Mthokozisi Maphumulo is a senior associate at Adams & Adams. Below, he writes about the nature of the teacher-pupil relationship, the legal parameters, and the legal implications of having that relationship abused.
Between February 2022 and March 2022, a few reports of incidents where the teacher-pupil relationship has been abused.
One such incident happened in the Free State where the teacher has now been dismissed for sexual assault, having hugged and kissed a pupil on duty.
The facts of this incident present a significantly different abuse of such a relationship, as most usually involve violence. Nonetheless, such behaviour does constitute abuse of a teacher-learner relationship.
Another most recent incident occurred, again, in the Free State. A teacher violently pushed a pupil, resulting in the teacher's suspension.
In the Eastern Cape, a former school principal has been struck off the educators' register following an incident wherein he forced a pupil to search for a phone in a pit toilet.
In light thereof, it is perhaps reasonable to briefly touch on the nature of this relationship and the legal parameters. It is also necessary to define the legal implications of having that relationship abused.
In this regard, one has to consider both legal recourses in civil and criminal law. It must be borne in mind that abuse of such a relationship is not always by teachers but also by learners.
It is not uncommon to see videos on social media where teachers are being abused, ridiculed, and embarrassed by learners.
Therefore, it is also imperative to consider the legal recourse. The relationship between pupils and teachers is regulated, directly and indirectly, by various instruments.
Firstly, there is the Constitution of the Republic of South Africa, 1996. Then there is a Schools Act, and there are well-established legal principles in terms of the common law, etc. In addition, Children's Act does find application in this regard.
One may further add the school's code of conduct, public policy (i.e., what the legal convictions of society would regard as appropriate behaviour), and so on.
The principles from all these instruments are aligned, and the overriding principle is to safeguard "the best interests of the child."
An appropriate legal recourse will be strictly determined by the facts and the circumstances of the relevant incident.
In the first incident mentioned above, where a teacher hugged and kissed the pupil, one may argue that, in criminal law, there is a possibility of charges for sexual assault and compelled sexual assault. A remedy in civil law may be a shocking claim – psychologically and emotionally.
About the second example, there may be charges for assault in criminal law to cause serious bodily harm, assault, etc. There may even be room to argue for attempted murder, depending on the severity and seriousness.
In civil law, again, dependent on the severity of the injuries, there may be a claim for general damages, past and future medical expenses, and future loss of earnings/loss of earning capacity.
In the third example, in criminal law, one may consider laying charges for crimen injuria, intimidation and harassment, etc. In civil law, a claim for heads of damages stipulated above may be applicable in this regard.
Similar legal recourse is equally appropriate where the teacher is on the receiving end of abuse and bullying.
Whether a particular form of conduct between a pupil and a teacher breaches the legal parameters or falls within appropriate behaviour will be dictated by the nature, context and assessment of the overall circumstances of that particular conduct.
In most cases where there is alleged abusive conduct, the legal convictions of society are usually employed. Where such behaviour is found to breach the said convictions, the behaviour is deemed to be contra bonos mores.
Given the frequency of such incidents, this topic must be regularly and adequately addressed. This will raise awareness on an ongoing basis.
It will also enlighten all the relevant stakeholders about the applicable laws and how to seek assistance where a breach of a teacher-pupil relationship has been overridden.
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