There is nothing legally wrong with fining a teacher who assaulted a pupil R10,000 and allowing them to keep their jobs.
In fact, it is the law.
This is the argument by the lawyers representing the SA Council for Educators (Sace) before the Pretoria high court when defending their lenient sanction of two teachers, one who beat up a pupil so much he needed head surgery.
In 2015, a teacher in Gauteng used a hard pipe to strike a 10-year-old boy in the head and the child went for surgery due to injuries he suffered.
After undergoing surgery, the boy’s mother was forced to move her son to a special school as his cognitive abilities had suffered.
In the second case in Limpopo in 2019, a teacher used her hand to strike a pupil, seven, across her left cheek. She then used her hand again to hit the child on top of her head.
The child's left ear bled.
Sace subjected both teachers to a disciplinary process after which they received a fine of R10,000 and their names removed from the teachers roll.
But this was suspended for 10 years. They are still working at the same schools.
On Tuesday, Section 27, representing the Centre for Child Law and the parents of the pupils, approached the court challenging this decision which they said was lenient.
They also say the current prescribed guidelines that Sace uses to sanction teachers who have assaulted pupils do not put the interest of the child at heart.
The court heard that the Sace used its prescribed guidelines which indicate what kind of punishment should be imposed on a teacher who has breached the code of conduct for the profession.
These guidelines are provided for in the Sace Act and were issued in 2016.
They were revised in 2020.
Adv Chris McConnachie for Section 27 said: “Whenever a child is assaulted, it impacts on the right to dignity, right to freedom of security of a person and in addition the rights of children provided for under Section 28 of the constitution. This include the right to be protected from maltreatment, neglect and abuse.
“[During the disciplinary hearing], there was no attempt to get any form of representation from either the children or their parents on how the assaults had impacted them,” said McConnachie.
He further argued that the current system used by Sace does not even take into account the charges that each individual faces.
But Adv Matthews Mojapelo for Sace dismissed this.
“Sace cannot be accused of acting unlawfully. It cannot also be accused of acting against the rights of the children…We submit that these educators were not let off. They faced the maximum possible sanction at the time,” Mojapelo said.
He said the 180 days provided for people to challenge administrative processes in these two cases had long elapsed.
Mojapelo said it was for this reason that the court could not be asked to restart the disciplinary process.
“It will be like a prisoner being taken out to be trialed for the same offence,” Mojapelo said.
He further argued that bringing the parent or child to testify at the disciplinary hearing would not have made any difference because the teachers had pleaded guilty.
Mojapelo said even if the teachers were to be subjected to the disciplinary process again, the outcome will be the same as it is decided based on prescribed guidelines.
Corporal punishment was outlawed in the country in 1996 when government introduced the SA Schools Act.
But despite the law, incidents of educators assaulting pupils have persisted over the years.
Motheo Brodie legal researcher at Section 27 said while the lawyers were arguing in court on Tuesday, the organisation received 16 complaints of pupils being assaulted by teachers at different schools.
Brodie said the parents whose case was before court had together with their children suffered severe trauma.
“There is serious financial implications for the family of the mother of the child who was assaulted with a pipe. She has seven other children to take care of. The injured child needs extra care.
“He used to be excited and energetic going to school, now he is a different person. The mother of the boy only works piece jobs as a domestic worker,” Brodie said.
Adv Nasreen Rajab-Budlender, SC, who represents the Children’s Institute, a friend of the court, criticised the guidelines for not introducing corrective and rehabilitative measures for teachers.
Rajab-Budlender said Sace should introduce mandatory sanctions which include anger management and training on non-violent child disciplinary techniques.
“A child who is seven was hit on the head with a pipe. The educator’s reason for doing so was that she was not thinking straight and she was very stressed that day.
“What this tells us is that this educator required the tools to understand why her conduct was unlawful, what she could have done differently. [She needs to know] how she could have altered her teaching methods to get favourable results in her classroom,” she said.
Sace submitted that asking the court to change the guidelines would be asking it to legislate, which is not its purview.
Judgment was reserved.
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