The Western Cape Education Department (WCED) has lost a High Court battle to retain a decision it made, recommending that a pupil at the Tafelberg School not be expelled but be given a second chance.

The governing body of Tafelberg School, which is an institution for learners with special education needs, asked the High Court to review the recommended decision by the WCED and set it aside.

The case concerned an important matter of principle, untested in a court of law thus far, and has important implications for schools and governing bodies in making decisions on the expulsion of a pupil.

The pupil concerned had stolen a computer hard drive from the school in August last year. The theft was discovered the next day and after the school threatened to call the police, the pupil admitted that he had taken the hard drive.

He was suspended and after a fair hearing by the governing body and consultation with the boy's parents, the governing body recommended to the department that the boy be expelled.

The boy subsequently returned to school after Superintendent-General Brian O'Connell decided that the governing body's recommendation was extreme. He attached a proviso that if the boy was found guilty of a similar offence again, then only should the appropriate action be taken.

Judge Wilfred Thring ruled that the WCED's decision be set aside and referred the matter back to the department so that O'Connell can "properly reconsider his decision".

Accordingly, he said it would be "wrong", as well as unnecessary, to prohibit the pupil from attending school pending O'Connell's reconsideration of his decision and directed the school not to prevent the boy from attending.

Thring ordered O'Connell to pay the costs of the review, including that of the two counsel employed.

Counsel for the governing body submitted from the outset that the court action was not intended to victimise a particular pupil, but was motivated by a serious concern that the disciplinary function of the governing body at the school would be undermined.

It was argued that it was common cause that the pupil was found guilty of serious misconduct and there were grounds for expulsion in terms of the SA Schools Act.

Counsel for the WCED and O'Connell argued that in terms of the SA Schools Act, the rights and wishes of the child's parents must be taken into account and due process must take place before expulsion.