B (A JUVENILE) v MINISTER OF PRIMARY AND SECONDARY EDUCATION AND OTHERS 2014 (2) ZLR 341 (H)

Flynote

Administrative law — audi alteram partem rule and legitimate expectation doctrine — application — limits — flexible tenets — fairness overriding factor in determining whether a person has legitimate expectation to be heard — legislative and constitutional recognition and endorsement of rule and doctrine

Costs — no order as to costs — civil application — poor presentation of papers

Education — pupil — discipline — application of audi alteram partem rule and legitimate expectation doctrine — no requirement for formal trial — pupil entitled to be heard — fairness the overriding consideration

Headnote

"The legitimate expectation doctrine ... simply extended the principle of natural justice beyond the established concept that a person was not entitled to a hearing unless he could show that some existing right of his had been infringed by the quasi judicial body ... Fairness is the overriding factor in deciding whether a person may claim a legitimate entitlement to be heard" (dicta per Gubbay CJ in Health Professions Council v McGown 1994 (2) ZLR 392 (S) at 394 applied).

Consequent upon disturbances at a high school, the applicant, who was a fourth form student at the school, was suspended from the school for 16 days for his alleged part therein and subsequently expelled. Alleging that the school authorities had violated the rules of natural justice and had denied him the opportunity of explaining his part in the disturbances, the applicant sought an urgent application setting aside his expulsion from the school and his reinstatement thereat. His founding papers, which were poorly prepared, disclosed that he had been asked to submit a report to the police, which he did. as he wrote down his report. After that every student was interviewed by some school teachers and a minister or priest, and was then that the applicant was served with a letter suspending him from school for two weeks. When he returned after the period of suspension, he was served with a letter of exclusion.

An urgent chamber application was brought to reverse the decision and to allow the applicant back into the classroom. This was on the basis that the school had not followed the requirements governing the expulsion or "exclusion" of students from schools, as set out in Education (Disciplinary Powers) Regulations 1998 (SI 362 of 1998) and the Education (Enrolment and Exclusion) Regulations 1998 (SI 363 of 1998). The applicant's main argument, though, was that, in expelling him, the school had violated the rules of natural justice and s 69(2) of the Constitution, in that not only had it failed to accord him a fair and public hearing, but also that he was expelled on grounds which were materially different from those set out in the suspension letter.

The respondents averred that the applicant had been accorded a fair hearing. He had been given an opportunity to present his side of the story on more than one occasion. It was not a requirement of the rules of natural justice that there be a formal hearing in all cases or that witnesses be made available for cross-examination. They conceded that the period of suspension should not have been for more than seven days, but said that the letter was in fact one expelling the applicant. They said that basic ground for suspension and expulsion of the applicant was misconduct of a serious nature as contemplated by s 8(1) of SI 362 of 1998, in that he had been guilty of violent behaviour and destruction of school property.

Held, that the audi alteram partem rule is basic to our jurisprudence and now, in s 69(2), forms one of the fundamental human rights and freedoms provided in the Constitution. Section 68 provides for the right to administrative justice. The Administrative Justice Act [Chapter 10:28], which predates the current Constitution, is one Act that seeks to give effect to the rights and freedoms enshrined in the Constitution on the audi alteram partem rule and its extension, the "legitimate expectation" doctrine. The content and practical application of the audi alteram partem rule and the legitimate expectation doctrine, as expressed in the Constitution and the Administrative Justice Act, are no different from the way the courts have consistently treated them in the past. The rule and the doctrine are products of judicial activism that were meant to fill up a lacuna in the law. The legitimate expectation doctrine simply extended the principle of natural justice beyond the established concept that a person was not entitled to a hearing unless he could show that some existing right of his had been infringed by the quasi-judicial body. Fairness is the overriding factor in deciding whether a person may claim a legitimate entitlement to be heard.

Held, further, that the audi alteram partem rule and its extension, the legitimate expectation doctrine, are flexible tenets, whose proper limits are not precisely defined. The advent of the new constitution and the Administrative Justice Act [Chapter 10:28] has not altered the position.

A formal hearing, culminating in a formal penalty are not always absolute pre-requisites. A formal charge that is followed by a formal hearing, culminating in a formal verdict and a formal penalty, are not always absolute pre-requisites.

Held, further, that the letter of suspension was invalid. It purported to suspend the applicant from the school for a period of 16 days whereas the relevant statutory instrument only allowed for an investigative period of no more than seven days. In any event, the whole so-called disciplinary process by the school failed to measure up to the basic tenets of the audi rule or the legitimate expectation doctrine. There was no modicum of fairness in the whole process. The letter of suspension accused him of vandalizing certain items of school property and of engaging in hostile behaviour towards the school authorities. The expulsion letter accused him of inciting and masterminding the strike. He was expelled for reasons that he had not been suspended for or charged with. That was a violation ofthe audi rule and the legitimate expectation doctrine.

Held, further, that pending the proper investigation by the school of the alleged case against him, and, if necessary, the proper conduct of a disciplinary process, the applicant was entitled to resume normal classes.

Held, further, that in the light of the poor presentation of his case, there would be no order as to costs.