Judge accused of depriving learner right to education due to his ruling

A North Gauteng High Court judge has been accused of denying a learner right to education following his judgement on Janaury 22, 2024. Picture: Supplied

A North Gauteng High Court judge has been accused of denying a learner right to education following his judgement on Janaury 22, 2024. Picture: Supplied

Published Jan 28, 2024


NORTH Gauteng High Court, Pretoria, Judge Jabulani Nyathi, has been accused of denying a pupil the right to education following a judgment made by the court.

This, after Judge Nyathi ruled against the pupil, who had been expelled from Tyger Valley College. The pupil was expelled for non-payment of school fees and misconduct.

Advocate McGregor Kufa and his instructing legal team, Machaba Attorneys, who represented the pupil against the school in court, said the judge failed to deal with the matter expeditiously, as it concerned a minor.

The attorneys said the delay was gross negligence.

The matter was brought before the high court last July, and Judge Nyathi concluded the matter on January 22 this year.

He dismissed the case, saying the applicants failed to dispute that a hearing was held where the pupil pleaded guilty and had previous convictions which he acknowledged.

He said the pupil was subsequently found guilty and punished with expulsion from the school.

“It is further not disputed the fact that the first applicant (his mother) has defaulted from paying the school fees and was in financial distress,” Judge Nyathi said.

However, Kufa said Juge Nyathi was supposed to deliver his judgment within two weeks on an urgent basis. Kufa said the child was still at home and missing lessons.

He further said that the pupil was expelled on the grounds of thinly veiled racism: “The child was expelled for allegedly fighting, yet it was just a push and shove. White students who fought previously were never punished or expelled.

“The child was expelled for fighting, yet issues of non-payment of school fees which were not part of the disciplinary process were suddenly included,” Kufa said.

He further said: “Judge Nyathi took his time. Yet, any matter concerning a minor child must be expeditiously dealt with. Six months delay is gross negligence on the part of the judge.”

Kufa said they were considering challenging the ruling at the Constitutional Court.

Sunday Independent sent questions to Judge Nyathi’s clerk Katlego Sebola, but she did not respond.

The Gauteng Department of Education, which is the fifth respondent in the matter, also did not respond.

Tyger Valley College managing director, Mike Aitken, said the school would not discuss the details of any disciplinary matters with external parties. He said the matter of fee arrears was completely separate and should not be confused with a significant breach of the student code of conduct.

“Such code was in our view indeed breached, a disciplinary hearing was accordingly held, chaired by an independent person. Mitigating and aggravating considerations were also heard, which would have included any prior breaches of the code of conduct.

“A subsequent sanction was handed down. His mother appealed this sanction through our Group Disciplinary Appeals Committee (which is also completely independent), which upheld the sanction. This sanction has now similarly been upheld by the high court,” Aitken said.

Asked to comment on the statement that the decision denies the pupil his right to education, Aiken said: “The College is an independent school. As such, and in accordance with the applicable authority, there is a so-called negative obligation on the college to provide basic education.

“The court, when the matter was argued, considered this aspect and agreed that the College complied with such obligation.

“We do not believe there is anything that the school has done to infringe the student’s right to education. Further to the school’s ethos and values, all students are enrolled subject to the school’s rules and conditions, including the school’s code of conduct.

“As part of the student's enrolment process, parents and students agree to the terms and conditions of enrolment; and these include implications for infringement,” he said.

During arguments, Kufa submitted that the disciplinary hearing was not fair in all respects. He said this is because the school prohibited the learner’s mother from assisting him during the hearing.

He also submitted that the assault charge against the learner was used as a disguise, while the real issue was non-payment of school fees. He contended that the college deliberately conflated the two issues.

The pupil’s mother also detailed an incident involving two learners – a white pupil and an black pupil – who were disciplined after being caught fighting on video within the school premises but were not expelled.

She alleged that because one of the learners was white, the school applied inconsistent and discriminatory considerations, and they were not punished with dismissal.

However, the school’s representatives submitted that due processes were followed during the disciplinary hearing. They also submitted that the learner pleaded guilty to the offence, thus curtailing the nitty-gritty of the hearing.

The representatives also denied that there was a link between the expulsion of the learner and the non-payment of fees by his parents.

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