Western Cape High Court rules against double jeopardy in school vaping case

The Western Cape High Court has ruled that the disciplinary actions taken against two learners for vaping in their school hostel were unlawful, citing double jeopardy as the reason for their decision. 

The learners, now in Grade 10, were found guilty of vaping on two separate occasions. The first incident occurred at the end of 2023, while they were still in Grade 8, and the second incident took place a few months later.

In the initial case, both students, referred to as L and M, faced expulsion from the hostel for several months. However, when they were caught vaping again the following year, they were subjected to permanent expulsion from the hostel.

A few days later, the school yet again sanctioned them for the same offence for which it had expelled them from the hostel. This time, they were stripped of their leadership qualifications, and their bursaries were taken away from them.

Both boys are talented rugby players and were admitted to the school (which is not identified to safeguard the identities of L and M) through bursaries.

They commenced Grade 8 in 2023. In November 2023, L and M were each found in possession of a vape. Vaping constitutes serious misconduct in terms of the school’s Code of Conduct, categorised as a Code C offence – a serious misconduct.

During that incident 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 was his vape. L then admitted to the teacher that he had a vape and had used it. He disclosed that M had also used the vape that was hidden in the cupboard. They were found guilty of a category C offence and suspended from the hostel for six weeks.

A teacher saw them on the security camera, and disciplinary proceedings followed before the governing body. Both learners admitted the contravention and were found guilty of vaping. Both were permanently kicked out of the boarding school.

M’s father wrote a letter to the school, stating that he does not accept the sanction of expelling M from the hostel. He enquired regarding his right of appeal and was told that there exists no right to appeal.

A few weeks later, the school convened fresh disciplinary proceedings on the same incident of vaping. New sanctions were imposed, which included stripping them of their leadership positions and their bursaries.

Judge Gayaat Da Silva Salie commented that it is not in dispute that vaping is a contravention of the school’s code of conduct and that it is harmful. However, the seriousness of the contravention does not obviate the requirement that disciplinary processes be conducted lawfully and fairly, nor does it permit sanctions that are excessive or disproportionate.

She said the governing body during the disciplinary proceedings treated vaping as a criminal offence, which most likely influenced both the severity of the sanctions imposed and the way the transgressions were assessed.

In overturning the sanctions, the judge said these measures amounted to a prolonged and cumulative punishment.

Get your news on the go, click here to join the Cape Argus News WhatsApp channel.

Cape Argus