Corporal punishment ban in schools needs defenders
This year marks about 28 years since the SA Schools Act was enacted, which banned corporal punishment in schools. The significance must not be understated. It signifies a rejection of the normalisation of cycles of violence and plays an important role in protecting children’s rights.
However, while the law banning corporal punishment in schools is clear, the enforcement of the ban is feeble at best and corporal punishment remains rampant in SA schools.
The most recent legal case on corporal punishment in schools targeted one of the institutions responsible for enforcing the ban on corporal punishment: the SA Council for Educators (SACE). It is the guardian of the teaching profession and conducts professional disciplinary hearings against educators. However, aspects of the high court’s judgment in the case are being brought to the Supreme Court of Appeal.
To understand the importance of this case it is necessary to understand the legal and political history behind the ban against corporal punishment in all settings. It did not come without a fight, and constitutes a victory for the rights and wellbeing of children.
The case law surrounding the use of corporal punishment against children in post-apartheid SA dates back to 1995. In State v Williams, the Constitutional Court held that the practice of whipping children as a punishment for crime violated their rights to dignity and not to be subjected to cruel, inhumane or degrading treatment.
Prior to the case the courts were empowered to impose a sentence on children of several lashes. The Constitutional Court stated that this was inimical to the values of the constitution and that any punishment must respect dignity and ultimately promote rehabilitation.
The following year the SA Schools Act was passed, and section 10 prohibited the use of corporal punishment in schools and clarified that it was an offence. That the ban on corporal punishment was extended to private schools was challenged based on the claim that it potentially violated religious freedoms. The Constitutional Court dismissed this challenge in 2000, ruling that the prohibition of corporal punishment in schools is in line with the important state duty in post-apartheid SA to prevent violence in society generally, and to protect the rights of children in particular.
Nineteen years later, in a judgment penned by former chief justice Mogoeng Mogoeng, the Constitutional Court ruled that allowing corporal punishment in the home also infringed children’s rights to dignity and to be free from all forms of violence. The court recognised positive discipline as an effective nonviolent option for discipline, making the use of corporal punishment unwarranted. Importantly, it reaffirmed that children are individuals with dignity, who are strongly entitled to have their rights protected in all settings.
Corporal punishment is now fully banned, which is an important step in addressing societal violence and the protection of children’s rights.
However, enforcement of the prohibition of corporal punishment in schools is poor. There are still educators who are using corporal punishment in schools and, to a significant extent, they are suffering little to no professional consequences for their actions. This is what Section27’s case against the SACE intends to deal with.
The case arose from complaints made to Section27 in 2019 by parents of two pupils who had been brutally assaulted by their teachers at school. One grade 2 pupil was hit over the head with a PVC pipe. The other pupil, from a different school, was in grade 5 when a teacher struck her across the face.
Section27 asked the SACE to investigate the complaints, which eventually culminated in the council subjecting the two teachers to disciplinary hearings. Concerningly, the SACE imposed exceptionally lenient sentences — a fine of R15,000 (of which R5,000 was suspended) and removal from the roll of educators, which was suspended for 10 years. This meant the teachers could immediately continue to teach, without any rehabilitative measures, if they did not recommit the offence.
The SACE has a duty to discipline teachers who have used corporal punishment against pupils. However, as seen above, the council has routinely issued lenient sentences for the use of corporal punishment against pupils. This is because the SACE disciplinary council hands out sentences according to the organisation’s “mandatory sanctions policy”, which prescribes the sentence without any consideration of the individual circumstances of the case or the rights of children.
The Centre for Child Law and the mothers of the children subjected to corporal punishment, represented by Section27, successfully challenged the SACE’s mandatory sanctions policy in the high court. The court ordered the council to revise its policy in line with several factors, including the need to include the possibility of rehabilitative measures and for the SACE to adopt a childcentred approach to sentencing. The SACE is now appealing this.
The court refused to oblige the SACE to reconsider the sentences handed to the two educators in the case, and Section27 is appealing against this aspect of the judgment to ensure there is individual justice for the children concerned while broader revision of the mandatory sanctions policy takes place.
Violence has been pervasive and widespread in SA in the past, and continues in the present. Statesponsored violence against individuals and groups, including children, was particularly prevalent prior to 1994. The ban on corporal punishment in schools was thus a measure intended not only to protect the rights of children but also to interrupt cycles of violence.
Yet, while the law is unambiguous, corporal punishment is continuing to occur in schools. One of the last frontiers of litigation regarding the ban on corporal punishment in schools is thus its enforcement. Without enforcement the ban is ineffective, and the rights and safety of children are compromised.
THE BAN WAS INTENDED NOT ONLY TO PROTECT THE RIGHTS OF CHILDREN BUT ALSO TO INTERRUPT CYCLES OF VIOLENCE