OP-ED

Schoolchildren, know your rights

By Tarryn Cooper-Bell, Pila-sande Mkuzo and Asiphe Funda 11 September 2019
Caption
A pupil is hit by a teacher on September 22, 2011 in South Africa. Corporal punishment has long been abolished yet some schools still make use of it. (Photo by Gallo Images / Daily Dispatch / Mark Andrews)

Injustices against schoolchildren are sometimes the result of schools not having adequate capacity and staff not being trained in fair processes. But sometimes there is a blatant disregard for the law.

School disciplinary processes and sanctions can have major effects on the lives and futures of children. There are detailed provisions in law on how disciplinary matters should be handled, yet unlawful practices and violation of children’s rights are perpetuated daily.

The Equal Education Law Centre runs an advice clinic on education-related matters and, in the past six months alone, we have received at least 25 matters related to unlawful disciplinary processes.

In some cases, the injustices are because the schools do not have adequate capacity, or training in fair processes. In others, there is a blatant disregard for the law. Based on the experience of the EELC, there are also gaps in relevant laws that need to be addressed so as to fully protect learners’ rights.

No due process

In one case this year, a Grade 9 pupil, Chuma*, was suspended for fighting at school. According to Chuma, he was attacked by a classmate during a class rotation and acted in self-defence. He was suspended pending a disciplinary hearing.

In terms of the South African Schools Act, school governing bodies may only suspend a learner suspected of serious misconduct as a precautionary measure. This may only be done on reasonable grounds and after the learner has been granted an opportunity to make representations on the matter.

Allowing parties to be heard is especially important in matters concerning children. However, often schools do not make sure this happens. Despite provisions of the Schools Act, schools often suspend pupils as an automatic or default response to misconduct.

In Chuma’s case, the school conducted a minimal investigation into the matter and did not afford him a chance to put his side of the story. This unlawful practice saw Chuma excluded from valuable class time and subjected him to a stigmatising situation. It could have been avoided with due process.

The EELC intervened and helped Chuma to present his version of events to the school, which then allowed him back into class. However, many other learners remain excluded from education due to such unlawful suspensions.

Unlawful expulsions

Expulsion from school is the most severe sanction that can be imposed on a child and has a direct impact on their access to education.

Importantly, schools do not have the power to expel, can only recommend expulsion and can only do so following a disciplinary hearing. It is the head of department (HoD) who decides if someone will be expelled.

Despite the law, many children are expelled without a hearing and without any decision from the HoD.

In one case, Grade 8 learner Lubabalo* was expelled without a hearing and without the HoD even being approached by the school. The EELC intervened by contacting the principal and facilitating a discussion between school and parents, following which Lubabalo returned to the classroom.

More training and oversight of schools is needed to prevent these incidents.

When matters are referred to the HoD, the EELC has noted that the information placed before the official by the school does not always include full submissions by the learner – so the HoD gets a skewed view of events and might make an unfair decision.

It is important for parents and pupils to be aware of their legal rights, but it is equally as important for schools to be able to handle disciplinary processes correctly. DM

Parents, learners and other stakeholders can contact the EELC for advice on disciplinary and other school-related matters by emailing [email protected] or calling 0800 11 07 52.

*Not their real names

Tarryn Cooper-Bell is a supervising attorney at the Equal Education Law Centre. Pila-sande Mkuzo and Asiphe Funda are candidate attorneys at the Equal Education Law Centre.

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