Ending corporal punishment in schools – implementing a Constitutional Court order 24 years later

June 1st, 2024
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Centre for Child Law and Others v South African Council for Educators and Others (SCA) (unreported case no 1289/2022, 8-4-2024) (Tolmay AJA (Nicholls, Mbatha and Mothle JJA and Mbhele AJA concurring))

On 8 April 2024, Tolmay AJA handed down a judgment and order at the Supreme Court of Appeal (SCA), in the matter relating to the South African Council for Educator’s (SACE) decision to impose lenient sanctions on two educators who committed corporal punishment in their respective schools.

It is important to note that the use of corporal punishment in schools was banned by the South African Schools Act 84 of 1996 in 1997 and the decision was confirmed by the Constitutional Court in 2000, in the Christian Education South Africa v Minister of Education 2000 (4) SA 757 (CC). Yet, corporal punishment is still used as a common form of discipline in schools.

Factual background

The first appellant brought a review application in terms of the Promotion of Administrative Justice Act 3 of 2000 (PAJA), to set aside the decision of the first respondent in disciplinary proceedings against two educators, who assaulted children in school. The complaint raised was that the 2016 Mandatory Sanctions on Contraventions of Professional Ethics, that applied at the time were unlawful, because they did not provide for the exercise of discretion when imposing a sanction and did not provide for any rehabilitative or corrective sanctions. Additionally, the 2020 revised mandatory sanctions had the same defect but also did not cater for the best interests of the child as they failed to follow a child-centered approach.

The incidents that occurred are summarised below:

  • Ms M assaulted TZ and NT, during August 2015, with a piece of PVC pipe; both learners were in grade two at the time. TZ started having headaches that became progressively worse and was eventually hospitalised for two weeks and had to undergo emergency surgery for a brain haemorrhage. During his hospital stay the teacher visited him and allegedly threatened him not to tell anyone of the assault. TZ’s mother set out in an affidavit to the court how this incident negatively affected TZ’s life.
  • Ms S assaulted MPM by hitting her on the head. Her mother stated that MPM bled from her ear, was taken for multiple medical examinations and was admitted to hospital twice. Her mother set out in an affidavit, how this incident negatively impacted MPM’s life.

In 2019, assisted by their attorney, the mothers of both children lodged formal complaints with SACE against the educators. SACE investigated the matters and recommended that both educators be charged with assault. Ms M pleaded guilty to four breaches of the SACE Code of Professional Ethics which included two charges of assault and two charges of threatening the children not to report the assault. Ms S pleaded guilty of one charge of assault. Ms S’s disciplinary hearing occurred on 18 September 2019 while Ms M’s occurred on 20 September 2019.

In both cases the second and third appellants and the children were invited to attend the disciplinary hearings, but they were made to wait in a separate room at SACE’s office. They were not present in the hearings; they were not afforded an opportunity to present evidence or make representations, nor were they consulted about the sanctions imposed. They were merely told that the teachers pleaded guilty and sanctions were imposed.

Both teachers received identical sanctions, even though the circumstances of their cases differed. Both were removed from the roll of educators, wholly suspended for ten years (meaning the removal from the roll was suspended for ten years – and they went back to teach their classes immediately); and a fine of R 15 000 payable over a period of 12 months, of which R 5 000 was suspended.

According to the appellants, the disciplinary proceedings fell short as they did not allow for meaningful participation by the learners and their parents in the hearings.

The issue before the SCA and decision

The appellants approached the court for the following relief:

  • To set aside the decisions of the disciplinary actions and the referral of the matter back to SACE with appropriate directions, in terms of the PAJA and the principle of legality.
  • Systemic relief, where SACE is ordered to reconsider and review its ‘2020 Mandatory Sanctions on the Code of Professional Ethics’ in order to make provision for corrective and rehabilitative sanctions and to consider the best interest of the child and the need for a child centered approach.

The court had to determine whether a case had been made out, for a review in terms of the PAJA. The court confirmed that SACE is an organ of state in terms of s 7(2) of the Constitution and is thus obliged to respect, protect, and fulfil the rights in the Bill of Rights.

Further, it found that decision taken fell ‘within the definition of an administrative action as defined in PAJA’ and ‘that SACE’s exercise of disciplinary powers must be guided by its constitutional obligations’. Importantly, s 28(2) of the Constitution dictates that a ‘child’s best interests are of paramount importance in every matter concerning the child’, which is echoed in s 9 of the Children’s Act 38 of 2005.  Furthermore, the views of the child and their family must be given due consideration.

According to SACE, ‘these sanctions allowed for no discretion whatsoever and any deviation from them would have amounted to an illegality’. The court correctly pointed out that this approach ‘loses sight of the fact that the sanctions are policy and not law’. (The court correctly adjudicated this matter and also respected the doctrine of separation of powers). SACE is a statutory body created under the South African Council for Educators Act 31 of 2000; its responsibility includes making sure that educators adhere to the law as well as their own Code of Professional Ethics. The matter was ‘remitted to [SACE] for reconsideration in order to comply with its constitutional obligations to act in the best interests of learners and to consider appropriate rehabilitative sanctions to ensure that the two educators referred to above are assisted and enabled to apply appropriate and non-violent disciplinary measures’.

If children commit crimes at school the Child Justice Act 75 of 2008 is there to ensure that the matter is dealt with appropriately and that schools are safe for children as well as educators.

Lithalethemba Stwayi LLB LLM (UP) is the Manager of the Impact Litigation Unit at LegalWise South Africa (Pty) Ltd in Johannesburg.

This article was first published in De Rebus in 2024 (June) DR 35.

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