The Johannesburg High Court will today hear a case that seeks to show leniency in the sanctions imposed on teachers who still use corporal punishment in schools, 26 years after it was outlawed in South Africa.
Section27, on behalf of the Centre for Child Law and the parents of two pupils, took the SA Council for Educators (Sace) to court in December for what it called “unreasonable and shockingly inappropriate sanctions” imposed on two teachers who pleaded guilty to assaulting pupils at different schools.
The two teachers – Khutso Sathekge from a primary school in Gauteng, and Vangile Mokoena, who teaches at a primary school in Limpopo – pleaded guilty to the charges and Sace fined them to be struck off the roll of teachers, with the sentence wholly suspended for 10 years and a fine of R15 000 each, of which R5 000 was suspended.
Section27’s heads of argument read:
Sace is opposing the application on the basis that, among other arguments, it took the applicants long (more than 180 days) to bring the matter to court after the decision.
“The applicants want this court to review and set aside sanctions which have now been served in full,” wrote Sace in its opposing papers.
It said the 2016 mandatory sanctions that were used in the cases of the two teachers had since been revised in 2020 and where no longer applicable.
WHAT HAPPENED TO THE PUPILS?
In its papers, Section27 details that Mokoena beat seven-year-old TZ
with a pipe in 2015, causing a head injury. Mokoena also assaulted NT and left him with a bloody nose. She threatened both learners not to report what she had done.
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On the day of the incident, TZ returned from school complaining of a headache that continued for two weeks.
“TZ lost his ability to speak and lift his head. He suffered from recurring nosebleeds.
“TZ had developed bacterial meningitis, a brain abscess and cardiovascular concerns,” the papers say.
According to the papers, Mokoena visited TZ in hospital and threatened him not to tell his mother or anyone else about the assault.
“TZ remembers clearly that Ms Mokoena pointed her finger at him and spoke in a stern voice.”
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According to TZ’s mother, as it is written in the papers, the injury affects his life “drastically”.
Said the mother: “Before the assault and the injury, TZ was a vibrant and confident child who enjoyed going to school. Since being discharged from the hospital, TZ has explained to me that he feels afraid to go to school. This fear of attending school has severely affected his marks and his ability to concentrate in class.”
The papers also reveal that the child now needs constant assistance to perform basic tasks at home and at a school, and cannot hold a broom or pen properly.
In 2019, Sathekge slapped 10-year-old MPM on the head, leaving the child bleeding in her ears. MPM was admitted to hospital twice following the assault, and she also had white puss leaking from her ears and on one occasion bled from both eyes.
In 2019, she failed Grade 5 because of missing school to seek medical attention.
Section27 has questioned how Sace arrived at its decision when it did not call the parents and the children to make representations during the disciplinary proceedings.
This even though the parents and their children were invited to the disciplinary proceedings, but were made to sit in a separate room and played no part in the proceedings.
“The sanctions were the result of plea-and-sentence agreements concluded with the two teachers, without consulting the children and their parents or affording them the opportunity to make representations on the appropriate sanctions. Sace contends that such consultations and participation were unnecessary.”
In the papers, Section27 also questions the council’s mandatory sanctions, which it says are “rigid”. It says the mandatory sanctions are not in the best interests of children and seem to favour the teacher.
“The sanctions imposed were manifestly unreasonable in various respects, including the failure to consider rehabilitation and training in non-violent discipline techniques. Sace incorrectly contends that it has no power to impose such rehabilitation-oriented remedies.”
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The applicants, according to the papers, were left with no choice but to go to court after asking Sace for a year to provide them with reasons for the sanctions and documentation that would show how the council arrived at its decision.
“No information was forthcoming,” reads the papers.
Section27 wants the court to, among other things, review Sace’s failure to allow the children and their parents the opportunity to make representations on the appropriate sanctions, its failure to provide reasons for how it arrived at the sanctions, as well as the absence of deliberations.
It also wants the court to set aside the sanctions imposed on the teachers and for Sace to start the disciplinary hearings afresh.
In its opposing papers, Sace argues that there is no case to answer to as the teachers have served their sentences and because the mandatory sanctions under which the decisions were taken have since been amended.
The opposing papers read:
Sace argues that there are no compelling circumstances that the matter should be heard in court. The council strongly argues in its papers that since the mandatory sanctions that were relied on at the time are not applicable, there is no possibility of any repeat of their application in the future.
“Similarly, this court should decline to entertain matters which have no practical effect, but have only historic and academic significance.” Sace further writes that the teachers “have moved on with their professional lives” and if there is a possibility that they might go through another hearing on the same offence is “against the principle of finality and will inevitably interfere unjustifiably with the future administration of the first respondent (Sace)”.
Last year, the basic education department released new regulations under the Employment of Educators Act in relation to teachers who are found guilty of misconduct or who resign before going through a disciplinary hearing.
According to the regulations, teachers found guilty of seriously assaulting a pupil should be banned from teaching for life.