POLICY ON DRUGS, SEARCH AND SEIZURE – South Peninsula High School

POLICY GOVERNING RANDOM SEARCH AND SEIZURE, AND TESTING FOR ALCOHOLIC LIQUOR AND ILLEGAL DRUGS AT SOUTH PENINSULA HIGH SCHOOL

This policy is governed by the document entitled ‘WCED Guideline for Random Search and Seizure and Alcoholic Liquor and Illegal Drug Testing at Public Schools – 2011’: GUIDELINES FOR RANDOM SEARCH AND SEIZURE, AND TESTING FOR ALCOHOLIC LIQUOR AND ILLEGAL DRUGS, AT PUBLIC SCHOOLS IN THE WESTERN CAPE PROVINCE IN TERMS OF SECTION 45A OF THE WESTERN CAPE PROVINCIAL SCHOOL EDUCATION ACT, 1997 (ACT 12 OF 1997)

CONTENTS

1. DEFINITIONS AND ABBREVIATIONS

2. INTRODUCTION

2.1 Purpose of Policy

2.2 Scope and Application of Policy

3. LEGISLATIVE FRAMEWORK

4. CONTEXT

5. RANDOM SEARCH AND SEIZURE

5.1 The Principal

5.2 Procedure for Random Search and Seizure

5.3 Delegation of Authority Owing to Unavailability of Principal

5.4 Dealing with a Learner who is Unwilling to be Searched

5.5 Seizure of Dangerous Objects, Alcoholic Liquor and Illegal Drugs

6. TESTING FOR ALCOHOLIC LIQUOR AND ILLEGAL DRUGS

6.1 Prohibition of Illegal Substances on School Premises

6.2 Legal Grounds to Administer Testing for Illegal Substances

6.3 Procedure to Administer Testing for Illegal Substances

6.4 Procedure for Alcohol and Drug Testing

6.4.1 Identification and Publication of Drug Testing Devices

6.4.2 Alcohol Testing

7. RECORDING OF INFORMATION AND DISPOSAL OF DANGEROUS OBJECTS,

ALCOHOLIC LIQUOR, ILLEGAL DRUGS AND URINE SAMPLES

8. NOTICE TO PARENTS AND DISCIPLINARY PROCEEDINGS

8.1 Notice to Parents

8.2 Disciplinary Proceedings

9. DISPUTING TEST RESULTS

10. DATE OF COMMENCEMENT

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1. DEFINITIONS

In these Guidelines, unless the context indicates otherwise – ‘alcoholic liquor’ means –

(a) any unlawful substance that has a psychological or physiological effect; or

(b) any substance having such effect that is possessed unlawfully, or

‘Constitution’ means the Constitution of the Republic of South Africa, (Act 108 of 1996);

‘dangerous object’ means –

(a) any explosive material or device;

(b) any firearm or gas weapon;

(c) any article, object or instrument that may be employed to cause bodily harm to a person or damage to property, or to render a person temporarily paralysed or unconscious; or

(d) any object that –

(i) the National Minister declares to be a dangerous object under the South African Schools Act for the purposes of that Act; or

(ii) the Provincial Minister declares by notice in the Provincial Gazette, to be a dangerous object for the purposes of the

Act;

‘digital device’ means any mobile device used to make phone calls or send messages by using signals or information represented as digits;

‘educator’ means an educator as defined in the Employment of Educators Act, 1998 (Act 76 of 1998);

‘Head of Department’ means the head of the Western Cape Education Department;

‘illegal drug’ means any drug as defined in the Drugs and Drug Trafficking Act, 1992 (Act 140 of 1992), that is used or possessed in contravention of section 4 of that Act;

‘learner’ means any person receiving education or obliged to receive education in terms of the Act;

‘officer’ means the employee of the Western Cape Education Department appointed in terms of the Employment of Educators Act, 1998 (Act 76 of 1998)(Proclamation 138 of 1994), or the Public Service Act, (Proclamation 103 of 1994);

‘parent’ means –

(a) the parent or guardian of a learner;

(b) the person legally entitled to custody of a learner;

(c) the person who undertakes to fulfil the obligations of a person referred to in paragraphs (a) and (b) towards the learner’s education at school;

‘principal’ means an educator appointed or acting as the head of a school;

‘Provincial Minister’ means the Provincial Minister responsible for education in the province;

‘school’ means a public school which provides basic education;

‘school activity’ means any educational, cultural, sporting, fundraising or social activity of the school within or outside the premises of the school;

‘supervision’ means the management and control of learners at school or during a school activity;

‘the Act’ means the Western Cape Provincial School Education Act, 1997 (Act 12 of 1997), as amended;

‘Western Cape Education Department’ means the provincial department responsible for education in the province.

ABBREVIATIONS

CPA: Criminal Procedure Act, 1977 (Act 51 of 1977)

HOD: Head of Department of the Western Cape Education Department;

NEPA: National Education Policy Act, 1996 (Act 27 of 1996);

SANCA: South African National Council on Alcoholism and Drug Dependency;

SAPS: South African Police Services;

SASA: South African Schools Act, 1996 (Act 84 of 1996), as amended;

WCED: Western Cape Education Department;

WCP: Western Cape Province;

WCPSEA: Western Cape Provincial School Education Act 1997 (Act 12 of 1997); as amended.

2. INTRODUCTION

2.1 Purpose of Policy.

To provide South Peninsula High School with standardised procedures to conduct random search and seizure and alcoholic liquor and illegal drug testing at the school and applies to all learners of South Peninsula High School.

2.2 Scope and Application of Policy.

2.2.1 The Constitution of the Republic of South Africa, 1996, provides for a Bill of Rights. The following rights are relevant to random search and seizure and Alcoholic liquor and illegal drug testing at schools:

(i) Human dignity (section 10)

Everyone has inherent dignity and the right to have their dignity respected and protected.

(ii) Privacy (section 14)

Everyone has the right to privacy, which includes the right not to have –

(a) Their person or home searched;

(b) Their property searched;

(c) Their possessions searched; or

(d) The privacy of their communications infringed.

2.2.2 Random search and seizure and alcoholic liquor and illegal drug testing obviously would infringe on these rights. However, the Constitution itself provides that no right is absolute, given that any right in the Bill of Rights may be limited in terms of section 36(1).

2.2.3 Given that section 45A limits certain rights conferred in the Bill of Rights, it must be implemented with due regard to human dignity, privacy and the right to property of the learner concerned.

2.2.4 This Policy, therefore, serves to regulate the application of section 45A of the Act by providing the means by which such measures can be implemented, and the necessary procedures to be employed to achieve the purpose or objective of these legislative provisions in a school environment.

3. LEGISLATIVE FRAMEWORK

Constitution of the Republic of South Africa, 1996 (Act 1 of 1996);

Criminal Procedure Act, 1977 (Act 51 of 1977);

Drugs and Drug Trafficking Act, 1992 (Act 140 of 1992);

National Education Policy Act, 1996 (Act 27 of 1996);

Regulations for Safety Measures for Public Schools;

The South African Schools Act, 1996 (Act 84 of 1996) as amended;

and The Western Cape Provincial School Education Act (Act 12 of 1997) as amended.

4. CONTEXT

The possibility exists that learners in possession of dangerous objects or alcoholic liquor or illegal drugs on our school grounds may cause serious psychological damage or physiological injury to others. This policy of search and seizure and alcoholic liquor and illegal drug testing is adopted by South Peninsula High School and sets down strict procedures by which random searches should be carried out by principals or their delegates at schools, to protect the rights and dignity of learners, even if they have transgressed. The intention of this policy is also to stem incidents of violence and use of illegal substances by learners, and to create a safe environment for teaching and learning for all at South Peninsula High School.

5. RANDOM SEARCH AND SEIZURE

5.1 The Principal.

5.1.1 Section 45A of the Act stipulates that, unless authorised by the principal for legitimate educational purposes, no person may bring any dangerous object, alcoholic liquor or illegal drugs onto school premises or have in his or her possession any dangerous object, alcoholic liquor or illegal drug(s) during any school activity on or off school premises.

5.1.2 The principal may, for educational purposes, authorize the presence on the school premises of dangerous objects, such as pairs of scissors, needles and knives, for legitimate educational purposes, and of medicines prescribed by a doctor. However, all these objects must only be used under supervision.

5.2 Procedure for Random Search and Seizure.

5.2.1 In terms of section 45A(2)(a) of the Act, the principal or his or her delegate may search any learner, or the property of any learner, for any dangerous object, alcoholic liquor or illegal drug, if the principal reasonably suspects the presence of a dangerous object, alcoholic liquor or illegal drug on the school premises or during a school activity. The following may be an indication of the presence of dangerous objects alcoholic liquor and illegal drugs at South Peninsula High School.

(a) Whistle-blowers informing the principal about their presence;

(b) Reports from parents;

(d) Threats of the use of dangerous objects against other learners or any other person;(e) Injury as a result of the use of such dangerous objects; and

(f) Any other reasonable indication.

5.2.2 (a) Where there is a suspicion that learners have dangerous objects or alcoholic liquor or illegal drugs, in their school bags or lockers, the random search will be directed at the learners’ school bags and lockers only and may not be extended to their bodies.

(b) Where there is a suspicion that learners are carrying dangerous objects or alcoholic liquor or illegal drugs in their pockets or elsewhere in their clothing, only their clothing and pockets may be searched, and not their property (such as school bags and lockers).

(c) (i) If there is doubt about where the dangerous objects, alcoholic liquor and/or illegal drugs are hidden, the search must initially be directed at the belongings, such as school bags and lockers, of the learners.

(ii) If nothing is found in the school bags and lockers, the search may be directed at the clothes and body only.

5.2.3 Section 45A(4) of the Act stipulates that where a search contemplated in paragraph 5.2.1 entails the body search of any learner, the person searching the learner—

(a) may not require the learner to remove any clothing other than outer clothing;

(b) shall be of the same gender as the learner; and

(c) may carry out the search only in the presence of another member of staff who is also of the same gender as the learner.

5.2.4 The search must be conducted in a private area.

5.2.5 The search must not be extended to a search of any body cavity of the learner, and the learner’s private parts may not be touched.

5.2.6 (a) If, as a result of a search or as a result of reliable information received, or for any other reason, the principal has good reason to believe that any dangerous object, alcoholic liquor or illegal drug is concealed on the body or person of a particular learner, the principal may request a member of the South African Police Services to conduct a more extensive search of that learner’s person, which may entail the removal of clothing in terms of section 45A(5) of the Act.

(b) If it is suspected that the learner has swallowed a suspicious object, the matter must be handed directly over to the police.

(c) The principal or his or her delegate may seize any dangerous object, alcoholic liquor or illegal drug, found during the search in terms of section 45A(2)(b) of the Act.

5.3 Delegation of authority owing to unavailability of principal.

5.3.1 Two educators, one female and one male, have been delegated to perform the search and seizure function in case the principal is not available. These names have been recorded in the log book so that there is certainty about whose responsibility it is to act in the principal’s absence.

5.3.2 A search and seizure operation cannot be cancelled or postponed because the principal is not available.

5.4 Dealing with a learner who is unwilling to be searched in terms of section 45A(5):

5.4.1 If reasonably practicable, the parent should be telephoned or a message should be sent to the parent in some other way to inform the parent that the learner is unwilling to co-operate in a lawful search and seizure procedure as provided for by the Act, and that the learner will be handed over to the police.

5.4.2 If the parent indicates that he or she is willing to participate by instructing the learner to co-operate in a search and seizure that is being conducted in terms of section 45A of the Act and where the outcome is linked to an internal disciplinary process, –

(i) the parent may be given a reasonable opportunity to come to the school and to instruct the learner to co-operate;

(ii) the parent may also give such instruction to the learner and to the principal over the telephone or digital device;

(iii) a witness must be with the learner while such conversation takes place; and

(iv) the principal communicates with the parent and the principal will explain the basis for the search and seizure according to the provisions of section 45A of the Act.

5.4.3 If either the learner or the parent refuses to co-operate, the matter and the learner will be handed over to the police so that they may conduct a search in terms of the Criminal Procedure Act. The outcome of such a search is linked to a Criminal Court Process with the possibility of criminal prosecution.

5.5. Seizure of Dangerous Objects, Alcoholic Liquor and Illegal Drugs

5.5.1 The principal, or his or her delegate or a police officer, may seize any dangerous object or alcoholic liquor or illegal drugs present on a public school premises or on a person on the school premises or at a school activity.

5.5.2 Section 45A(6) of the Act determines that any dangerous object, alcoholic liquor or illegal drug that has been seized shall be —

(a) clearly and correctly labelled with full particulars, including—

(i) where it was found and, if applicable, the name of the learner in whose possession it was found;

(ii) the time and date of search and seizure;

(iii) an incident reference number;

(iv) the name of the person who conducted the search;

(v) the name of the member of staff in whose presence the search was conducted, where applicable; and

(vi) any other details that may be necessary to identify the item and incident;

(b) recorded in the school record book; and

it in terms of section 31 of the Criminal Procedure Act, 1977 (Act 51 of 1977).

5.5.3 Section 45A(7) of the Act determines that, if the police cannot collect the dangerous object, alcoholic liquor or illegal drug from the school immediately, the principal or his or her delegate shall –

(a) take the dangerous object, alcoholic liquor or illegal drug to the nearest police station;

and

(b) hand the dangerous object, alcoholic liquor or illegal drug over to the police to dispose

of it in terms of section 31 of the Criminal Procedure Act, 1977.

5.5.4 Section 45A(8) of the Act determines that the police officer who receives the dangerous

object, alcoholic liquor or illegal drug shall issue an official receipt to the principal or

delegate.

6. TESTING FOR ALCOHOLIC LIQUOR AND ILLEGAL DRUGS

6.1 Prohibition of Illegal Substances on the Premises of South Peninsula High School in terms of section 45A(1) of the Act. Unless authorised by the principal for legitimate educational purposes, no person may bring any dangerous object, alcoholic liquor or illegal drug onto school premises or have in his or her possession any dangerous object, alcoholic liquor or illegal drug, on school premises or during any school activity.

6.2 Legal Grounds to Administer Testing for Illegal Substances.

Sub-section 45A(9) of the Act determines that the principal or his or her delegate may administer a urine or other non-invasive test to any learner if the principal has reasonable ground for suspecting that the learner —

(a) is in possession of or using alcoholic liquor or illegal drugs; or

(b) is under the influence of alcoholic liquor or illegal drugs, during school hours or at a school activity.

6.3 Procedure to Administer Testing for Illegal Substances.

A learner contemplated in paragraph 6.2 may be subjected to a urine or other non-invasive test, as

stipulated in section 45A(10), for alcoholic liquor or illegal drugs only if —

(a) the test is conducted by a person of the same gender as the learner;

(b) it is done in a private area;

(d) the sample is clearly and correctly labelled with full particulars as contemplated in sub-section (6), with the necessary changes; and

(e) a device contemplated in section 8A(11) of the South African Schools Act is used.

6.4 Practical Steps to Alcohol and Drug Testing.

6.4.1 A school may use any one of the devices listed below as stated in the ‘WCED Guidelines for Random Search and Seizure and Alcoholic Liquor and Illegal Drug Testing’.

(i) Drug Detective Wipe Detection System for Surfaces

(ii) One Step Home Cocaine Test Strip

(iii) Multi-drug Test

(iv) Quicktox Drug Screen Discard Test

(v) Monitect Drug Screen Casette Test

(vi) Toxcup Drug Screen Cup Test

(vii) Multipanel Drug Testing Device

(viii) Smart Check Drug Screen Test

(ix) Drug Smart Cup

(x) Avitar Oral Screen 4 or Drugometer.

6.4.2 For the purpose of alcohol testing, a SABS approved instrument can be used or, with the permission of the parent, a blood test may be conducted at an accredited medical facility.

6.4.3 The Device.

6.4.3.1 The testing kit must be opened in the presence of the learner who is to be tested.

6.4.3.2 A learner who is to be tested must first be asked if he or she has taken any medicinal substance.

6.4.3.3 The test must be conducted –

(i) by a person of the same gender;

(ii) in the presence of an adult witness of the same gender as the learner; and

(iii) away from the presence of other learners and individuals.

6.4.4 The person conducting the test must wear latex gloves.

6.4.5 The package insert of each device indicates how the result of that test is to be conducted and interpreted.

6.4.6 The information contained in the packet insert must be read by the principal or his delegate in the presence of a learner before the test is conducted.

6.4.7 The test must be conducted as prescribed in the package insert.

7 RECORDING OF INFORMATION AND DISPOSAL OF DANGEROUS OBJECTS, ALCOHOLIC LIQUOR, ILLEGAL DRUGS AND URINE SAMPLES

7.1 Any dangerous object, alcoholic liquor or illegal drug that has been seized or urine sample that has been tested must be clearly and correctly labelled with full particulars, including

(a) the name of the learner in whose possession it was found or whose sample was taken;

(b) the time and date of search and seizure or sample taken;

(d) the name of the person who searched or tested the learner;

(e) the name of the witness; and

(f) any other details that may be necessary to identify the item and the incident.

7.2 All the details must be recorded in the school record book.

7.3 After the dangerous object, alcoholic liquor or illegal drug has been seized, the principal or his or her delegate may hand the object to either the police or the parent.

7.4 If the object that has been seized is illegal, the principal or his or her delegate is obliged to hand it to the police.

7.5 The principal or his or her delegate must take the object concerned to the nearest police station if the police cannot collect it.

7.6 The police officer who receives the object must issue a receipt to that effect.

8 NOTICE TO PARENTS AND DISCIPLINARY PROCEDURES

8.1 Notice to Parents Section 45A(11) of the Act stipulates that the principal or his or her delegate shall —

(a) within one working day, if practicable, inform the parent of the learner concerned that a test or search and seizure was done in respect of his or her child; and

(b) inform the learner and parent of the result of the test immediately after it becomes available.

If the learner has tested positive for alcoholic liquor or illegal drugs, a discussion must be held with the parent so that he or she may understand the consequences of the use of alcoholic liquor or illegal drugs. The principal may, if the parent so requests, refer the learner to a rehabilitation institution for drug counselling. Only the learner and his or her parents must be informed about the outcome of the alcohol or drug test. The identity of the learner may not be revealed, except to his or her parents.

8.2 Disciplinary Procedures.

8.2.1 In terms of section 45A(12), a person who exercises a power under this section may use such force as is reasonable in the circumstances for exercising that power.

8.2.2 In terms of section 45A(13), a learner may be subjected to disciplinary proceedings if —

(a) The learner is in possession of a dangerous object, alcoholic liquor or an illegal drug during school hours or at a school activity; or

(b) The learner tested positive for alcoholic liquor or an illegal drug in the circumstances described in section 45A(10).

8.2.3 In terms of section 45A(14), any disciplinary proceedings in respect of a learner shall be conducted in terms of the code of conduct contemplated in section 45(1) of the Act. No criminal proceedings may be instituted against this category of learner.

8.2.4 In a case where the learner refused to be searched or tested for alcohol or drugs, the principal or his or her delegate must inform the police, who would take the relevant steps in terms of the Criminal Procedure Act, 1977.

9 DISPUTING TEST RESULTS

9.1 If the result of a test conducted at school is disputed, a secondary test by means of gas chromatography coupled with mass spectrometry (GC/MS) must be done or, in the case of testing for alcohol use, a blood test, to confirm the result.

9.2 These sophisticated tests should be done with the assistance of the Department of Health.

10 DATE OF COMMENCEMENT

This policy is applicable to all learners at South Peninsula High School as from 4 September 2018.

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