Hlongwane and Others v Rector, St Francis College, and Others

• Jurisdiction: South Africa
• Court: Durban and Coast Local Division
• Judge: Galgut J
• Judgment Date: 06 October 1988
• Citation: 1989 (3) SA 318 (D)
• Hearing Date: 05 October 1988

Galgut J:

The 32 applicants are matriculation pupils at St Francis College, Marianhill, a private high school for Black pupils which is H mainly a boarding school and which is owned and run by the Roman Catholic Diocese of Marianhill. Although the school consists of separate male and female sections, this application does not relate to the female section and everything that I say hereinafter refers to the male section only. The first respondent, Brother Crispin, is the Rector of the I school, the second respondent the principal, and the third respondent the Bishop of the Diocese who is ex officio the grantee of the school.

The applicants have all been suspended from the school and they seek an order declaring the suspension invalid and reinstating them as pupils and boarders.

The case has a history which is relevant. On 21 March this year J the pupils in the school took part in a stayaway from the school in

Gulgut J

A commemoration of the anniversary of Sharpeville. This was done with Brother Crispin's consent. He refused his consent, however, to a stayaway on the following day as well. In defiance of his refusal the matriculation pupils also stayed away on 22 March. It was decided not to take disciplinary steps against all of those who had taken part in B the unauthorised stayaway on 22 March but only against the ringleaders. Brother Crispin conducted certain investigations and concluded that five of them, including three of the present applicants, had been the ringleaders. Those five were promptly suspended or expelled. They immediately brought an application before this Court under case C No 2052/1988 which ultimately came before Howard JP. What happened before Howard JP is relevant to the issues before me. In his judgment he approached the matter on the basis that the orders sought arose from contract, the legal relationship between the pupils and the school in the particular circumstances being one of contract. He therefore held that it all turned on the term of the contract whereby the pupils undertook

D '(o)rderly behaviour, obedience to Rector, Principal, teachers and boarding-master/mistress and adherence to the rules and regulations of St Francis' College',

and upon the term contained in the said rules which provide that 'serious offences' will justify expulsion. The crisp question to be answered, so he considered, was therefore whether or not, as a fact, E the five pupils concerned had been the ringleaders. In this regard they had alleged in the application that they had not been the ringleaders, while Brother Crispin had alleged that they had. The difficulty was that Brother Crispin's allegation was based purely upon hearsay, because the persons who had furnished him with the relevant information did not F make affidavits and Brother Crispin refused to divulge their identities. His attitude was motivated by his fear that should their identities be disclosed the five concerned might take violent action by way of reprisals against them. Howard JP had the following to say:

'The Rector's right to expel the applicants depended on whether G they were in fact guilty of the alleged misconduct. But there is no direct evidence that any of them was a ringleader or instigated the boycott or threatened anyone with violence. The respondents' allegations to this effect are based entirely on hearsay and the Rector is not even prepared to divulge the names of the persons who furnished the relevant information. I am thus faced with the applicants' averments to the effect that they committed no offence H justifying their expulsion and no admissible evidence to the contrary. On the evidence properly before the Court there was no breach of contract justifying expulsion, and the expulsion of the applicants was therefore unlawful.'

He therefore granted the application.

Following upon the facts giving rise to that application, further incidents occurred which give rise to the application now before I me. Brother Crispin gives an account of the further events, much of which is hearsay. Because the applicants object to the hearsay evidence, I will indicate as I go along which portions of what Brother Crispin says are hearsay. (There is in fact more hearsay evidence than that to which I will refer, but such other hearsay evidence is irrelevant and, J for the purposes of this application, I will ignore it.)

Gulgut J

A Brother Crispin says, and this is hearsay, that, upon the return of the expelled pupils, they, and the other matriculation pupils who sympathised with them, commenced a witchhunt in order to discover who Brother Crispin's informants had been. The only matriculation pupils who are not among the 32 applicants are the two school prefects. The only other prefect in the school at the time was the twelfth applicant. B After the expelled pupils were reinstated the twelfth applicant approached Brother Crispin and told him that he was resigning as a prefect, the reason he gave being that the other two prefects did not accept him. Brother Crispin surmises, however, that the truth was that he was simply afraid to be associated any further with the other two prefects. Brother Crispin says, and this is hearsay, that the remaining C two prefects thereafter told him that their lives had been threatened by a fellow matriculation pupil in each case and that they, the two prefects, were the ones who were marked as informants by the others. In order to ensure their safety the prefects were therefore removed from the hostel in which they were living and permitted to sleep under the roof of the residence of one of the boarding masters.

D At about 10.30 pm during the evening of 23 August Brother Crispin was called out. He found that the two prefects had been assaulted. There were also signs of unrest among the other pupils. Brother Crispin says, and this is hearsay, that the two prefects told him they had been assaulted by matriculation pupils, that their assailants had towels draped over their faces, that the towel on one of them had E slipped enabling them to identify him as the erstwhile third prefect, that is to say the twelfth applicant, and that they also recognised seven others by their voices. Brother Crispin says, and this is hearsay, that the names of the eight matriculation pupils were given to him by the two prefects, that the two prefects elected...