Mila Harding is a legal researcher at SECTION27.
This Youth Day marks 45 years since the Soweto Youth Uprising. On 16 June 1976, an estimated 20,000 black student protestors in Soweto took to the streets to protest the oppressive, discriminatory education system imposed on them by the apartheid government. In response, the police killed at least 176 of the learners and injured many more. We commemorate Youth Day every year to honour the students who fought against the systemic injustice, violence, and discrimination of the education system at the time. However, this Youth Day, it is worth remembering that violence against children in South African schools has not yet ended. Corporal punishment is a crime, amounting to assault. It infringes children’s rights to dignity and freedom from violence. However, corporal punishment in schools is still widely practised by educators across the country.
Part of the reason for the continued use of corporal punishment by educators in South Africa is that those responsible for ensuring that there are real consequences for teachers who use corporal punishment do not seem to be taking corporal punishment sufficiently seriously. In this regard, the sentencing guidelines adopted by the South African Council of Educators (Sace) appears to have allowed for overly lenient sentences to be imposed on teachers found guilty of using corporal punishment.
SECTION27 is representing the Centre for Child Law and the parents of two children who were subjected to corporal punishment by their teachers in a case against Sace. The litigation was spurred by two separate instances of corporal punishment committed by teachers, in terms of which both teachers received shockingly lenient sentences from Sace. In the first instance, a teacher was charged with hitting two Grade 2 learners over the head with a PVC pipe, causing physical and psychological harm. After the incident, the teacher went on to intimidate one of the victims to try to prevent the child from reporting the incident. In the second instance, a teacher struck a Grade 5 learner across the face, causing the child to bleed from the ear. The learner subsequently needed to attend a number of medical appointments, resulting in the learner having to miss school and eventually needing to repeat the Grade.
Both of the above teachers were given identical sentences from Sace. They were fined R15,000, R10,000 of which was suspended on the condition that the teachers were not found guilty of another contravention of Sace’s Code of Ethics. Further, the teachers received another suspended sentence of having their names struck off of the teachers roll for ten years. Their names would thus actually only be struck off of the roll if they were to be found guilty of perpetrating corporal punishment or some other contravention of Sace’s Code of Ethics in future. The children who were subjected to corporal punishment and their parents were not given any meaningful opportunity to make submissions regarding the sentences.
During the course of this litigation, SECTION27 obtained further documentation from Sace, which indicates that that offence of corporal punishment, which is a breach of Sace’s Code of Ethics for educators, was not taken sufficiently seriously by Sace. The sentences that were imposed on the above teachers are those set out for corporal punishment in a “Mandatory Sanctions” document. This document is constitutionally flawed. It contradicts the best interests of the child principle set out in section 28(2) of the Constitution, which holds that children’s interests are of paramount importance in all matters concerning them. An example of this is that the prescribed sanction for teachers found guilty of consuming alcohol on school premises was harsher than the prescribed sanction for teachers found guilty of assaulting learners. For drinking alcohol on school premises, a teachers name would be struck off the roll for ten years, without any provision for the sanction to be suspended. On the other hand, when a teacher has assaulted a learner, that teacher’s sentence could be fully suspended, which would allow the teacher to remain in close proximity with learners.
The nature and severity of the assaults were not set out as a necessary consideration for sanctioning teachers in the Mandatory Sanctions document. Further, the document made no provision for rehabilitative measures for teachers for misconduct. Teachers would simply receive a suspended sentence, meaning that they would be allowed to continue teaching, without any type of anger management course or counselling. This means that the root cause of the teachers’ violent behaviour would not have been addressed, potentially exposing more children to violence.
A further deficiency of the Mandatory Sanctions document was that it made no provision for the victims of corporal punishment or their parents to make representations regarding the sanctions imposed on the teachers in plea and sentence agreements. This violates the principle, as set out in section 10 of the Children’s Act, that where children are of sufficient age and maturity, they have the right to participate in matters concerning them, and due regard must be given to their views.
Representations from victims are necessary for plea and sentence agreements to be just. This is recognised in criminal law, in terms of which prosecutors must allow victims the opportunity to make representations regarding the content of plea and sentence agreements. The only time this requirement can be dispensed with is where allowing such representations will delay proceedings to the extent that substantial prejudice could be caused to the prosecutor, the accused, the complainant, or the complainant’s representative, and would affect the administration of justice.
In June 2020, Sace adopted revised mandatory sanctions. However, the revised mandatory sanctions document is still constitutionally deficient. The revised mandatory sanctions document does not make provision for rehabilitative or corrective sanctions for teachers. One reason that some teachers still use corporal punishment seems to be that they still believe that corporal punishment is an acceptable form of discipline. To be clear, corporal punishment is not an acceptable form of discipline. Research has shown that it is both ineffective and linked to a number of adverse developmental outcomes for children. Therefore, it could be valuable for courses on alternative forms of discipline, counselling for teachers with anger management issues, or other rehabilitative sanctions to be imposed on teachers who have used less severe forms of corporal punishment. Teaching educators about positive discipline and addressing the root causes of their use of corporal punishment may act to ensure that this behaviour does not continue or escalate in future.
A further issue with the revised mandatory sanctions document is that, while it does set out some “guiding principles” for sentencing teachers (such as protecting the general public and maintaining professional standards), none of the guiding principles mention the rights of learners or the paramountcy of their best interests, as set out in the Constitution. Sace has a responsibility towards learners to ensure that they are safe with the people educating them and that their best interests are always considered. This cannot be done if the rights of children are not considered when sanctioning teachers.
Finally, the need for representations to be made from children and their parents is still not a requirement in the revised mandatory sanctions. Yanghee Lee and Jean Zermatten, both former Chairs of the UN Committee on the Rights of the Child, have written:
“Time and again, experience shows that children — even very young children — given the time and opportunity, demonstrate not only that they have views, experiences and perspectives to express, but that their expression can contribute positively to decisions that affect the realisation of their rights and wellbeing.”
This sentiment derives even more significance when remembering the children who fought for their voices to be heard on 16 June 1976. The experiences and views of children matter, and it should go without saying that children should be given the chance to articulate their views in the disciplinary hearings of the teachers who have assaulted them.
In light of the above, SECTION27 is approaching the court for an order directing Sace to reconsider the sanctions imposed on the two teachers who committed corporal punishment. Further, SECTION27 is seeking an order directing Sace to fix their sentencing practices by reformulating their mandatory sanctions. When reformulating their mandatory sanctions, Sace should follow a child-centred approach, allowing the victims of corporal punishment and their parents a meaningful opportunity to make representations throughout the process. Sace should also include rehabilitative measures as a potential sanction for acts of misconduct by teachers. In any disciplinary hearing for a teacher who has made use of corporal punishment, Sace should be guided by the best interests of the child principle and recognise the important role that Sace plays in upholding children’s rights. This should include the deregistering of teachers who have committed serious assault against learners.
Because Sace has been applying mandatory sentences for teachers without considering the rights of children or hearing their or their parents views, educators have likely been systematically receiving overly lenient sentences. To adequately perform its function of upholding the teaching profession and, by extension, protecting the best interests of learners, corporal punishment needs be to taken more seriously. In light of Youth Day, it is time Sace works towards better addressing the issues it has regarding its sentencing practises, which have likely allowed abusive teachers to continue teaching without appropriate intervention. DM/MC
Mila Harding is a legal researcher at SECTION27.
"All men by nature desire to know" ~ Aristotle
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