The persistence of corporal punishment has often been attributed to a lack of support for the ban among teachers. (Delwyn Verasamy, MG)
According to the most recent data from Statistics South Africa's General Household Surveys, 15.8% of pupils – approximately 2.2-million pupils – experienced corporal punishment in school in 2012. This is despite the 1996 legal ban on the administration of corporal punishment in schools.
The household survey data suggests that between 2009 and 2012 the incidence of corporal punishment increased significantly in certain provinces such as the Eastern Cape (from 25.2% to 30.3%) and in Mpumalanga (from 8% to 11.5%).
The data also suggest that in the Eastern Cape (30.3%), KwaZulu-Natal (21.4%) and the Free State (18.4%) the practice is rife, whereas in the Western Cape (4.5%) and Gauteng (4.6%) the incidence is low.
The persistence of corporal punishment has often been attributed to a lack of support for the ban among teachers. According to a 2006 South African Human Rights Commission report into school-based violence, 58% of teachers favour the reinstatement of corporal punishment because teachers felt threatened in the classroom.
"Culture" is also said to have an ongoing impact on noncompliance with the ban, the old saying (and practice) of "spare the rod and spoil the child" being prevalent in certain communities. This suggests that parents from these communities either explicitly or tacitly consent to the administration of corporal punishment in schools.
The recent incident at Glenvista High School in Gauteng, where a pupil assaulted a teacher and another pupil recorded the incident on a cellphone, would seemingly lend support to the view that corporal punishment is necessary to maintain discipline.
However, the view that corporal punishment is just about "corrective" discipline is debunked in an analysis of cases of corporal punishment I undertook for the Centre for Child Law at the University of Pretoria this year.
In the analysis, still to be published, many of the cases indicate that instances of corporal punishment are acts of intimidation and of excessive use of force, often resulting in serious injuries to pupils, which also cause psychological damage. The recent incident of a five-year-old pupil in Mpumalanga being made to eat his own faeces is a case in point.
Earlier this year, the high court in Durban awarded an ex-pupil almost R4-million in damages against the KwaZulu-Natal education department for an eye injury sustained as a result of being struck with a belt by a teacher.
Section 10 of the 1996 South African Schools Act prohibits the administration of corporal punishment. Where a teacher does administer corporal punishment, the teacher is guilty of a criminal offence.
This prohibition is part and parcel of a broader rights-based system of discipline. The Act requires that school governing bodies develop codes of conduct that prescribe the rules that pupils must adhere to. The codes also establish due process disciplinary processes when pupils have transgressed.
In terms of these processes, when pupils threaten a teacher such as in the Glenvista incident, they can be suspended or even expelled. A criminal investigation can also ensue, as has reportedly occurred in this incident.
In 2000, in the case of Christian Education SA vs Minister of Education, the Constitutional Court had to determine whether the prohibition against corporal punishment violated the rights of parents who, in line with their religious convictions, had consented to its use.
The court upheld the prohibition and found that corporal punishment is a violation of the legal rights of the pupil to human dignity, freedom of security of person and protection from maltreatment, neglect, abuse or degradation.
Explaining the rationale for the ban, then Justice Albie Sachs said: "The deliberate infliction of pain with a cane on a tender part of the body as well as the institutionalised nature of the procedure involved an element of cruelty in the system that sanction[ed] it. The activity is planned beforehand; it is deliberate.
"Whether the person administering the strokes has a cruel streak or not is beside the point. It could hardly be claimed, in a physical sense at least, that the act pains him more than his victim. The act is impersonal, executed by a stranger, in alien surroundings. The juvenile is, indeed, treated as an object and not as a human being."
Where there has been a complaint about corporal punishment, various processes must be pursued against a teacher, including a disciplinary case that must be conducted by the provincial education department.
The provincial department should also report the incident to the South African Council of Educators, the statutory body tasked with maintaining ethical and professional standards for teachers. The council must conduct a separate disciplinary process for a breach of its code – a process that can lead to a teacher being deregistered. A criminal charge must also be laid against the teacher.
However, the Centre for Child Law's research suggests that most cases of corporal punishment are not being reported. The South African Council of Educators 2011-2012 annual report said it had received 179 complaints that year.
This is significantly low, considering that approximately 2.2-million pupils experienced corporal punishment during the same period.
The research also suggests that, where cases are reported, they are not being effectively dealt with.
What is evident from the experience of provinces such as the Western Cape is that tougher legal measures to sanction teachers can lead to more effective enforcement of the prohibition.
The council's figures reflect that, of the 179 corporal punishment complaints reported, the highest number (99) was received from the Western Cape education department – the province with the lowest incidence of corporal punishment.
In 2002, the same department distributed a circular for dealing with corporal punishment. Demanding compliance from employees, the circular provides a comprehensive definition of corporal punishment and sets out a procedure for employees to follow when a complaint of corporal punishment is received.
The circular warns employees that, if they engage in corporal punishment, these acts will be treated as misconduct. It also warns educators that these acts of misconduct could lead to dismissals, that incidents of corporal punishment may be referred to the police and that employees will be vulnerable to legal claims from parents.
A similar national protocol would go a long way towards improving enforcement of the prohibition across the country and in particular in the hot-spot provinces where the practice is rife. Such a national protocol should also accord with more recent developments to protect children.
For example, the Children's Act establishes a national protection register for persons deemed unsuitable to work with children. A teacher who is guilty of a serious act of corporal punishment could be placed on the register.
A shift in the attitudes of teachers and those parents who advocate corporal punishment is also necessary. In 2000 the national education department published a manual titled Alternatives to Corporal Punishment. Its purpose was to equip teachers to implement more positive mechanisms of discipline in the classroom.
There are questions about whether the manual in its current form, and as the sole mechanism for shifting attitudes, is sufficient to transform deeply held views. A dialogue that reviews current measures to shift attitudes and that explores new measures is required.
Faranaaz Veriava is a human rights lawyer. This is her monthly column on the right to basic education