IN
THE SUPREME COURT OF NAMIBIA

CASE
NO: SA 30/2013

DATE:
12 DECEMBER 2014

REPORTABLE

In the matter
between:

JOY
SASMAN................................................................................................................First
Appellant

ABIUS
AKWAAKE.....................................................................................................Second
Appellant

And

CHAIRPERSON OF
THE INTERNAL DISCIPLINARY

PANEL OF THE
WINDHOEK INTERNATIONAL
SCHOOL....................................First
Respondent

WINDHOEK
INTERNATIONAL
SCHOOL..........................................................Second
Respondent

TRUSTEES FOR THE
TIME BEING OF THE

WINDHOEK
INTERNATIONAL
SCHOOL.............................................................Third
Respondent

Coram: MARITZ JA,
MAINGA JA and HOFF AJA

Heard: 31 October
2014

Delivered: 12
December 2014

APPEAL
JUDGMENT

MAINGA JA (MARITZ
JA and HOFF AJA concurring):

[1] The appeal
before us is against an order of the High Court (Geier J) in terms of
which that court had dismissed the appellants’ review
application with costs. The matter arises from a review application
brought by the appellants seeking to review and set aside the ruling
by the first respondent, made on 6 March 2013, refusing legal
representation for the appellants’ minor child in a
disciplinary hearing which was to be held by the school against the
minor child and all rulings subsequently made in the course of the
disciplinary proceedings. The appellants also sought an order
authorising them to secure legal representation of the minor child’s
choice at the disciplinary hearing.

Background

[2] The minor child
(T) was a Grade 7 student at a private school in Windhoek (the
‘school’). He was 12 years old at the time. The
appellants are his parents. On 4 February 2013, the appellants
received notification from the principal that, in compliance with the
school’s protocols and policies on drugs, T would be excluded
from school permanently as of the next day. As a result the
appellants brought an application in the High Court challenging their
son’s expulsion from the school under Case No A 28/13. The
second and third respondents opposed the application but before the
application could be heard, the matter was settled. In terms of the
settlement, the school withdrew the decision to expel T and his
suspension was uplifted with immediate effect. In the letter advising
the appellants of the school’s decision to uplift their child’s
expulsion, the school noted its intention to re-initiate a
disciplinary hearing against T. The appellants withdrew the
application in terms of the settlement, which was made an order of
court. The school and third respondents were ordered to pay costs of
the appellants.

[3] On 19 February
2013, the appellants received notice in which T was suspended again
pending the outcome of a disciplinary hearing, which was to be held
on 25 February 2013. On the same day, the appellants and T received
notice of the disciplinary hearing. In the notice, they were advised
as to the composition of the disciplinary panel for the hearing, the
initiator of the hearing and that T may be represented by his parents
or by a school official. The notice also contained the charges
against T. T was charged with two counts of misconduct, namely: (1)
that on or about the end of November 2012, he dealt in marijuana on
the school campus, or alternatively was found in possession of the
said marijuana; and (2) that he brought the name and reputation of
the school into disrepute when he dealt in, alternatively, was found
in possession of marijuana on the school campus. Through their legal
representative, the appellants caused a letter to be addressed to the
school demanding an immediate withdrawal of their child’s
suspension, failing which, they noted their intention to seek legal
redress in a court of law. In response, the school uplifted the
suspension with immediate effect by a letter dated 21 February 2013.

[4] On 20 February
2013, the first appellant applied to the Principal of the school for
T to be allowed to engage a legal representative of his choice. The
Principal responded ‘. . . as this is an internal process,
neither the school nor yourselves will require a lawyer’. The
appellants sought legal advice on the issue and, as a result, they
applied in writing to the Chairperson of the panel to be allowed to
engage a legal representative of their son’s choice. In the
30-page application, the appellants related the events preceding
their request; requested additional information about the charges
against their son; raised numerous legal and other objections to the
charges and proceedings and specifically stated that given the
‘offences’ preferred against their son, he would not
enjoy a fair hearing unless he was permitted legal representation.
They added that, as parents of T, they were too emotionally involved
in the matter to effectively represent him; that they believed that T
had a constitutional right to legal representation; and that the
school policy does not prohibit legal representation. On 25 February
2013, when they attended the disciplinary hearing, they provided
copies of the application to the disciplinary panel and to the
initiator. They were also allowed to address the panel in support of
the application.

[5] During the
address, the Chairperson of the panel, cited in this appeal as the
first respondent, cut their address short and ruled that the legal
and other objections to the charges raised by them would be
considered after the panel had heard evidence but postponed the
hearing to 4 March 2013 for the requested particulars to be furnished
to the appellants. Once the further particulars were furnished to
them, the appellants say that they realised that the case against T
was even more complicated; that the charges were of a criminal
nature; and that according to its policy the school could hand T over
to the police. It dawned on them that they had neither the knowledge
nor the skills to represent T in relation to the charges.

[6] At the
commencement of the hearing on 4 March 2014, the appellants renewed
their son’s application for legal representation. The
application was declined and the panel ruled that T should proceed
without legal representation. The appellants allege that they were
therefore obliged to proceed under protest. As it happened, it
started to rain quite heavily at that stage of the proceedings and,
because verbal exchanges became inaudible because of the rain, the
hearing was briefly adjourned. When the hearing resumed, the
appellants informed the panel that they could not proceed without a
lawyer. The appellants were informed that unless they continued
without legal representation, the hearing would proceed without their
participation. Not willing to proceed without legal representation,
they left the hearing.

[7] The appellants
consulted their legal representative of record later the same day and
she immediately addressed another letter to the panel restating the
need for T to be represented by a legal representative of his choice;
informing them that she had received instructions to approach the
High Court on an urgent basis to review the decision of the panel to
deny T’s right to legal representation; advising that the panel
should suspend the hearing pending the outcome of the application for
review and requesting that the written ruling refusing legal
representation should be made available to the appellants for
purposes of the review application.

[8] The requested
ruling was made available on 6 March 2013. In the ruling, it was
indicated that the hearing had proceeded in absentia of the
appellants and T and that the ruling on the charges against T would
be delivered on 13 March 2013. In the ruling, the panel mainly relied
on the case of Hamata and Another v Chairperson Peninsula Technikon
Internal Disciplinary Committee and Others 2002(5) SA 449 (SCA) to
justify the manner in which it exercised its discretion. In that
case, the South African Supreme Court of Appeal held that South
African law does not recognise an absolute right to legal
representation and that there are circumstances under which legal
representation may be excluded in the context of administrative
proceedings.

[9] On 13 March
2013, the second appellant and T, on invitation of the panel,
attended the proceedings during which the panel were to rule on the
charges. The panel convicted T on the first charge. The second
appellant and T were invited to advance a plea in mitigation.
Initially, both did not understand what ‘mitigation’ was,
but when it was explained in layman’s language, T spoke in
support of mitigation and requested not to be expelled. The second
appellant declined to speak. The panel recommended that T should be
placed on internal suspension until 20 March 2013, with this period
to include counselling and a rehabilitation programme.

[10] Relying on
paras G.4.2.1(f) and G.4.2.2(c) of the school policy (to which I
shall refer below), the appellants maintained that the panel should
not have interpreted the said paragraphs and school policy
restrictively to deny T legal representation, but widely and in
favour of students who are entitled to administrative due process.

High Court
proceedings

[11] On 15 March
2013, the appellants launched proceedings in the High Court seeking
to review and set aside the ruling by the Chairperson of the panel
and all other subsequent rulings made in pursuance thereof. They also
sought an order that the appellants (applicants then) were authorised
to secure legal representation of the minor child’s choice at
the disciplinary hearing and costs.

[12] Both the
Chairperson and the school opposed the application on grounds of lack
of urgency; that the relief sought was not competent; that the
appellants voluntarily chose not to participate in the hearing; and
that they were able to represent T. Responding to the appellants’
contention that the school’s policy as formulated in paragraph
G.4.2.2(c) (which provides for representation at such hearings)
should be interpreted widely and in favour of students, the school
stated that: ‘the respondents do not accord with the
interpretation rendered by the (appellants)’.

[13] In an extempore
judgment delivered on 4 April 2013, the High Court held as follows:

‘The
[appellants] through their conduct which is plainly inconsistent with
the right relied on now and which applicants threaten to enforce in
correspondence and which they now seek to again enforce ex post
facto, have waived this right through their participation in the
proceedings of the 13th March 2013. Nothing prevented the
[appellants] to continue to persist with their stance as adopted on
the 4th of March yet they failed to do so, in the full knowledge
pertaining to the underlying position, which they must have
appreciated, given the continuous engagement of the legal
practitioner in this matter. The respondents have thus discharged
their onus in this regard. As the effect of the waiver is that it has
extinguished the right, relied upon by the applicants in this matter,
it follows that no relief can be granted on the basis thereof’.

[14] The High Court
accordingly dismissed the application with costs. The appeal lies
against the whole judgment and order.

Submissions

[15] In the view I
take of this matter, it is necessary to give a fairly detailed
summary of submissions on behalf of the parties in this appeal. The
thrust of counsel for the appellants’ argument was that the
court a quo misdirected itself when it found that the appellants
waived their right to legal representation when they attended the
ruling on the merits on 13 March 2013 because the issue of waiver was
never raised in the answering affidavits by any of the respondents. I
must interpose here to say that the reasoning and conclusions of the
court a quo based on waiver are also not supported in this appeal by
any of the respondents in whose favour the court a quo found. Counsel
for the appellants further argued that, by finding that T had waived
his right to legal representation, the court a quo by necessary
implication found that T had such a right. In the absence of a
cross-appeal against that implied finding, she submitted that the
issue concerning his right to legal representation had been
determined. Counsel further argued that the fact that T had been
suspended twice before the commencement of the hearing it was
necessary that he should be legally represented. On the meaning to be
attributed to the word ‘someone’ in paragraph G.4.2.2(c)
of the school policy, counsel argued that it should be given a wide
interpretation and not a restrictive one. Counsel further argued that
the case against T was so complicated that T’s request for
legal representation was justified. Counsel therefore submitted that
the appeal should succeed with costs.

[16] The arguments
and submissions of counsel for the first respondent are structured
around questions that counsel had phrased as follows. The first of
these is whether T should have been allowed legal representation at
his disciplinary hearing in the particular circumstances in this
matter. Embodied in this question are a number of ancillary issues
such as whether the panel or, ultimately, the Chairperson has a
discretion to allow legal representation? If so, can a court, in the
particular circumstances of this case, interfere with the ruling made
by the Chairperson on legal representation? The second question is
whether the panel’s or, ultimately, the Chairperson’s
refusal to allow legal representation per se resulted in an unfair
hearing meaning that the final ruling of 13 March 2013 should be set
aside? Counsel pointed out that waiver was not raised in the first
respondent’s answering affidavit nor was it argued on the first
respondent’s behalf in the court a quo. She emphasised that the
first respondent had no intention of raising it in this court either.
Counsel rather relied on the same grounds she had argued on behalf of
the first respondent in the court a quo, which were not decided.
Counsel urged this court to decide on those issues. Counsel then
submitted that the ruling on waiver aside, the application should
have been dismissed with costs by the court a quo. Relying on the
Hamata and Another, supra, and Namibia Tourism Board v
Kauapirura-Angula 2009 (1) NR 185 (LC) para 9, she submitted that
there is no entitlement, as of right, to legal representation in
arenas other than courts of law and that the insistence of the
appellants that they had an absolute right such representation was
wrong. Counsel argued that the contractual framework between the
parents, T and the school does not specifically provide for legal
representation: it neither expressly includes legal representation,
nor does it specifically exclude legal representation. It provides
for the right to administrative due process which, according to her,
means that students are entitled to have someone assist them in the
representation of their case. Counsel pointed out that in the notice
of the disciplinary hearing it was stated that T may be represented
by his parents or by a school official and she submitted that, as in
the Hamata matter, the purpose of the school’s policy was to
exclude outsiders - whether they are lawyers or lay persons, as
opposed to the total exclusion of lawyers as such. In this matter,
she contended, a school official could very well have been an
erstwhile legal practitioner. Counsel submitted that the panel had a
discretion whether or not to allow legal representation, the
discretion was duly exercised and that the refusal of legal
representation did not per se result in an unfair disciplinary
hearing or in the avoidance of the ruling on 6 March 2013. Counsel
submitted that the appeal should be dismissed with costs.

[17] Counsel for the
school and its trustees anchored his submissions on three bases upon
which the conclusion reached by the court a quo to refuse the relief
sought by the appellants should be supported, namely: (1) the panel
properly exercised its discretion to refuse legal representation; (2)
the court a quo correctly held that the right to legal representation
had been waived; and (3) the appellants should have exhausted the
internal remedy of an appeal before launching the application in the
High Court. Counsel argued that the relationship between the school,
the appellants, and T is one based in contract; that the school’s
Code of Conduct provides for a student’s right to
administrative due process; that the concept of ‘due process’
is given content in clause G.4.2.2. of the Code; that no right to
legal representation is provided for and that the concept ‘due
process’ means that students are entitled to have someone
assist them in the presentation of their case. Counsel argued that as
a general rule, the rules of natural justice apply to proceedings of
a private domestic tribunal if those are included (expressly or by
implication) in the provisions of the contract, rules or constitution
which establishes such a body. Counsel relied on the cases of
National Union of Namibia Workers v Naholo, 2006 (2) NR 659 (HC) at
683, in Turner v Jockey Club of South Africa 1974 (3) SA 633 (A) at
646 where it was held that:

‘The
principles of natural justice do not require a domestic tribunal to
follow the procedure and to apply the technical rules of evidence
observed in a court of law, but they do require such a tribunal to
adopt a procedure which would afford the person charged a proper
hearing by the tribunal, and an opportunity of producing his evidence
and of correcting or contradicting any prejudicial statement or
allegation made against him.’

Counsel argued that
the appellants did not mount any challenge when advancing their
application in the High Court on the basis that the panel had not
complied with the principles of natural justice. He submitted that
the panel constituted a private domestic tribunal and Article 12 of
the Namibian Constitution does not in such circumstances find
application to the school’s internal proceedings. Counsel also
relied on the judgment in Hamata and Namibia Tourism Board, referred
to above, to submit that the appellants had no absolute right to
legal representation and that the first respondent proffered a
perfectly reasonable and acceptable explanation as to why external
legal representation had not been permitted; and that the
circumstances of the case did not require, as a sine qua non for due
process and a fair hearing, that external legal representation should
have been permitted; that the panel’s decision to decline
external representation was capable of objective substantiation and
therefore should not be set aside. Counsel further argued that the
school’s policy is worded and phrased in such a manner to keep
disciplinary proceedings ‘within the family’; and that it
was apparent that T’s guardians were more than capable of
representing him during the internal proceedings. He submitted that
the complexity of the matter was considered and that legal
representation would not have assisted the panel in discharging its
duty; that it was inappropriate at that stage of the proceedings
because it would have intimidated the minor parties involved; and
that it would not have been in the interest of fairness and just
process.

[18] On the question
of waiver as earlier stated, counsel for the school and its trustees
indicated that he did not support the reasoning of the court a quo on
waiver and that the waiver relied on by his clients was of a
‘different kind’. Counsel submitted that the appellants
waived their right to legal representation when they accepted advice
not to proceed without legal representation and withdrew from the
proceedings on a misconstrued view of the law, i.e. that T was
constitutionally entitled to legal representation during the internal
proceedings. Counsel relied on the matter of Munetsi v Public Service
Commission 2007 JDR 1151 (ZH) in which the court found:

‘By storming
out of the hearing on the misconstrued view of the law, the appellant
waived his right to dispute the evidence called against him, his
right to cross-examine witnesses and call his own witnesses. He
waived his right to be heard which he had been afforded. The
disciplinary committee was quite entitled to proceed with the hearing
of evidence and determination of the matter. No authority is required
for this conclusion. On that basis alone I would dismiss the
application for review’.

[19] Counsel
referred to the fact that the appellants had been invited to attend
the ruling on the merits on 13 March 2013; that the second appellant
and T attended the proceedings, on which occasion he was found
guilty; and T pleaded in mitigation on the penalty that was to be
imposed, and that the second appellant even complimented and thanked
the panel for the manner in which it had conducted the hearing.
Counsel submitted that this conduct of the second appellant and T was
inconsistent with the relief they sought in the High Court. He
contended that they acquiesced in the ruling and had thereby lost the
right to seek review against it. Their conduct, he submitted,
reflected approbation and reprobation whereby they waived the right
to due process. Counsel finally contended that the school’s
policies that governed the proceedings, in effect, determined that
the issues should be resolved ‘within the family’. The
appellants, he submitted, were unreasonable when they rushed to court
before they had exhausted their internal remedies, and for these
reasons the appeal should be dismissed.

The relevant
provisions of WIS: Policy and Procedures Manual

[20] To appreciate
the submissions made on behalf of the parties - and the concession
made by counsel for the appellants that the appellants were not
relying on Article 12 of the Namibian Constitution for their claim
that T was entitled to legal representation in the hearing - the
relevant provisions of the school’s policy, which governs the
legal relationship between the school, the students and their
parents, requires a careful consideration:

‘G.4 STUDENT
RIGHTS AND RESPONSIBILITIES/STUDENT DUE PROCESS RIGHTS

G.4.1. …It is
the intent of the School to afford vigilant protection of the rights
of all School personnel and students, including the rights to free
inquiry and expression, the right to freedom of association, and the
right to administrative due process….

G.4.2.1

f) Student Due
Process Rights – Students are to have clearly established means
by which ‘administrative due process’ is available to see
that their rights are protected. Students are to be involved, singly
and collectively, as citizens of the School with the attendant rights
of such citizenship and corresponding responsibilities for the proper
conduct of their own affairs and those of other students….

G.4.2.2 The concept
of due process means that students are entitled:

a) To know what the
rules are;

b) To be notified of
charges against them, and be provided the opportunity to respond to
those charges;

c) To have someone
assist them in the presentation of their case;

d) To appeal a
decision about the charges to a higher level;

e) To have the
charges or penalties removed from their records, if their innocence
or non-involvement is shown by the evidence…

L 8.2 Drug Abuse

For details see the
comprehensive WIS Drug Policy and WIS Drug Policy Contract documents
which can be found in APPENDICES B and B.1

SCHOOL POLICY
STATEMENT

School policy
further opposes both the inappropriate use of LEGAL drugs and the
possession or use of prohibited substances.

G.8.2.1 THE POLICY
APPLIES UNDER THE FOLLOWING CIRCUMSTANCES:

a) On school
premises.

b) At or during
functions, excursions or other activities organized by the school.

c) When members of
the school community are representing the school.

d) When drug use
affects, in any way, the performance or school life of a member of
the school.

G.8.2.2 The school
does not permit:

a) The use of
prohibited substances

b) The inappropriate
use of either prescribed or non-prescribed medicines

c) The inappropriate
use of solvents, inhalants, and/or other chemical agents

d) The possession of
drug-related paraphernalia such as cigarette rolling papers, pipes
etc.

G.8.2.3 The
consequences of breaching these requirements could include any or all
of the following:

a) Drawing up a
contract between all parties

b) Appropriate
disciplinary and/or rehabilitation action relative to the breach

c) Expulsion of the
student.

G.8.3. Confidentiality

The confidentiality
of the child and the family will be safeguarded whenever possible
throughout any procedures outlined in this policy.

G.8.4 PROCEDURES FOR
DEALING WITH PROBLEMS OF DRUG ABUSE AND DEPENDENCY

G.8.4.1 When a
student (or parent) acknowledges drug use

The student is
exempt from disciplinary measures and confidentiality will be
maintained between the student, the adult confidante and/or parent
and the School Principal, provided that there is full, open and
honest disclosure by the student of all drug or alcohol usage and
related information.

G.8.4.2 Counselling
and rehabilitation programmes will be initiated in consultation with
parents/guardians and all parties will sign a contract.

G.8.4.3 When there
is evidence that a student is dealing drugs to others

The School Principal
will notify parents/guardians immediately of suspension of the
student, pending a Disciplinary Hearing in accordance with school
disciplinary policy. If evidence validates the claim of dealing
drugs, parents will be notified that the student will be required to
leave the school with immediate effect. In such cases, school
authorities will refer the matter to the police for further
investigation and will assist the police in their investigation at
the school.

G.8.4.4 Searches

Where a member of
management reasonably suspects that a student has a prohibited
substance in his or her possession, an appointed nominee (School
Principal, police or representative of a security organization) may
search that student, his or her possessions and/or locker. Should
such a search be necessary, it will occur in the presence of the
student.

G.8.4.5
Screening/Testing

If there is evidence
of suspected substance abuse, the Principal may request a urine
and/or Breathalyzer test. No testing will be conducted without the
consent where practicable or (sic) parents or guardians and such
consent will not be unreasonably withheld. Parents will be liable for
the costs of testing in all cases where results are positive. It
remains the prerogative of the school to proceed with appropriate
disciplinary action even if consent is withheld and where there is
sufficient evidence to warrant such action. It must be stated that
screening should not be seen as victimization but as an honest
attempt to identify a young person who may be moving into addiction
which is a primary, chronic and progressive illness.

G.11 INTERROGATIONS
AND SEARCHES

G.11.1 Interrogations

The Principal or
Educational Director will make every reasonable attempt to notify
parents prior to permitting any person outside the School –
including law enforcement officials – to question or detain a
student. Under no circumstances will a student be questioned or
detained by outside persons without the presence of either a parent
or a School Official: the School having legal custody of the student
during the school day and during approved extra-curricular
activities, must ensure that each student’s rights are
protected’.

[21] The
‘representation rule’ in the Hamata matter which the
respondents relied on to advance the respondents’ defences at
455B of that matter reads:

‘The student
may conduct his/her own defence or may be assisted by any student or
a member of staff of the Technikon. Such representative shall
voluntarily accept the task of representing the student. If the
student is not present, the committee may nonetheless hear the case,
make a finding and impose punishment’.

The issues in
this appeal

[22] Five questions
arise for determination, namely:

1. Did the High
Court err in finding that the appellants through their conduct waived
the right to legal representation in the disciplinary hearing through
their participation in the proceedings of 13 March 2013?

2. In terms of the
contract between the appellants, T, and the school, was T entitled to
legal representation at his disciplinary hearing?

3. Did the panel, in
making the decision that T was not entitled to legal representation,
exercise its discretion properly?

4. If T was entitled
to appoint a legal representative, or the panel acted improperly or
unfairly in the exercise of its discretion, did that invalidate the
proceedings that followed?

5. Does the court
need to consider whether the appeal is academic?

[23] The five
questions will be considered in the order they appear above. The
first question being whether the High Court erred in finding that the
appellants, through their participation in the proceedings of 13
March 2013 waived T’s right to legal representation at the
disciplinary hearing by their conduct. In my view, the High Court
erred when it decided the matter on a factual issue (waiver) not
raised by any of the parties in the proceedings. Had the respondents
raised waiver of T’s right to legal representation in their
answering affidavits, the appellants and T would have been in a
position to respond to the factual allegation in their replying
affidavits. In deciding the matter on an issue that was neither
raised on the papers nor advanced in argument, without first
according the parties an opportunity to ventilate the facts relevant
to the determination of that issue on affidavit or in evidence, the
court misdirected itself.

[24] I should add
that none of the parties in this appeal sought to sustain the basis
on which the court a quo disposed of the matter, neither as a matter
of procedure or as one of substance. It must be remembered that the
appellants made at least three applications for legal representation
prior to or at the commencement of the proceedings, which were all
declined. They made it very clear that when they briefly participated
in the proceedings of 4 March 2013, they did so under protest. After
the ruling of 4 March 2013 refused them legal representation, they
resolved to launch a review application in the High Court. They
unsuccessfully requested the panel to suspend the hearing pending the
application for review. They thereafter requested and received the
reasons for the refusal of legal representation on 6 March 2013. In
the document comprising the reasons, they were informed that a ruling
on the merits of the charges would be handed down on 13 March 2013.
They resolved to delay the launch of their review application until
then. The second appellant and T attended the proceedings of 13 March
2013 on invitation and launched the review application two days
later. Immediately after T was found guilty, the Chairperson invited
the second appellant and T to plead in mitigation. It is apparent
that they did not understand what mitigation entailed. It was
explained to them. The second appellant declined to say anything and
T, a minor with limited capacity to perform juristic acts who was
obviously fearing the worst, simply asked not to be expelled. There
is no evidence that he appreciated at that time that he had a right
to legal representation or that his anxious plea not to be expelled
could be regarded as a waiver of that right – not only in
respect of the proceedings that followed the finding that he was
guilty, but also in relation to the previous proceedings. It is
common cause that T astutely refused to attend the earlier
proceedings without legal representation on account of his parents’
advice. In those circumstances, the court a quo also erred in
construing the attendance of the second appellant and T at the
proceedings on 13 March 2013, or the conduct of T and the appellants
in the earlier proceedings, as constituting waiver.

[25] The second
question for determination is, whether in terms of the school policy
to which the appellants, T, and the school contractually bound
themselves, was T entitled to legal representation in the
circumstances of this case? The non-existence of an absolute right to
legal representation in arenas other than courts of law may well be a
salutary one under certain circumstances, but whether that right
exists or not depends in my view on ‘the representation rule’
of each particular institution and the particular circumstances of
each case. As was correctly spelt out in the Hamata matter, ‘there
will be cases in which legal representation may be essential to a
procedurally fair administrative proceeding’ and that ‘any
rule purporting to compel such an organ to refuse legal
representation no matter what the circumstances might be, and even if
they are such that a refusal might very well impair the fairness of
the administrative proceeding, cannot pass muster in law’.

[26] Clause
G.4.2.2(c) of the school policy, intended to give content to the
meaning of ‘due process’ to which students at the school
are entitled, provides:

‘To have
someone assist them in the presentation of their case’. (My
underlining for emphasis).

[27] It was argued
that this provision, particularly the word ‘someone’,
should be interpreted restrictively to mean a parent or a school
official, and that the school’s policy is worded and phrased in
such manner to keep disciplinary proceedings ‘within the
family’. The Concise Oxford English Dictionary defines the word
‘someone’ as: (1) an unknown or unspecified person; or
(2) a person of importance or authority. On a plain and ordinary
reading of the word ‘someone’ in clause G.4.2.2(c), the
person in question is not specified in any way – not by age,
gender, occupation, relation or affiliation, to name a few. Thus, a
person who by occupation is a legal practitioner is not excluded from
this unspecified category of persons who may represent a student.
‘Someone’ is a word of wide scope and general import and,
had the school wished to limit the persons permitted to represent a
student to a particular category when it formulated its policy, one
would have expected it to couch the clause expressly or by necessary
implication in limiting terms. The only basis on which the
respondents contends for a narrower interpretation is that, upon a
reading of the policy as a whole, it must be inferred by necessary
implication that disciplinary proceedings should be kept ‘within
the family’. This contention, based on a broader reading of the
school policy, is misplaced and unsustainable. The part of the policy
G 5.4 on which such reliance is founded is headed: ‘Student
complaints and grievances’. Its contents speak for itself. It
contemplates that, if any matter cannot be resolved at the school
level, the Principal may consult the Educational Director. Moreover,
the drug policy - as is demonstrated by the provisions relating
thereto in the provisions quoted above - is formulated in stringent
terms and contraventions are clearly viewed in the most serious light
by the school. If evidence validates the claim of dealing drugs, the
policy requires that parents are notified that the student will be
required to leave the school with immediate effect; that the school
authorities will refer the matter to the police for further
investigation; and that the school authorities will assist the police
in their investigation at the school. That aside, the consequences
attached to the crimes of dealing in or possessing a drug or
prohibited substance are severe and the offender’s conviction
in a court of law may include imprisonment. It is not your ordinary
misdemeanour or mere trespass of a school rule such as one that
prohibits late attendance to class.

[28] Another
consideration that detracts from the restrictive interpretation of
‘someone’ sought by the respondents (i.e. that ‘someone’
is limited to the parents of students or staff members of the school)
is that such an interpretation would undermine the principle of
equality of representation to the entire body of students. To confine
the clause to parents and staff members of the school would place
students whose parents are lawyers or who have experience or
knowledge in legal matters at an advantage when compared to fellow
students whose parents are not so qualified or experienced. The ambit
of a restrictive interpretation contended for would also be
uncertain. Would the elder brothers or sisters of students be
permitted to represent them? If so, what about their uncles or aunts,
their cousins or other persons more remotely related? Would it make
any difference if any of them were a lawyer? Where should the line be
drawn before it would no longer be in line with the notion of keeping
the proceedings ‘within the family’ as contended for by
the respondents?

[29] Counsel for the
first respondent pointed out that it was stated in the notice of the
disciplinary hearing that T could be represented by his parents or a
school official. She further submitted that, as in the Hamata matter,
the purpose of the school’s policy was to exclude ‘outsiders’,
be they lawyers or laypersons - as opposed to the total exclusion of
lawyers as such. On this premise, she contended, if the school
official had previously been a legal practitioner, he or she could
have represented T. In my view, the parallel that counsel is seeking
to draw between ‘the representation rule’ of the school
policy in this instance and that of the Peninsula Technikon
(‘Pentech’) in Hamata’s case is misplaced. The
rules of Pentech spelled out very clearly that a student might be
represented by another student or a member of staff of Pentech. The
purpose of the representation rule in that case was to expressly
exclude representation as of right by persons falling outside the
named categories. The representation rule of the school policy in
this instance lacks that limitation and the wording of clause
G.4.2.2.(c) suggests scope for a broader interpretation. It is not
within the province of the school to unilaterally accord an
interpretation to the word ‘someone’ that suits the
institution. By using the indefinite word ‘someone’ in
the formulation of its policy and contracting with the appellants’
and T on that basis, the school is bound by the ordinary contextual
meaning of the word, which, for the reasons that I have given, cannot
be limited in the manner contended for by the respondents. When the
school sent out a notice to the appellants, purporting to prescribe
to them who should represent T, it violated its own policy on due
process and the contract concluded with the appellants and T on that
basis. In terms of the contract, T was entitled to representation by
‘some’ person. Inasmuch as the person would represent
him, the selection and appointment of that person was up to T and it
was not within the purview of the school’s powers to prescribe
to him who that person should be or limit the categories of person
from which T could choose. In the view I take, the respondents were
unable to demonstrate why the word ‘someone’ should be
limited to a person ‘within the family’ and that, upon a
proper interpretation of the school policy incorporated in the
contract between the school and the appellants (acting in person and
on behalf of T), T was entitled to appoint any person to represent
him. Consequently, T’s right to representation of his choice
was provided for in terms of the contract he had with the school and
no question of a discretion on the part of the school, the
disciplinary panel, or its Chairperson arose. So regarded, the issue
of whether the panel exercised its discretion fairly or reasonably
falls away: it had no discretion to say that T could not engage the
services of a legal representative to assist him in the presentation
of his case. He was entitled to appoint a person of his choosing as
per the terms of the contract.

[30] In any event,
even if I am wrong, and the disciplinary panel did in fact have a
discretion as contended for by the respondents, I am satisfied that
the panel did not exercise its discretion properly. It is not
disputed that the students at the school were entitled to
‘administrative due process’. The question that arises is
whether the panel exercised its discretionary power in accordance
with the requirements intrinsic to that principle. To answer the
question, the court must examine, amongst others issues -

‘whether the
administrator had the necessary power to act, whether the correct
procedure was followed, whether relevant and permissible factors were
taken into account and irrelevant factors were disregarded.’

(See also Yvonne
Burns, Administrative Law, 5th ed at 32-33).

[31] Ordinarily,
there are very good arguments to be made against involving lawyers in
school disciplinary proceedings. The presence of lawyers introduces
the risk that students may find questioning and cross-examination by
lawyers to be overwhelmingly stressful and that once-straightforward
school proceedings may become increasingly litigious and drawn out as
a result of lawyers’ involvement. In fact, Ms Christina Gemmell
who deposed to an answering affidavit on behalf of the school stated
that ‘as an educator it pains me that an internal disciplinary
process conducted in respect of the applicants’ minor child T
and which should and could have been concluded swiftly and fairly
(that being in the best interests of all involved), has burgeoned
into protracted and unnecessarily technical proceedings, and now the
present application. This, even before the internal process was
completed’.

Ms Gemmell’s
sentiments are some of the considerations the panel took into
consideration to deny T legal representation, namely, to protect the
minor witnesses and the members of the panel who were non-lawyers
from intimidation and to avoid lawyers hijacking the proceedings etc.
But the question which arises, even on the respondents’
contention that the policy document contemplates for proceedings to
be kept ‘within the family’ is, would these concerns not
apply equally if a parent of a student appearing before the panel was
a lawyer?

[32] The panel also
considered the seriousness of the charges against T but found that,
the seriousness notwithstanding, he should not be permitted legal
representation because the panel was not interested in the potential
criminal nature of the case, only in finding whether T possessed or
dealt in marijuana or not. This case, like any other case concerning
the unlawful possession of or dealing in prohibited
dependence-producing drugs, constitutes by its mere nature a criminal
offence under the existing criminal justice system. It is not simply
a misdemeanour to be considered on an equal footing with ordinary
transgressions of school rules. This is also evident from the
provisions of the school policy incorporated in the contract
applicable in this instance. According to the contract, if the
student is found guilty of dealing drugs, he or she will be expelled,
the matter will be referred to the police for further investigation,
and the school will assist the police with that investigation (Clause
G.8.4.3). On the face of the school policy, there is no discretion on
the part of the panel to avoid these consequences. In this case, the
school involved the police even before T was found guilty by the
panel: Police Officer Farmer and Chief Inspector De Klerk were
invited by the school to assist in the investigation against T, and
Chief Inspector De Klerk threatened T, amongst other things, with
jail and testified at the hearing against T.

[33] Due to the
severe (and potentially criminal) and non-discretionary nature of the
consequences for a student who is found to have contravened Clause
G.8.4.3 of the school policy, and the devastating impact such a
finding may have on T’s future, the panel should have found in
this particular instance that T was entitled to legal representation
at the hearing. This consideration should have weighed heavily: what
was at stake was not only disciplinary sanctions at school level, but
serious potential punishment in the criminal justice system as a
consequence of the contract and the actual involvement of senior
members of the narcotics branch of the Namibian Police.

In addition, the
particular subject matter of the proceedings was not only important
but also forensically complicated. In the absence of an admission
that the substance which T allegedly dealt in or possessed was a
prohibited dependence producing drug, expert witnesses had to be
called to identify the allegedly illegal substances and evidence had
to be produced to the effect that the chain of evidence had been
preserved to link the analysed substance to that which T had
allegedly possessed or dealt in. These questions are of a technical
nature and lawyers are trained to make these types of challenges. It
is unfair to expect of the appellants, who are both laypersons in
matters of law, to challenge expert evidence in these kinds of cases
in a meaningful or competent manner.

[34] It makes no
difference that the school had apparently made a decision to resolve
the matter internally. No evidence was presented to demonstrate that
the appellants (and T) were aware of such a decision. Furthermore,
even if it had, the mere fact that it had already involved the police
in the investigation against T raised the real possibility that the
members of police, in complying with their statutory duty to
investigate any alleged offence in terms of s 13(c) of the Police
Act, 1990, could have continued with the investigation against T in
the public interest, irrespective of the school’s attitude. In
the course of such an investigation and potential prosecution, the
statements made and evidence given at the disciplinary hearing could
have been used against T.

[35] None of these
important factors and consequences were properly considered by the
panel. It follows that, even if the panel had a discretion to grant
or refuse T’s application to be allowed legal representation at
his disciplinary hearing, the panel’s decision to refuse his
application was unreasonable and unfair in the circumstances.

[36] The next
question is, if T was entitled to appoint a legal representative, but
was denied that right, did that invalidate the proceedings that
followed? The question should be answered in the affirmative. The
unfair denial of T’s right to legal representation is an issue
that permeates the fairness of the disciplinary proceedings in their
entirety, more so, because T lacked the forensic skills and
experience to meaningfully challenge the expert and other technical
evidence that was about to be adduced regarding the prohibited
substance in the course of the proceedings. It is significant that
the appellants stated at the outset that they did not regard
themselves as competent or able to represent their child due to their
emotional involvement in the matter and other factors. When his
parents walked out of the proceedings, T was faced with the choice to
either stay at the hearing by himself or to follow his parents. When
T absented himself from the hearing as a direct result of the panel’s
refusal to grant his request for legal representation, the
proceedings continued in his absence. In the circumstances, this
cannot be said to constitute a fair hearing.

[37] The question
whether this appeal became academic because T was recently placed in
another school was, to his credit, not pressed by counsel on behalf
of the school and its trustees. Aside from the order of costs in the
High Court that remains alive, the finding of the panel that T had
dealt in a dependence producing drug would stand and, until or unless
it is set aside, may remain an albatross around his neck in later
life.

[38] The parties
agreed that Article 12 of the Constitution of Namibia finds no
application in the disciplinary proceedings. I agree.

[39] So far as the
costs of the appeal and the High Court proceedings are concerned, the
appellants succeeded in prosecuting the appeal and there is no reason
why the costs of this appeal and that of the High Court should not
follow the result.

[40] The following
orders are made:

1. The appeal
succeeds with costs, such costs to be paid by the respondents jointly
and severally, the one paying the other to be absolved;

2. The order of the
High Court is set aside and the following order is substituted:

‘(a) The
ruling made by the first respondent on 6 March 2013, refusing the
applicants’ minor child legal representation and all other
subsequent rulings made in the disciplinary proceedings against him
are set aside.

(b) The applicants
are authorised to secure legal representation of their minor child’s
choice at the disciplinary hearing, if any, to be held by the second
respondent.

(c) The respondents
are to pay the costs of the applicants, jointly and severally, the
one paying the other to be absolved.’

MAINGA JA

MARITZ JA

HOFF AJA

Counsel on behalf
of the appellants:

E Angula

Instructed by
AngulaColeman Legal Practitioners

Counsel on behalf
of the first respondent: B De Jager

Instructed by
Theunissen, Louw & Partners

Counsel on behalf
of the second and third respondents: R Tötemeyer, SC

(with him D
Obbes)

Instructed by
LorentzAngula Inc.