The teacher/pupil relationship is not a topic that is adequately explored and discussed among the relevant stakeholders, given the events of recent years.
According to senior associate at law firm Adams & Adams, Mthokozisi Maphumulo, one would expect such a topic to be visited regularly in view of the rising number of abusive and bullying incidents between teachers and learners.
He said most recently between, February 2022 and March 2022, there had been a few reports of incidents where the teacher/pupil relationship had been abused. One such incident happened in the Free State where the teacher has now been dismissed for sexual assault, having hugged and kissed a learner while on duty.
The facts of this incident present an extremely different abuse of such a relationship, as most usually involve violence. Nonetheless, such behaviour does constitute abuse of a teacher–learner relationship. Another most recent incident occurred, again, in the Free State.
A teacher violently pushed a learner which has resulted in the suspension of the teacher. In the Eastern Cape, a former school principal has been struck off the educators’ register following an incident where he forced a pupil to search for the phone in a pit toilet.
In light thereof, it is perhaps opportune to briefly touch on the nature of this relationship and what the legal parameters are. Importantly, it is also necessary to define what are the legal implications of having that relationship abused.
“In this regard, one has to consider both legal recourse in civil and criminal law. It must be borne in mind that an abuse of such a relationship is not always by teachers but, also, by learners. It is not nowadays uncommon to see videos on social media where teachers are being abused, ridiculed, and embarrassed by learners. It is therefore also imperative to consider what is the legal recourse in that regard,” Maphumulo said.
The relationship between learners and teachers is regulated, directly and indirectly, by various instruments. Firstly, there is the Constitution of the Republic of South Africa, 1996. Then there is a Schools Act, and there are well-established legal principles in terms of the common law, etc. In addition, Children’s Act does find application in this regard.
One may further add schools code of conduct, public policy (i.e., what the legal convictions of society would regard as appropriate behaviour), and so on. The principles, from all these instruments, are aligned and the overriding principle is to safeguard “the best interests of the child.”
An applicable legal recourse will be strictly determined by the facts and the circumstances of the relevant incident. In the first incident mentioned above, where a teacher hugged and kissed the learner, one may argue that, in criminal law, there is a possibility of charges for sexual assault, and compelled sexual assault.
Maphumulo said a remedy in civil law may be a claim for shock – psychologically and emotionally. In relation to the second example, in criminal law, there may be charges for assault with an intention to cause serious bodily harm, assault, etc.
Depending on the severity and seriousness, there may even be room to argue for attempted murder. In civil law, again dependent on the seriousness of the injuries, there may be a claim for general damages, past and future medical expenses, future loss of earnings/loss of earning capacity. In the third example, in criminal law one may consider laying charges for crimen injuria, intimidation and harassment, etc. In civil law, a claim for heads of damages stipulated above may be applicable in this regard, Maphumulo said.
“Similar legal recourse is equally applicable where the teacher is on the receiving end of abuse and bullying. Whether a particular form of conduct between a learner and a teacher breaches the legal parameters or falls within appropriate behaviour will be dictated by the nature, context and assessment of the overall circumstances of that particular conduct,” Maphumulo said.
In most cases where there is alleged abusive conduct, the legal convictions of society are usually employed and, where such conduct is found to be in breach of the said convictions, the conduct is deemed to be contra bonos mores, or against good morals.
Given the frequency of such incidents, it is necessary that this topic is regularly and adequately addressed. This will not only raise awareness on an ongoing basis, it will also enlighten all the relevant stakeholders on what the applicable laws are, and how to go about seeking assistance where breach of a teacher/learner relationship has been overridden.