The Appellants (Sipho and Mr Swart) Argue

HYPOTHETICAL CASE TO BE ARGUED

1 April 2016

1. Historically, Kruger High School is a well-resourced school for white learners in Polokwane. The school uses Afrikaans as the language of teaching and learning; with English as the first additional language; and Sepedi as an optional second language. Since 1994 the demographics have changed significantly: less that 25% of the learners are white and Afrikaans speaking, 5% are of Asian origin and 3% are coloured. The rest of the learners are African, with Sepedi as the dominant indigenous language. Most of the educators are white.

2. On the eve of celebrating the 40th anniversary of the 1976 June 16th student uprising in Soweto, Sipho Seakamela, an 18 year old learner and chair of the Representative Council of Learners (RCL), convened a meeting in the school hall during break. The hall was decorated with posters depicting the events of 1976. The posters, which Sipho made himself, were green, yellow and black – the official colours of the ABC Political Party. They carried the slogan of the ABC Party: “Working Together We Can Do More”. Before putting them up, Sipho placed a smiley-face sticker over the logo of the Party.

3. Mr Whitey Swart, an educator, asked Sipho to remove the posters, as they displayed material of a political nature and were not related to the school curriculum. Sipho refused and said: “It’s time white people know their place! This is Africa!”. On the same day Mr Swart reported Sipho’s statement to the School Governing Body (SGB).

4. Mr Swart dismissed the meeting in the school hall and started taking down the posters. As he did this, he said: “I’m tired of you people’s unruly behaviour and attitude of entitlement!”.

5. Sipho and a group of learners marched to the Admin Office. With a megaphone, Sipho addressed them passionately about the heroic events of 1976, which were sparked by the fact that Afrikaans was forced onto schools by the apartheid regime. He shouted: “Afrikaans must fall!”. They then grabbed an expensive oil painting by a famous artist depicting Paul Kruger, the president of the former South African Republic, or Transvaal. This painting was donated to the school by a former learner and hung on the wall next to a painting of Nelson Mandela. Some learners threw the oil painting on the floor and danced on it, while singing, with their fists in the air. 6. Then the chair of the school’s debating society, Nadi Naidoo, took the megaphone from Sipho and calmed the learners down. The gathering ended with Sarie Marais, the school’s cheerleader, leading the learners in singing the National Anthem, before they dispersed.

7. Sipho was charged with contravening the school’s Code of Conduct by using hate speech and acting in a racist manner as well as with displaying political material; He laid a same charge related to hate speech and racist conduct against Mr Swart. After a disciplinary hearing, the SGB decided to suspend Sipho for inciting and participating in the protest; for hate speech and racist conduct; and for putting up posters of a political nature. The SGB decided that Mr Swart’s statement also contravened the Code of Conduct and issued a formal warning to him.

8. Sipho’s older sister, a lawyer, took the SGB’s decision on review to the High Court. After Mr Swart apologised to Sipho and his family, he asked to be joined in the proceedings, because the warning was on record and detrimental for his teaching career. The High Court found in favour of the Kruger High School and confirmed the decision of the SGB. Sipho and Mr Swart applied for leave to appeal to the Supreme Court of Appeal, but leave was refused.

9. Thereafter, they asked for leave to appeal the decision of the High Court to the Constitutional Court. Leave was granted and the appeal is set down for hearing in October 2016.

The Appellants (Sipho and Mr Swart) argue:

1. Section 4(1) of the Code of Conduct violates the constitutional right to freedom of expression and must be declared invalid.

2. Section 6(1) and section 7(1) of the Code of Conduct violate the constitutional right to freedom of expression and must be declared invalid.

3. Section 5(1) of the Code of Conduct must be interpreted in accordance with section 17 of the Constitution. It was incorrectly applied to the situation at hand.

4. Sipho’s mother was partially sighted and did not read the Code of Conduct before signing it when she registered Sipho as a learner at the school four years earlier.

5. The punishment of Sipho and Mr Swart must be set aside.

The Respondent (the SGB of Kruger High School) argues:

1. The Code of Conduct does not violate any right under section 16 of the Constitution.

2. The posters and banners are not protected under the Constitution, since they were of a political nature and not related to the school curriculum. 3. The protest was violent; thus the interpretation and application of the Code of Conduct were not unconstitutional.

4. In any event, Sipho’s mother signed the Code of Conduct when joining the school four years earlier; so he is contractually bound by its contents.

5. The punishment of Sipho and Mr Swart must be confirmed.

Annex 1 Extract from Kruger High School’s Code of Conduct

4. Prohibition of political activities during school time

(1) The display of material of a party-political nature on its premises during school time is not allowed unless such material is related to the school curriculum.

5. Prohibition of violent protests

(1) This school does not allow non-peaceful protests on its premises, at any time.

6. Prohibition of Hate Speech

(1) No person may publish, advocate or communicate words based on one or more of the prohibited grounds (under section 9 of the Constitution of the Republic of South Africa), against any person, that could reasonably be construed to demonstrate a clear intention to - (a) be hurtful; (b) be harmful or to incite harm; or (c) promote or propagate hatred.

7. Racism and Sexism

(1) Racism is strictly prohibited and no person may engage in any conduct of a racist or sexist nature. Annex 2 Extract from South African Schools Act 84 of 1996

Code of Conduct Section 8

(1) Subject to any applicable provincial law, a governing body of a public school must adopt a code of conduct for the learners after consultation with the learners, parents and educators of the school.

Annex 3 Extract from Constitution of South Africa, 1996

Republic of South Africa Section 1

The Republic of South Africa is one, sovereign, democratic state founded on the following values: (a) Human dignity, the achievement of equality and the advancement of human rights and freedoms.

(b) Non-racialism and non-sexism.

(c) Supremacy of the constitution and the rule of law.

(d) Universal adult suffrage, a national common voters roll, regular elections and a multi-party system of democratic government, to ensure accountability, responsiveness and openness.

Supremacy of Constitution Section 2

This Constitution is the supreme law of the Republic; law or conduct inconsistent with it is invalid, and the obligations imposed by it must be fulfilled.

Equality Section 9

(1) Everyone is equal before the law and has the right to equal protection and benefit of the law. (2) Equality includes the full and equal enjoyment of all rights and freedoms...

Human dignity Section 10

Everyone has inherent dignity and the right to have their dignity respected and protected. Freedom of expression Section 16

(1) Everyone has the right to freedom of expression, which includes— (a) …; (b) Freedom to receive or impart information or ideas; (c) Freedom of artistic creativity; and …

(2) The right in subsection (1) does not extend to— (a) Propaganda for war; (b) Incitement of imminent violence; or (c) Advocacy of hatred that is based on race, ethnicity, gender or religion, and that constitutes incitement to cause harm.

Assembly, demonstration, picket and petition Section 17

Everyone has the right, peacefully and unarmed, to assemble, to demonstrate, to picket and to present petitions.