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SEARCH AND SEIZURE POLICY

I. SEARCH AND SEIZURE

 

GUIDELINES FOR RANDOM SEARCH AND SEIZURE AND DRUG TESTING AT SCHOOLS IN TERMS OF THE SOUTH AFRICAN SCHOOLS ACT 84 OF 1996 (Section 8A)

  1. RANDOM SEARCH AND SEIZURE
  1. In terms of section 8A of The South African Schools Act 84 of 1996 the Principal or his or her delegate may
  1. Search any learner/group of learners , or the property of any learner/group of learners, 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; and
  2. Seize any dangerous object, alcoholic liquor or illegal drug found during the search.
  1. The following may be an indication of the presence of dangerous objects, alcoholic liquor and illegal drugs at a school:
  2. Whistle-blowers informing the principal about their presence;
  3. Reports from parents;
  4. Traces of alcoholic liquor and illegal drugs on the school premises;
  5. Threats of the use of dangerous objects against other learners or any other person;
  6. Injury as a result of the use of such dangerous objects; and
  7. Any other reasonable indication.
  8. When the search is conducted the following should be considered:
  1. The best interest of the learners in question or of any other learner at the school or any other person.
  2. The safety and health of the learners in question or of any other learner at the school or any other person.
  3. Reasonable evidence of illegal activity.
  4. All relevant evidence received.
    1. Where such a search entails a body search of the learner(s) in question, such a search may be conducted only
  1. By the principal, if he or she is of the same gender as the learner;
  2. By the principal’s delegate, who must be of the same gender as the learner;
  3. In a private area; and
  4. In the presence only of an adult witness, of the same gender as the learner.
  5. The object or drug found on the learner or in his or her property should be photographed whenever practical to do so.
  6. 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.
  1. Where there is a suspicion that learners have dangerous objects, alcoholic liquor or illegal drugs in their school bags and desks, the random search and seizure must be directed at the learners' school bags and desks only and may not be extended to their bodies.
  2. Where there is a suspicion that learners are carrying dangerous objects, alcoholic liquor or illegal drugs in their pockets or elsewhere in their clothing, only their clothing and pockets may be searched.
  3. 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 desks of the group of learners.
  4. If nothing is found in the school bags and desks, the search may be directed at the clothes and body.

 

  1. PRACTICAL STEPS FOR A SEARCH AND SEIZURE
  1. If learners' clothes and/or school bags are to be searched, the search must be conducted in an empty and clean space, and each learner must have his or her own school bag(s) with him or her.
  2. Where possible, a witness must be present for each learner who is to be searched.
  3. While the learner is awaiting his or her turn to be searched, the witness must observe the behaviour of the learner.
  4. The learner and the witness must be escorted into the principal's office or a designated classroom (out of sight of other learners), and the learner must be requested to reveal any dangerous object, alcoholic liquor or illegal drug in his or her possession.
  5. If the learner does not at this point voluntarily hand over any dangerous object, alcoholic liquor or illegal drug in his or her possession, he or she must be requested to empty his or her pockets (jacket, trousers or skirt) and school bag or sports bag.
  6. The person conducting the search must do a superficial body search, that is, he or she must frisk the learner. Under no circumstances may a learner's private parts be touched.
  7. s a last resort, the learner must be requested to strip down to his or her underwear, and then the clothes handed over must be searched for suspicious objects.
  1. If, at this point, it is suspected that the learner has swallowed a suspicious object, it is advisable for the matter to be handed over directly to the police.
  1. TIME OF SEARCH
  1. When the possession of a dangerous object, alcoholic liquor or illegal drug is suspected, it is best to conduct the search as soon as the information becomes available.
  2. The search must be conducted in an orderly manner and evidence must be recorded.
  3. Only those classes targeted should be disrupted, especially where it is feasible to plan ahead, for example, where information has been received that learners will bring dangerous objects, alcoholic liquor and illegal drugs to school the next morning.
  4. Ensure that the search and seizure is conducted effectively, timeously and at a reasonable time, so as not to allow the learners the opportunity to use dangerous objects, alcoholic liquor or illegal drugs.
  1. DELEGATION IN CASE THE PRINCIPAL IS NOT AVAILABLE
  1. Two persons, one female and one male, must be delegated to perform the search and seizure function in case the principal is not available. The names of these persons, to whom authority has been delegated, must be reflected in a log book and must be known at all times, so that there will be certainty about whose responsibility it is to act in the principal's absence. The following is an example of the delegation, which must be in writing:

“I,         , principal of  (name of school), hereby authorise X (female educator's name) and Y (male educator's name) to be responsible for search and seizure in my absence. I hereby delegate to X and Y the same authority that I as principal have, and he or she may give instructions about a search, and conduct a search and seizure on my behalf. "

  1. The delegated persons must have insight into the process of search and seizure. No formal training is needed; reading these guidelines is sufficient. If the delegated person is uncertain about any part of the search and seizure procedure, he or she must, before conducting the search and seizure, again read the guidelines to ensure that he or she knows exactly how to conduct the search and seizure. A copy of these guidelines must be available at the principal's office at all times.
  2. If the principal will be away for an extended period, the formal acting appointee in his or her place will have the same authority to delegate as the principal.
  3. lf the principal will be absent for a short period, he or she must, before leaving, identify the person delegated (who may be permanently appointed as delegate), so that it is known who the Principal's delegate is as far as searches and seizures are concerned.
  4. If the principal does not identify a delegate before he or she leaves the school premises, he or she may do so, and may instruct such delegated person, by telephone or digital device. Such delegations made and instructions given must be written down by the delegate in a logbook at the school.
  5. A search and seizure operation cannot be cancelled or postponed because the principal is not available.
  1. HOW TO DEAL WITH A LEARNER WHO IS UNWILLING TO BE SEARCHED IN TERMS OF SECTION 8A OF THE ACT:
    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.
    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 conducted in terms of section 8A of the Act, where the outcome is linked to an internal disciplinary process, –
    3. The parent may be given a reasonable opportunity to come to the school and to instruct the learner to co-operate;
    4. The parent may also give such instruction to the learner and to the principal over the telephone or digital device;
    5. A witness must be with the learner while such a conversation takes place; and
    6. It is vitally important that the principal communicates with the parent and that the principal explains the basis for the search and seizure according to the provisions of section 8A of the Act.
    7. If either the learner or the parent refuses to co-operate, the matter, and the learner, must be handed over to the police, so that they may conduct a search and seizure in terms of the Criminal Procedure Act. The outcome of such a search and seizure is linked to a Criminal Court Process, with possible criminal prosecution.
  1. SEIZURE OF DANGEROUS OBJECTS, ALCOHOLIC LIQUOR AND ILLEGAL DRUGS
  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.
  2. Any dangerous object, alcoholic liquor or illegal drug that has been seized shall be
  1. Clearly and correctly labelled with full particulars, including
  1. Where it was found and, if applicable, the name of the learner in whose possession it was found;
  2. The time and date of search and seizure;
  3. An incident reference number;
  4. The name of the person who conducted the search;
  5. The name of the member of staff in whose presence the search was conducted, where applicable; and
  6. Any other details that may be necessary to identify the item and incident.
  1. Recorded in the school record book; and
  2. Handed over to a member of the South African Police Service immediately to dispose of it in terms of section 31 of the Criminal Procedure Act, 1977 (Act 51 of 1977).
  1. 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
  2. Take the dangerous object, alcoholic liquor or illegal drug to the nearest police station; and
  3. 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.
  1. The police officer who receives the dangerous object, alcoholic liquor or illegal drug shall issue an official receipt to the principal or delegate.
  1. TESTING FOR ALCOHOLIC LIQUOR AND ILLEGAL DRUG
  1. Prohibition of Illegal Substances on School Premises

Unless authorised by the principal for legitimate educational purposes, no person may bring alcoholic liquor or illegal drugs onto school premises or have in his or her possession any alcoholic liquor or illegal drug on school premises or during any school activity.

  1. Legal Grounds for Administering a Test for Illegal Substances

Section 8A(8) of the Act determines that the principal or his or her delegate may at random administer a urine test or other non-invasive test to any learner/group of learners if the principal has reasonable ground for suspecting that the learner

 

  1. Is in possession of or using alcoholic liquor or illegal drugs; or
  2. Is under the influence of alcoholic liquor or illegal drugs, during school hours or at a school activity.
  1. Procedure to be Followed When Testing for Illegal Substances
  1. A learner contemplated in paragraph 7.2 may be subjected to a urine test or other non-invasive test, as stipulated in section 8A(9), for alcoholic liquor or illegal drugs only if
  1. The test is conducted by a person of the same gender as the learner;
  2. It is done in a private area;
  3. One adult witness, of the same gender as the learner, is present;
  4. The sample is clearly and correctly labelled with full particulars as contemplated in   paragraph 6.2 with the necessary changes; and
  5. A device contemplated in section 8A (11) of the South African Schools Act    is used.
  1. Any 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
  1. The name of the learner in whose possession it was found or whose sample was taken;
  2. The time and date of search and seizure or sample taken;
  3. An incident reference number;
  4. The name of the person who searched or tested the learner;
  5. The name of the witness; and
  6. Any other details that may be necessary to identify the item and the incident.
  1. All the details must be recorded in the school record book.
  1. APPROVED DEVICES FOR ILLEGAL DRUGS AND ALCOHOLIC LIQUOR TESTING
  1. Identification and Publication of Drug Testing Devices
    1. The National Education Minister, has in terms of section 8A(11) of the South African Schools Act, selected devices to be used for drug testing and procedures to be followed.
    2. The Minister has selected ten (10) devices for use in this regard and has published this list in the Government Gazette(31419: 19 September 2008).
  1. A school may use any one of the devices from the list.
  1. The following is the list of devices for this purpose:
  2. Drug Detective Wipe Detection System for Surfaces;
  3. One Step Home Cocaine Test Strip; Multi-drug Test;
  4. Quicktox Drug Screen Discard Test;
  5. Monitect Drug Screen Cassette Test;
  6. Toxcup Drug Screen Cup Test;
  7. Multipanel Drug Testing Device;
  8. Smart Check Drug Screen Test;
  9. Drug Smart Cup; and
  10. Avitar Oral Screen 4 or Drugometer.
  1. For the purpose of alcohol testing, an SABS approved instrument can be used or, with the permission of the parent, a blood test at an accredited medical facility.
  1. The Device
  1. The testing kit must be opened in the presence of the learner who is to be tested.
  2. A learner who is to be tested must first be asked if he or she has taken any medicinal substance.
  3. The test must be conducted
  1. By a person of the same gender as the learner;
  2. In the presence of an adult witness of the same gender as the learner; and
  3. Away from the presence of other learners and individuals.
    1. The person conducting the test must wear latex gloves.
    2. The package insert of each device indicates how the result of that test is to be conducted and interpreted.
    3. The information contained in the packet insert must be read by the principal or his delegate in the presence of the learner before the test is conducted.
    4. The test must be conducted as prescribed in the package insert.
  1. NOTICE TO PARENTS AND DISCIPLINARY PROCEEDINGS
  1. The Principal or her/his delegate must
  1. Within one working day, if practicable, inform the parent concerned that a random test or search and seizure was done in respect of the learner; and
  2. Inform the learner and his or her parent of the result of the test immediately after it becomes available.
  1. Disciplinary Proceedings in Terms of Section 8A(13) of the Act
  1. Once a learner has tested positive for alcoholic liquor or illegal drugs the principal or his or her delegate shall discuss the results with the relevant parent, and the latter shall be appraised of the dangers and consequences of alcohol and drug abuse.
  2. It shall further be brought to the attention of the parent concerned that there are rehabilitation centres and institutions to which the learner can be referred at the request and consent of the parent.
  3. The principal or his or her delegate may subject the learner concerned or group of learners to disciplinary proceedings for the possession of dangerous objects, alcoholic liquor or illegal drugs and for testing positive in an alcohol or a drug test conducted in terms of this guideline.
  4. However, no criminal proceedings may be instituted by the school against a learner or group of learners.
  5. Where disciplinary proceedings are instituted in respect of a learner, such disciplinary proceedings shall be conducted in terms of the Schools Code of Conduct.