Treasury Regulations and Educator Accountability For Damages Regarding Unlawful Disciplinary Measures in Public Schools

• Author: Mariëtte Reyneke
• DOI: 10.25159/2522-6800/8075
• Published date: 01 November 2021
• Date: 01 November 2021
• Pages: 1-1

Article

Southern African Public Law

https://doi.org/10.25159/2522-6800/8075

https://upjournals.co.za/index.php/SAPL

ISSN 2522-6800 (Online), 2219-6412 (Print)

Volume 36 | Number 1 | 2021 | #8075 | 22 pages

© Unisa Press 2021

Treasury Regulations and Educator Accountability

For Damages Regarding Unlawful Disciplinary

Measures in Public Schools

Mariëtte Reyneke

https://orcid.org/0000-0002-7150-4367

University of the Free State

reynekej@ufs.ac.za

Abstract

Corporal punishment remains a reality in many schools. In MEC for Education,

KwaZulu-Natal v Shange 2012 (5) SA 313 (SCA), the Supreme Court of Appeal

awarded an adult claimant R4 million in damages for suffering due to the

corporal punishment he had to endure as a learner at school. The high incidence

of corporal punishment and its severe consequences give rise to the question:

Could, and should, the fiscus be responsible for the redress of all delictual

claims arising from the use of corporal punishment or other unacceptable

disciplinary measures? On the one hand, the State is vicariously liable for

damages resulting from the actions of educators. On the other, Treasury

regulations require accounting officers to recover damages caused by State

officials when they fail to comply with standing orders and instructions, such as

the prohibition on corporal punishment. This notwithstanding, accounting

officers have a discretion to write off monies owed to the State due to deliction

by employees. To promote accountability, Treasury regulations could be

strengthened to ensure more stringent application. Yet, the lack of discipline in

schools is often the result of systemic problems, which raises the question

whether it is justifiable that individual educators, could be held liable for

damages caused by the use of such measures of punishment.

Keywords: educator accountability; accountability in general; school discipline; State

liability; corporal punishment; disciplinary measures; Treasury

regulations; delictual claims against State officials

Reyneke

2

Introduction

Although Corporal punishment in South African schools is illegal,

1

its continued and

large-scale use, as well as other unacceptable disciplinary measures in South African

public schools are undisputed

2

and they infringe on several human rights.

3

The negative

consequences of corporal punishment are well documented and include physical,

psychological and emotional harm.

4

There are several legal mechanisms to address the

unlawful use of corporal punishment and other degrading forms of discipline, although

it is questionable whether they are effective.

There is a school of thought which advocates that the State should be held directly liable

for delictual damages in the case of systemic failures, and that such damages should not

be claimed in terms of the principle of vicarious liability.

5

However, the focus of this

article is not the debate around direct State liability or liability arising from vicarious

liability, nor is it the issues pertaining to the interpretation of this principle in a

constitutional dispensation.

6

Rather, the focus is the application of Treasury regulations

to recoup, from the educator, delictual damages paid by the State where systemic

failures existed that arguably contributed to the amount of damages awarded.

1

South African Schools Act s 84 of 1996 s 10.

2

Jethro Gina and Toy White, ‘Managing Safety and Security in Rural and Township Schools: Case

Studies from KwaZulu-Natal’ (2014) 27(2) Acta Criminologica: Southern African Journal of

Criminology 56–68; Vusi Mncube and Tshilidizi Netshitangani, ‘Can Violence Reduce Violence in

Schools? The Case of Corporal Punishment’ (2014) 5(1) Journal of Sociology and Social

Anthropology 1–9; Matshidiso Taole, ‘Learners’ Self-Reports of Exposure to Violence in South

African Schools: A Gendered Reflection’ (2016) 14(1) African Safety Promotion Journal 42–61;

Sekitla Mashasane and Pinkie Mthembu, ‘Exploring School Violence Misconceptions and

Professional Development of Teachers’ (2019) 16(3) African Renaissance 49–66.

3

Section 10 and 12 of the Constitution of the Republic of South Africa (Constitution).

4

Iqbal Ahmad, Hamdan Said and Faisal Khan, ‘Effect of Corporal Punishment on Students’ Motivation

and Classroom Learning’ (2013) 5(4) Review of European Studies 130–134; Jyoti Shukla and Neetu

Singh, ‘Implications of Corporal Punishment on Primary School Children’ (2013) 15(6) Journal of

Humanities and Social Science 57 –59; Noorullah Shaikhnag, Thomas Assan and Irene Loate, ‘A

Psychoeducational Perspective of Discipline in Schools and the Abolishing of Corporal Punishment’

(2016) 14(3) International Journal of Educational Sciences 275–283.

5

Susan Coetzee, ‘Holding the State Directly Liable for Educator-on-Learner Sexual Abuse’ (2018)

19(1) Child Abuse Research: A South African Journal 30–44; Leo Boonzaier, ‘State Liability in South

Africa: A More Direct Approach’ (2013) 130(2) SALJ 330–368; Alistair Price, ‘State Liability and

Accountability’ in Alistair Prince and Michael Bishop (eds), A Transformative Justice: Essays in

Honour of Pius Langa (Juta 2015) 313–335.

6

Christopher Roederer, ‘The Constitutionality Inspired Approach to Vicarious Liability in Cases of

Intentional Wrongful Acts by the Police: One Small Step in Restoring the Public’s Trust in the South

African Police Service’ (2005) 21(4) South African Journal on Human Rights 575–606; Johan Scott,

‘Vicarious Liability for Intentional Delicts—the Constitutional Factor Clinches Liability’ (2013) 2

Journal of South African Law 348–361; Chuks Okpaluba, ‘The Constitutional Principle of

Accountability: A Study of Contemporary South African Case Law’ (2018) 33(1) SAPL 1–39.