Abstract
The best-interest-of-the-child concept should guide the legislative framework with regard to the approach followed as well as the disciplinary processes used in schools. Currently schools revert mostly to a retributive and adversarial approach to discipline that is not compatible with the best-interests-of-the-child standard. In this article, the provisions of section 8 of the Schools Act are scrutinised and it is concluded that these provisions are supporting an adversarial and punitive approach to school discipline. This is evident from the lack of prescriptions ensuring that sanctions serve the best interest of children, the insufficient provision for support measures and structures for counselling, the undue focus on the best interests of the transgressor and the lack of guidance concerning the appointment of an intermediary. The introduction of restorative discipline as an alternative approach to discipline is recommended. The latter approach is recommended, because it is submitted that amendments to the existing legislative provisions would not address the key objection to the legislative framework namely its retributive and adversarial character.
Highlights
The Constitution of the Republic of South Africa, 1996 (“Constitution”) provides, in section 28(2), that a ‘child’s best interests are of paramount importance in every matter concerning the child.’ In line with this injunction, the new Children’s Act 38 of 2005 (“Children’s Act”) and the Child Justice Act 75 of 2008 have developed a clear focus on the best interests of the child
We indicate, in broad terms, a different approach to school discipline that could address most of the structural deficits of the current retributive and adversarial disciplinary system
The Constitution should play a decisive role in transforming the South African society in general and school discipline in particular to give effect to the constitutional values of human dignity, equality and freedom and to constitutional rights, such as the right to education, nondiscrimination, social services, and administrative justice
Summary
The Constitution of the Republic of South Africa, 1996 (“Constitution”) provides, in section 28(2), that a ‘child’s best interests are of paramount importance in every matter concerning the child.’ In line with this injunction, the new Children’s Act 38 of 2005 (“Children’s Act”) and the Child Justice Act 75 of 2008 have developed a clear focus on the best interests of the child. The Constitution of the Republic of South Africa, 1996 (“Constitution”) provides, in section 28(2), that a ‘child’s best interests are of paramount importance in every matter concerning the child.’. In line with this injunction, the new Children’s Act 38 of 2005 (“Children’s Act”) and the Child Justice Act 75 of 2008 have developed a clear focus on the best interests of the child. Thereafter, the most important shortcomings of the legislative framework, when measured in terms of the best-interests-of-the-child principle, will be identified These shortcomings relate to aspects of the discipline regime that do not fully respect, protect, promote and fulfil learners’ right to education, dignity, equality, personal security, education, social services and fair administrative action.
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