PRETORIA HIGH SCHOOL FOR GIRLS
2 August 2024
Dear PHSG community
This communication refers to the disciplinary matter of twelve grade 12 learners charged with alleged misconduct. Because this matter has been in the public domain it would be remis of the school if we did not inform the school community of the outcome of the disciplinary hearings.
The disciplinary hearings were conducted by a 3-person panel of the SGB as per regulations. The panel was chaired by an advocate who is a co-opted member appointed by the SGB. The proceedings have been finalised and all twelve learners have been found not guilty on all charges. This also includes their prefect status.
The proceedings are recorded in a formal report that has been handed over to School Governing Body.
We believe that this process has been conducted in fairness and transparency.
Coming out of this process, there are lessons for all of us. Let us continue to work together to create an environment where teaching and learning can continue, and every learner feels valued and empowered to succeed.
As we move forward from this chapter, we express our gratitude for your support and understanding in this challenging time. We remain dedicated to fostering a safe and nurturing environment for all our learners and staff and will continue to uphold the values that define our school community.
Kind regards,
Mrs D Stoffberg
Acting Principal
***
Text of the ruling:
IN THE DISCIPLINARY HEARING OF THE PRETRORIA HIGH SCHOOL FOR GIRLS
In the Disciplinary Hearing between:
Pretoria High School for Girls [PHSG]
And
12 Learners
SCHOOL GOVERNING BODY'S RULING
Introduction
1. Catherine the Great is famed to have said: if you cannot be a good example, then you will have to be a horrible warning1. This case bears all the hallmarks that fit into the latter category.
2. Twelve learners of the Pretoria High School for Girls find themselves at a precipice where a subtle tilt in the wrong direction could potentially alter the course of their lives, perhaps irreparably so.
3. We bear the weight of having to make that determination.
4. At issue are messages exchanged between twelve leaners over a period of an hour2 in a closed WhatsApp groupI: a private group chat - to borrow today's parlance.
5. The question for determination is this: are these leaners guilty of "serious misconduct" as alleged by the school? For the sake of protecting their privacy, we shall refer to them as learner number 1, 2 up to 12. The parties relevant to this dispute will be able to determine the identity of the relevant leaner from the number attributed to them when roll call was taken at the commencement of the hearing.
The charges
6. All twelve leaners were charged as follows:
6.1 Your daughter [Leaner] was part of a WhatsApp group that allegedly expressed inappropriate opinions:
6.2 [Leaner] is ·alleged to have contravened the following sections of the school's learner's Code of Conduct and Social Media Polley: section 15.3.1.1.8 - The leaner makes herself guilty of racism, sexism, sexual harassment, or public use of hate speech, or expression of opinions to cause spread of hate
section 9.2.8.4 - any content that amounts to hate speech or discrimination - hate speech and discrimination is harmful or hateful content that include comments that are threatening, harassing, illegal, obscene, defamatory, slanderous or hostile towards any individual or entity those that refer to race, age, gender, sexual orientation, religion, political persuasion, body type and physical mental health - or any factors identified in the relevant legislation
6.3 [learner] is a prefecf, in the Acceptance of position of prefectship at PHSG, as contained in the PHSG Student leadership policy, [leaner] is alleged to have not complied with the following clauses:
set the example through her behavior and general outward appearance, both school and in public, whether in school or not.
Assist staff in the implementation and maintenance of discipline through enforcing the school rules code of conduct.
7. All twelve learners pleaded not guilty.
The proceedings
8. The school was ably represented by its Deputy Principal and the learners were represented by Four Senior Counsel, a Cavalry of Junior Counsel and their instructing attorneys. The learners were also accompanied by their parents.
9. Each person in attendance was asked to sign a non-disclosure agreement and those who were neither a parent nor a representative of a learner were asked to leave the venue.
10. The disciplinary committee consisted of three members.
11. The presenter of the case commenced with her opening statement and led the evidence of two witnesses. She handed in what we marked as "Bundle A". It contained a Notice of disciplinary hearing, Disciplinary procedure to be signed by all parents, a signed prefect pledge4 and "evidence".
12. The representatives of the learners handed in what we marked as "Bundle B".
It contained WhatsApp screen shots, numerous correspondences between parents and the school principal, a media statement from the Gauteng Department of Education and a letter written by a firm of attorneys in which the school was accused of undertaking a "frivolous and vexatious process,s that was "uncoutli' and where an unequivocal demand for "the withdrawal of all disciplinary charges" and an immediate "written apology' had to be issued by no later than 26 July 2024.6
13. After the school had led its witnesses and presented its case, the learners were afforded an opportunity to each take the stand and testify. They were questioned by the Deputy Principal and by members of the disciplinary committee. Closing arguments were led and written heads of arguments were submitted.
14. The process was, for all intends and purposes, as prescribed in the Gauteng Schools Education Act 6 of 1995, Department of Education circular 74/2007 and regulations for "Misconduct of leaners at Public schools and Disciplinary Proceedings" Published under GN 6903 of 2000 and amended by GN 2591 of 2001.
The evidence
15. The case centers on messages contained in a private WhatsApp group chat. It is common cause that all twelve students were part of that WhatsApp group. It is also common cause that on 27 October 2023, this WhatsApp group was named "The White girls'
16. The uncontroverted evidence is that this WhatsApp group has been in existence for over four years, and that during that time, it has undergone numerous name changes. It is perhaps a cruel jest of fate that on the day in question, it was named "The White gurls'
The name of the WhatsApp group
17. The explanation for the name is that other learners refer to them at school as "white girls"and they thought it would be funny to change their group name to that. This much is evident from the chats in the group:
Learner 2: OMS I have a new group name Learner 9: Ah what is it
Learner 1: We need a new one
Learner 2: lets just be called white girls
Because isn't that what people call our group
Learner 9: I like it cos its funny 7
The messages that caused the charges
18. On 27 October 2023 Learner 12 posts on the group:
''I just had the biggest argument with (name witheld) about race issues (and it statted cause my shorts aren't mid-thigh) I have never been so uncomfottable in my life"
learner 9: how does race and shorts length go together [10:19)
learner 12: She was saying how they get treated so badly and apparently rules don't apply to white girls but I was like, try getting into a provincial A team or get into medical campuses for university [10:20]
learner 12: I hate arguing guys I can't explain how much I hate it I wana cry [10:21)
learner 10: ... just make sure you don't say anything they could use against you [10:23]
Learner 5: We need to statt making up our language so they know how it feels [10:23]
Learner 12: exactly, she was like if a black girl wore shatter than mid thigh shorts she would be in the Principal's office [10:23]
Learner 5: everbody is treated the same... if they keep going back to race then this country will never move forward [10:24]
Learner 10: but also how would they feel if we statt speaking Afrikaans in front of them? [10:24]
Leamer 5: how do they not see that everybody in girls high is treated the same [10:24]
Learner 6: if we have to like swop it around... they usually wear cropped tops on a day like this (literally there two girls in my class) and when we do? And they can wear their hair half up and half down but IF WE DO!? [10:26]
Learner 12: and she brought up the hair story [10:26]
Learner 5: this is why girls high will never be seen as prestigious again because problems like this keep arising [10:28]
Learner 9: exactly, this is why schools don't want to associate with us [10:28]
Learner 6: like they always fight with us oh white people are doing this to us saying whatever but the thing is NO ONE DOES ANYTHING TO THEM??? Like come on now we know better??? But yet they will carry on [10:29]
Learner 9: the world is more in their favour now anyways like apartheid isn't a thing anymore {10:32]
Learner 6: exactly like?? Nah this pisses me off, how is everything in your favour but you continue to complain and bring constantly apartheid or the hair thing... what more do you want? [10:33]
Learner 10: We now suffering for something we didn't even do [10:34]
Learner 12: Apparently they still have left over emotions [10:49]
19. As can be seen, the messages were exchanged in quick succession and only a handful of students in that group posted messages.
20. The evidence from Learner 4 for example, was that at the time of these exchanges she was at a school water polo event, and so were three others. The texts were exchanged during school hours and some of the learners either did not see the messages or elected to keep quite.
21. Be that as it may, should we find that the abovementioned messages offend the school's code of conduct, it seems unfair to us to punish leaners who did not post or react to any of the messages.
Witnesses for the school
22. The two witnesses that testified on behalf of the school are also leaners at the school. They expressed shock and hurt at the messages.
23. Witness 01 expressed shock at how what started as a discussion about a confrontation between two girls turned into a "they" "us" and "them" discussion. She asked why do they say "we must sta,t making up our language so they know how it feels' and wondered if this implied that African Languages are gibberish.
24. Witness 01 expressed how she took offence to a white person saying "try getting into a provincial A team or get into medical campuses for university' The suggestion as we understood her was this post implies .black people do not have to work hard to get into these positions.
25. Witness 01 is certain that the "white gurls" knew what they were doing because at some point in the chats, one of them warned and said ''just make sure you don't say anything they could use against you' She submitted that this was suggestive of an awareness on their part of the offensive content in their chat.
26. She also took umbrage at the post that made reference to the "hair story". The hair story is in relation to the protests that erupted at the school during 2016 over the school's hair policy. Witness 01 asked why it is that every time they raise an issue about racism at the school it is swept under carpet and yet, they are expected to silently move on.
27. Witness 02 t ok issue with a post that suggested that race issues are the reason PHSG will never be a prestigious school again. She finds the suggestion offensive.
28. Witness 02 also found the post that "the world is more in their favour now anyways like apartheid isn't a thing anymore" to be offensive and part of a larger dynamic that expects black people to keep quiet and move on when racial issues occur.
29. She further expressed hurt at the suggestion that as black people, "Apparently they still have left over emotions".
30. Both witnesses testified that these WhatsApp messages have caused divisions at the school because.
The Accused Learners testimony
31. As already indicated, not all members of the WhatsApp group participated in the conversation on that day.
32. Leamer 1 and Leaner 2 did not participate in the conversation. They were at a water polo event at the time the conversation was happening and did not have access to the chats. They did not post any messages in the chat.
33. Learner 3 did not participate in the chat and only posted a message at 10:31 endorsing Learner 1 after the group name was changed to honour her.
34. Leaner 4 did not partake in any manner. She testified that she heard about it from a friend and spoke to her parents in the evening who advised her to leave the group. The evidence is that she immediately did.
35. Learner 5 testified. She stated that when the protests concerning the hair policy erupted at PHSG she was still in primary school and recalls thinking to herself that she would not want to go to that school. She testified that that view changed over time.
36. She testified that when she saidn this is why girls high will never be seen as prestigious again because problems like this keep arising" she was reflecting on the protests and how, as we understood her, harm the image of the school.
37. Concerning the post about 11making up their own language' she testified that this was in response to one of the friends in the group who had had an incident where a Black Learner had spoken aggressively to her in her own language knowing she did not understand it. She testified that she said this because the 11other girls of colour take Afrikaans and understand i(' and so they would have to make up a language that Black Girls would not understand.
38. Leaner 6 took to the stand. She posted numerous times on the group. She posted "exactly like?? Nah this pisses me off, how is everything in your favour but you continue to complain and bring constantly apartheid or the hair thing... what more do you want'
..
39. Like some of her friends, she too could not articulate what she meant by that.
She was 17 when she posted these words, she could have been echoing what she had picked up elsewhere.
40. Learner 7 also did not partake in the conversation.
41. Learner B's participation is negligible.
42. Learner 9 testified that she joined the WhatsApp group only in 2022 when she started at PHSG, and at that point she was already in grade 10.
43. She acknowledged how someone reading the messages could be offended by them and expressed that she would prefer there to be a sort of mandatory exercise that tries to bridge the gap at the school.
44. She was the first to ask the question ''how does race and short lengths go together'? Learner 9 explained that when she said "exactly, this is why schools don't want to associate with us' she was referring in particular to Pretoria High School for Boys and how the boys ir:1 that school would rather associate with girls from Affies than from PHSG.
45. Learner 9 could not articulate what she meant by the world is more in their favour now anyways like apartheid isn't a thing anymore.
46. Learner 10 posted that "we now suffering for something we did not do' She could not explain the suffering or the extend thereof that she was referring to.
47. When asked what she meant by ''just make sure you don't say anything they could use against you" she said the use of the word "they" in this regard was in reference to [leaner] and her friends who were the subject of the confrontation.
48. Learner 11 also did not partake in the conversation. She was not at school on that day. When she did eventually post, her's was to strike a reconciliatory tone. She posted:
''sorry [Learner], [Leaner} is genuinely really nice so I don't think she has anything against you at all, I think she was trying to get her point across"
49. Leaner 12 conceded that the ''they" was in reference to other learners who had been in a confrontation with her friend. She testified that [leaner] was the first to use generalizations when she said to her "we" get called to the principal's office for offences that white girls are not punished for.
SO. Learner 12 could not fully articulate what she meant by try getting into a provincial A team or get into medical campuses for university and could not articulate why she holds these views.
51. The evidence and the testimony of all witnesses has to be viewed objectively.
Analysis of the evidence
52. It is not lost on us that we are called on to determine the guilt of Learners premised solely on private conversations in a closed WhatsApp group.
53. Firstly, the Constitution guarantees everyone a right to freely associate with whomever one chooses. Section 18 of the Constitution provides that:
''everyone has a right to freedom of association'
54. This right is one of the cornerstones of liberal democracies and stems from a basic human need for society, community, and shared purpose in a freely chosen enterprise. It is an essential feature of (liberal or social) democratic society, protecting individuals from the vulnerability of isolation and ensuring the potential of effective participation in a society.8
55. Secondly, the Constitution also guarantees everyone's right to the privacy of their conversations.
56. Section 14 of the Constitution provides that:
'Everyone has the right to privacy, which includes the right not to have-
(d) the privacy of their communications infringed.
57. In Bernstein v Beste.-9 the Constitutional Court undertook an extensive discussion of the right to privacy. Ackermann J said:
II The right to privacy consists essentially in the right to live one's own life with a minimum of interference. It concerns private, family and home life, physical and moral integrity, honour and reputation, avoidance of being placed in a false light, non-revelation of irrelevant and embarrassing facts, unauthorised publication of private photographs, protection from disclosure of information given or received by the individual confidentially'10
58. With the last part of this excerpt in mind, it can legitimately be said that the right to privacy is a right to be left alone.11
59. These rights are obviously not absolute. They too are subject to some restraint.
At issue here is whether learners expressed, in their private chats, opinions that violate the school's code of conduct.
60. The school's code provides in section 15.3.1.1.8 that - The leaner makes herself guilty of racism, sexism, sexual harassment, or public use of hate speech, or expression of opinions to cause spread of hate.
61. The school accuses the learners of breaching Section 16 of the Constitution.
Section 16 (2) of the Constitution provides that:
"Everyone has the right to freedom of expression. However, this right does not
extend to- (c) advocacy of hatred that is based on race, ethnicity, gender or religion, and that constitutes incitement to cause harm.,
62. Speech that spreads hate must naturally be "harmful" to others. Harmful was defined as "deep emotional and psychological harm that severly undermines the dignity of the targeted group' 12
63. The evidence of the two witnesses who testified on behalf of the school constituted an expression of their own legitimate views and how the messages made them feel. These are obviously subjective views from lay witnesses that emanate from how they interpret the texts, which they received over a year later. For purposes of the decision we have to make, KPMG Chartered Accountants v Securefin Ltd13 provides some guidance. The Supreme Court of Appeal confirms that "interpretation is a matter of law and not of fact and, according!½ interpretation is a matter for the court and not for witnesses' 14
64. Whether the contents of the WhatsApp messages constituted content that amounts to expression of opinions to cause spread of hate must be viewed objectively. To this, the Supreme Court of Appeal recently held in Afrirorum v Economic Freedom Fighters15 that: "Speech that is merely unpopular, offensive or shocking remains protected under s 16(1) [of the Constitution].16
65. The court went on further to state:
'Thus, it would appear that hate speech travels beyond mere offensive expressions and can be understood as "extreme detestation and vilification which risks provoking discriminatory activities against that group." Expression will constitute hate speech when it seeks to violate the rights of another person or group of persons based on group identity. Hate speech does not serve to stifle ideology, belief or views. In a democratic, open and broad-minded society like ours, disturbing or even shocking views are tolerated, as long as thev do not infringe the rights of persons or groups of persons. As was recently noted, ''[s]ociety must be exposed to and be tolerant of different views, and unpopular or controversial views must never be silenced. ''7
66. Given the judicial weight of the authorities referred to above, regarding charge 1, we were unable to find from any of the contents in the group chat, messages that constitute "extreme detestation and vilification which risks provoking discriminatory activities against that group': Consequently, the charge cannot be sustained.
67. Regarding charge 2, given the absence of discriminatory language based on race, we are unable to see how that charge can also be sustained.
The verdict
68. In the premise, it is our considered view that with respect to the two main charges, all twelve leaners are "NOT GUILTY".
69. A discussion of charge 3 would have become apposite if there was a finding of guilt on either of the first two charges. As a result, our finding renders it obsolete.
Conclusion
70. We accept that learners were not guilty of the alleged misconduct. We acknowledge, however, that there is a high level of mistrust amongst the learners at the PHSG.
1 Varoufakis Yanis: Adults in the room (2017) Pg 50
2 Bundle A - Pages 1 to 29
3 This was an additional charge for prefects only
4 This was relevant only those students who were prefects
5 Bundle B- Page 25 Para 45
6 Bundle B - Page 25 Para 46
7 Bundle B - Page 1
8 M Budeli: Understanding The Right To Freedom Of Association At The Workplace: Components And Scope
9I996(4)BCLR449; 1996(2)SA 751
10 At Para 73
11 Minister of Justice and Constitutional Development and Others v Prince (Clarke and Others Intervening); National Director of Public Prosecutions and Others v Rubin; National Director of Public Prosecutions and Others v Acton 2018 (6) SA 393 (CC); 2019 (I) SACR 14 (CC) (18 September 2018) Para 46
12 Qwelani v SA Human Rights Commission 2021 (6) SA 579 (CC) Para 54
13 2009 (4) SA 399 (SCA) Para 39
14 Para 39
15 [2024] ZASCA 82 (28 May 2024)
16 Para 54
17 Ibid
