The development of case law in the US and South Africa

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INTRODUCTION

The concept of fair treatment during disciplinary proceedings is an important concept internationally. The concept may be traced back to 1215 in Article 39 of the Magna Carta of England (The Great Charter, 1215). It is also contained in the American Bill of Rights Article 15 of 1791 (US Constitution, 1787). Major universal treaties, such as the Universal Declaration of Human Rights (hereinafter referred to as the UDHR) (United Nations General Assembly (UNGA), 1948), the International Covenant on Civil and Political Rights (hereinafter referred to as ICCPR) (UNGA, 1966) and the Convention on the Rights of the Child (hereinafter referred to as CRC) (UNGA, 1990), have played a vital role in ensuring fairness in disciplinary processes. One of the major aims of these documents has been to address the abuse in the education context that was taking place throughout the world. Such abuse was often in the name of discipline. The leadership of regional institutions found it necessary for regional institutions to develop instruments that would deal with abusive disciplinary actions within their specific regions.
Accordingly, regional human rights instruments such as covenants, charters and declarations were developed in order to ensure that the disciplinary process was fair. The European Convention on Human Rights (hereinafter referred to as the ECHR), the Council of Europe (hereinafter referred to as CE), the American Convention on Human Rights (hereinafter referred to as the ACHR), the Organisation of American States (hereinafter referred to as OAS) and the African Charter on Human and People’s Rights (hereinafter referred to as the ACHPR) all represent attempts to ensure fair disciplinary process. The Republic of South Africa (hereinafter referred to RSA) is one of the countries that promotes and protects the fair treatment of learners. Section 33 of the Constitution of the Republic of South Africa, 1996 (RSA, 1996a) (hereafter referred to as the Constitution), sections 8(5) and 9(3)(c) of the South African Schools Act 84 of 1996 (RSA, 1996b) (hereafter referred to as the Schools Act), Paragraph 13(1) of the Guidelines for the Consideration of Governing Bodies in Adopting a Code of Conduct for Learners (Department of Education, 1998) (hereafter referred to as the Guidelines) and section 3 of the Promotion of Administrative Justice Act, 2000 (RSA, 2000) (hereafter referred to as PAJA) all promote and protect fair treatment when disciplining learners.

RATIONALE

The concept of due process did not originate in South Africa. In 1215 in England, King John signed a document known as the Magna Carta and it is with this document that due process was established (Alexander & Alexander, 2005:765).
According to Davidson (2003:9–10), the right to due process is included in “the Fifth and Fourteenth Amendments of the US Constitution”. Even if the concept of “due process” is not formally included in the South African Constitution, section 33 (just administrative action) of the Constitution contains an element of due process. Joubert (2008:43) maintains that due process is not a common concept in South African legal literature and, in fact, the SA Schools Act is the only legislation that is applied to learner discipline in South Africa that mentions the concept of due process, namely, in section 8(5). What is crucially important is that education managers must understand and be able to implement due process when they discipline learners. Researchers have not paid sufficient attention to explaining the way in which education managers understand and implement due process when disciplining learners. During the literature review, it was not possible to find any empirical study in South Africa that had been conducted specifically to investigate in detail the understanding and implementation of due process in public schools. This indicated a very serious gap.
However, Ishak (2004), Mokhele (2006), Lekalakala (2007), Joubert (2008), Mncube (2008), Van der Westhuizen and Maree (2009), Mncube (2009), and Maphosa and Shumba (2010) have all conducted studies that partially discuss either the concept of due process or the content of the right to due process in the form of a statement or paragraph. These empirical studies are discussed in detail in the literature review. However, this gap in the existing literature aroused a need for a study about how education managers understand and implement due process during learner discipline. Therefore, it is imperative to conduct a study that will fill in an existing gap in the understanding and implementation of due process. Furthermore, there have been critical incidents reported in the newspapers about cases that are related to due process in schools.
The following headlines in newspapers led to a need to find out how education managers understand and implement due process when disciplining learners: Schoolboy faces hearing for stabbing mate: The 13-year-old Mpumalanga schoolboy, who seriously injured a classmate by allegedly stabbing him with a knife in class, is due to appear before the disciplinary committee this week (Sowetan, McKeed, Kotlolo, 14 May 2007). Judge sets aside school’s unilateral expulsion: A unilateral decision by a high school in Port Elizabeth to expel a Grade 10 pupil who allegedly punched a teacher was yesterday overturned by the Port Elizabeth High Court (The Herald, Piet Van Niekerk, 16 May 2007).

Table of contents :

• DECLARATION
• DEDICATION
• ACKNOWLEDGEMENTS
• LANGUAGE EDITOR’S DECLARATION
• ABSTRACT
• Table of contents
• List of figures
• List of tables
• CHAPTER INTRODUCTION AND ORIENTATION
  • 1.1 INTRODUCTION
  • 1.2 RATIONALE
  • 1.3 STATEMENT OF PURPOSE
  • 1.4 WORKING ASSUMPTION
  • 1.5 PROBLEM STATEMENT
  • 1.6 RESEARCH QUESTIONS
  • 1.6.1 Main research question
  • 1.6.2 Sub-questions
  • 1.7 DELIMITATION OF THE STUDY
  • 1.8 EPISTEMOLOGICAL AND ONTOLOGICAL STANCE
  • 1.9 CONCEPTUAL FRAMEWORK
  • 1.10 CONCEPT CLARIFICATION
  • 1.10.1 Due process
  • 1.10.2 Procedural due process
  • 1.10.3 Substantive due process
  • 1.10.4 Learner discipline
  • 1.10.5 Hearing of evidence
  • 1.10.6 Deciding on action
  • 1.10.7 Notice of disciplinary hearing
  • 1.10.8 Learner disciplinary hearing
  • 1.10.9 Adjourning and considering facts
  • 1.10.10 Conveying a decision
  • 1.10.11 Appeal
  • 1.11 RESEARCH DESIGN AND METHODOLOGY
  • 1.11.1 Research approach
  • 1.11.2 Research paradigm
  • 1.11.3 Research design
  • 1.11.4 Data collection methods
  • 1.11.4.1 Interviews
  • 1.11.4.2 Document analysis
  • 1.12 RESEARCH SITE AND SAMPLING
  • 1.13 DATA ANALYSIS
  • 1.14 ENHANCING THE QUALITY AND CREDIBILITY OF THE STUDY
  • 1.15 ETHICAL CONSIDERATIONS
  • 1.16 SIGNIFICANCE OF THE STUDY
  • 1.17 OUTLINE OF THE STUDY
  • 1.17.1 Introduction and orientation
  • 1.17.2 Literature review
  • 1.17.3 Research design and methodology
  • 1.17.4 How do education managers conceptualise and implement due process when disciplining learners in schools? Analysis of interviews, documents and selected court cases
  • 1.17.5 Conclusion and recommendations
  • 1.18 SUMMARY
• CHAPTER DUE PROCESS AND THE LEARNER DISCIPLINARY PROCESS
  • 2.1 INTRODUCTION
  • 2.2 ORIGIN AND MEANING OF DUE PROCESS: HISTORICAL ANALYSIS
  • 2.2.1 Origin of due process in England
  • 2.2.2 Introduction of due process in the United States
  • 2.2.3 Introduction of due process in South African schools
  • 2.2.4 Meaning of due process
  • 2.3 LEARNER DISCIPLINARY PROCESS
  • 2.3.1 International and regional treaties, conventions and declarations providing for a fair disciplinary process
  • 2.3.2 Constitutions, statutes and policies that inform learner discipline
  • 2.3.2.1 South African Constitution, Acts (statutes) and policies that provide for learner discipline
  • 2.3.2.2 US Constitution, statutes and policies that inform learner discipline
  • 2.3.3 Case law
  • 2.3.3.1 The doctrine of precedents
  • 2.3.3.2 The development of case law in the US and South Africa
  • 2.3.3.3 Parties in a case
  • 2.3.4 Common law
  • 2.3.5 The learner disciplinary process
  • 2.3.5.1 Hearing of evidence and deciding on action
  • 2.3.5.2 Notice of a disciplinary hearing
  • 2.3.5.3 Disciplinary hearing
  • 2.3.5.4 Adjourning and considering the facts
  • 2.3.5.5 Conveying the decision
  • 2.3.6 Appeal
  • 2.4 CONCLUSION
• CHAPTER DESIGNING AND CONDUCTING THE EMPIRICAL RESEARCH
  • 3.1 INTRODUCTION
  • 3.2 KNOWLEDGE CLAIM
  • 3.3 RESEARCH PARADIGM
  • 3.4 RESEARCH APPROACH
  • 3.5 RESEARCH DESIGN
  • 3.6 DATA COLLECTION
  • 3.6.1 Data collection methods
  • 3.6.1.1 Interviews
  • 3.6.1.2 Document analysis
  • 3.6.2 Sampling
  • 3.7 DATA ANALYSIS AND INTERPRETATION
  • 3.8 TRUSTWORTHINESS
  • 3.9 LIMITATIONS OF THE STUDY
  • 3.10 ETHICAL CLEARANCE AND CONSIDERATIONS
  • 3.11 SUMMARY
• CHAPTER HOW DO EDUCATION MANAGERS CONCEPTUALISE AND IMPLEMENT DUE PROCESS WHEN DISCIPLINING LEARNERS IN SCHOOLS? ANALYSIS OF INTERVIEWS, DOCUMENTS AND SELECTED COURT CASES
  • 4.1 INTRODUCTION
  • 4.2 ANALYSIS OF INTERVIEWS
  • 4.3 EMERGING THEMES AND SUB-THEMES
  • 4.3.1 Theme 1: Understanding due process
  • 4.3.1.1 Education managers’ views
  • 4.3.2 Theme 2: Understanding and implementing a learner disciplinary process
  • 4.4 ANALYSIS OF DOCUMENTS
  • 4.4.1 Analysis of the code of conduct for learners
  • 4.4.1.1 Relating codes of conduct to due process and the two types of due process
  • 4.4.1.2 Relating codes of conduct to aspects of the learner disciplinary process
  • 4.4.2 Analysis of notice for a hearing
  • 4.4.3 Analysis of the minutes of disciplinary hearings
  • 4.5 ANALYSIS OF SELECTED COURT CASES THAT ARE RELATED TO DUE PROCESS
  • 4.5.1 Case briefing
  • 4.5.2 Analysis of elements of due process in court cases
  • 4.5.2.1 Case briefing of Court Case
  • 4.5.2.2 Case briefing of Court Case
  • 4.5.2.3 Case briefing of Court Case
  • 4.5.2.4 Case briefing of Court Case
  • 4.5.2.5 Case briefing of Court Case
  • 4.5.2.6 Case briefing of Court Case
  • 4.5.2.7 Case briefing of Court Case
  • 4.5.2.8 Case briefing of Court Case
  • 4.5.2.9 Case briefing of Court Case
  • 4.5.2.10 Case briefing of Court Case
  • 4.5.2.11 Case briefing of Court Case
  • 4.5.2.12 Case briefing of Court Case
  • 4.5.2.13 Case briefing of Court Case
  • 4.6 RELATIONSHIP BETWEEN FINDINGS OF THE INTERVIEWS AND THE FINDINGS OF THE DOCUMENT ANALYSIS
  • 4.7 CONCLUSION
• CHAPTER CONCLUSION AND RECOMMENDATIONS
  • 5.1 INTRODUCTION
  • 5.2 RESEARCH QUESTIONS
  • 5.3 EDUCATORS’ CONCEPTUALISATION AND IMPLEMENTATION OF DUE PROCESS WHEN DISCIPLINING LEARNERS: CONCLUSION
  • 5.4 CONTRIBUTION OF NEW KNOWLEDGE AND RECOMMENDATIONS
  • 5.5 THE SIGNIFICANCE OF THIS STUDY
  • 5.6 SUGGESTIONS FOR FURTHER RESEARCH
  • 5.7 SUMMARY
  • BIBLIOGRAPHY
  • ANNEXURES
  • Annexure A: Ethical clearance certificate
  • Annexure B: Application letter to conduct research in Mpumalanga Secondary Schools
  • (Mpumalanga Department of Education)

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