Towards successful schooling : the role of courts and schools in protecting conflicting individual educator and learner rights

• Author: Elda De Waal,Erika Serfontein
• DOI: 10.10520/EJC162996
• Published date: 01 January 2014
• Date: 01 January 2014
• Pages: 65-89

BA Hons (RAU) BEd Hons MEd PhD (PU for CHE), Associate Professor, Education Law, North-

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West University, Vaal Triangle Campus.

LLB (RAU) MEd PhD (NWU), Senior Lecturer, Law, North-West University, Vaal Triangle Campus.

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Sanders ‘Collective rights’ (1991) 13 Human Rights Quarterly 368 at 386.

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Van Dyke ‘Collective entities and moral rights in liberal-democratic thought’ (1982) 44(1) Journal

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of Politics 21 at 22.

Sayed ‘Democratising education in a decentralised system: South African policy and practice’

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(2002) 32(1) Journal of Comparative and International Education 35 at 43.

1996 (‘Constitution’).

4

Mokgoro (1998) ‘Ubuntu and the law in South Africa’ Paper delivered at the First Colloquium

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Constitution and Law held at Potchefstroom on 31 October 1997.

2013 1 SA 83 (CC) paras 19, 22.

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Towards successful schooling: The role

of courts and schools in protecting

conflicting individual educator and

learner rights

Elda de Waal and Erika S erfontein

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1 Introduction

Conflict frequently arises between the individual rights of individuals. In resolving

such conflicts, the relevant rights have to be balanced in order to reach a just

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equilibrium (inter preted as parity) . At school level, different individuals have

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needs and interests that are not necessarily in harmony. This may lead to tension

between individual rights. Such tension is overlaid in South Africa with its specific

history of racial, ethnic, linguistic and religious conflict.3

Section 36 of the Constitution of the Republic of South Africa, known as the

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limitation clause, is a rights-balancing mechanism that makes specific provision

for the criteria to be considered when conflicting rights and interests are claimed.

It is also, therefore, a mechanism for peaceful co-existence between individual

claimants. In this regard, the Constitutional Court in SATAWU v Garvas

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emphasised the fact that a balancing process is needed wh en any limitation is

placed on the rights of individuals, in order to ensure that such a limitation is

reasonable and justifiable in an open and democratic society based on human

66 (2014) 29 SAPL

Id para 45.

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Childress et al ‘Public health ethics: Mapping the terrain’ (2002) 30 Journal of Law, Medicine &

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Ethics 170 at 172.

See (n 4) s 22.

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Id s 29(1).

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Id s 15.

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Joubert, De Waal and Rossouw ‘Discipline: Impact on access to equal educational opportunities’

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(2004) 22(3) Perspectives in Education 77 at 81.

See (n 4) s 12; O’Neil ‘Corporal punishment in publi c schools: A call for legal reform’ (2008) 8

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African Human Rights Law Journal 60 at 68.

Christie ‘The complexity of human rights in global times: The case of the right to education in

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South Africa’ (2010) 30(1) International Journal of Educational Development 3 at 6.

Skutnabb-Kangas Linguistic genocide in education – Or worldwide diversity and human rights?

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(2013).

Cummings, Mawdsley and De Waal ‘The best interests of the child, parents’ rights and

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educational decision-making: A comparative analysis of interpretation in the United States of

America, South Africa and Australia’ (2006) 11(2) Australia and New Zealand Journal of Law and

Education 43 at 43.

dignity, equality and freedom. Attention is drawn to the fact that exercising

individual rights and freedoms does not extend to individuals who use their rights

and freedoms in an unaccountable manner leading to the violation of others’

rights. The Constitutional Court subsequently cautioned that if individual rights are

used in such a way, the beneficiaries thereof will lose constitutional protection.7

When dealing with conflicting needs, and thus conflicting rights, the question

that arises is how can they be dealt with in a way that creates a culture of respect

for diversity and other people’s rights and so guides the role-players’ actions?

Secondly, how can such conflict be resolved? In this regard, awareness is needed

that some conflicts centre on the range and scope of rights and that assigning

weight and significance to the ends and effects of protecting and promoting

individual rights without diminishing other people’s individual rights, is neces sary.

Childress et al propose that, under such circumstances, it is best to balance the

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conflicting rights against one another.

At schools, conflict between individual rights can arise in multiple ways, such

as a conflict between educators’ rights to their profession and learners’ rights to

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a basic education; when learners disturb classes and educators’ right to teach;

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individual rights to religion and schools’ Codes of Conduct; or the rights of

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educators to maintain discipline and learners’ right to freedom and security of

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the person.13

Various studies exist which address the rights of educators and learners by

placing emphasis on the learners’ right to a basic education, education in the

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language of choice, and the best interests of the child. However, only a few

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studies have addressed the rights of educators and how to pit them against those

of learners. No literature could be found that addressed the role of both the courts