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.
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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