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Private schools not above the law

11 - 17 August 2017

The Constitution rules against discrimination and for the protection of children at all schools

Over the past two weeks, one of the most prominent private schools in the country, Saint John’s College, has been criticised for merely disciplining and demoting a teacher found guilty of sustained discrimination against black pupils is his classes.

He was accused by them of, among other comments, telling black pupils, when they excelled in tests, that they were letting their people down, implying that black people are not expected to do well at tests. Racist comments were also made to pupils of Indian descent.

Dr Jon Patricios, chairperson of the council at the Johannesburg school, indicated in an interview on Talk Radio 702 that the school, founded by Anglicans, preferred a “restorative justice” approach, which is why more stringent action against the teacher was not taken, but further conceded that the matter had not been adequately handled.

The school does not have a policy on racism even though one was drafted more than 10 years ago.

Right to education Apartheid grossly violated all human rights for the majority of citizens, and the long-term effect, on economic and social rights in particular, has been terribly damaging.

The Constitution, which came into effect in 1996, enshrines civil and political rights, economic and social rights and the right to equality and nondiscrimination for all. Civil and political rights and the right to equality and non-discrimination were immediately enforceable and realisable because such rights are automatically and immediately conferred upon a person. But the realisation of economic and social rights depends heavily on the availability of state resources, planning at all spheres of government, the effective implementation of policies and programmes and the ongoing monitoring of such rights.

The right to education has been particularly difficult to realise.

Many public schools, especially those in peri-urban and rural areas, lack appropriate infrastructure, many pupils battle with transport to schools and the quality of public education remains questionable. It is not surprising that parents who can afford the high fees of independentschools have opted to send their children to these private schools.

With the hefty price tag attached to private schooling, parents have come to expect nothing short of perfection from schools. But many black parents and their children have found that independent schools are a microcosm of society and have faced serious incidents of discrimination, particularly racism.

Such incidents have occurred since formal integration began, but seem to have magnified of late.

Other incidents of racism

In 2015, a Curro Holdings school was investigated for systemic discrimination, including segregating classrooms by race and not including

African languages as part of the school’s curriculum.

Last year, black pupils at Pretoria

Girls High School protested when teachers demanded that they chemically straighten and overall “manage” their hair to conform to the school’s dress code.

Opinion on the matter was divided and many believed that, as a private school, Pretoria Girls

High had a right to enforce any rules and regulations that it deemed necessary to maintain discipline and their particular ethos. A comment on Facebook, for example, in response to an online report on the issue, stated: “Rules are rules that is what keeps discipline in school.

From the length of your skirt to how many times your socks are rolled down to having neat hair, we all had rules and abided by them. This girl signed the code of conduct when enrolling at the school and thereby accepted the rules. This should not have become a racial issue but more [about] following rules.”

Early this year, Northcliff High

School in Johannesburg was called to account by parents of Muslim pupils who were issued with a “permission card” to wear a headscarf.

The school believed the card would be of benefit to the pupils when questioned by a teacher for violating the school’s dress code. Many

South Africans likened the card to the dompas that black people were forced to carry during apartheid and the Nazi’s demand that Jewish people had to wear a yellow Magen

David with the word “Jude” written on it.

But others believed that the school was within its rights to enforce such a rule, and because it applied to other pupils in isolated cases (for example, if a schoolchild needed to wear takkies), it was condonable.

Tweets and comments on social media stated that pupils who were not happy with the rules should “just move to another school” because they “knew what they were getting into when they joined”.

Legal obligations

Many South Africans may believe that private schools have unrestrained leeway in enforcing codes of dress and conduct and internal rules and regulations, but there are many obligations a school has to its pupils, legally and morally. Legally, any private entity, particularly one that is entrusted with the education of young people, is bound by the laws of the land, especially the

Constitution. Policies and codes of conduct must be developed with all relevant legislation and the Bill of Rights in mind. It is not a legal obligation, but advisable for the school to put in place mechanisms to ensure that no person is discriminated against on the basis of race, religion, sexual orientation, gender and more.


Although there may be a fine line between rules and discrimination, a school should ideally develop reasonableness tests to ascertain whether a child’s dress, actions and so forth affects their ability to learn.

Section 29(3) of the Constitution explicitly prohibits discrimination on the basis of race. Further, as all schools are entrusted with the care and guidance of minors, they have a constitutional responsibility to ensure the child’s right to a basic education and that this access is not infringed upon.

The belief that private schools have a right to do as they please and that unhappy pupils should change schools if they cannot abide by the rules is both legally flawed and often serves to cause further division in society.

Moral obligations

From a moral standpoint, it is important to recognise the power relations that exist between teachers and pupils. Teachers do have a level of power over pupils and negative and discriminative words and actions can harm a child irreparably.

It is similarly essential to understand the great courage required from a pupil to speak out about discrimination and the possible reprisal if not taken seriously.

Children should be provided with the best protection at schools, whether public or private, and no institution should use their independence to condone behaviour that contravenes the country’s basic constitutional values.

It is in the best interest of private schools and their communities to build on the country’s diversity and ensure that differences are encouraged and nurtured, not frowned upon.

In addition, the relevant management bodies such the Council for Quality Assurance in General and

Further Education and Training or Umalusi, the Independent Schools Association of Southern Africa and the South African Council of Educators, as well as universities and teacher training colleges, must continually conduct awareness and sensitivity training so that managers and teachers are not discriminative and are able to handle situations of discrimination. Although such training may not alter the mind-set of all employees, it will at least ensure that they are aware of the rights of pupils and that any discriminative and biased thinking is not brought into the classroom or school.

Given the historical inequality in education and the major hurdles that are still faced in relation to the provision of free, quality education for all, discrimination shouldn’t be a problem we still face. But, given that this vision is being realised at a very slow pace, such incidents should be dealt with in the harshest possible way. These pupils are the future of our country and it is ultimately in the best interest of the school and society to promote social cohesion and take concrete steps to dismantle socially constructed racial barriers.

Yuri Ramkissoon is a senior researcher in the economic and social rights unit at the South

African Human Rights Commission

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