IN THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE DIVISION, CAPE TOWN)
Case Number: 25674/2024
In the matter between:
A P N.O. First Applicant
A P N.O. Second Applicant
(in their capacities as the parents of L)
D G N.O. Third Applicant
A G N.O. Fourth Applicant
(in their capacities as the parents of M)
and
OAKDALE AGRICULTURAL HIGH SCHOOL First Respondent
THE GOVERNING BODY OF OAKDALE AGRICULTURAL Second
Respondent
HIGH SCHOOL
OF FICE OF TH E C HIEF JUST ICE
R EP UB LIC OF SOU TH AF RICA
THE DISCIPLINARY COMMITTEE OF OAKDALE Third Respondent
AGRICULTURAL HIGH SCHOOL
DAVID MAYNIER N.O. Fourth Respondent
BRENT WALTERS N.O. Fifth Respondent
Coram : Da Silva Salie, J
Matter heard : 28 August 2025
Judgment delivered : 3 September 2025
Counsel for Applicants : Adv. A P J Els SC
Instructed by : Couzyn Hertzog & Horak
c/o Van Zyl Attorneys
Counsel for 1st to 3rd Respondents : Adv. A. Montzinger
Instructed by : Hofmeyer & Sons
JUDGMENT HANDED DOWN ON 3rd SEPTEMBER 2025
Order
[70] In the result, I make the following order:
“(i) The disciplinary proceedings and the imposed sanctions of August
2024 are declared invalid and of no force and effect.
(ii) The disciplinary proceedings of October 2024 and the imposed
sanctions are reviewed and set aside.
(iii) The matter is not remitted.
(iv) The conditional counterapplication is dismissed.
(v) The first to third respondents are ordered to pay the applicants’
costs on scale C.”
DA SILVA SALIE, J:
Introduction
[1] This matter concerns the review of disciplinary proceedings conducted by the
Governing Body and Disciplinary Committee of Oakdale Agricultural High School (“the
school”) in August 2024 and October 2024. The applicants are the parents of two
learners, L and M, both minors currently in Grade 10. Both learners were found to have
contravened the rule against vapin g. It is from this vaping incident that both hearings
stem. The applicants challenge the validity of the proceedings and the sanctions
imposed, whic h they allege were unlawful, procedurally unfair, and disproportionate.
The first to third respondents are collectively referred to as the school or the
respondents. This application is only opposed by the school. The fourth and fifth
respondents are cited in their capacity as Provincial Minister of Education and the Head
of Department of the Western Cape Education Department respectively. No relief is
sought from the fourth and fifth respondents and they do not oppose the relief sought.
Historical Background:
[2] L and M are learners at Oakdale Agricultural High School , a public school as
contemplated in Section 15 of the South African Schools Act, 84 of 1996 (“the Act”) and
established in terms of Section 21 of the Western Cape Provinci al School Education
Act, 12 of 1997. At junior school level, both L and M were selected to play rugby for the
South Western Districts . Given their outstanding rugby talent, the school approached
both their parents in 2022 and offered them scholarships to attend the school and
hostel. They commenced grade 8 in 2023. Later in that year, November 2023, L and M
were each found in possession of a vape. Vaping constitutes s erious misconduct in
terms of the school’s Code of Conduct (“the Code”), categorised as a Code C offence –
a serious misconduct. Paragraph 1.7.1 reads:
“1.7.7 The possession or use of cigarettes, e -cigarettes or any other smoking
device, but not limited to vape equipment is prohibited.”
[3] During November 2023 a vape was hidden in L’s cupboard. The other hostel
boarders in the room told L they would all inform the junior leaders and/or teacher that
it’s his vape. L then informed one of the junior leaders and asked them what to do, who
advised him to inform a teacher immediately. He then admitted to the teacher that he
had a vape and had used it. Upon being questioned, he disclosed that M had also used
the vape that was hidden in the cupboard. M admitted to use thereof and both were
convicted during disciplinary measures and found guilty of a category C offence. They
were (as well as one more hostel boarder) suspended from the hostel for a period of 6
weeks.
[4] During the following academic year, on 20 August 2024 M (together with two
other learners) sat in a room in the hostel and used a vape. As L walked past the room,
he saw them using a vape. He entered the room, took a puff from the vape and then
departed to participate in a rugby training session at the school. L was later called by a
teacher, Mr. Stefan De Klerk (“Mr. De Klerk”) who alleged to have a photo taken via the
security camera facing M’s room where L can be seen using a vaping device. L admitted
to using it, however, informed Mr. De Klerk that it wa s not his vape. In respect of M, a
to using it, however, informed Mr. De Klerk that it wa s not his vape. In respect of M, a
teacher walked into the room and told him to hand “it” over. M withdrew it from where he
had hidden it under his body. Disciplinary proceedings followed before the governing
body. Both learners admitted the contravention and were found guilty of vaping . On 27
August 2024, the governing body imposed the following sanctions, in writing, addressed
to the applicants in respect of each learner and signed by Mr. De Klerk designation
stated as Prosecutor and Mr. Ja c Saayman as Chairman . The sanctions are stated as
follows:
(a) Permanent suspension from the hostel (suspension applies for his Grade
11 and Grade 12 period).
(b) Reapplication to the hostel can be considered at the end of 2025.
(c) Any further Category C offence will lead to implementation of a suspended
sentence.
[5] On 21 August 2024, the day after the August incident, the learners were asked to
vacate the hostel by latest on Friday, 23 August 2024 . Notices were communicated to
the parents of L and M on 22 August 2024 tha t a disciplinary hearing would be held 5
days later, on Tuesday, 27 August 2024. During the disciplinary hearing, L’s father
made submissions that L was not “caught” with a vaping device but that he disclosed it
voluntarily. He also informed the panel that his son was physically assaulted by older
learners whose names he had implicated. He was informed during the hearing that L is
found guilty of the offence and permanently expelled from the hostel. The same applies
in respect of M. On this date, both the learners had already vacated the hostel as per
the prior notice from the school immediately after the incident.
[6] The hostel forms an integral part of school life at Oakdale, and the Code requires
that learners reside in the hoste l unless they live with their parents in Riversdale. This
sanction of expulsion had differing consequences for the two learners : M, whose
parents reside in Riversdale, could theoretically continue; L, whose parents reside in
George, could not . He did howe ver continue to reside with an elder in the Riversdale
community who was prepared to house him until November 2024. This is also
tantamount to a breach of the code of conduct, which highlights the far-reaching
consequences of expulsion from the hostel.
[7] M’s father wrote a letter to the school on 29 August 2024, informing them that he
does not accept the sanction to expel M from the hostel. He enquired , inter alia,
regarding his right of appeal. The school replied that they are obliged to strictly enforce
the Code and that the Education Department need not approve the Code as the policies
are exclusively within their discretion, and that there exists no right to appeal.
[8] On 4 September 2024, attorneys acting for M’s parents raised with the school, in
writing, that whilst the expu lsion sanction was issued by the school and implemented ,
the sanction of ex pulsion was not referred to the Head of Department of the Western
Cape Education Department ( the f ifth respondent) for confirmation as required by
section 9 of the Schools Act. It was pointed out to the school that it was not within their
rights to expel hostel boarders and that they may only make a suggestion for expulsion
to the Education Department, who then has a r ight to impose the sanction. L’s parents
attended a meeting with the principal, Mr. Willem Du Buisson , at the school. They
expressed their views to the principal that the penalty imposed was disproportionate to
the offence and that no one has ever been g iven such a severe penalty for vaping,
which he conceded. In seeking alternative means to address the transgression, Mr. Du
Buisson indicated that as the policy was determined by the governing body, he
suggested that correspondence be addressed with them in time for the governing
body’s next meeting on 12 September 2024.
[9] On 10 September 2024 they addressed a detailed letter to the governing body,
however, on 14 September 2024 the chairperson, Mr. Saayman, informed them that the
governing body decided not to deviate from the decision of the disciplinary committee.
A similar letter was issued to M’s parents. A flurry of correspondence followed in the
succeeding weeks between attorneys representing both the parents and the school
succeeding weeks between attorneys representing both the parents and the school
during which at tempts were made by the parents for the school to reconsider their
sanctions alternatively they would launch a judicial review application. In response
thereto, and through their attorneys, the school maintained their position of expulsion,
declined to allow them to return to the hostel for the last term of 2024 and indicated that
any judicial review application to set aside the August 2024 sanctions shall be opposed.
[10] On 3 October 2024 further correspondence is addressed to the attorneys acting
for the school. In terms thereof, the applicants’ wish to avoid litigation at all costs are
expressed and additionally that they could not submit an appeal in terms of Regulation
18L of the Regulations1 as the aforesaid regulations state as follows:
“18K Recommendation of expulsion by a governing body
(1) If the governing body decides that expulsion is the suitable sanction, the
governing body must make a written recommendation to the Head of
Department to expel the hostel boarder-
(a) from the hostel; or
(b) from the hostel and from the school.”
(2) Pending a decision by the Head of Department, the governing body may
suspend, or extend the suspension of, the hostel boarder-
(a) from living in the hostel; or
(b) from living in the hostel and attending the school for a period of not longer
than 14 days from the day the recommendation was submitted to the
Head of Department.”
“18L Appeal in respect of expulsion
(1) A hostel boarder, or the parents of a hotel border, who has been expelled-
(a) from the hostel; or
(b) from the hostel and from the school,
may appeal against the decision of the Head of Department by submitting a
notice of appeal to the Provincial Minister within 14 school days of receipt
of the notice of expulsion from the Head of Department as contemplated in
Regulation 18(5)(b).” (emphasis my own)
1 Regulations relating to the Management and Control of Hostels at Public Schools and the Control over
the Immovable Property and Equipment of Hostels under the Western Cape Education Department
[11] The communication further informs the school’s attorneys that the failure of the
governing body to refer its decision to permanently expel L from the hostel to the Head
of Department, effectively prevented their clients from lodging any appeal as
contemplated in Regulation 18L. Paragraph 8 of the correspondence reads:
“We hold instructions to proceed with the launching of an application where the
notice of motion will have a Part A and a Part B. In Part A the Court will be
requested on an urgent basis to prevent the school and the governing body from
implementing the de cision to permanently expel L from the hostel, pending the
final determination of the review (dealt with in Part B).
[12] Shortly thereafter, within the timeframe set out in the a bove stated
correspondence, the attorney for the school responded with the relevant excerpt quoted
below:
“It is my instructions to inform you than L will be re -admitted to the School’s
hostel on Monday, 14 October 2024 and that the School will send a l etter to L’s
parents.
It is furthermore my instructions that the School’s Governing Body will reconsider
its policy on the permanent expulsion of hostel boarders from the School’s Hostel
so as to ensure that it is in line with the requirements of the Regulations …..
I am therefo re of the view that there is no need to proceed with a review
application for the relief sought under either Part A or Part B of your
clients’ application.” (emphasis my own)
[13] The same position was followed by the school in respect of M and he returned to
school, like L, on 14 October 2024 which amounts to a n effective period from 21 August
2024 to 14 October 2024 to 53 days (approximately 8 weeks suspension) in respect of
both L and M.
[14] Correspondence from the school addressed to the parents of L and M confirms
that the learners would be able to return on the 14 th of October 2024, however, that the
charges against them are not withdrawn and that a new notice will be issued to them for
a date after the school’s Code had been revised, where provision will be made for an
appropriate adjustment of the sanctions. This time the correspondence is signed by Mr.
Du Buisson (as principal), Mr. Saayman (as chairman of the governing body) and Mr.
De Klerk as Investigating Officer and Disciplinary Head of the Hostel.
[15] On 16 October 2024 the school issued by email a furth er notice to the parents of
the L and M that in light of the fact that the disciplinary committee had been informed
that the sanction of expulsion had to be considered by the Head of Department in terms
of the Regulations, a new disciplinary meeting will follow on 24 October 2024 at 15h00
so that new sanctions can be issued in accordance with the regulations. Whilst the
attachment to the notice sets out several directives in relation to the October hearing, it
does not state what the charge s are save in a nuanced way: (translated from Afrikaans
to English as follows):
“The charges to which the learner had pleaded guilty and had been found guilty
are of a serious nature, and expulsion from the hostel, as per the Learners’ Code
of Conduct, is a possibility….”
[16] The first and second applicants’ attorneys – on behalf of L - responded to the
notice on 21 October 2024, I quote paragraph 5 – 8 as follows:
“5. L has already been tried for the offe nce committed during August 2024,
and he has been sanctioned therefo r – he was expelled from the Hostel for a
period of 7 weeks (which we reiterate was an illegal sanction).
6. It is trite that double jeopardy is not permitted in South African law.
7. L cannot be held accountable for Oakdale not bein g informed of the
legislation applicable to it, and for conducting illegal disciplinary enquiries
legislation applicable to it, and for conducting illegal disciplinary enquiries
as well as imposing illegal sanctions.
8. The re -trial of L is thus very clearly a violation of the prohibition on the
double jeopardy rule and the matter is res judicata.
9. Our Clients will thus not entertain the disciplinary enquiry in principle, and
any sanction imposed thereat will be the subject to an appeal and/or a
review.”
[17] On 24 October 2024, and upon 7 days’ notice, the school convened fresh
disciplinary proceedings and on the same incident of vaping. New sanctions were
imposed, however this time it did not include expulsion from the hostel. The sanctions
were nonetheless substantial and far -reaching. The sanctions, signed by Mr. De Klerk,
this time in the capacity as Prosecutor, and Mr. Saayman as Chairman, are translated
from Afrikaans and read as follows:
[17.1] In respect of L:
(a) No leadership position until the end of grade 12.
(b) No participation in any school sport, -activities or -events until the
end of the second term 2025.
(c) 5 x counselling sessions with the school counsellor.
(d) Withdrawal of bursary
[17.2] In respect of M:
(a) All detention sessions until the end of 2024.
(b) Study in the study hall until the end of 2025.
(c) No leadership position until the end of grade 12.
(d) No participation in any school sport, -activities or -events until the
end of the
second term of 2025.
(e) 5 x counselling sessions with the school counsellor.
(f) Withdrawal of bursary.
[18] The effect of these sanctions was that, in practical terms, L and M were excluded
from core aspects of school life and permanently barred from holding leadership
positions and withdrawal of their bursaries in addition to the 7 –8-week suspension from
hostel which they had already served.
[19] The applicants again engaged in extensive correspondence with the school,
raising objections to the sanctions which had substantial consequences for L and M’s
education and wellbeing as well as concerns that the sancti ons were disproportionate,
stigmatizing and unlawful. They contended that the governing body was rendered
functus officio after the August hearings, and that the October proceedings were thus
ultra vires. The school did not relent, which culminated in this review application.
[20] Against this background, the factual sequence is largely common cause. What is
in dispute are the legal consequences flowing from these facts: (a) whether the
governing body became functus officio in August 2024 ; (b) whether the October 2024
proceedings were lawful given that it sought to commence the proceedings de novo ;
and (b) the sanctions were disproportionate to the contravention of vaping.
[21] If the two proceedings are set aside, it begs further questions: (a) what remedy
should this Court consider in the circumstances? (b) Is it just and equitable to remit the
matter to the governing body for a fresh hearing, or (c) should the matter be brought to
finality by this Court without remittal. I deal with these issues in more detail hereunder.
[22] In practice, in addition to the other sanctions, the learners effectively endured the
consequences of an 8-week expulsion from the hostel. In total 15 weeks of expulsion in
respect of the November 2023 and the August 2024 disciplinary measures which were
about 7 and 8 weeks respectively. Until 13 March 2025 and after the issue of this
review application, the learners had also been excluded from participating in sports and
review application, the learners had also been excluded from participating in sports and
related activities and school social events. The applicants set out in detail events which
underscored that the school highlighted to other fellow learners that L and M were
serious transgressors. This included making the m sit separated from other learners at
school events, glaringly spectacled for their peers to see as being learners who have
offended. On 9 February 202 5 they were requested by senior scholars (cheerleaders)
to put on the jerseys of other schools, and they would be tackled by Oakdale scholars
for a promotional video. When a teacher, Mrs. Robinson saw the activity as they were
being driven on a small utility vehicle (“gator”) as part of the making of the video, she
publicly demanded that they get off and step away as the school wants no association
with them. Mr. De Klerk was called by her to attend the scene as the learners explained
that they were o beying the instructions of the seniors . Mr. De Klerk arrived at the
scene, visibly angry and addressed the learners in an extremely agitated manner in the
presence of the other learners. These actions cumulatively, the parents submit, had
gone beyond the pale to discipline their children and instead of helping to reform them,
it had broken their self -esteem. The applicants submit that the energetic and positive
boys have now been showing signs of depression and self -doubt with the passage of
time and events causing them to wear them down. Counsel for the school defended the
disciplinary measures on the basis that this was a necessary course of action to make
an example of L and M and illustrate the consequences of transgressions to the rest of
the learners at the school.
Video footage of corporal punishment:
[23] At the commencement of the hearing, I engaged counsel regarding the video
footage referred to in the replying affidavit of the first applicant as annexure RA 7 but
which had not been attach ed to the Court file. The footage (as set out in the replying
affidavit) depicts L, with other learners watching, being struck with a cane on his
buttocks by Mr. De Klerk, while L is required to lean over a bed. The footage had only at
the time of the repl ying affidavit been made available to L’s father by a fellow learner,
the time of the repl ying affidavit been made available to L’s father by a fellow learner,
hence it did not form part of the founding papers. Whilst the footage was not challenged
by the respondents’ counsel , it was submitted though for the school that the events
depicted on the footage bore no relevance to the present proceedings. Counsel of the
respondents submitted that the school had taken measures against Mr. De Klerk and
that it was a matter unrelated to the issue before this Court.
[24] Both Counsel agreed that the footage would be provided to my registrar after the
hearing which I have since received and viewed. I must express that the corporal
punishment depicted and inflicted upon the learner is deeply disturbing and unfortunate,
given our prevailing constitutional and regulatory framework which unequivocally
prohibits corporal punishment in schools. Whilst the incident is not directly the subject of
this review, it remains relevant for one important reason: Mr. De Kl erk was also the
prosecutorial persona in the disciplinary proceedings under scrutiny. Counsel for the
school suggested that, if I were to remit the matter to the school for reconsideration, I
could order that Mr . De Klerk not participate in any capacity to renewed disciplinary
proceedings which would offer the required safeguards regarding fairness. I shall deal
with that aspect later in this judgment.
Issues for determination:
[25] The central issues for determination can be succinctly summarized as follows ,
whereafter I shall deal with each aspect in more detail below:
[a] Whether the disciplinary decisions constitute administrative action under
PAJA or otherwise reviewable under the principle of legality.
[b] Whether the August 2024 proceedings amounted to a determination on
the merits, thereby rendering the school governing body functus officio.
[c] Whether the October 2024 proceedings were unlawful and
disproportionate; and if so,
[d] What remedy is just and equitable in the circumstances.
Is the review by this Court competent under PAJA or the principle of legality
[26] The applicants seek to review the decisions under the Promotion of
Administrative Justice Act 3 of 2000 (‘PAJA”), alternatively under the constitutional
principle of legality. The respondents conceded that the decisions constitute
“administrative action” a s defined in PAJA. Their issue, however, lies in the argument
that the applicants have not exhausted their internal remedies , wherefore it is not
capable of accessing this Court under review. I understand the school’s argument to
mean that the school could not be considered to have made a final decision on the
matter, hence, the applicants’ contention that the school had become functus officio is
not sustainable.
[27] As I see it, t he decisions of the governing body and disciplinary committee
constitute “administrative action” under PAJA as they are decisions of a public body
exercising a public power with direct and external legal effect. They are thus reviewable
under section 6 of PAJA. However, even if PAJA did not apply, the residual
constitutional principle of legality ensures reviewability. All exercise of public power must
be lawful, rational, and consistent with the Constitution. This duality prevents the
school’s decisions from escaping scrutiny under either PAJA or legality. I now turn to
the submissions made by both counsel relating to the further issues.
Was the August 2024 hearing of final effect and is the school functus officio thereafter?
[28] Counsel for the applicants argued that the August proceedings were final as it
amounted to a determination on the merits. Once the governing body found L and M
guilty of vapi ng and imposed the sanctions in respect thereof , it had exhausted its
jurisdiction and thus became functus officio.
[29] However, the argument for the applicants is that the governing body overreached
by purporting to impose hostel expulsion rather than merely recommend it as it is
required to do. Whilst this was an irregularity by the school, it did not entitle it to start
required to do. Whilst this was an irregularity by the school, it did not entitle it to start
the hearings afresh. By failing to refer the expulsion sanction to the Head of
Department for a decision, it amounted to denying them from the safeguard of an
internal appeal. Consequently, the internal remedy, serving as a protective mechanism,
was effectively taken away from the learners. This, it is argued, compounded the
unlawfulness and prejudice as the parents could not appeal to the Head of Department
against the expulsion as the Act intended. I understand the applicants’ contention to be
that the learners did not merely face a “paper sanction” , but one which was effectively
implemented and executed . This is so as the sanctions were enforced upon the
learners. They had endured 08 weeks of expulsion including suspension from other
activities and ongoing associated stigma.
[30] Counsel for the respondents submitted on the other hand that whilst the August
2024 hearing resulted in a sanction of hostel expulsion, it was not final in effect since it
was never referred to the Head of Department for confirmation. It was argued on behalf
of the school that it remained entitled to set aside the August hearing and thereafter
lawfully reconvened and reconsidered the matter in October 2024. Insofar as it had not
made a final determination on the merits, it is the school’s contention that the applicants
cannot seek oversight by resort of review from this Court as it had to exhaust its internal
remedy. In short, the school was of the view that t he October 2024 proceedings cured
the irregularities in the August hearing.
Finding in respect of the August 2024 Proceedings
[31] The August 2024 proceedings require scrutiny. At that hearing the governing
body made a finding that L and M were guilty of vaping in the hostel . Having reach ed
that conclusion, the governing body did not only impose the sanction of expulsion from
the hostel but instead of referring it to the Head of Department, it enforced the sanction
of its own accord . This was beyond its lawful competence. Under section 9 of the
South African Schools Act 84 of 1996, only the Head of Department may expel a learner
South African Schools Act 84 of 1996, only the Head of Department may expel a learner
from the school or its hostel . However, in casu, the expulsion was in fact executed ,
spanning over a period of approximately 8 weeks. For the duration of this period, L and
M were excluded from the hostel, separated from normal school life and sub jected to
the consequences of what was in law a n impermissible execution of the sanction. This
underscores that the irregularity was not just a technicality but had real, prejudicial
effects on the learners and their families and had already been served substantially.
[32] By imposing this sanction itself, the Governing Body acted ultra vires. In these
circumstances, I find the argument on behalf of the school highly problematic. Clearly,
the submission that the applicants had not pursued its internal remedies is a fallacy and
is not sustainable. The school robbed the learners from that avenue b y acting beyond
its powers in the execution of the expulsion sanction and now relies on its own
irregularity to prevent the learners from being vindicated on that aspect.
[33] It follows logically that the decision and the implementation of expulsion by the
school is unlawful and invalid. The doctrine of functus officio applies in that once the
Governing Body had decided the matter, it could not unilaterally revisit and rehear it.
The School’s omission to refer the recommendation to expel to the Head of Department:
[34] The school’s omission to refer the sanction to the Head of Department is not a
neutral omission: it deprived the applicants of the statutory right of appeal. Once the
governing body made a finding and imposed a sanction, even if it overreached its
powers (expelling instead of recommending expulsion), it had exhausted its disciplinary
jurisdiction in relation to the learners’ offending conduct, that being, that vaping incident.
[35] By failing to refer its recommendation to expel the learners from the hostel to the
Head of Department for a decision and further recourse to follow , the school in effect
closed off the statutory internal appeal path. For these reasons I find that the school
could not re-prosecute L and M for the same vaping incident as it had become functus
officio. I pause to add that it is evident from the flow of correspondence that the school
appreciated its irregularity. At this stage, if it wanted to nonetheless proceed with its
appreciated its irregularity. At this stage, if it wanted to nonetheless proceed with its
sanctions against the learners, it could have brought the matter to Court itself by way of
self-review. That would have allowed a Court on review to set aside the unlawful
sanction and remit the matter to the governing body or the head of department as it
deemed appropriate in the circumstances. It goes without saying that f or any new
vaping incident (af ter August 2024) the school remained fully empowered to convene
disciplinary hearings in accordance with its Code . However, it could not revisit or “re -
try” the August vaping incident by itself, as it amounted to a second prosecution on the
same facts or a case of double jeopardy. As the school failed to pursue that avenue,
the Court cannot cure it now through remittal. The proverbial horse had already bolted
when it had executed the expulsion , thereafter, setting the August 2024 hearing asid e
when its faux pas (false step) was laid bare.
What is the effect of the October 2024 Proceedings – the second bite at the cherry:
[36] My finding that the governing body was functus officio after the August 2024
proceedings is, in my view, dispositive of this matter. Once it had decided the merits
and imposed sanctions, its jurisdiction was exhausted, and the October 2024
proceedings were impermissible ab initio (from the beginning). That c onclusion is
sufficient to set aside both sets of proceedings. My reasoning thus far makes plain why
the August 2024 proceedings cannot stand . The same considerations, viewed
alongside the independent defects in the October 2024 proceedings, lead me to t he
conclusion that they too cannot survive judicial scrutiny. The October hearing was not a
lawful “fresh start” but an impermissible rehearing of the same incident. However, I still
consider the challenges raised in respect of the October hearing. Before I turn to the
issue of disproportionality and procedural defects, it is appropriate at t his stage to
consider the conduct of vaping and the seriousness of its contravention by L and M.
Vaping: A growing scourge among learners:
[37] Vaping constitutes a serious contravention of the Code. Beyond being a
disciplinary infraction, it represents a broader social and health challenge confronting
disciplinary infraction, it represents a broader social and health challenge confronting
schools in South Africa and globally. Scientific literature shows that nicotine in e -
cigarettes harms adolescent brain development, increases addiction risks, and
undermines physical and mental health2. The allure of vaping – marketed with appealing
flavours and sleek designs – makes it particularly insidious among teenagers, whose
developmental st age renders them more susceptible to peer pressure and addictive
behaviours.
[38] In South Africa, the Tobacco Products and Electronic Delivery Systems Control
Bill, 2022 recognises this danger and seeks to bring e -cigarettes and related products
under the same strict controls as traditional tobacco, including prohibiting sale to and
use by minors. 3 This reflects a clear public policy trajectory that vaping is not to be
trivialized but treated as a high-level form of misconduct where learners are concerned.
[39] It is therefore understandable that schools treat vaping as serious misconduct .
At the same time, this reality underscores the delicate balance that must be struck while
schools are entitled, and even obliged, to act firmly to protec t learners and their
reputation. The measure adopted must, however, remain consistent with legality ,
proportionality and the educational purpose of discipline.
Vaping: Scientific Harm and Regulatory Context:
[40] It was not in dispute that vaping is a contravention of the school’s code of
conduct and that it is harmful. The applicants accepted that the contravention would
warrant sanction however, counsel for the applicant’s argued vaping is not as serious a
transgression as the school had categorised it in its Code. As I see it, L and M together
with their parents, the applicants, had entered a contract with the school thereby
accepting its binding force. To that extent, I would agree that the learners made
themselves guilty of the serious contravention of vaping as it is defined in the school’s
Code. However, importantly, the seriousness of the contravention does not obviate the
requirement that disciplinary processes be conducted lawfully, fairly and within the
requirement that disciplinary processes be conducted lawfully, fairly and within the
bounds of the Code, nor does it permit sanctions that are excessive or disproportionate.
2 South African Medical Research Council, Position Statement on Electronic Cigarettes (2021); World
Health Organisation (WHO) – E-cigarettes and Youth (2020)
3 Tobacco Products and Electronic Delivery Systems Control Bill [B33-2022]
[41] Importantly, vaping, though harmful and rightly prohibited, must be distinguished
from the use of illicit drugs: the latter carries criminal implications, whereas vaping falls
under the regulatory framework of the Tobacco and Related Products legislation. I
pause to mention that during the disciplinary proceedings and in response to
submissions by the father of L that the school could bring more attention to the serious
consequences of vaping , a member of the disciplinary body exclaimed in laughter that
vaping is in contravention of the law. Th e conflated view, treating vaping as a criminal
offence, most likely influenced both the severity of the sanctions imposed and the way
the transgressions were assessed. In my view, such a conflation distorted the
proportionality enquiry and consideration between the transgression and an appropriate
sanction by the disciplinary body.
[42] Nicotine in e -cigarettes harms adolescent brain development, increases the risk
of addiction, and undermines long -term health. International authorities, including the
World Health Organization4, warn that vaping during adolescence leads to dependence
while exposing users to harmful aerosols with respiratory and cardiovascular risks.
South African research has echoed these findings: studies by Reddy et al 5and Egbe et
al6 - South African peer-reviewed studies (Reddy, Egbe) - demonstrate that e -cigarette
use is rising among South African youth, often under the misperception that vaping is
harmless. The South African Medical Research Council has similarly cautioned against
youth uptake.7
[43] Locally, the legislature has recognised the dangers by proposi ng the Tobacco
Products and Electronic Delivery Systems Control Bill (2018, updated 2022), 8 which
4 World Health Organization, To bacco: E-cigarettes (Fact sheet, May 2023); Centers for Disease Control
and Prevention, Quick Facts on the Risks of E -cigarettes for Kids, Teens, and Young Adults (updated
2022).
2022).
5 Reddy P, Sewpaul R, Naidoo I, Keter A, Yach D, “E -cigarette use and smoking cessation behaviour
among South African adults” (2018) 108 South African Medical Journal 9, 700-706.
6 Egbe CO, London L, Ndwandwe D, “E -cigarette use in South Africa: reasons for use, perceptions of
harm, and quitting behaviour” (2021) BMC Public Health 21:298.
7 South African Medical Research Council (SAMRC), Policy Briefs on Electronic Nicotine Delivery
Systems (various, 2020–2022).
8 Tobacco Products and Electronic Delivery Systems Control Bill [B33-2018] and Draft Bill (2022 update).
would regulate e -cigarettes in the same way as traditional tobacco products, including
prohibiting their sale to minors. These scientific findings and statut ory developments
underscore that vaping by school learners constitutes serious misconduct which schools
are entitled to treat as egregious.
[44] I appreciate that schools face an onerous and daunting task in addressing
vaping, which is harmful to learners and brings the school into disrepute. Deterrence is
important. But one cannot sacrifice an individual learner at the altar of deterrence.
Discipline must build and reform the learner, not break them down or diminish their self -
esteem.
Repeat Offences and the Development Context of Learners:
[45] This brings me to the fact that the school considered L and M’s November 2023
vaping finding as an aggravating factor given that they were repeat offenders . This fact
must be given due consideration when it had imposed the October 2024 sanctions.
[46] The school’s Code permits suspension of privileges for repeat Category C
offences and refers to repeat offenders as having repeated the offence “within the
same academic year” . In other words, a repetition fresh on the heels of the previous
offences and th e consequential sanctions is clearly aggravating because it illustrates,
disconcertingly, that the learner has quickly disregarded the prior discipline whilst still in
the same grade and more than likely, under the same conditions.
[47] It demonstrates a disregard for corrective measures and a persistence in
misconduct. Such conduct I would agree justifies an escalation of sanction. By
contrast, where incidents occur across different academic years, the position is
materially different. Each new year i n high school marks a substantial stage in
development for an adolescent learner: maturity and conscientisation but so too the
social pressures which bears upon the learner as it finds his or her way in a hostile
world, wanting to fit under social pressure.
[48] In this case, the November 2023 and August 2024 incidents were in different
academic years. The suspension of privileges aforesaid amounted to a permanent
suspension and not what is contemplated from the wording of the school’s Code of
Conduct. A mere reading of the code contemplates suspension but for a period, but not
what would be the rest of the offending learner’s school career. A transgression in a
later year should not automatically be treated as a repeat offence, because the learner
is assessed against a new development baseline. An adolescent is not static: every
year brings measurable changes for a child. The passage of time, whilst it comes with
intellectual advancement, emotional and psychological maturity it also comes part and
parcel with more complex subject matter, demands of greater social integration and
belonging; the learner’s own organic struggles such as identity formation ; peer
pressure; hormonal and cognitive change along fluctuating emotions and the uneven
process of maturing responsibility.
[49] Discipline must build and reform the learner, not break them down or diminish
their self -esteem. Withdrawal of bursaries and permanent exclusion from leadership
positions exceeded what the school itself contemplates and provide for in its own Code
of Conduct.
Stigmatisation and Humiliation
[50] In my view, the sanctions stigmatised L and M, excluding them permanently from
positions in leadership, permanently withdrew their bursaries additionally with actions
which, c onsidered cumulatively with other sanctions, humiliated rather than reformed.
The treatment of L and M extended beyond sanction into humiliation. They were made
to sit apart from other learners at school functions, publicly labelled as transgressors,
and excluded from events.
[51] Disproportionality must be seen in the context of it being in addition to the
sanctions which I had already discussed above , namely, the expulsion from hostel,
permanent withdrawal of their bursaries and any leadership positions it could hold for
the rest of their schooling. Such treatment violates dignity, entrenches stigma, and is
counter-productive to discipline. It fosters resentment and perpetuates misconduct.
Schools hold authority in trust. With that comes the duty to discipline fairly and
restoratively.
[52] Discipline that humiliates learners cannot be justified academically and from a
developmental perspective . It otherwise lacks education al purpose. Discipline in
schools is not aimed at revenge or retribution but rather at deterrence (general and
individual) and reformation. Its purpose is to guide learners towards accountability and
growth, while maintaining order and protecting the school community. Sanction must
therefore be corrective and proportionate because a broken staff cannot grow into a
branch. Where sanctions become so severe that they strip a learner of dignity, self -
esteem and any hope of reintegration, particularly in school leadership positions , the
sanctions cease to serve their educational purpose . Once a child’s spirit is broken by
disproportionate punishment, the prospects of reform and growth are diminished, if not
extinguished. For a high school learner, leadershi p roles embody hope, dignity and an
opportunity to grow. Leadership roles in a school context are more than ceremonial
titles. They represent recognition of a learner’s maturity, responsibility and
trustworthiness. Even the aspiration or opportunity to reach such positions fosters
motivation, pride and a sense of belonging within the school community. Removing that
permanently is more than just a sanction. It forecloses a development pathway. To
permanently bar L and M from holding or aspiring to leadership until the end of Grade
12 (effectively a total exclusion ) is counterproductive to the very purpos e of discipline
and diminishes their sense of dignity and belonging.
Withdrawal of bursaries as a sanction:
Withdrawal of bursaries as a sanction:
[53] The respondents sought to defend the permanent withdrawal of L and M’s
bursaries on the basis that, although such a sanction is not provided for in the school’s
Code, the conditions of the bursaries itself permit cancellation in the event of
misconduct. I find this reasoning unpersuasive. The bursary agreements cannot be
read in isolation from the school’s disciplinary framework and constitutional obligations.
Discipline must be consistent, transparent and proportionate. To invoke the bursary
conditions as an additional sanction outside the Code amounts to double punishment
and undermines the principle of legality. Moreover , the bursaries to L and M were
offered to facilitate access to education; their withdrawal as a disciplinary measure is
inimical to their constitutional right to basic education and the best interests of the child.
[54] In light of the foregoing analysis, I am satisfied that the sanctions imposed at the
October 2024 hearing were manifestly disproportionate, and together with the additional
findings hereinbefore, fall to be set aside.
Conditional Counterapplication
[55] The first and second respondents brought a conditional counterapplication
seeking if the August proceedings were found invalid, that the October proceedings be
substituted and proceed as valid. In other words, the school seek s that if the August
2024 proceedings are found to be unlawful, the Court should “substitute” the October
2024 proceedings so that those sanctions could stand and proceed as valid.
[56] This counter application cannot succeed. The school had acted beyond its
powers and ultra vires by deciding and enforcing the expulsion of the learners , a fact
which is not disputed. An ultra vires act cannot be cured by substitution.
[57] The conditional counterapplication therefore ought to be dismissed.
Remedy
[58] Section 172(1)(a) of the Constitution requires that unlawful conduct must be
declared invalid. However, Section 172(1)(b) allows for a just and equitable remedy in
the event of a declaration of invalidity.
[59] It is well established that when a Court r eviews the exercise of public power
based on legality, a declaration of invalidity under section 172(1)(a) ordinarily has
retrospective effect. The unlawful act is treated as void ab initio — it never had legal
force or effect from the outset. This princip le, affirmed in State Information
Technology Agency SOC Ltd v Gijima Holdings (Pty) Ltd 2018 (2) SA 23 (CC),
ensures that no unlawful exercise of public power can be validated by the mere
passage of time.
[60] On the facts of this case, the retrospective effect means that the August 2024
proceedings are regarded as having been unlawful from the moment they were
conducted. Its later attempt to “set aside” the August outcome and to reconvene in
October 2024 was th erefore without legal foundation. In practical terms, there was no
valid decision to undo: the August hearing never produced a lawful result capable of
reconsideration. This is why the October 2024 proceedings cannot stand. They were
built on the fiction t hat the governing body could revive or correct an earlier process,
when in fact that process had been a nullity.
[61] Counsel for the applicants argued that if the governing body considered its
August 2024 proceedings to be unlawful, as clearly it had r ealized, it ought itself to have
approached this Court to set them aside by way of a self-review as contemplated in
Gijima. In principle though, once the governing body had decided the matter it was
functus officio and only a Court could set that decision aside. The power to undo its
own decision did not rest with the governing body. In practice, however, I do not regard
it as realistic or sustainable to expect a law school governing body, comprised of
it as realistic or sustainable to expect a law school governing body, comprised of
parents and educators, t o invoke the jurisdiction of this Court by having to institute a
self-review.. However, the school’s attempt and persistence to reconvene another
hearing was not a lawful substitute for such a review but rather an impermissible
rehearing of the same facts.
[62] The proper course was to recognize the finality of the August proceedings. It is
the persistence of the governing body to reconvene the hearing that this Court had to be
approached by the parents of L and M to vindicate their children’s rights. That course of
action is directly relevant to the question of costs: had the school accepted the finality of
the August proceeding, further litigation may well have been unnecessary. Alternatively,
if it wanted to pursue the vaping incident with new sanctions, it ought to have
approached this Court for relief, by setting aside their August proceeding. The school’s
unlawful “second bite” forced the parents into this litigation.
[63] Apart from my functus officio finding, the October 2024 proceedings cannot
stand. They were procedurally defective in that the learners and their parents were not
afforded adequate and meaningful notice, the same incident was reheard without
authority and the prosecutorial role of the teacher, Mr De Klerk, raises concern of
fairness and impartiality. Moreover, as stated above, the sanctions imposed were
grossly disproportionate. Not only did it exceed the limits of the school’s own code of
conduct but on a conspectus of all relevant facts and circumstances, it was
disproportionate.
The remedy: Whether to direct remittal or not?
[64] Counsel for the applicants argued that consideration of a r emedy is not
mandatory as it could, as he argued, be sufficient in the circumstances to set the two
hearings aside. This would have retrospective effect and that given the facts of the
matter no purpose would be served for the matter to be referred to the school for a new
decision hearing. Counsel for the respondents argued that deterrence was a legitimate
disciplinary purpose, and that the sanctions imposed served the best interests of the
disciplinary purpose, and that the sanctions imposed served the best interests of the
wider learner body by sending a strong message that vaping would not be tolerated. It
was argued for the school that discipline is best left to the school authorities, and that at
most, the matter should be remitted for reconsideration if procedural defects were
found.
[65] I bear in mind that L and M have already endured the combined effect of both the
August and October sanctions. The August sanction of hostel expulsion, though
unlawful, was implemented in practice and disrupted their schooling and living
arrangements. The October sanctions, in turn, imposed exclusions from bursaries,
leadership, sport, and social participation. Together, these measures amounted to a
prolonged and cumulative punishment. I am also mindful of the emotional and
psychological hardship these proc esses and sanctions caused, not only to the learners
but also to their parents, the four applicants, who were forced to watch their children
stigmatised and humiliated. This holistic impact underscores the need for finality. To
remit the matter for yet another hearing would risk compounding the harms suffered and
would not be just and equitable under section 172(1)(b).
[66] The appropriate remedy is therefore to review and set aside both the August and
October proceedings without remittal. For the reasons to which I had come, I am
satisfied that no remedy beyond setting aside is just and equitable as contemplated in
section 172(1)(b) of the Constitution. To remit or substitute would only perpetuate the
irregularities already identified. The proceedings of August and October 2024 and the
imposed sanctions respectively are set aside in their entirety, and nothing remains to be
remitted or substituted.
Costs
[67] As to costs, I am satisfied that they should follow the result. The matter raised
complex issues of administrative and constitutional law. The applicants engaged senior
counsel. They repeatedly raised concerns with the school in correspondence, which
went unheeded. This litigation became inevitable.
[68] I note the respondents’ reliance on a without prejudice Rule 34 tender, dated 28
March 2025. In that tender the first and second respondents consented to the setting
aside of the sanctions but proposed referral back to the Disciplinary Committee for
reconsideration. On costs, they tendered that each party pay its own costs, alternatively
that costs be paid on the lower scale A.
[69] This tender did not address the substance of the applicants’ case. The applicants
sought the review and setting aside of both proceedings as unlawful, not a mere
reconsideration. Remittal would have entrenched the very irregularities challenged. The
costs proposal was also inadequate considering the complexity, senior counsel’s
engagement, and respondents’ refusal to heed earlie r correspondence at the instance
of the applicants . The applicants were justified in rejecting the tender. Accordingly, a
costs order on scale C is warranted.
Order
[70] In the result, I make the following order:
“(i) The disciplinary proceedings and the imposed sanctions of August
2024 are declared invalid and of no force and effect.
(ii) The disciplinary proceedings of October 2024 and the imposed
sanctions are reviewed and set aside.
(iii) The matter is not remitted.
(iv) The conditional counterapplication is dismissed.
(v) The first to third respondents are ordered to pay the applicants’
costs on scale C.”
__________________________
G. DA SILVA SALIE
JUDGE OF THE HIGH COURT
WESTERN CAPE DIVISION