In raising its concerns about corporal punishment being rife in schools, the Supreme Court of Appeal held that the South African Council for Educators (SACE) committed a material error of law by not considering placing rehabilitative and corrective sanctions on two teachers who assaulted pupils.
It also concluded that SACE should have heard the voices of the parents and the children before it punished the teachers.
The teachers, who meted out corporal punishment against two primary school pupils in the classroom, received lenient sanctions from SACE. The sanctions were based on its internal “mandatory sanctions policy”.
SACE fined the teachers R15 000 each, of which R5 000 was suspended. The sanction also included striking the names of the teachers off the educators’ roll, which was also suspended for 10 years.
The Centre for Child Law and the mothers of the children earlier asked the high court to order that SACE revise its mandatory sanctions policy and include important elements in it, such as rehabilitative and corrective sanctions, for example, anger management, to uphold the principle of the best interests of the child.
It also asked that SACE include a more child-centred approach which would allow pupils and their parents to make representations and participate in the disciplinary hearings.
The court dismissed the review application on technical grounds but agreed that SACE’s internal policy be revised.
But the Centre for Child Law and the mothers said that was not enough.
They turned to the SCA to have another look at corporal punishment in schools. In one case, an educator assaulted a Grade 2 pupil with a piece of PVC pipe. In the other incident, an educator hit her on the head.
The mothers and the children were invited to attend the disciplinary hearings but were made to wait in a separate room at the SACE office. They were neither afforded an opportunity to present evidence nor make representations, nor were they consulted about the sanctions imposed.
They were subsequently merely notified that the teachers had pleaded guilty and the sanctions that had been imposed.
Acting Judge of the SCA, Ronel Tolmay, in a concurring judgment, said the South African Schools Act outlawed corporal punishment and that by doing so, ensured that no child should be subjected to any form of physical violence in the school environment.
“This legislative prohibition should have been the end of any notion that an educator is allowed or justified to use any form of physical violence against a learner. Sadly, as illustrated by the incidents that form the subject matter of this case and the expert evidence provided by the amicus, corporal punishment is still rife in the school environment,” she said.
“It is imperative that educators not only be prohibited to resort to physical violence as a form of discipline, but also be assisted to develop the necessary skills to discipline appropriately and with the required measure of personal control.
“It is by example that children are taught to navigate a complex conflict-ridden world, without resorting to violence as a solution,” she said.
SACE said its 2016 mandatory sanctions were prescriptive in how to deal with situations such as the two teachers who had assaulted the children.
Following the high court order, it revised and replaced the mandatory sanctions.
But the Centre for Child Law on appeal said, however, it suffered from certain impediments.
Judge Tolmay said that to merely impose a sanction without addressing the root cause of the problem was counter-productive.
Sanctions should protect the best interests of the child and assist the educator in developing the appropriate skills to function appropriately in the workplace.
She said the review should have been granted as the decisions taken under the 2016 mandatory sanctions were illegal and stood to be reviewed and set aside.
SACE argued that the matter was moot, as the teachers had served their punishment.
It was argued that the court should not remit the matter as it would result in the educators being punished twice for the same transgressions.
Judge Tolmay said that if the matter was remitted on a limited basis to address the educators’ apparent inability to act appropriately and to ensure no further unconscionable conduct on their part, there would be no prejudice towards them.
“On the contrary, they can only benefit if the sanctions are rehabilitative in nature.”
Cape Times