Corpun file 26470 at www.corpun.com
The Namibian, Windhoek, 6 September 2016
School beatings ruled illegal
By Werner Menges
CORPORAL punishment may not be used in private schools in
Namibia, the High Court ruled in a landmark judgement on the use
of physical force to discipline pupils yesterday.
Click to enlarge
The use of corporal punishment has not only been outlawed in
government schools since a Supreme Court judgement on the issue
was delivered in 1991, but a section of the Education Act of 2001
extended that prohibition to private schools in Namibia as well,
the court has found in a judgement that is set to force schools
still implementing corporal punishment to rethink their methods
of disciplining pupils.
The Education Act applies to all schools in Namibia -- state-run
as well as private -- judge Elton Hoff found in the judgement.
He also reasoned that interpreting the section of the Education
Act that deals with corporal punishment as applying only to
teachers employed by the government would result in an absurdity
in that children enrolled at state schools would be protected
against invasive punishment, yet those enrolled at private
schools would not be.
Judge Hoff's decision turned on the Education Act's section 56,
which states that a teacher or any other person employed at a
state or private school or hostel commits misconduct if they, in
the performance of their official duties, impose or administer
corporal punishment on a pupil, or cause corporal punishment to
be imposed on a pupil.
Judge Hoff found that the term "official duties" as
used in the section means duties performed in an official
capacity as a teacher at both state and private schools.
Because the Supreme Court's ruling did not address the issue of
corporal punishment in private schools in the 1991 judgement in
which it found that the use of corporal punishment in state
schools was unconstitutional, Namibia's parliament intended to
prohibit corporal punishment in all schools, including private
schools, through section 56 of the Education Act, judge Hoff reasoned.
He stated that the effect of section 56 was that no amount of
consent from parents or from a pupil at a school himself could
nullify or invalidate the prohibition of corporal punishment in
that part of the Education Act.
Judge Hoff indicated that he supported a statement made in a
judgement of South Africa's Constitutional Court on corporal
punishment in 2000, when a judge of that court stated that South
Africa's parliament wished to make a radical break with an
authoritarian past when it decided to outlaw physical beatings in
that country's schools.
In taking that step, the government tried to introduce new
principles of learning in terms of which problems were solved
through reason rather than force, the judge remarked.
"The outlawing of physical punishment in the school
accordingly represented more than a pragmatic attempt to deal
with disciplinary problems in a new way," Constitutional
Court judge Albie Sachs said. "It had a principled and
symbolic function, manifestly intended to promote respect for the
dignity and physical and emotional integrity of all children."
Judge Naomi Shivute agreed with judge Hoff's decision, which was
the result of an appeal by four teachers of a private school in
Windhoek who were found guilty of assault after they had been
involved in meting out corporal punishment to a pupil at their
school in 2010.
The four teachers -- Windhoek Gymnasium rector Stephanus
('Fanie') van Zyl and teachers Ettienne Odendaal, Estelle
Oberholzer and Frederick ('Frikkie') Maartens -- were convicted of assault in June 2013, after a trial in the Windhoek
Magistrate's Court. Each of the four was sentenced to a fine of
N$2,000 or imprisonment for a year.
The teachers were prosecuted in connection with five incidents in
which a 14-year-old pupil at the school was subjected to corporal
punishment in February and March 2010. The boy's parents did not
approve of the use of that sort of physical punishment on their child.
The teachers' convictions were overturned in yesterday's appeal judgement.
Judge Hoff said that while the evidence before the trial court
showed the four teachers had administered corporal punishment in
spite of the provisions of the Education Act, it also indicated
that they did not know that it would be unlawful to use physical
punishment on the boy.
Based on that absence of knowledge of the unlawfulness of the
corporal punishment that they dished out, the court found that
the teachers did not have an intention to commit the crime of assault.
Senior counsel Raymond Heathcote, assisted by Beatrix de Jager,
represented the teachers, on instructions from Barend van der
Merwe, during their trial and in the appeal. State advocate
Constance Moyo represented the state with the hearing of the
appeal in May last year.
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