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SECTION27 and the Centre for Child Law (CCL) welcome the Supreme Court of Appeal (SCA) judgment in a corporal punishment case against the South African Council of Educators (SACE), in the matter CCL and others v the South African Council for Educators (SACE) and others. In a judgment released on 8 April 2024, the SCA affirmed that SACE has a duty to protect the best interest of the child.

SECTION27 are the attorneys in this case and CCL, together with the parents of two learners who were victims of corporal punishment at their respective schools, are the applicants in the case. The case was launched in 2020 to ensure the effective enforcement of the corporal punishment ban. The ban has been in place since the passing of the South African Schools Act in 1996. Despite the 28-year ban, and important Constitutional Court rulings upholding the ban, the prevalence of corporal punishment remains exceptionally high in South African schools. SECTION27 and CCL are therefore determined to ensure that the systems in place to protect learners from violence in schools, and the institutions established to protect them, are working effectively. 

The SCA judgment establishes and confirms: 

         i.    i.    the need to effectively enforce the corporal punishment ban as a central tenet of South African society; 

ii.   the importance of section 28(2) of the Constitution, which mandates that the best interest of the child be of paramount importance in proceedings affecting children; and  

iii.   well-established principles of administrative law that all government departments must adhere to. 

Facts of the case 

This case concerns the disciplinary proceedings held, and sanctions imposed, by SACE in terms of two educators. 

The first educator assaulted two learners with a piece of PVC pipe during August 2015. Both learners were only in grade two at the time. One of the learners in this incident allegedly started having headaches that became progressively worse and was eventually hospitalised for two weeks and had to undergo emergency surgery for a brain haemorrhage. During his hospital stay, the educator visited him and allegedly threatened him not to tell anyone of the assault.

In the second incident, the educator assaulted a learner by hitting her on the head and through the cheek. The mother of the learner alleged that she bled from her ear, was taken for several medical examinations, and was admitted to hospital twice.

SACE disputed that these injuries were caused by the assaults as well as the severity and consequences of the assaults. At the request of both parents, SECTION27 reported the two educators to SACE and requested that the cases be investigated. In both instances, both educators pleaded guilty to the charges against them during SACE's disciplinary hearings. In both instances the parents and the children were also invited to attend SACE's disciplinary hearings, but they were made to wait in a separate room at SACE’s office. They were not allowed to sit in on the hearings and were not afforded an opportunity to present evidence, or to make representations, nor were they consulted about the sanctions imposed. 

In both instances, the teachers received identical sanctions, despite the circumstances and the severity of the assaults not being comparable. Both were removed from the roll of educators, but this removal was wholly suspended for ten years. They also each received a fine of R15 000 payable over a period of twelve months, of which R5 000 was suspended. During the High Court proceedings, it became clear that the sanctions were imposed in terms of SACE’s internal policy called the “Mandatory Sanctions Policy", which rigidly indicated the sanctions educators should receive when found guilty of misconduct. 

In the High Court, SECTION27 requested that SACE revise its Mandatory Sanctions Policy, and include important elements in it such as rehabilitative and corrective sanctions (like anger management), to uphold the principle of the best interests of the child, and to include a more child-centred approach which will allow learners and their parents to make representations and participate in SACE’s disciplinary hearings. SECTION27 also requested that the decisions against the two educators be reviewed, set aside, and sent back to SACE for reconsideration.

However, the High Court only agreed that SACE’s Mandatory Sanctions Policy be changed. The High Court did not allow the review because it said CCL and the families had unreasonably delayed the launching of the application. This latter part of the court order for the review and sentencing of the two educators was therefore appealed at the SCA. 

The SCA has now granted the appeal, requiring that SACE's decisions and sanctions in respect of the two educators be remitted back to SACE for reconsideration, in order to comply with its constitutional obligations to act in the best interests of learners and to consider appropriate rehabilitative sanctions to ensure that the two educators referred to above are assisted and enabled to apply appropriate and non-violent disciplinary measures in future. 

The principles confirmed and established included:  

1.    1.    On the issue of the corporal punishment ban, the SCA poignantly noted: 

In a society besieged by violence this must be of grave concern, and it cannot be gainsaid that violence as a form of ensuring corrective behaviour should be addressed at its roots. In the process of creating an environment that is conducive to the protection and development of children as citizens who will not resort to violence as a solution to conflict. It is imperative that educators not only be prohibited to resort to physical violence as a form of discipline, but also be assisted to develop the necessary skills to discipline appropriately and with the required measure of personal control. It is by example that children are taught to navigate a complex conflict ridden world, without resorting to violence as a solution. 

The SCA emphasised that SACE cannot just hand down cookie-cutter sentences but must allow for flexibility in its sentencing policy and has a duty to ‘assess the impact of the actions of educators on the children, including whether it is advisable that the educators return to the classroom; whether it is necessary to protect the children from harm; and, whether the underlying causes of the educator’s violent behaviour require addressing’. 

2.    2.    The best interests of the child principle 

The review was granted on the basis that the children or their representatives were not afforded the opportunity to make representations. The SCA held: “How the child will participate in the proceedings will depend on the circumstances of the specific case and must be approached in a manner that will best serve the interests of the child.’ 

3.    The principle of what constitutes an unreasonable delay for launching an application for review in terms of the promotion of the Promotion of Administrative Justice Act No 3 of 2000 (PAJA).

Section 7(1) of PAJA requires judicial proceedings to be instituted without unreasonable delay and not later than 180 days from the day on which the proceedings have been concluded, or on which the person concerned was informed, or could reasonably be expected to have been aware of the administrative action and the reasons for it.

The SCA noted that CCL and the family had made repeated requests for the reasons for SACE’s decisions and sanctions in respect of the two educators to no avail. It therefore held that: “The appellants cannot be faulted for attempting to obtain reasons before proceeding with litigation. In the absence of reasons, the 180-day period did not even commence before the application was launched. The court of first instance misdirected itself when finding that there was an unreasonable delay in the launching of the application.”  This finding is important to ensure the efficiency of the public services in providing reasons for decision-making. 

The SCA's judgment marks a great victory for CCL and the two families and highlights the need for institutions, like SACE, to make greater and more deliberate efforts to effectively prevent the scourge of corporal punishment in our schools. The appropriate sanctioning of educators is key to enforcing the ban on corporal punishment and it is expected that SACE will implement a revised sanctioning policy without delay. 

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