Lawful, reasonable and fair decision-making in disciplinary cases in secondary schools

Abstract

Section 16 A (2) (d), (e) and (f) of the South African Schools Act, Act 84 of 1996 assumes that a school principal has specialised knowledge in interpreting legislation, dealing with disciplinary matters pertaining to learners, educators and support staff, and making disciplinary decisions. The legal framework of the Promotion of Administrative Justice Act, Act 3 of 2000, as well as section 33 of the Constitution of the Republic of South Africa, Act 108 of 1996, affects disciplinary decision making in education. The need to understand how legislation affects disciplinary decision making is important, because s ection 16 A of the South African Schools Act, Act 84 of 1996 assumes that education managers have the requisite knowledge and understanding of the law when dealing with disciplinary decision making. Disciplinary decisions taken by education managers fall in the domain of administrative law. The Promotion of Administrative Justice Act, Act 3 of 2000, forms the foundation for administrative action that is lawful, reasonable and fair. Since this Act is relatively new, and education managers have a lack of education law knowledge in general, it can be argued that principals might struggle to take disciplinary decisions that are lawful, reasonable and fair. Thus, there is a need to answer the following question: What are the legal requirements that should be considered in taking disciplinary decisions that are lawful, reasonable and fair and how can these disciplinary decisions be made more effectively? The purpose of the study was to understand the context and content of Section 33 of the Constitution of the Republic of South Africa, Act 108 of 1996, the Promotion of Administrative Justice Act, Act 3 of 2000, and Section 16A of the Schools Act , Act 84 of 1996 and how they would positively influence disciplinary decision making in South African education. The main research question was: What are the legal requirements that should be considered in taking disciplinary decisions that are lawful, reasonable and fair and how can these disciplinary decisions be made more effectively? Chapter 2 answered the research question of which decision-making processes could assist the education manager to take disciplinary decisions that are lawful, reasonable and fair. It was established that principals make frequent use of the rational model for decision making. However, the more comprehensive data-driven decision-making model was proposed. This not only focuses on a single disciplinary decision, but on the cause and trends of all transgressions that exist in a school. This model enables a principal to draw up a plan of action to deal with the cause of the problem. After analysing the applicable legal framework, the concepts of lawful, reasonable, and fair were defined and interpreted in Chapter 3. An administrative action is lawful when an administrator is duly authorised by law to exercise power. Reasonableness has two elements, namely rationality and proportionality. Rationality means that evidence and information should support a decision an administrator takes, while the purpose of rationality is to avoid an imbalance between the adverse and beneficial effects. The approach to fairness has changed since the pre-democratic era. The main components that are linked to procedural fairness are the common-law principles of audi alteram partem, and nemo iudex in sua causa. The qualitative approach was followed in this study to shed light on the perceptions of the participants on the meaning of the legal concepts of lawful, reasonable, and fair in disciplinary decision making, and their understanding of the legal framework of this study. Furthermore, this study sought answers to which decision-making processes could assist the education manager, as well as to the advantages of having a disciplinary coordinator to assist education managers in making lawful, reasonable and fair disciplinary decisions. Convenience and purposeful sampling was used because the schools were conveniently located. Four secondary school principals in Cape Town were chosen, as well as two officials from the Western Cape Department of Education. The reason for purposive sampling was that two of the four schools that were selected had to have a discipline coordinator. Semi-structured interviews were held with the abovementioned principals and officials to answer the main research question. The following information emerged from the semi-structured interviews which were incorporated in the data-driven, decision-making model of school improvement. Some of the findings were: i. Animosity exists between some school principals and the Western Cape Education Department (WCED). There is a lack of communication between the WCED and principals, as well as a lack of training on disciplinary decision making. ii. It was also established that principals made common mistakes related to the interpretation of legislation or applicable regulations. iii. A good practice emanating from the study is a paper trail of all interventions kept by schools. iv. Principals tend to use only the South African Schools Act as a legal framework for disciplinary decision making. v. Principals need to focus on strategies to address the link between bad behaviour and poor academic performance. vi. A discipline coordinator can assist the principal in maintaining discipline, investigating transgressions, organising disciplinary hearings, and in disciplinary decision making. Decision making, lawfulness, reasonableness, and fairness were combined in this research to establish the legal requirements that should be considered in taking disciplinary decisions that are lawful, reasonable and fair, and how these disciplinary decisions can be more effective for the sole purpose of school improvement.