“It is by example that children are taught to navigate a complex conflict-ridden world, without resorting to violence as a solution.”
Because the rights of children are more often raised in family law disputes flowing from divorces, maintenance disputes between parents and instances of domestic violence, one may be forgiven for forgetting that the rights of children require consideration on a more daily basis. Although the lives of many children are affected by divorces many more children go to school every day. Perhaps because it is so part of our daily lives, we tend to forget that in our education system too, “the child’s best interest” standard must be applied.
The application of the child’s best interest principle was a theme in a recent court judgment involving, amongst others, the Centre for Child Law, the parents of two minor children, the South African Council for Educators (SACE), two teachers, members of the executive counsel of two provinces, and school governing bodies.
In short, the case revolved around whether the sanctions imposed by SACE on two educators after children were allegedly assaulted, the one with a piece of PVC pipe, were lawful.
The court found that the decision of SACE to approve the plea and sentence agreement and confirm the sanctions imposed on the educators (following disciplinary hearings) were unlawful, invalid, and set aside. As a result, the decisions made, and sanctions imposed by SACE were referred for reconsideration for SACE to comply with its constitutional obligations to act in the best interest of learners and to consider appropriate rehabilitative sanctions.
In coming to its decision, the court made some important remarks, including the following:
SACE, as an organ of state, has a constitutional duty to respect, protect and fulfil the rights of a child as contained in the Bill of Rights;
The starting point for all matters relating to children is section 28(2) of the Constitution which dictates that a child’s best interests are of paramount importance in every matter concerning a child.
There is no doubt that the best interests of a child take centre stage in all matters concerning a child.
A child and the child’s family have a right to be heard and must be allowed to participate in proceedings concerning that child.
The children and their parents should have been given an opportunity to be meaningfully heard or participate in the disciplinary hearings.
The outlawing of corporeal punishment in schools should have been the end of any notion that an educator may use any form of physical violence against a child.
“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.”
“It is by example that children are taught to navigate a complex conflict-ridden world, without resorting to violence as a solution."
In creating an environment conducive to the protection and development of children as citizens who will one day themselves not resort to violence as a solution to conflict, it is imperative that educators, not only be prohibited from resorting to physical violence, but also be assisted to develop the necessary skills to discipline appropriately.
SACE’s duty includes assessing the impact of the actions of educators on children, including whether it is advisable that the educators return to the classroom and whether the underlying causes of the violent behaviour by the educator must be addressed.
SACE should, in its sanctions, have considered the possibility of rehabilitative sanctions.
In today’s age, many children spend more time with their educators at school than with their parents/families. The impact which educators have on the lives of children whose paths they cross, whether positive or negative, often has an everlasting effect on children. It is therefore important that educators be properly equipped to take care of and teach our children. Although we cannot discount the progress which have been made, this judgment reflects that, in ensuring the daily protection and nurturing of our children, we still have a long way to grow.
Our children are the future of our society and the examples we set to them in our daily lives are the ones they are most likely to follow. If we want a better society with less violence, we must look at what examples we set for our children. As Martin Luther King Jr. said - “..violence multiplies violence..”
*To read the whole judgment, click on the following link: (Centre for Child Law and Others v South African Council for Educators and Others (1289/2022) [2024] ZASCA 45 (9 April 2024))
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The information contained herein should not be used or relied upon as legal advice. No liability is accepted for any errors or omissions, nor for any loss or damages arising from reliance upon any information herein. Contact your legal representative or adviser for specific and detailed legal advice applicable to your factual matrix.
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