Gaps in the country’s basic education legislature make it difficult to implement sanctions in cases of misconduct by teachers against learners.
This is yet another allegation raised during hearings South African Human Rights Commission (SAHRC) on bullying, corporal punishment and sexual relations between teachers and learners in Limpopo last week.
The legislative gaps were dissected when the provincial department of education provided statistics of cases of corporal punishment and sexual relations between teachers and learners, and the sanctions applied.
Limpopo education’s head of department, Onica Dederen, said the offences varied in seriousness and that, as per the Educators Employment Act, not all offences led to dismissal.
For example, said Dederen, who led the department’s delegation, some educators found guilty of corporal punishment were fined anything between R1 000 and R5 000 and were suspended for a month or more without pay, and the more serious cases led to dismissal.
The commission’s senior legal officer, Elleen Carter, asked: “A person is found guilty of administering corporal punishment and he or she is fined R1 000 and then returns to the classroom? The impunity from the employer is to fine them R1 000?”
Dederen confirmed this, adding that an educator could only be dismissed when it was found that he or she administered corporal punishment with the intention to cause grievous bodily harm, as guided by the Act.
According to section 17 of the Act, an educator can only be dismissed when he or she has been found guilty of “serious misconduct”. Such conduct would include:
- Theft, bribery, fraud or an act of corruption with regard to exams or promotional reports;
- Sexual assaulting a learner, student or other employee;
- Having a sexual relationship with a learner where he or she is employed;
- Assaulting, with the intent to cause grievous bodily harm to, a learner, student or other employee;
- Illegal possession of an intoxicating, illegal or stupefying substance.
In the cases of sexual misconduct, Dederen said those found guilty were dismissed, but some were withdrawn because key witnesses or the learners were not willing to testify.
Carter asked: “So in certain instances [of corporal punishment] we are fine with educators using corporal punishment and in others we are not?”
“It is not like that,” said Naphtal Molope, a member of the provincial education delegation.
“It’s like what? We have one or two teachers dismissed here and in another instance they are coming back,” said Carter.
Molope said: “If you charge everyone in some instances, some have slapped a learner …” Carter interjected: “Assaulted the learner, the word is assault.”
“Yes, assaulted the learner,” said Molope. “In some instances the circumstances are that the educators took a broomstick and started deliberately beating the learner …”
Carter again interrupted and emphasised the word “assault”.
“Assaulted, yes. The point I am raising [is that] the section [of the Act] says serious assault with the intention to cause grievous bodily harm. An intention must be established and it must cause serious bodily harm for an educator to be dismissed,” said Molope.
But Carter would have none of it. “Sir, I am putting it to you that if it was in terms of an adult and you walk around the street and you just smack someone you would be found guilty of assault. I hear you [though]. We have taken your point. But I think there is definite concern that you have raised there.”
Corporal punishment was banned in South Africa in 1996.
According to amendments in the Act gazetted recently by Basic Education Minister Angie Motshekga, those found guilty of seriously assaulting a learner would be banned for life from the teaching profession.
The provincial head of the commission, Victor Mavhidula, asked the delegation if the department had the ability to establish whether a teacher had an “intention to smack the child”.
“We do,” said a department official.
“Have you been trained? In terms of the law, do you have the ability to establish the intention in terms of the criminal law? Prosecutors are the ones who have been trained on whether a crime was committed with intention or not. You are not trained as a prosecutor and then you are sitting here and expected to establish intention,” said Mavhidula.
“Are you a lawyer? You do not know the elements of intention. Do you know the elements of intention? When we establish intention, we have to look at the criminal law … Or if those people who are establishing intention and letting these abusers go, do they have that ability to establish intention in terms of the criminal law.”
This statement was followed by silence by the department’s delegation.
Finally Molope responded: “We take the point on language used in the Act. We will take it up with the DBE [department of basic education] to say that in terms of the discussions we have had here, when we deal with [these cases], smacking is equally serious.
“We get the point that you have raised — that the legislation has to be simple [when dealing with] whoever assaults a learner, and we deal with it in that way.”
Mavhidula said the department need not be shy in acknowledging a gap in the legislation, or admitting that the gap makes it difficult for the law to be fully implemented.
“This is an opportunity for us to identify those gaps and address them as a nation,” he said.