Despite the fact that the practice of corporal punishment has been found to be unconstitutional in three separate Constitutional Court judgments, spanning almost three decades, attempts to enforce the ban in South Africa’s schools continues to be elusive.

In 1995, in S v Williams, the Constitutional Court declared the provision in the Criminal Procedure Act in respect of juvenile whipping to be inconsistent with the values of the Constitution.  

In 2000, in the case of Christian Education South Africa v Minister of Education, the Constitutional Court had to determine whether the prohibition against corporal punishment violated the rights of parents of children in independent schools, who, in line with their religious convictions, had consented to its use. The court acknowledged the rights of parents, but simultaneously found that their rights may be limited in a context where the state has an obligation towards ensuring that children should be free from violence. 

In 2019, in the case of Freedom of Religion v Minister of Justice and Constitutional Development, the Constitutional Court struck down the defence of reasonable chastisement, effectively outlawing corporal punishment even in the home environment

According to the 2019 General Household Survey published by Statistics South Africa, about one million pupils have experienced corporal punishment. This finding is in line with the experience of human rights organisation SECTION27, where numerous complaints of children being beaten at school continue to be received. In general, these complaints are not about mild cases of caning or a slap on the wrist, but frequently involve serious assaults often perpetrated against young and defenceless children.    

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In 2020, SECTION27, acting on behalf of the Centre for Child Law (CCL) and the parents of two pupils, took on review decisions of the South African Council of Educators (SACE) for the lenient sanctions for two teachers who had pleaded guilty to assaulting pupils in their classrooms. The SACE is the professional body responsible for maintaining and protecting teachers’ ethical standards. Its code expressly prohibits any form of abuse. 

In one of the cases, a teacher was charged with beating two Grade 2 children 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 hit a Grade 5 pupil across the face, causing the child to bleed from the ear. Both teachers were given the same sentences by SACE – a fine of R15,000, of which R10,000 was suspended, as well as the removal of their names from the teachers’ roll for 10 years, also suspended. In effect, these sentences allowed the teachers to remain in the classroom. 

These cookie-cutter sentences appear to be standard in corporal punishment cases dealt with by the SACE.

As a result, the CCL and the parents involved sought to have reviewed a 2020 mandatory sanctions policy developed by SACE. They contend that the SACE’s policy leaves little room for the exercise of discretion in sentencing offenders, depending on the nature of the offence. The applicants rather argue for a more considered, child-centred policy guideline for disciplinary processes. This could include corrective and rehabilitation programmes for teachers, where this is suited to the particularities of a case. The applicants also sought an order for the remittal of the two teachers’ cases back to the SACE for reconsideration.

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Originally, the high court granted the review of the mandatory sentencing guidelines, but did not order the remittal of the sentences.  This week, the court granted the applicants leave to appeal for the SACE to reconsider the sentences imposed on the teachers.

According to the judgment, which will now be appealed, the reason that the remittal was refused is that the applicants failed to institute review proceedings without unreasonable delay, as contemplated in section 7(1) of the Promotion of Administrative Justice Act of 2000 (PAJA). The act states that any review proceedings must be instituted without unreasonable delay and not later than 180 days after the date “on which the person concerned was informed of the administrative action” or “might reasonably have been expected to have become aware of the action and the reasons for it”. 

The judgment interprets the “trigger date” for the 180 days as the date at which the applicants became aware of the disciplinary decisions. Central to the applicant’s appeal is the argument that this interpretation and application of section 7(1) of PAJA in the judgment is novel and is inconsistent with judicial precedent to the effect that the absence of reasons is an acceptable reason for delaying the launch of review proceedings

The SACE was given sufficient opportunity to provide reasons for its sentences for the two teachers, but failed to do so despite repeated requests over many months. To date the SACE has not provided any reasons for its decisions. This appears to be inconsistent with the body’s constitutional obligations of openness and accountability.

In fact, the SACE has decided to cross-appeal the aspect of the judgment where the applicants were successful, regarding the review of the mandatory sentencing guidelines. According to the SACE, by ordering the review, the court is usurping the role of the SACE and thereby violating the separation of powers doctrine. On the face of it, this seems unlikely to succeed, since by that line of reasoning the courts would then never be able to strike down a piece of law or policy on the grounds of unconstitutionality. An argument in respect of a usurpation of power would only be credible where a court sought to substitute the policy document with its own policy rather than ordering an administrative body to review its policies.

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It is noteworthy that despite only partially acknowledging the applicants’ case, the judgment concedes that there were several “egregious” irregularities in the disciplinary process and that the merits of the case favoured the applicants.  

The stage is set for the further development of South Africa’s law protecting children from violence and assault in the school environment, as well as the clarification of certain key principles of administrative law.  This is a positive development for the building of a society based on human rights and the rule of law, and a more caring, less-violent society which takes account of the best interests of all who live in it, especially our children. DM/MC

Faranaaz Veriava is the head of the Education Rights programme at SECTION27. She is also a lecturer in the Law Faculty at the University of Pretoria.