24 October 2022, Johannesburg – SECTION27, the Centre for Child Law (CCL) and the parents of two learners who were severely assaulted by their teachers are disappointed with the court judgment in the case of the Centre for Child Law v The South African Council for Educators. The judgment was delivered on 13 October 2022 by Judge Fourie of the Pretoria High Court.
The judgment – whilst a partial victory – does not go far enough in effectively enforcing the ban on corporal punishment in schools, that has been in place since as far back as 1996. Despite the 26-year ban, corporal punishment remains systemic in South African Schools. SECTION27 on behalf of CCL and the parents therefore, intend to appeal the judgment.
The litigation was launched in 2020, spurred by two separate instances of corporal punishment committed by teachers, in terms of which both teachers received shockingly lenient sentences from the South African Council for Educators (SACE). SACE is the professional body responsible for maintaining and protecting the ethical and professional standards for teachers.
In the first instance of corporal punishment, 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 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.
Both teachers were given identical sentences by SACE. They were fined R15,000, R10,000 of which was suspended. Further, the teachers received another suspended sentence of having their names struck off the teachers roll for ten years. Their names would thus actually only be struck off 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. During the hearing process, the children who were subjected to corporal punishment and their parents, were not given any meaningful opportunity to make submissions regarding the merits and sentences.
SECTION27 on behalf of the applicants therefore approached the High Court for a two-part remedy. First, the parties brought a review application for an order that the teachers’ sentences be remitted back to SACE for reconsideration. Second, an order was sought directing SACE to review their sentencing practices by reformulating their mandatory sanctions guidelines in accordance with the best interest of children in terms of section 28(2) of the Constitution.
While Judge Fourie ordered SACE to review their mandatory sanctions guidelines, the review application was dismissed. This is despite Judge Fourie stating that:
“Taking into account the abovementioned considerations, I am of the view that the prospects of success would favour the applicants”.
According to Judge Fourie, the applicants failed to institute review proceedings without unreasonable delay, as contemplated in section 7(1) of the Promotion of Administrative Justice Act 3 of 2000 (“PAJA”). Section 7(1)(b) of PAJA states that any review proceedings must be instituted without unreasonable delay and not later than 180 days after the date “where no such remedies exist, on which the person concerned was informed of the administrative action, became aware of the action and the reasons for it or might reasonably have been expected to have become aware of the action and the reasons”. Section 9 of PAJA further allows parties to launch review proceedings later than the 180 days where the “interests of justice” require it.
SECTION27 adopted a cautious approach to ensure that SACE was provided with sufficient opportunity to give reasons for its sentences for the two teachers. However, these reasons were not provided when the applicants launched the application.
Given the ongoing difficulties in enforcing the corporal punishment ban 26 years on, due in large part to the failure to sanction perpetrators of corporal punishment effectively; the severity of assaults on the learners in these two instances and the ongoing presence of the teachers in the classroom without rehabilitative sanctions to ensure similar incidents do not recur, SECTION27 and CCL believe that it is important and in the interests of justice to appeal the dismissal of the review application.
European Union funding supports SECTION27 and the Centre for Child Law’s work on education rights issues.
For media, queries contact Pearl Nicodemus – email@example.com 082 298 2636