Friday, 13 September 2019

SUSPENDED FALCON COLLEGE PUPIL LOSES COURT CHALLENGE


THE High Court has dismissed an application by a Form Four pupil at Falcon College in Esigodini challenging his suspension from attending school for alleged drug abuse.

The ruling by Bulawayo High Court judge, Justice Maxwell Takuva, follows an urgent chamber application for review by the 15-year-old schoolboy, who was assisted by his mother through their lawyers Dube-Banda, Nzarayapenga and Partners.

In papers before the court, Falcon College Trust, its headmaster, Mr Reg Querl and the Minister of Primary and Secondary Education Professor Paul Mavima, were cited as respondents. 

Justice Takuva ruled that the relief sought was incurably bad and incompetent as both the interim relief and final order were identical.

“The result is that by the time the final order is argued, applicant would have already consummated that order under the guise of an interim relief. Surely, he would have no interest in the final relief and herein lies the incompetence of that relief,” said the judge.

The boy, who cannot be named for legal reasons, sought an order nullifying his suspension from school. He also wanted the court to direct the respondents to allow him to resume lessons and other extra-curricular school activities as well as prepare for the final examinations in November.

“What is abundantly clear is that the applicant seeks to enjoy the fruits of not only the final order, but also the review order through the back door and for these reasons, the draft order is without doubt totally incompetent. Accordingly, it is ordered that the application be and is hereby dismissed with costs,” ruled Justice Takuva.

In his founding affidavit, he said he was denied his constitutional right to attend classes, arguing that the decision of the school authorities to suspend him was unjustified. He also argued that he was not afforded a chance to make representations in his case.

“The decision to arbitrarily suspend me was taken without affording me the right to make representations and be heard in the presence of my guardian since I am a minor. It is in violation of my right to basic education and it was unreasonable and unjustifiable,” he said.

The schoolboy, who was suspended on July 17 this year for alleged drug abuse, said the decision to suspend him was unlawful and not supported by evidence. However, when he was taken for laboratory drug tests in July, the results came out positive.

He said the decision to suspend him was anchored on inadmissible evidence obtained in an unlawful manner that violated his human rights as a child.

“I was taken for drug tests, which involved urine examination without the consent of my guardian. There is no evidence of misconduct of a serious nature I committed,” he said.

The applicants’ lawyers said his suspension was in violation of section 8 (1) of the Education (Disciplinary Powers) Regulations, 1998, arguing that his suspension exceeded the statutory limit of seven days. 

He said although Falcon College has a right to discipline him at the school, the chastisement must be lawful and exhibit respect and promotion of fundamental rights of learners.

In her supporting affidavit, his mother said the school did not conduct a disciplinary hearing to ascertain whether her son was guilty of taking prohibited drugs.

She said her son was taken to a hospital in Bulawayo for the purposes of testing him for drug abuse and a urine test was conducted without her consent.

“Psychologically he was affected as he was made to believe that he was an outcast yet there was no tangible evidence of drugs in his possession nor did he display any suspicious behaviour other than that it being a discriminate random spot test,” she argued.

The respondents opposed the application, arguing that it was anchored on an application for review of a suspension that no longer existed.

They also argued that the draft order was wholly incompetent.

“Effectively, the applicant seeks to consummate the final order before disciplinary proceedings could be instituted,” argued the respondents.

On the merits, the respondents contended that there was no arbitrariness in the decision to suspend the applicant in the circumstances where the suspension was based on the failed urine tests which were lawfully carried out. Chronicle

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