Corporal punishment is a crime, amounting to assault. It violates children’s rights to dignity and freedom from violence. (Photo by Gallo Images / Daily Dispatch / Mark Andrews)
Corporal punishment remains a persistent problem in many schools across South Africa. As Mila Harding writes, it is time for schools to view violence against children by teachers as a crime punishable by law.
Mila Harding is a legal researcher at SECTION27.
This Youth Day marks the 45th anniversary of the Soweto Youth Uprising. On June 16, 1976, approximately 20,000 black students demonstrating in Soweto took to the streets to protest the oppressive and discriminatory education system imposed on them by the apartheid government. In response, the police killed at least 176 of the learners and injured many more. We commemorate Youth Day every year to honor those students who fought against systemic injustice, violence and discrimination in the education system at the time. However, on this Youth Day, it should be remembered that violence against children in South African schools has not yet ended. Corporal punishment is a crime, amounting to assault. It violates children’s rights to dignity and freedom from violence. However, corporal punishment in schools is still widely practiced by educators from across the country.
Part of the reason for the continued use of corporal punishment by educators in South Africa is that those responsible for ensuring that there are real consequences for teachers who use corporal punishment do not seem to take it. corporal punishment seriously enough. In this regard, the sentencing guidelines adopted by the South African Council of Educators (Sace) appear to have allowed too lenient sentences to be imposed on teachers convicted of using corporal punishment.
SECTION27 represents the Center for Child Law and the parents of two children who were subjected to corporal punishment by their teachers in a case against Sace. The litigation was sparked by two separate cases of corporal punishment by teachers, in which the two teachers received scandalously lenient sentences from Sace. In the first case, a teacher was accused of hitting two Grade 2 students on the head with a PVC pipe, causing physical and psychological damage. After the incident, the teacher continued to intimidate one of the victims to try to prevent the child from reporting the incident. In the second case, a teacher punched a grade 5 student in the face, causing the child to bleed from the ear. The learner then had to attend a number of medical appointments, which required him to miss school and repeat.
The two teachers above received identical sentences from Sace. They were fined R15,000, of which R10,000 were suspended on condition that the teachers were not found guilty of another violation of Sace’s code of ethics. In addition, the teachers were given another suspended sentence for being struck off the teachers’ roll for ten years. Their names would therefore only be struck off the roll if they were found guilty of having committed corporal punishment or another violation of the Sace code of ethics in the future. Children who were subjected to corporal punishment and their parents were not given the opportunity to comment on the sentences.
During this litigation, SECTION27 obtained additional documents from Sace, which indicate that this offense of corporal punishment, which constitutes a violation of Sace’s code of ethics for educators, was not taken seriously enough by the Sace. The penalties that have been imposed on the teachers above are those provided for corporal punishment in a document of “mandatory penalties”. This document is constitutionally flawed. It contradicts the principle of the best interests of the child set out in article 28 (2) of the Constitution, according to which the best interests of the child are of paramount importance in all matters concerning them. . An example of this is that the sanction prescribed for teachers convicted of drinking alcohol on school premises was more severe than the sanction prescribed for teachers convicted of assaulting students. For drinking alcohol on school premises, the name of a teacher would be struck off the board for ten years, with no plans to suspend the sanction. On the other hand, when a teacher has assaulted a learner, that teacher’s sentence could be completely suspended, allowing the teacher to stay close to the learners.
The nature and severity of the assaults were not presented as a necessary consideration for sanctioning teachers in the Mandatory Sanctions document. In addition, the document did not provide for any rehabilitation measures for teachers in the event of misconduct. Teachers would simply receive a conditional sentence, meaning they would be allowed to continue teaching, without any kind of anger management classes or counseling. This means that the root cause of violent teacher behavior would have gone unaddressed, potentially exposing more children to violence.
Another shortcoming in the Mandatory Sanctions document was that it did not include any provision allowing victims of corporal punishment or their parents to make representations regarding the sanctions imposed on teachers in plea and sentencing agreements. This violates the principle, as stated in section 10 of the Children’s Act, that when children are of sufficient age and maturity, they have the right to participate in matters affecting them and should be duly taken into account their opinions.
Representations from victims are necessary for plea and sentencing agreements to be fair. This is recognized in criminal law, according to which prosecutors must give victims the opportunity to make representations regarding the content of plea and sentence agreements. The only time this requirement can be waived is when the authorization of such representations will delay the proceedings to the extent that substantial prejudice could be caused to the prosecutor, the accused, the complainant or his representative, and would affect the administration. of Justice.
In June 2020, Sace adopted revised mandatory sanctions. However, the revised document on mandatory sanctions is still constitutionally flawed. The revised document on mandatory sanctions does not provide for rehabilitation or correctional sanctions for teachers. One of the reasons some teachers still use corporal punishment seems to be that they believe that corporal punishment is an acceptable form of discipline. To be clear, corporal punishment is not an acceptable form of discipline. Research has been shown to be both ineffective and linked to a number of adverse developmental outcomes in children. Therefore, it might be useful for courses on alternative forms of discipline, advice for teachers with anger management problems, or other rehabilitative sanctions to be imposed on teachers who have used less severe forms of corporal punishment. Teaching educators positive discipline and addressing the root causes of their use of corporal punishment can work to ensure that this behavior does not continue or worsen in the future.
Another problem with the revised Mandatory Sanctions document is that while it sets out some “guiding principles” for the sentencing of teachers (such as protecting the general public and maintaining professional standards), none of the principles principals do not mention the rights of learners or the primacy of their best interests, as provided for in the Constitution. Sace has a responsibility to learners to ensure that they are safe with those educating them and that their best interests are always taken into account. This cannot be done if children’s rights are not taken into account when sanctioning teachers.
Finally, the need to make representations to children and their parents is still not a requirement in the revised mandatory sanctions. Yanghee Lee and Jean Zermatten, both former chairs of the United Nations Committee on the Rights of the Child, wrote:
“Time and time again, experience shows that children, even very young children, who have the time and opportunity, demonstrate not only that they have opinions, experiences and perspectives to express, but that their expression can positively contribute to decisions that affect the realization of their rights and well-being.
This feeling becomes even more important when we remember the children who fought for their voices to be heard on June 16, 1976. Children’s experiences and opinions are important, and it goes without saying that children should have the opportunity to express their views in the disciplinary hearings of teachers who have assaulted them.
In light of the above, SECTION27 goes to court for an order directing Sace to reconsider the penalties imposed on the two teachers who committed corporal punishment. In addition, SECTION27 requests an order directing Sace to set its sentencing practices by reformulating its mandatory sanctions. When reformulating its mandatory sanctions, Sace should follow a child-centered approach, allowing victims of corporal punishment and their parents a meaningful opportunity to make representations throughout the process. The Sace should also include rehabilitation measures as a potential sanction for teacher misconduct. In any disciplinary hearing for a teacher who has used corporal punishment, Sace must be guided by the principle of the best interests of the child and recognize the important role Sace plays in defending the rights of children. This should include the removal of teachers who have committed serious assaults on learners.
Since Sace has imposed mandatory sentences on teachers without considering children’s rights or hearing their point of view or that of their parents, educators have probably been systematically given overly lenient sentences. To properly fulfill its function of defending the teaching profession and, by extension, protecting the best interests of learners, corporal punishment must be taken more seriously. In light of Youth Day, it’s time for Sace to do a better job of addressing the issues she faces regarding her sentencing practices, which have likely allowed violent teachers to continue teaching without proper intervention. . SM / MC
Mila Harding is a legal researcher at SECTION27.
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This notice was published: 2021-06-15 11:36:47