Submitted by Graham Travers, South Africa, August 10, 1999
Christian school body loses case to make spanking legal in "Christian" schools
The organisation Christian Education South Africa (CESA) last week lost its bid in the Port Elizabeth High Court to have a section of the South African Schools Act, 1996, which bans corporal punishment at all South African schools for both males and females, declared unconstitutional as violating their right to practice their religion.
They had based their case on biblical writings and claimed that their religion, Christianity, required that they use corporal punishment at schools as a disciplinary measure. They had conceded that they would not corporally punishment female learners in high school (13 years and older). Incidentally the use of corporal punishment for female pupils throughout their school career has been banned in South Africa since 1930. In some parts of the old Union of South Africa it was illegal from 1910.
The Education Ministry had vehemently opposed the application.
The Judge (Judge Liebenberg) found against CESA. He held that while the Bible spoke of the right of PARENTS to corporally punish their children, it said nothing of the rights of teachers. He found that corporal punishment had nothing to do with practising their religion.
CESA has not yet announced whether it will appeal the decision. I do not yet have the judgment to hand but as soon as I have the same in electronic format I will send it on to you.
It must be borne in mind the should a teacher (or parent) be convicted of Assault with intent to do Grievous Bodily Harm (actual grievous bodily harm need not be caused) on a child UNDER THE AGE OF SIXTEEN (16) YEARS then an MINIMUM SENTENCE OF 10 YEARS IMPRISONMENT for a FIRST OFFENDER, 15 YEARS for a SECOND OFFENDER and 15 YEARS for a THIRD AND ABOVE OFFENDER must be imposed by the court sentencing the offender UNLESS the ACCUSED shows that there SUBSTANTIAL AND COMPELLING CIRCUMSTANCES WHICH JUSTIFY THE IMPOSITION OF A LESSER SENTENCE. This minimum imprisonment cannot be SUSPENDED. A Regional Court, where most of these cases will be heard can sentence to five years in excess of the minimum period of imprisonment (i.e., 15 years maximum for a first offender, 20 for a second and 25 years maximum for a third offender. Such offenders also serve a longer period (about 60%) in prison before being eligible for parole. A person arrested for such a offence must also adduce evidence to show why he or she should be released on bail.
A few months ago a teacher broke the arm of a Grade 1 pupil (6 years old) because she "wrote something wrong". She is currently being tried in Johannesburg and will probably face a 10 Year jail sentence if she is convicted. Even though she apologised to the parents she has pleaded Not Guilty. Her trial proceeds.