section 10), freedom and security of the person (Section 12), privacy (Section 14), freedom of expression (Section 16) and the best interest of a child. (s. 28.2)
Members of the disciplinary committee should not violate these rights during the hearing. ‘The chairperson is to explain the nature of the alleged breach or misconduct to those present at the hearing’ (DBE 2008:18). The results of the preliminary hearing (charge sheet) should be read to the accused learner. The chairperson should ask the learner whether he or she is pleading guilty or not. The chairperson should ask a learner questions that will help the disciplinary committee to get more information and should find out whether the learner does accept that he or she is guilty or not. The accused learner should be advised by the chairperson to listen attentively to what the prosecutor will be saying. The prosecutor is given an opportunity to present evidence under oath by testifying and proving that the accused is guilty (DBE 2008:18; Oosthuizen et al. 2015:191; Smith et al.
2015:2376–2377). As soon as the prosecutor is finished, the accused learner and his or her representatives should be given a chance to provide clarity on certain issues (Oosthuizen et al.
2015:191). Smith et al. (2015:2387) state that ‘according to the majority of the participants the most important factor is to give the learner ample opportunity to talk and to defend his/her case’.
This is intended to ensure that the accused has a right to be heard.
The chairperson should allow the accused learner and the learner representative(s) an ‘opportunity to cross-examine the witnesses’ (Oosthuizen et al. 2015:191). The accused should be given an opportunity to present his or her main evidence. The prosecutor may then cross-examine the accused. It is important to give the learner another opportunity to provide clarity on what
he or she said, especially where other statements are not clear, and to confirm that what he or she said previously is correct.
Thereafter, both parties should summarise their cases by arguing the merits and the law (DBE 2008:18; Oosthuizen et al. 2015:191–
192). Smith et al. (2015) provide that the:
[M]ajority of the participants in a study that they conducted believed that parent(s) should be given an opportunity to ask questions to understand the disciplinary process, the charge, and the sanction given as well as the policies involved. (p. 2384)
This will allow all participants to be satisfied with the disciplinary process. The hearing process should be adjourned.
The study conducted by Mollo (2015:142) found that minutes of a disciplinary hearing were kept only in a few schools (n = 3/8).
Very few (n = 1/3) of the schools managed to write detailed minutes, recording what the participants of the hearing said.
Therefore, it is important for principals to advice scribes or secretaries of the disciplinary committees on how to write detailed hearing minutes (Michiel de Kock v the Head of Education and Other, Province of Western Cape). As it might be difficult to write everything that is said during the hearing, the chairperson should ask for permission to tape record the proceedings, so that the scribe or secretary can ensure proper minutes are available for every disciplinary hearing. This means that even if the proceeding is tape recorded, the scribe or secretary should also write comprehensive minutes of every disciplinary hearing.
Minutes of a disciplinary hearing should contain the date;
time; venue; purpose; names of attendees and their designations; opening and welcome; introduction of attendees and their roles; preliminary matters; informing attendees of their rights; explanation of the nature of the alleged serious misconduct;
a plea of guilty or not by the accused; probing of questions to the accused and his or her responses; presentation of evidence under oath by the prosecutor; response by the accused and his or her representatives; cross-examination of witnesses by the accused learner and representatives; the presentation of evidence by the
accused; cross-examination of witnesses by the prosecutor; final comments by parent(s) and representatives; adjourning of the hearing and consideration of facts; and recommendation of decision. Minutes should be accompanied by the attendance register and declaration of confidentiality.