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Dagga boy wins his case

File photo: Peter Dejong

File photo: Peter Dejong

Published Oct 28, 2015

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Durban - A Grade 8 schoolboy who was expelled from his Ballito private school last month for smoking dagga can return to school on Wednesday morning because a Durban High Court judge has ruled that the school did not follow its own rules in disciplining him.

The 15-year-old pupil will be allowed to remain at Ashton College pending a further court application seeking to review and set aside the decision to expel him.

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Lawyers for the school argued on Tuesday that, on the evidence at the disciplinary inquiry, there was no doubt that the teenager had smoked dagga and he had twice tested positive for it.

But, in a ruling which will have other schools taking a critical look at their codes of conduct, Acting Judge Cassim Sardiwalla said he did not have to deal with the merits of the matter because the process followed was “flawed”.

In agreeing with submissions by advocate Mahen Manikum, for the pupil, he said the school’s code of conduct stipulated that a disciplinary tribunal had to consist of “members of management or part of management of the school”.

But in this case, the hearing had been conducted by only one person who was said to be “independent” and not part of the school at all.

This meant that the committee was “wrongly constituted” and the decision to expel the pupil had to be set aside.

Further to this was the conceded fact that the principal of the school, Joe Erasmus – who had taken the urine sample and had been a witness at the hearing – had then appointed himself as a one-member appeal tribunal and had rejected the pupil’s appeal.

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The judge said these issues warranted an order allowing the pupil to return to school with immediate effect pending the review application which must be launched within 30 days.

It is expected that it will be during this application that many other crucial issues – including the right of schools to randomly test pupils using store-bought urine sampling kits – will be thrashed out.

Erasmus, who attended Tuesday’s hearing, declined to comment on the ruling. The school’s attorney, Veronica O’Dwyer, said the school would “continue to stand firm on discipline”.

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The pupil’s mother – who works in the legal profession – was not at court and did not respond to requests for comment.

While, in her affidavit, the mother labelled the school’s conduct “unconstitutional and unlawful”, in part because no one asked her for permission to do the drug test, Erasmus said its zero-tolerance drug policy was as important as education at the school.

He said the test was conducted after the pupil was pointed out as having been selling “green stuff in plastic bags” at a local market one weekend.

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In argument on Tuesday, Manikum said the code of conduct only dealt with possession and use of drugs on school property or at a school-related function, which was not the case in this matter.

Advocate Warren Shapiro, for the school, said “pure logic” dictated that “the use of drugs creates the problem and not where it was done”.

“Does that mean if he had taken drugs across the road from the school, he would have been untouchable? If that is so, then it makes a nonsense of the idea of being an anti-drugs school.”

He argued that the pupil was not being “prejudiced” by his expulsion because it was a consequence of his taking drugs.

He suggested that the pupil had been treated even more fairly by the use of an independent hearing chairman “and there is no argument that it led to an unfair result”. However, he conceded that Erasmus was “not the most appropriate person” to deal with the appeal.

Judge Sardiwalla refused an application for leave to appeal.

The boy’s mother would only say justice had been done. She could not say when her son would return to school.

The Mercury

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