With an increasing emphasis on the protection of basic human rights and on the need to protect children against harsh and cruel treatment, attitudes towards discipline and punishment have changed considerably since the middle of the 20th Century.

Considering the growing emphasis on the protection of human rights, it was inevitable that increasing attention would be given to issues such as child abuse and corporal punishment in schools. Inflicting physical pain on children is no longer accepted as a form of controlling behaviour or of correcting inappropriate behaviour. By the 1980s, corporal punishment had been banned in many democratic countries. South Africa joined the ranks when it outlawed corporal punishment in 1996. Besides corporal punishment, human rights have also impacted on other areas of discipline such as suspension, due process, conducting searches and detaining learners.

The Constitution of the Republic of South Africa, 1996, is the supreme law of the country, and education legislation and regulations and school policies may not be in conflict with it. As already mentioned, Chapter 2 of the Constitution contains the Bill of Rights. The following are some of the provisions in the Bill of Rights that have a direct bearing on school discipline and punishment.

Right to human dignity (Section 10)

An important aim of a school’s code of conduct should be to ensure the right of everyone in the school to his or her dignity and to promote respect for oneself and others.

An important aim of a school’s code of conduct should be to ensure the right of everyone in the school to his or her dignity and to promote respect for oneself and others. When administering punishment, care should be taken not to infringe on this right. Belittling, name calling, using derogatory (intentionally offensive) language and humiliating learners in front of their peers are examples of how a learner’s right to dignity may be infringed, and these should be avoided.

Freedom and security of the person (Section 12)

Everyone has the right to freedom and security and the right to bodily and psychological integrity.

This section provides that everyone has the right to freedom and security and the right to bodily and psychological integrity. This includes the right not to be tortured in any way and not to be treated or punished in a cruel, inhuman or degrading way. Therefore, in the school context, punishment may not be unreasonable, cruel or degrading.

Punishment is considered to be unreasonable if:

It is excessive and negligently administered l it results in physical or psychological injury l it is not in proportion to the offence
There is not sufficient cause for punishment and
It does not suit the age of the learner.

Right to privacy (Section 14)

The right to privacy, which includes the right not to have one’s person and property searched, is a fundamental principle that should be upheld by the school’s code of conduct.

The right to privacy, which includes the right not to have one’s person and property searched, is a fundamental principle that should be upheld by the school’s code of conduct.
The question of searching learners and their property frequently confronts school officials.
In certain circumstances it may be necessary to conduct searches, for example, when searching for drugs, dangerous weapons and stolen property. However, in carrying out searches, learners’ personal dignity and privacy may well be affected. Therefore, particular care must be taken to ensure that the search is reasonable, justifiable and conducted by appropriate persons in an appropriate way (this will be discussed later).
Parents and learners should be informed of the school’s procedures for conducting searches.

The right to education (Section 29)

The right to education in terms of Section 29 of the Constitution belongs to everyone

According to Bray (2005:79), the right to education in terms of Section 29 of the Constitution belongs to everyone, including children. It is a socio-economic right and imposes a positive duty on the state to provide education or access to education.

Just administrative action (Section 33)

Everyone has the right to administrative action that is lawful, reasonable and procedurally fair.

In terms of this provision, everyone has the right to administrative action that is lawful, reasonable and procedurally fair.
Those whose rights have been adversely affected by administrative action have the right to be given written reasons for the action.
In the school context, administrative action includes daily functions performed by school officials during the course of managing the school. For example, suspending a student for misconduct is an administrative action that may be performed by a governing body (Joubert and Squelch, 2005:9).

Right to an environment that is not harmful (Section 24)

Learners have the right to an environment that is not harmful to their health or well-being.

Learners have the right to an environment that is not harmful to their health or well-being. This places an obligation on educators to ensure the safety and well-being of learners. The common-law principle of in loco parentis means, literally, ‘in the place of the parents’, which means that educators act in the place of the parents while learners are in their care. On the other hand, educators are expected to meet the diligens paterfamilias standard. Diligens (good) and paterfamilias (father of the house or family) is a common-law principle which means to act as a prudent (reasonable) parent.

The limitation clause (Section 36)

Human rights and freedoms are not absolute and may therefore be limited.

Human rights and freedoms are not absolute and may therefore be limited. In practice, this means that when an individual learner is infringing on the right to a safe school environment of all the other learners at a school or their right to education (e.g. selling drugs to younger learners), such an individual’s right to education may be limited.

The rights that follow will be discussed briefly in order to demonstrate the relationship between the fundamental right in question and school safety.

Module: Discipline