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Tukuafu v Kingdom of Tonga [1999] TongaLawRp 13; [1999] Tonga LR 60 (7 April 1999)

IN THE SUPREME COURT OF TONGA
Supreme Court, Nuku’alofa

C 1023/98

Tukuafu

v

Kingdom of Tonga

Finnigan J
25 March 1999; 7 April 1999

Administrative law — suspension of school pupil — natural justice — requirements fully met
Administrative law — ultra vires — suspension of school pupil — principal had no power to suspend

On 22 June 1998 the principal of Tonga High School, Mrs Maka the second defendant, had reason to believe young girls had been consuming alcohol on the school premises during school hours. In the school rules this was classified among the most serious offences. For such offences the penalty prescribed was at the discretion of the principal and the Education Department. For less serious offences upon repetition the rules prescribed suspension, so suspension was one of the options open to the principal. One of the young girls was Salome Tukuafu, aged 14, the applicant (by her next friend, her father). Mrs Maka instituted inquiries and interviewed Salome and a number of students who gave information. After consulting the Deputy Director of Education, who expressed the view that, to be effective, any punishment should be immediate (the practice being that, for serious offences such as drinking alcohol, a suspension was usually immediate), Mrs Maka decided on Monday 29 June that Salome should be suspended from the school for a period. Salome’s father believed that his daughter drank the alcohol unknowingly. However, Mrs Maka made further investigations, which satisfied her that what she had originally concluded was in fact correct — that Salome “did drink and she did it knowingly”. Salome was suspended for three weeks and served her suspension. Salome sought a declaration that the suspension was invalid as being ultra vires, or that the decision to impose it was made in breach of the rules of natural justice.

Held:

1. The applicant had been free to approach the second defendant, and had done so in order to say what she had to say. She had been given as well the opportunity of having her father present so that he could hear, assess, and question the evidence upon which the second defendant had reached her decision to suspend. The second defendant could not have done more to involve the father in the process. There was no breach of the rules of natural justice.

2. The suspension was the act of the principal.

3. The power to suspend was delegated to the deputy director and he could not delegate it (the maxim delegatus non potest delegare applies). The Principal exercised the power and so acted outside her powers; the deputy director did not exercise his powers.