Corporal punishment v freedom from violence in independent and private schools

By Anton Katz

When a group within society wishes to offer special religion or language education, it should be allowed to do so and so there are many private or independent schools operating in South Africa. 

In offering education, can private schools offer whatever they choose? Or are there limits to what may be taught and what disciplinary measures are available to the school? 

In analysing this issue, the significance of education cannot be over-emphasised. As the Constitutional Court has stated: “Education is primordial and integral to the human condition. The indigenous and ancient African wisdom teaches that “thuto ke lesedi la sechaba”; imfundo yisibani” (education is the light of the nation) and recognises that education is a collective enterprise by observing that it takes a village to bring up a child.” The following quotes were added: “Education is an ornament in prosperity and a refuge in adversity.” Aristotle; “How then is perfection to be sought? Wherein lies our hope? In education, and in nothing else.” Immanuel Kant; “If we want to reach real peace in this world, we should start educating children.” Mahatma Gandhi; “Education is the great engine of personal development. It is through education that the daughter of a peasant can become a doctor, that the son of a mineworker can become the head of the mine, that a child of a farmworker can become the president of a great nation. It is what we make out of what we have, not what we are given, that separates one person from another.” Nelson Mandela; “Education is a human right with immense power to transform. On its foundation rest the cornerstones of freedom, democracy and sustainable human development.” Kofi Annan; “My people are destroyed for lack of knowledge.” – The Holy Bible: Hosea 4:6; “To have much learning, to be skilful in handicraft, well-trained in discipline, and to be of good speech – this is the greatest blessing.” Buddha. 

But access to teaching and learning has not been freely and widely accessible to all people at all times. All forms of human oppression and exclusion are premised, in varying degrees, on a denial of access to education and training. The uneven power relations that marked slavery, colonialism, the industrial age and the information economy are girded, in great part, by inadequate access to quality teaching and learning. Understandably private groups within society establish private or independent schools. French, German, Christian, Jewish and Muslim schools are South African examples. But when Christians, Jews or Muslims establish private schools may they rely on passages from religious texts, such as the Bible to conduct the education it offers? 

South African law bans corporal punishment. Christian Education South Africa, an umbrella body of 196 independent Christian schools in South Africa with approximately 14500 pupils maintain an active Christian faith and provide learners an environment that is in keeping with their Christian faith. Corporal punishment (in the form of five strokes given by the principal, or a person delegated by him, with a cane, ruler, strap or paddle) is a vital aspect of Christian religion. 

Christian Education challenged the ban on corporal punishment. Its claim was that the parents’ constitutional right to freedom of religion was violated by the absolute ban. Christian Education relied, in part, on passages from the Bible, such as, Proverbs 23:13 and 14: “Do not withhold discipline from a child, if you punish with a rod he will not die. Punish him with a rod and save his soul from death,” and Proverbs 19:18 “Chasten thy son while there is hope and let not thy soul spare for his crying.”

The government opposed the challenge. It defended the ban on the basis that children have a right to be free from violence. And corporal punishment is a violent infliction of physical harm. It is a violation of the dignity of targeted child.

In considering the challenge the Constitutional Court accepted that: “Certain religious sects do turn their back on the world, but many major religions regard it as part of their spiritual vocation to be active in the broader society. They cannot be altogether parted in law more than in life. Not only do they proselytise through the media and in the public square, religious bodies play a large part in public life, through schools, hospitals and poverty relief. They command ethical behaviour from their members and bear witness to the exercise of power by state and private agencies; they promote music, art and theatre; they provide halls for community activities, and conduct a great variety of social activities for their members and the general public. They are part of the fabric of public life, and constitute active elements of the diverse and pluralistic nation contemplated by the Constitution. Religion is not just a question of belief or doctrine. It is part of a way of life, of a people’s temper and culture. “

In balancing the competing rights at stake the Court rejected Christian Education’s challenge to the ban. A Christian exemption from the ban on corporal punishment could not be granted. The conclusion was that: “Yet their schools of necessity function in the public domain so as to prepare their learners for life in the broader society. Just as it is not unduly burdensome to oblige them to accommodate themselves as schools to secular norms regarding health and safety, payment of rates and taxes, planning permissions and fair labour practices, and just as they are obliged to respect national examination standards, so is it not unreasonable to expect them to make suitable adaptations to non-discriminatory laws that impact on their codes of discipline. The parents are not being obliged to make an absolute and strenuous choice between obeying a law of the land or following their conscience. They can do both simultaneously.”

The corporal punishment example is a sharp example of the potential clash between rights. But there are so many other potential conflicts. Divided political loyalties, the content of history and evolution v creation theology are some of the other interesting issues possibly arising. Over time the contours of what is, and what is not constitutionally acceptable in South Africa’s diverse and religiously plural society will be calibrated. 

It is and will be interesting.

Click here to read our Pesach 2019 content

Click here for an article by Anton Katz on private conduct and the constitution


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