The South African Human Rights Commission says that schools in the country are obliged to adopt reasonable measures to avoid painful psychological and sometimes traumatic impact on minor learners.
The Commission said it noted with concern the allegations of marginalisation and discriminatory treatment of black female learners at Pretoria High School for Girls, the Sans Souci High School in Cape Town, Saint Michael’s School for Girls (SMS) in Bloemfontein, as well as other incidents and allegations emanating from other schools since.
In particular, the Commission said it noted allegations of differential treatment as regards language and hairstyles, and allegations of the use of derogatory and racist language against black learners by both educators and fellow pupils.
The Commission is a state institution established in terms of Chapter 9 of the Constitution of the Republic of South Africa, 1996 (the Constitution) to support constitutional democracy.
It is mandated in terms of section 184 of the Constitution to promote the protection, development, and attainment of human rights, including the rights of children and the right to equality and to monitor and assess the observance of such rights within the Republic of South Africa.
The Commission said that the Constitution guarantees that ‘everyone is equal before the law and has the right to equal protection and benefit of the law.’ Equality, as envisaged by the Constitution, includes the full and equal enjoyment of all rights and freedoms.
The Commission said it has further powers in terms of the Promotion of Equality and Prevention of Unfair Discrimination Act (PEPUDA), which prohibits discrimination on the grounds of race, gender, ethnic or social origin, colour, culture, and language, (amongst others.)
PEPUDA also prohibits:
- discrimination that causes or perpetuates systemic disadvantage;
- undermines human dignity;
- or adversely affects the equal enjoyment of a person’s rights and freedoms in a serious manner.
PEPUDA’s prohibition of discrimination on the basis of race, includes ‘the exclusion of persons of particular race under any rule or practice that appears to be legitimate but which is actually aimed at maintaining exclusive control by a particular race group.’
With respect to the alleged discriminatory practices against black learners in schools, which have emerged recently, the Commission said it is of the view that schools are the primary institutions for the realization of the right to education for most learners.
“They provide a place of learning, social development and social encounter for children from various ethnicities, religions and backgrounds. Simultaneously, schools are also places where the exercise of authority may render certain groups vulnerable.
“In this regard, the principles of basic human rights, especially the right to dignity and the best interests of the child, should be of paramount importance to all schools, teachers, principals, administrators and school governing bodies.”
Accommodation of difference & tolerance
In 1998, Justice Albie Sachs, in Prince v President of the Law Society of the Cape of Good Hope, pointed out in that the test for tolerance as envisaged by the Bill of Rights “comes not in accepting what is familiar and easily accommodated, but in giving reasonable space to what is ‘unusual, bizarre or even threatening”.
In a 2008 judgment, the Constitutional Court found that our Constitution requires the community to affirm and reasonably accommodate difference, not merely to tolerate it as a last resort. The Court further noted: “our Constitution does not tolerate diversity as a necessary evil, but affirms it as one of the primary treasures of our nation.”
In this judgement, the late Chief Justice Langa observed that children and South Africans in general should be proud of their religion, culture, and heritage.
Justice Langa further noted that conduct by persons in authority over a learner, which causes the child to feel guilty or embarrassed in respect of their religion, not only affects the child’s dignity, but may also create intolerance within the child for religions different from their own.
Such fears and prejudices become embedded and deep seated and may affect such a child negatively in the long term.
Codes of Conduct
The Commission stressed that Codes of Conduct are important mechanisms through which schools can create a learning environment consonant with constitutional values, and should cater for reasonable accommodations of deviations on religious or cultural grounds.
“Ideally, in a democratic and open society, School Codes of Conduct should enable the exercise of diversity to the greatest possible extent. School Codes of Conduct should preferably include provisions that recognize our diverse religious and cultural beliefs and allow for the exercise of all religions and cultures.”
The Commission said that the recent allegations of discrimination provide an opportunity for the schools concerned and for other schools to review their Codes of Conduct to increase tolerance, respect, and protection for all in the school community.
Obligations of schools
“The Commission is of the view that schools have a clear obligation to adopt reasonable measures to avoid painful psychological and sometimes traumatic impact on minor learners. In an open and democratic society based on human dignity, equality, and freedom, special pains must be taken by all actors in the education sector to ensure these values and rights are protected.
“The Commission is of the view that it is incumbent on principals, educators, School Governing Bodies, and parents to provide leadership in developing a culture of respect for basic rights and values at schools,” it said.
The recent allegations against Pretoria High School for Girls and other schools cannot be viewed in isolation. Globally religious and cultural intolerance results in widespread violations of basic rights, manifesting in conflict and loss of life. Unfortunately, children are too often the victims of such conflict.
The Commission lauded the swift intervention of the Gauteng MEC for Education, Minister Panyaza Lesufi, in launching a probe into alleged racist practices at Pretoria High School for Girls.
The Commission said it pledges its support to the process and looks forward to participating in the process as a key stakeholder tasked with upholding rights in the Bill of Rights.