Treasury Regulations and Educator Accountability For Damages Regarding Unlawful Disciplinary Measures in Public Schools

Abstract

Corporal punishment remains a reality in many schools. In MEC for Education, KwaZulu-Natal v Shange 2012 (5) SA 313 (SCA), the Supreme Court of Appeal awarded an adult claimant R4 million in damages for suffering due to the corporal punishment he had to endure as a learner at school. The high incidence of corporal punishment and its severe consequences give rise to the question: Could, and should, the fiscus be responsible for the redress of all delictual claims arising from the use of corporal punishment or other unacceptable disciplinary measures? On the one hand, the State is vicariously liable for damages resulting from the actions of educators. On the other, Treasury regulations require accounting officers to recover damages caused by State officials when they fail to comply with standing orders and instructions, such as the prohibition on corporal punishment. This notwithstanding, accounting officers have a discretion to write off monies owed to the State due to deliction by employees. To promote accountability, Treasury regulations could be strengthened to ensure more stringent application. Yet, the lack of discipline in schools is often the result of systemic problems, which raises the question whether it is justifiable that individual educators, could be held liable for damages caused by the use of such measures of punishment.