A Law of General Application to Regulate the Informal Suspension of Learners for Less Serious Transgressions

Learners are routinely excluded or informally suspended from class or other school activities by their educators due to their being disruptive or for other minor infractions such as not wearing the prescribed school uniform or failing to do homework. In simple terms, this refers to instances where educators eject learners from or deny learners access to the classroom or debar a learner from taking part in a sporting or cultural activity due to misconduct. Prima facie, these actions of educators constitute an infringement of learners' right to education. To be lawful, such an infringement of the right to a basic education must be reasonable and justifiable as envisioned in section 36 of the Constitution of the Republic of South Africa. One of the requirements to lawfully limit a constitutional right is that it may be done only in terms of a law of general application. This contribution investigates whether there exists any such law of general application that authorises or allows for such a limitation. In the absence of a law of general application, it follows that all informal suspensions of learners by educators will be deemed unconstitutional. Even so, there are instances where it may be necessary to limit learners' right to a basic education, for instance where their conduct endangers the safety of others or puts property at risk. In the absence of a law of general application, even seemingly justifiable instances of limiting learners' right to education through informal disciplinary measures by teachers will probably be unlawful. The aim of a law of general application would be to avoid the arbitrary limitation of rights. This investigation consequently explores the existing legal framework on school discipline and finds that there is no law of general application that regulates the informal suspension of learners by educators. Some recommendations on what should be included in a law of general application governing instances of informal suspensions of learners by educators conclude the contribution.