By Gertrude Quan, Isabel Magaya and Mila Harding
Corporal punishment has been unlawful in South African schools for more than two decades – section 10 of the Schools Act, 1996 states that no person may inflict corporal punishment against a learner at a school. It is a crime.
The constitutionality of the prohibition of corporal punishment was confirmed by the Constitutional Court in 2000. However, corporal punishment remains a common practice against children in South African schools.
The Basic Education Laws Amendment Bill (Bela) reaffirms the ban on corporal punishment by proposing to amend section 10 of the Schools Act to state that corporal punishment is “abolished” in all educational settings, including in hostels, and by introducing a comprehensive definition of corporal punishment. While public interest organisations have welcomed the renewed commitment to abolish corporal punishment indicated by the Bela, these changes to the Schools Act will not be effective without stronger enforcement of the ban on corporal punishment as well as better support and training for schools and educators on alternative forms of discipline from the Department of Basic Education.
The Bela seeks to introduce a definition of corporal punishment, which is undefined in the Schools Act. The Bela defines corporal punishment as:
“…any deliberate act against a child that inflicts pain or physical discomfort, however light, to punish or contain the child”.
Examples of corporal punishment are provided, including smacking children, pinching them, throwing objects at them, forcing them to stand in uncomfortable positions, and not allowing them to eat meals or use the toilet.
The ambiguity surrounding the definition of corporal punishment – for example, that corporal punishment includes light smacking or not allowing children to use the toilet – has probably contributed to the normalisation of some of these practices. However, organisations have commented that the definition should go further – the abolishment of corporal punishment should be extended to all forms of punishment that are cruel and degrading, including non-physical but still abusive forms of punishment. This would be in line with General Comment 8 of the UN Committee on the Rights of the Child which states that non-physical punishment that “…belittles, humiliates, denigrates, scapegoats, threatens, scares or ridicules the child” is inconsistent with the UN Convention on the Rights of the Child.
Children have the right to be free from all forms of violence, to enjoy their education, and not to be treated or punished in a cruel, inhuman and degrading manner. This is set out in the Constitution as well as international law. The Convention on the Rights of the Child requires South Africa to adopt laws on negligent treatment or exploitation, so as to protect the child from all forms of physical and mental violence, injury abuse and neglect.
Similarly, the African Charter on the Rights and Welfare of the Child further requires South Africa to take steps that will ensure that a child “who is subjected to school or parental discipline shall be treated with humanity and with respect for the inherent dignity of the child”.
There are severe physical and psychological effects on learners subjected to degrading and inhumane forms of punishment in school. Corporal punishment, including “mild” forms of this such as light spanking, is associated with poor performance in school – both in the short and long term – and higher rates of dropping out.
Exposure to corporal punishment is linked to an increased risk of suffering from mental illnesses such as anxiety and depression. As a form of punishment, evidence has shown it is also simply an ineffective method to prevent misbehaviour. Rather than “teaching children a lesson”, it often increases aggression and misbehaviour in the long term. Cruel and degrading forms of punishment, such as corporal punishment, also perpetuate cycles of violence by normalising violence as an acceptable response. This, in turn, contributes to the violence perpetrated outside of school.
Part of the reason for the continued prevalence of corporal punishment in schools despite its prohibition in the Schools Act is that there has been “official ambivalence” towards its prohibition. To a large extent, this has been caused by continued acceptance of the practice by some educators and parents. Because of this, corporal punishment is notoriously underreported.
Additionally, even when learners, parents or other educators do report instances of corporal punishment, teachers guilty of corporal punishment are not necessarily held accountable for their actions. A prime example of this can be seen in terms of the lenient sentences of the South African Council for Educators (Sace), which public interest organisations have challenged as unconstitutional.
The case concerns two teachers who were found guilty by Sace of meting out severe corporal punishment against learners. The first teacher hit a Grade 2 learner over the head with a PVC pipe. The other teacher struck a Grade 5 learner across the face, causing her to bleed from the ear. In both instances, the violence perpetrated against the learners has had severe physical and emotional effects. However, despite the severity of the incidents, both teachers were given very light and identical sanctions by Sace, which is responsible for upholding the integrity of the teaching profession.
Each teacher was given a suspended sentence of being struck off the teachers role and a fine, which effectively allowed them to remain in the classroom without any meaningful intervention to address their behaviour. It became apparent that this is the “mandatory sentence” given by Sace to teachers guilty of using corporal punishment, without regard to the severity of the offence or the views and best interests of the children involved (as is required by the Constitution in matters concerning children). Rehabilitative sanctions for teachers who are guilty of using corporal punishment are also never imposed by Sace.
There need to be proper consequences for the use of corporal punishment by teachers for the ban on corporal punishment to be effective. Further, there is undoubtedly an urgent need for the Department of Basic Education to support schools with alternative discipline programmes aimed at upskilling educators on alternative discipline strategies, and the importance of incorporating these strategies. Alternatives to corporal punishment in schools are proven to work. Evidence-based approaches to classroom behaviour management have been shown to skill educators and equip them with the necessary tools to practice non-violent ways of discipline in the classroom.
Proposals for the inclusion of positive discipline for learners in the Bela Bill were made by organisations that commented on the proposed amendments. The submissions on positive discipline in the Bill were anchored on the principles of community and humanity “ubuntu”. The proposals regarding positive discipline were also informed by the concept of restorative justice which “…believes that the [learner] also needs assistance and seeks to identify what needs to change to prevent future re-offending”.
This concept is not new; it is one of the fundamentals in the Child Justice Act (CJA) which is a crucial piece of legislation pertaining to children in conflict with the law. The CJA prefers restorative justice to a punitive approach and it is on this basis that calls are being made for the Department of Basic Education to ensure that educators and schools follow a similar approach in cases where learners misbehave in schools.
One way of ensuring a restorative justice approach to the issue of school discipline is to embed positive discipline in Bela. This could be done by placing an obligation on provincial education departments to support schools and educators with programmes concerning positive discipline. The Department of Basic Education could then develop educator training packages, as was done in Jamaica, which focus on training teachers to use positive and proactive strategies to promote children’s positive behaviour, prevent negative behaviour and manage misbehaviour in foundation age children.
In other countries, educators are encouraged to gravitate toward positive discipline practices which respond to the underlying reasons for the learner’s misbehaviour. This approach has also been advocated in South Africa as far back as 2012.
Clearly, changing from using corporal punishment to positive discipline is not easy. However, punitive violence has been a part of teaching for too long and evidence shows that it doesn’t work. Educators need to unlearn these old and ineffective ways of effecting discipline in schools and replace them with new skills such as positive discipline.
We believe the Bela Bill presents an opportunity and impetus for us to encourage school communities and the Department of Basic Education to take positive discipline seriously. MC
Gertrude Quan is an admitted attorney of the High Court of South Africa and a law researcher working for Equal Education Law Centre and is a doctoral candidate in international children’s rights at the University of Pretoria.
Isabel Magaya is a human rights lawyer and child rights specialist based at the Centre for Child Law at the University of Pretoria. She lectures on children’s rights. Isabel holds an LLB and an LLM (Child Law). She is also a doctoral candidate and her research focuses on protecting children against violence in three Southern African countries.
Mila Harding is a legal researcher in the Education Rights department at SECTION27. Mila was awarded the Pius Langa Memorial Fellowship by the Constitutional Court Trust in 2021 and holds a Bachelor of Arts and LLB from the University of the Witwatersrand.