FOR IMMEDIATE RELEASE                  

22 February 2024

Centre for Child Law (CCL) and two parents, represented by SECTION 27, litigated against SACE in the Pretoria High Court, CCL v SACE & Others (61630/2020). The case concerned two violent educators who inflicted corporal punishment on learners—resulting in a 10-year-old learner bleeding from her ears, while another 7-year-old learner, incurred head injuries after being hit over the head with a PVC pipe.

 

The educators were found guilty of contravening Section 10 of the South African Schools Act 84 of 1996 which prohibits corporal punishment. Both educators were sentenced to removal from the role of educators, wholly suspended for 10 years, and fined R15 000.00, with R5 000.00 suspended, which means that they will continue to teach and will incur a fine of R10 000 payable over a year.

 

CCL reviewed SACE’s unreasonably low sanctions matter in the High Court. Where we sought an order from the court compelling SACE to:

  1. review the lenient sanctions imposed on the two educators, and;
  2. to revise its Procedure and Mandatory Sanctions Disciplinary Procedure in line with the best interests of the child.

 

The High Court dismissed the review application, as it relates to the two educators’ sanctions. The High Court did, however, order SACE to review its Mandatory Sanctions Policy, in alignment with the best interests of children. It is an established principle that the paramountcy of the best interests of the child requires compliance with the substantive and procedural aspects of the right in every matter involving a child.

 

CCL, the learners’ parents and SECTION27 are appealing the High Court’s decision not to order a review of the educators’ sanctions. Owing to the importance of eradicating violence against children, and our collective intergenerational obligation to eradicate violence in our society. The CCL canvasses its argument on three primary grounds, which establish unlawful and unconstitutional conduct by SACE:

  • Firstly, CCL argues that SACE is not permitted to fetter its statutory discretion by mistaking internal policies and guidelines for binding law. The plea and sentence process adopted by SACE yields a one-size-fits-all sanction against educators who are found guilty of corporal punishment, without regard for the circumstances specific to each offence. As such, the process is not in the best interest of the child as it does allow for an individualised and child-entered approach when dealing with such matters.

 

  • Secondly, the affected children and their families were not allowed to make representations regarding the sanctions or the content of the plea and sentence agreements. A child’s right to be heard is constitutionally protected and must be given credence to give effect to the best interests of the child, in all matters where children are concerned. A child’s right to be heard and to have their views given due weight in the decision-making process, implies that the child is an individual with agency and should be allowed to make representation in all matters concerning the child.

 

  • Lastly, the sanctions imposed by SACE against educators who are found guilty disregard the rehabilitation-centered approach which may include appropriate, non-violent discipline techniques, anger management and ongoing monitoring of educators.

 

SACE is counter-appealing the High Court decision ordering SACE to revise its Mandatory Sanctions Policy. It is our view that the High Court decision must be upheld and SACE must revise its Policy. Judge Fourie, rightly held in the High Court that:

“[…] there is a constitutional obligation on the first respondent (SACE)] to take effective action to protect learners from corporal punishment in schools. This flows from s.7(2) of the Constitution, which obliges the state to respect, protect, promote and fulfil the rights in the Bill of Rights. It is also pointed out that corporal punishment violates several constitutional rights, including the right to dignity under s.10, the right to freedom and security of the person under s.12, and the children’s rights set out in s.28.”[1]

 

We remain resolute that full accountability is needed to ensure that children are protected from violence and to ensure respect for children’s rights to dignity, freedom and security of the person and to have their best interests considered paramount in all matters concerning children.

 

* The European Union funding supports the Centre for Child Law and SECTION27’s work in enhancing accountability in health and education in South Africa.

 

– Ends

For more information and media queries, please contact:

Ms Moyahabo Thoka

Researcher, Centre for Child Law

Moyahabo.thoka@up.ac.za

012 420 4502 / 6662

 

Mr Stanley Malematja

Attorney, Centre for Child Law

Stanley.malematja@up.ac.za

012 420 4502

 

 

[1] Fourie J in Centre for Child Law & Others v South African Council of Educators & Others (61630/2020) [2022] ZAGPPHC 787 (13 October 2022), at para 27

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