Centre for Child Law and Others v South African Council for Educators and Others

Two educators, Ms Mokoena and Ms Sathekge, assaulted learners in the school environment during 2015. Ms Mokoena assaulted TZ and NT (both grade two learners) with a PVC pipe, causing TZ to suffer a brain haemorrhage requiring emergency surgery and hospitalization for two weeks. Ms Sathekge assaulted MPM by hitting her on the head, causing bleeding from the ear and requiring hospitalization. In 2019, the mothers of the children, assisted by attorneys, lodged formal complaints with SACE. Both educators pleaded guilty to breaches of SACE's Code of Professional Ethics. Ms Sathekge's disciplinary hearing occurred on 18 September 2019 and Ms Mokoena's on 20 September 2019. The children and their parents were invited to attend but were made to wait in a separate room, were not present in the hearings, not afforded an opportunity to present evidence or make representations, and were not consulted about sanctions. Both educators received identical sanctions: removal from the roll of educators wholly suspended for 10 years, and a fine of R15,000 (R5,000 suspended) payable over 12 months. The sanctions were imposed in accordance with SACE's 2016 Mandatory Sanctions policy. The Centre for Child Law and the mothers brought a review application to set aside SACE's decisions, challenging the lawfulness of the 2016 Mandatory Sanctions and the disciplinary process.

• When does the 180-day period commence under section 7(1) of PAJA when no reasons are provided for administrative action?
• Whether the application was moot given that the educators had partially served their sentences and the 2016 Mandatory Sanctions had been replaced by the 2020 Mandatory Sanctions
• Whether SACE unlawfully fettered its discretion by applying the 2016 Mandatory Sanctions as a rigid set of rules permitting no discretion
• Whether it was procedurally unfair to deny children and their parents the opportunity to be heard on appropriate sanctions
• Whether SACE committed a material error of law by failing to consider rehabilitative and corrective sanctions
• Whether SACE's decisions complied with constitutional obligations regarding the best interests of the child under section 28(2) of the Constitution and the Children's Act

1. The appeal is upheld. 2. The order of the high court is set aside and substituted with: (i) The decision of SACE of 11 February 2020 (confirmed 25 February 2020) approving the plea and sentence agreement and sanction for Ms Mokoena is declared unlawful and invalid, and is set aside. (ii) The decision of SACE of 16 October 2019 approving the plea and sentence agreement and sanction for Ms Sathekge is declared unlawful and invalid, and is set aside. 3. The decisions and sanctions are remitted to SACE for reconsideration to comply with constitutional obligations to act in the best interests of learners and to consider appropriate rehabilitative sanctions to ensure the two educators are assisted and enabled to apply appropriate and non-violent disciplinary measures. 4. SACE is ordered to pay the costs of the appeal and cross-appeal, including costs of two counsel.

The binding legal principles established are: (1) Under section 7(1) of PAJA, the 180-day limitation period commences only when reasons for administrative action become known or ought reasonably to have become known to the applicant; there is only one trigger date for both the unreasonable delay requirement and the 180-day calculation. (2) An administrative body unlawfully fetters its statutory discretion when it applies a policy as a rigid set of mandatory rules that permits no consideration of individual circumstances, even when that policy is labeled as containing 'mandatory sanctions'. A policy can only serve as guidance; each case must be considered on its merits. (3) Section 28(2) of the Constitution incorporates a procedural component requiring that children and their parents/families be afforded meaningful opportunities to participate in and make representations during proceedings that concern the child, including disciplinary proceedings against educators who have assaulted learners. (4) SACE, as an organ of state, is constitutionally obliged under section 7(2) to respect, protect and fulfill the rights in the Bill of Rights, including children's rights, when exercising its disciplinary powers. This includes considering the best interests of the child as paramount under section 28(2), the child's right to be heard, and relevant provisions of the Children's Act and international law. (5) Administrative bodies conducting educator disciplinary proceedings for assault of learners commit a material error of law under section 6(2)(d) of PAJA when they fail to consider rehabilitative and corrective sanctions aimed at addressing the root causes of educators' resort to violence and developing appropriate non-violent disciplinary skills. (6) Decisions that deny children and parents the opportunity to be heard on appropriate sanctions are procedurally unfair under section 6(2)(c) of PAJA.

The court made several important non-binding observations: (1) The court noted that corporal punishment remains 'rife in the school environment' despite the legislative prohibition in section 10 of the South African Schools Act, indicating the need for ongoing vigilance and enforcement. (2) The court observed that 'in a society besieged by violence' it is imperative that educators not only be prohibited from resorting to physical violence as discipline, but also be assisted to develop necessary skills to discipline appropriately and with personal control, as 'it is by example that children are taught to navigate a complex conflict-ridden world, without resorting to violence as a solution'. (3) The court noted that when assessing educator misconduct involving violence against children, SACE has a duty to assess inter alia: the impact on the children; whether it is advisable for the educators to return to the classroom; whether it is necessary to protect children from harm; whether the underlying causes of the educator's violent behavior require addressing; and whether the child may need psychological or other assistance to limit the harm done. (4) The court emphasized that how a child participates in proceedings 'will depend on the circumstances of the specific case and must be approached in a manner that will best serve the interests of the child'. (5) The court stated that 'there is no impediment in law to impose [rehabilitative] sanctions when appropriate, nor should there be' and that such sanctions 'should protect the best interests of the child and should assist the educator in developing the appropriate skills to function appropriately in the workplace'. (6) The court noted that remitting the matter for reconsideration of rehabilitative sanctions would not amount to double punishment but would benefit the educators by assisting them 'in executing their duties properly'.

This case is significant in South African jurisprudence for several reasons: (1) It clarifies that under section 7(1) of PAJA, the 180-day limitation period only begins when reasons for administrative action become known or ought reasonably to have become known, reinforcing the principle from Commissioner, SARS v Sasol Chevron Holdings and City of Cape Town v Aurecon. (2) It establishes that administrative bodies cannot apply policies as rigid rules that fetter statutory discretion, even when labeled as 'mandatory sanctions', reinforcing the principle from Computer Investors Group and MEC for Agriculture v Sasol Oil. (3) It affirms that section 28(2) of the Constitution (best interests of the child) contains a procedural component requiring children and their families to be afforded meaningful opportunities to participate in disciplinary proceedings affecting them, following AB v Pridwin Preparatory School. (4) It emphasizes that organs of state like SACE must exercise their powers consistently with constitutional obligations to children, including consideration of international law (CRC and ACRWC) under sections 39(1)(b) and 233 of the Constitution. (5) It establishes that disciplinary processes for educators who assault learners must consider rehabilitative and corrective sanctions (such as anger management and training in non-violent discipline) rather than purely punitive measures. (6) It reinforces the prohibition on corporal punishment in schools under section 10 of the South African Schools Act and the need to address the root causes of educators' resort to violence. The case is a landmark in protecting children's rights in educational settings and ensuring child-centered approaches in administrative decision-making.