Write an essay in which you discuss the role of the public school in the South African
education system. Pay particular attention to the critical function of the governing body
in providing quality education to all the learners in the school.
Oct/Nov 2023 Examination Answers
LCP4809
Education Law
100 Marks
Duration FOUR (4) Hours
25 OCTOBER 2023
QUESTION 1
Write an essay in which you discuss the role of the public school in the South
African Education system. Pay particular attention to the critical function of the
governing body In providing quality education to all the learners in the school.
The public school is a juristic person1 and an “organ of state”. The preamble of the
South African Schools Act places an obligation on all public schools to provide quality
education to all its learners. The South African Schools Act also gives effect to the
constitutional principles and norms and determines their application in school education.
It also establishes a “partnership “between the government and the school community
and determines the responsibilities of these role-players in the organisation, governance
and funding of schools.
The governance of a public school is vested in its governing body.3 The governing body
stands in a position of “trust” towards the school and this means that a relationship of
trust (fidei commissum) exists between the school and its governing body. In governing
the school, the governing body must conform to the basic democratic values and
principles (ie transparency, representivity and accountability) governing the public
administration. The governing body must promote the best interests of the school and
strive to ensure its development through the provision of quality education for all its
learners.
“In furthering the interests of the school, a governing body must take all reasonable
measures within its means to supplement the resources supplied by the state to
improve the quality of education provided by the school to all its learners”. Although the
attainment of quality education for all learners is an admirable goal, there are many
factors which prevent the progressive realisation of quality education. These factors will
now be considered. The proposed partnership between the government and the school
community may itself bring challenges to the provision of quality education. At the
moment, we are already grappling with huge demands for education at all levels, a high
percentage of adult illiteracy, a decreasing budget for education and endemic poverty in
numerous rural communities. “Although local communities will have direct participation
in the management of their schools, they will also be burdened with the heavy
responsibilities of partnership, namely financial responsibilities which will have a direct
impact on the quality of education provided at their school.”
,As stated earlier, a relationship of trust exists between the school and its governing
body. This places a burden on the governing body to provide expert and professional
service to the school. If the requisite “duties” and “functions” listed in the various
provincial regulations dealing with governing bodies are to be met, this will demand that
the governing body is constituted of people who are a disciplined team, with expert
skills, particularly in the fields of financial management and legal matters.9 That is not
always the case, as Bray points out in her article. Another challenge facing the provision
of quality education is that “many issues have not been resolved by the Schools Act and
several important and serious questions remain on its content and interpretation”.
In conclusion: In order to bring about transformation in the South African education
system, we need to realise that human rights, especially in education, need to be
cultivated more extensively and comprehensively. “Ultimately, it is not systems or
structures that work, but the functionaries (stakeholders) that implement the system and
their dedication in achieving the best products and results”
QUESTION 2
(a) The use of corporal punishment in public and private schools is prohibited by
Section 10 of the Schools Act. Slapping, pushing, or shoving, and rough
handling are all examples of corporal punishment. Parents may not give the
principal or educators permission to use corporal punishment on their
children, nor may parents administer corporal punishment to their own
children on school property (instead of a principal or educator). Anyone who
violates this regulation commits an offense and may face legal
consequences.
The Constitutional Court stated in the 1995 S v Williams decision that
prohibiting corporal punishment was an important part of moving away from
our violent history. As a result, the Court ruled that juvenile whipping is no
longer permitted as a form of punishment in South Africa. Section 10 of the
Schools Act makes corporal punishment illegal. CESA argued that corporal
punishment is legal under common law and is part of the parents' Christian
beliefs. The Port Elizabeth High Court, on the other hand, ruled that none of
, the biblical passages cited by CESA indicated that people other than parents
had a right to use a rod. The court stated that the biblical passage's guidelines
were no longer applicable, nor did they form part of Christian religious
doctrine (Christian Education SA v Minister of the Government of the
Republic of South Africa). In the Christian Education case, the
Constitutional Court had to weigh the rights listed above against the parents'
religious rights. In this case, the parents argued that "corporal correction" was
an important part of their Christian faith, and that a blanket prohibition on
corporal punishment in schools violated their right to freely practice their
religion. The Court examined all our government's constitutional and
international obligations and concluded that we must "take all appropriate
measures to protect the child from violence, injury, or abuse." In response to
the parents' arguments and the balancing of rights, the Court stated that "the
parents are not being forced to make an absolute and difficult choice between
obeying a law of the land and following their conscience." They can do both
at the same time.' According to the Court, the prohibition on corporal
punishment does not prevent schools from maintaining their distinct Christian
ethos. This case demonstrates that the Constitution respects and
accommodates people's values and beliefs, but when actions based on those
beliefs conflict with the protection of our children from cruel and degrading
treatment, those actions will be prohibited.
The Republic of South Africa's Constitution of 1996 is the supreme law of the
country, and education legislation, regulations, and school policies may not
be in conflict with it. The Bill of Rights is found in Chapter 2 of the Constitution,
as previously stated. The following are some of the Bill of Rights provisions
that have a direct bearing on school discipline and punishment.
Given the growing emphasis on human rights protection, it was unavoidable
that issues such as child abuse and corporal punishment in schools would
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