Institute for Health and Development Communication

Reg. No. 95/10944/08 (Association Incorporated Under Section 21)

 

2nd Floor, Park Terras, 33 Princess of Wales Terrace, Parktown 

P O Box 1290 Houghton 2041, South Africa

 

 

6

 

The Education Laws Amendment Bill

May 2007

 

Submission By:

Soul City Institute for Health and Development Communication

 

 

 


 

Submission on

The Education Laws Amendment Bill

May 2007

 

1.         Introduction

 

The Soul City Institute for Health and Development Communication (Soul City IHDC) is a social change project and health promotion organization, which believes that health, is a product of a range of intersectoral actions that include building an enabling environment, advocacy for health public policy, community action, developing personal skills and reorienting the health services towards the health promotion approach.

 

Soul City: IHDC project is made up of:

 

  • A prime time television series
  • A daily radio drama
  • Booklets on the health topics covered in the broadcast media
  • An advocacy campaign which keeps people talking and thinking about social issues placed into public agenda by Soul City
  • Adult education and youth life skills mater

 

The Institute’s flagship TV and radio programmes, Soul City and Soul Buddyz, have reached 16 million South Africans and won a number of prestigious national and international awards.  Each series takes two years to develop. During this time intensive research and consultation is undertaken.

                 

It is not easy to separate health and social issues as they are inter-dependent. Soul City therefore has, through workshops and focus groups held in the community, as well as other research, built up a vast body of knowledge on health and development issues.

 

For several years now Soul City IHDC has committed its resources to advocating and mobilizing around a campaign to promote Schools as Nodes of Care & Support for Vulnerable Children. The Campaign aims to engage parents - through School Governing Bodies - in increasing their roles in the provision of support to children made vulnerable by a range of factors, from HIV/AIDS and poverty to violence and who are at school.

 

Soul City IHDC is grateful for the opportunity to comment on the Education Laws Amendment Bill, 2007 and believes that the research and campaigns it has been involved in since its inception qualify it to make informed comments and recommendations on certain clauses within the Bill.

 

 

 

 

2.         Context

 

Although we understand and appreciate the need to address the high levels of crime at school and the concomitant drug issues, we believe that certain sections of the Bill fail to achieve a satisfying and child-rights based approach to the problems. Further it is our contention that in some instances, certain parts of the Bill could cause unnecessary stress and marginalization within communities, particularly poorer ones.

 

The content of any Bill, which purports to address violence and drug problems in schools must, we believe, take the following into account:

 

a)         The wider context of violence within our communities and society in general;[1]

b)         The endemic socio-political violence perpetrated by continuing national, race, class and gender inequality through poverty, lack of access to basic services and opportunities, and other material and human deprivations defined by such inequalities; and

c)         The wider context of child vulnerability created by these inequalities and experienced through the impact of HIV/AIDS on children and their households, poverty, domestic violence, xenophobia, and all forms of social disintegration - all of which impact on the ability of vulnerable children to obtain access to a safe and effective learning environment in which to realise their right to basic education.

 

The problem of School-Based Violence has been widely documented, but remains largely unquantified, and many questions remain to be answered about the nature, causes and impacts upon learners.

 

Soul City IHDC's submission situates the crisis of School-Based Violence in a wider context of social disintegration that is part of the legacy of apartheid, but which is also maintained by current inequalities. Soul City's approach is framed within this holistic approach.

 

Soul City's longer-term vision centrally calls for efforts to reinvigorate the Tirisano Call to Action with a particular emphasis on the creation of Schools as Centers of Community Life and centre state commitments to cooperative governance in all matters related to the realization of the fundamental rights of children around this model, with the creation of Schools as Nodes of Care and Support for Vulnerable Children serving as a first step toward the realization of this vision.  Further and equally important, we call for the release of the “Report of the Ministerial Review Committee on School Governance, 2004 as well as the implementation of its recommendation.  School governance, like curriculum, is a key arena for determining the character of a school, particularly its climate and ethos and conditions under which learning and teaching take place.[2]

 

3.         Soul City: IHDC: The Schools as Nodes of Care & Support for Vulnerable Children Campaign

 

This submission takes as its starting point, and should be read in conjunction with, the Soul City IHDC submission to the South African Human Rights Commission (SAHRC) Inquiry into School-Based Violence in South Africa a copy of which is attached.

 

This specific campaign focus on the links between health and development, and in particular Soul Buddyz' Clubs[3] work around the health and development of children, has led to the recognition that many of our nation's children - including, but not limited to those infected and affected by HIV and AIDS - are rendered vulnerable by a range of socio-economic factors, from the loss of parents or guardians (orphans), to domestic and other forms of violence, poverty, lack of access to basic nutrition and services, as well as lack of access to various government services intended to assist them.

 

Soul City IHDC's analysis of the social and institutional framework within which vulnerable children must struggle to survive and grow has led us to focus on the school community as the most viable location for the much-needed coordination and delivery of various forms of state, civil society, and private sector assistance to address the particular needs of vulnerable children.

 

The Campaign aims to foster a multi-sectoral approach to identifying and addressing the needs of vulnerable children within the school environment.

 

4.         Two Scenarios:  Two Different Futures

Scenario 1: The School as Island

The Bill is one part of plan to address school security through a number of measures including identifying "problem schools" requiring immediate attention, increasing provisions for school security infrastructure, such as walls, fences, and closed circuit cameras, and investigate the legislative process for random searches of learners for drugs and weapons[4].

 

These plans - approved by the Council of Education Ministers - are seen as way to “inculcate a culture of safety". In the context of the "balance of rights[5]" question, it is important to consider the immediate, as well as long-term, social implications of a plan to address a generalised, and historically and structurally-embedded, problem of violence by segregating our schools from the communities within which they - and their learners - reside, and by exposing young learners to a security-based learning environment.

 

While reference has been made to drawing on the experiences of other countries, such as the UK, in implementing such measures in schools, the UK and South Africa have vastly different historical connections with stringent security measures. Our history is inextricably tied to the use of security as a measure of control of the black majority of the population - and especially of the youth. The post-apartheid mushrooming of the private security industry - a significant portion of which is still owned and managed by former securocrats of the apartheid state - has not lessened this connection.

 

Apart from the indignity of being searched - an experience that easily conjured the sense of being held to be guilty until proven innocent (harking quickly to a stereotype of poor, black criminality that is inexorably tied to South Africa's racist past), learners lived experiences would move from one in which the violence they experience in schools reflects the violent world in which they live to one in which the violence of poverty is directly replicated, through the organisation of the learning environment, by the school in which they struggle against many other vulnerabilities to realise their right to basic education. The security-based approach to School-Based Violence may have longer term and unanticipated psychosocial consequences for the current generation of learners.

 

Scenario 2: The School as the Centre of Community Life

The seeds of an alternative to the security-based approach were already planted when the DoE issued it's "Call to Action: Mobilising Citizens to Build a South African Education and Training System for the 21st Century", otherwise known as the Tirisano Plan. The then Minister of Education Kader Asmal called on educationists and other key stakeholders in the field of education to "work together" to address the crisis in the South African basic education sector, which he likened to a 'State of Emergency'. Tirisano's plan relied upon nine key aims, including, perhaps most importantly, the vision that "Schools must become centres of community life".

 

The "Schools as Nodes of Care and Support for Vulnerable Children", or "Caring Schools", campaign, draws on - and in some cases seeks to strengthen - a range of existing enabling legislation, both within the DoE, and across other sectors of government, and aims to facilitate the most comprehensive and effective implementation of the State's obligations to children by situating schools as centres for government delivery, and as places where other forms of care can be mobilised from within and across the local community.  This approach has several advantages, including:

 

·          Avoiding the growing tendency to throw new policy and legislation at every problem, resulting in policy fatigue, implementer confusion, and the diffusion of capacity and resources, by working largely within existing policy and legislative frameworks;

·          Assisting in the creation of tangible forms of cooperative governance between different tiers and sectors of government with delivery obligations to our nation's children (e.g. Department of Social Development's delivery of Child Grants; Department of Health's delivery of HIV/AIDS prevention and treatment programmes, food parcels, and other services; Department of Home Affair's delivery of identity documents).

·            Drawing upon - and mobilising - the existing social resources within the community, including the internal school community of learners, educators and parents, as well as the surrounding community, including local civil society organisations, churches, non-school-based skills, as well as private sector organisations and individuals, in a new space where mutual participation and creative local visioning offers the potential to begin the process of social re-integration of our communities.

 

The "Schools as Nodes of Care and Support for Vulnerable Children" campaign also begins from the recognition that the capacity and resources of schools and school educators are alone insufficient to comprehensively address the challenges of social re-integration and care for vulnerable children.  It therefore sets its sights on one of the most plentiful but least-tapped human resources of the school community - the parents.  Recent debates about the different approaches to redefining the role and responsibilities of School Governing Bodies have centred largely on the relative power dynamic between SGBs, school management and the DoE. The Soul City IHDC approach sets out to define a far more central role for SGBs in a terrain that currently lacks focused capacity - the role of identifying and supporting vulnerable children to obtain access to the resources they need most - whether through state programmes or other creative local solutions - to enable them to fully realize their fundamental right to a safe and effective learning environment and a quality basic education.

 

Most importantly, however, by identifying the school as the locus of community participation and support - rather than as a prison-industrial-complex-style walled island separated from the community by barbed wire – the campaign seeks to mobilise and inspire the participatory generation of local solutions to local problems. By opening genuine space for the creation of local solution to, for example, the problem of School-Based Violence, we may see very different approaches that instinctively integrate solutions to wider Community-Based Violence emerging from members of the community who are sufficiently informed of the sources of their local violence.

 

Finally, the school community-based approach advocated by Soul City IHDC builds fundamentally upon the Children’s Rights Convention(CRC) principle that not only the 'best interests', but also the views of children must be taken into account in all matters by which they affected.

 

If we can have posters and placards that invite the people to a meeting

in a hall and then in that meeting we nominate one child who is going

to speak on behalf of the children. Another for the youth and another

for the adults and then a child will explain what kind of violence or

abuse that their parents are doing to them and now there is no

pressure for them trying to explain, why? How can we do away with the

abuse that we have amongst our area and a campaign, a campaign

similar to the campaign already done and to do an appeal you know to

everybody about the safety of us and why they are doing these things.

Actually we are young and how can we prevent that you know.

(Girl, W. Cape informal settlement, 11-12)

 

The above example demonstrates two critical points: that children can engage with the problems of violence affecting them, and do so from a position that seeks to advance the interests of the community; and secondly, that engagement in community groups may play a role in facilitating this level of creative agency among children who experience violence, and whose sense of agency is most at-risk as a result.

 

General Recommendations

 

·          Launch a national awareness-raising campaign around School-Based Violence, Gender-Based Violence and all Violence Against Children, as well as Gun-Free Schools campaigns, which locates the current patterns of violence within the historical and socio-political legacy that our national transformation project seeks to relegate to the past, and which advocates for community-wide involvement in the creation of safe communities and learning environments for all children, and for girl-children in particular.[6]

 

·          Convene a series of participatory Multi-Stakeholder Dialogues at national, provincial and local levels to thoroughly engage with the short and long-term consequences of the different approaches to the problem of School-Based Violence and School Community social integration challenges more broadly, and to identify the best ways to create an enabling environment for schools to play a role in the creation of safe and socially integrated communities.

 

·          Create a register of governmental, civil society and private sector initiatives and resources available to address the problems of Violence Against Children and other forms of child vulnerability to facilitate access to resources and models by local school communities.

 

·          Reinvigorate the Tirisano Call to Action with a particular emphasis on the creation of schools as centers of community life, and centre state commitments to cooperative governance in all matters related to the realization of the fundamental rights of children around this model, with the creation of Schools as Nodes of Care and Support for Vulnerable Children serving as a first step toward the creation of Schools as Centers of Community Life.

 

6.         Short-Term Measures to Deal with the Immediate Crisis

 

  • Soul City IHDC proposes the following urgent short-term measures should be taken to provide as much interim relief and support to children made vulnerable by School-Based Violence as possible, while remaining mindful of the long-term impact of a security-based approach:

 

  • Some schools where SGBs are active have already seen children organising themselves into groups to ensure their safety en route to school and back home. In others, parents have begun escorting groups of children to school. Schools currently dealing with serious violence issues should urgently convene meetings with parents and learners to explore these possibilities;

 

  • Install mechanical turnstiles at school entrances (such as those already operable at most university campuses), and issue access cards to all registered learners and   educators;

 

  • Implement a buddy system for all learners attending "Problem Schools", but particularly for girl learners, to ensure that movement within and around the school premises is accompanied (e.g. 3 girls would go to toilet together, or to other isolated   places);

 

  • Set up secure boxes for anonymous complaints and tip-offs by learners or other members of the school community who may have information about criminals in or around the school. These should be opened by the SGBs only, since complaints may also relate to educators. The SGBs could seek assistance in dealing with the complaints from the local Community Policing Forum or other bodies.

 

  • All school activities occurring outside of school hours should be properly chaperoned, and SGBs and parents should be encouraged to attend, and no learner should be allowed to remain on the school premises after the closure of the activity.

 

Provincial MECs are Picking up the Baton

 

KwaZulu Natal Education MEC, Ina Cronje recently spoke at a mass prayer meeting after a particularly gruelling first term of violence in which pupils and teachers were killed injured and raped in that province. The event also marked the handing over of a torch of peace from the Eastern Cape department of education to their KZN counterparts.

 

She said: "We can erect fences and we must, I am not for a moment suggesting that our schools should not be securely fenced, but the perpetrators of violence and crimes in our schools are us. 

 

"It is our people, our children and our neighbours who are doing these things and unless we change the hearts of our people these things will continue.  An evil heart cannot be kept out by a fence”. 

 

Cronje called on religious leaders to play a role in changing people's hearts. "There are nine million of us in this province. If everyone says, as small as I am, I am willing to do my bit; a mighty voice will go out."  She said that if communities did not offer support to teachers and pupils then "we as a province would perish".

 

Earlier, when Eastern Cape MEC Mokgato handed the torch to Cronje he said that the focus of schools had shifted from educating pupils to other issues.  "Today we talk about teenage pregnancy, gunfights, and killings in our schools and not issues relating to education”.

 

He called on individuals to step forward and help "restore schools as centres of excellence.[7]


7          COMMENTS ON SPECIFIC SECTIONS

 

Point 3 - Changes to Section 1 of the South African Schools Act

 

3.1    Definition of dangerous object

Although we understand that learners have turned objects such as chair legs into weapons, the definition suggested still seems unnecessarily wide and could in fact include ordinary sports equipment.

 

3.2 Definition of an illegal drug

Reference to other legislation may enhance this rather ad hoc definition.

 

Recommendation:

Insert the definition from Draft Policy Framework for the Management of Drug Abuse by Learners in Schools[8]:

 

“drug is used generically to include tobacco and herbal cigarettes, alcohol pharmaceutical drugs (prescribed and over the counter), illicit drugs, image and performance enhancing substances and inhalants and other volatile substances”

 

3.3 Definition of ‘random’

The dictionary meaning of the word ‘random’ is: lacking any definite plan or prearranged order; haphazard.

 

The Bill’s definition says it means “the identification of a learner or a randomly selected group or a particular grade of learners who are reasonably suspected of illegal conduct”.

 

If these learners are suspected of conduct, they have been identified. They are certainly not random. It is in total contradiction to the usual meaning of the word.

 

This also does not reflect South Africa’s commitment to advancing ‘plain meaning’ in legislation.

 

 

Recommendation:

An examination of school drug testing policies elsewhere reflects that doing random testing is exactly that: testing randomly selected pupils.  We would like to recommend that the same understanding should be followed in relation to searches and seizures.

 

Human Rights Commissioner Charlotte McLain says in One abuse can lead to another[9]:  “None of the drug-testing policies that the SAHRC has examined advocated testing learners based on reasonable suspicion. They are selected from an alphabetical class list on a statistically random basis.”

We recommend that the definition be changed to reflect the true meaning of the word random and its understood meaning in terms of random selection.

 

The definition should incorproate “……..if there is reasonable suspicion that one or more individuals in the group possesses drugs”

 

The Draft Policy Framework for the Management of Drug Abuse by Learners in Schools defines it thus and this is also preferable:

 

Picking people at random to be tested for the presence of drugs in the body.

 

 

Point 4 - Insertion 5 A (1)

 

This insertion is to be welcomed. However norms and standards should not only relate to basic infrastructure and capacity in schools. It should go beyond the physical environment and make provision for care and support of vulnerable learners to ensure that core objective of education is realized. This is in line with a number of declarations South Africa has signed and also speaks to the Education for All ideals the country aspires to.

 

Currently in revision, the DoE’s Draft Health and Wellness Framework attempts to make this a reality. Reference is made to how social and mental issues such as violence, trauma, bullying, suicide, injury, gender violence as well as life-style behaviour such as drug and substance abuse and other risk taking behaviour, impair physical and cognitive development of learners; are causes of absenteeism; increase the number of out of school youth; pose barriers to learning and affects the participation of learners and educators in the teaching and learning processes.

 

Section 5[10] of the framework talks to the issue of The Healthy Learner which is more than just the physical condition: A learner who is healthy and well is one who strives to attain self actualization, build healthy relations and adapt to the school environment and its challenges and lead a healthy lifestyle. Self-actualization is seen as the ability of the learner to make responsible and sound decision with respect to inter alia alcohol, and substance use and abuse. Building healthy relations effectively involves the ability to identify and cope with challenges in different settings: e.g. family structure (divorced parents, single parents and child-headed households) school environment (gangs, bullying, violence and peer pressure) and community (sexual, mental and physical abuse).

 

A healthy lifestyle is the ability of the learner to promote, maintain and take responsibility for inter alia one’s health, physical activity, good nutrition, avoiding substance abuse. The document acknowledges that the provision of health services is the mandate of the DoH but says ALL departments in general and education in particular also have a role and responsibility in delivering and supporting promotive and preventative interventions that will influence communities’ future health status. The School governing Bodies must also establish a Health Advisory Sub-Committee. Although this is mainly in the context of HIV and Aids Policy, all members of the SGB (including learner representatives) must be capacitated, participate and contribute to school-based health and wellness programmes. Importantly both learners and educators must be encouraged to resolve conflict through non-violent means.[11]

 

Recommendation:

1. Expand on 5A (1) in the following way:

 

“The minister must prescribe by regulation minimum norms and standards to ensure equitable education across the board with specific reference to:

 

2. Insert a new clause point 5A (1)

(d)        care and support for vulnerable children

 

3. Insert in clause 5A (2)

            Fulfillment of obligations in terms of DoE’s Health and Wellness Framework

 

 

Point 5 - Random Search and Seizure and Drug Testing at School

Clause 8A

This clause is problematic and could compromise the rights and dignity of learners.  Our earlier objection to the definition of the word “random” refers.  Further, we’d like to recommend that this section be clarified and improved in relation to the intended purpose and reasons of the search and seizure. 

The power to do routine and random searches and drug tests must be subjected to requirements of reasonableness, but should not be done on reasonable suspicion.  Reasonableness must require that the school must have a persistent problem which they can't solve with the usual criminal law, which requires "reasonable suspicion". In a school that can't prove an endemic problem, they should not have such searches.

·         8A (2) (a)

Talks about the best interest of the learner or any other learner but does not provide further details on how the best interests of the learner will be realized. This is notwithstanding the mention of the code of conduct and its contents in [8A (13)].

Recommendation:

That the Department of Education be obliged by legislation to establish and maintain a system for the identification, referral and support of vulnerable children

 

Schools have several comparative advantages over other services when it comes to reaching potentially vulnerable children. Notable of these include the fact that schools exist in large numbers, are often more accessible than other services and large numbers of children spend many hours of their lives in school. Currently legislation mandates principals and teachers to identify and refer children who are abused and/or neglected.

 

Soul City recommends that this is taken further and expanded, by way of a new clause 8A (12) (a) and that the MEC for Education is given the responsibility to establish and maintain for all schools in the province a system of identification, referral and support for vulnerable children. For this to be effective, provision will need to be made for the appointment and funding of social service professionals and other support personnel within schools.

·         8 A (3)

This section introduces the words ‘body search’. 8A (1) & (2) do not mention that the searches will be body searches. The clause compromises educators by turning them into police officers thereby confusing their roles and usurping the duties of the police. Trust between learner and educator is critical.

We refer too to earlier comments in this submission (see Scenario 2 above) in which we talk of the indignity of being searched and how certain sectors of disadvantaged communities, particularly the poor and underprivileged, feel humiliated and discriminated against during such searches.

Further more, notwithstanding the fact that the search must be conducted by a person of the same sex; the possibility of abuse by teachers cannot be ruled out. On the other side of the coin, it also lays open the possibility of educators themselves being wrongly accused of molesting a learner. 

Of concern too is what type of search, that is what the drafters mean by a “body search”. We reject totally a body cavity search – used sometimes to humiliate and harass.  We hope it is not the intention of the legislation to introduce invasive body searches which could contravene the rights to bodily integrity.  We recommend that the legislation be specific and make provisions for tap down searches only.  And that where strip searches are justified that such cases fall outside the educational framework and as such, require the involvement of parents and the police services.

Clauses 8A(4) & (5) have many legal implications and place various burdens on the staff of the school especially in regard to the collection of what might in the future be construed as evidence. This and other duties imposed on educators in this clause require them to add additional duties to their already heavy workload.

Recommendations:

1.       Jody Kollapen, Chair of the Human Rights Commission, in a statement after the Commission’s inquiry into school-based-violence, said it was simply unacceptable to expect teachers to take over safety responsibilities at schools and suggested that suitably trained safety officers may be the answer.[12] Although this may be what is envisaged in the wording “principal’s delegate” it should be more specific in terms of who would qualify to be the delegate and that it would preferably not be a member of the teaching staff.

2.       We, however, reject the idea that ‘safety officers’ equal ‘security guards’ for a number of reasons. One is that security guards are not viewed with respect by many and the majority of them have minimal qualifications. Safety officers would need to be trained to fulfil the appropriate role.

3.       Remove the word ‘body search’ or be more explicit by setting out what will be an acceptable body search.

4.       Soul City’s suggestion that all pupils be forced to enter through a turnstile or have to pass through a metal detector should be executed in the hope that body searches for weapons become unnecessary.

Drug Testing

Clause 8A (8)

Although Soul City IHDC does not reject the principle of random drug testing at schools out of hand we do believe the following should be noted:

·         Drug testing can end up being costly. Both in terms of the cost of the equipment and the human resources used in training staff, supervising testing, recording results and following up tests etc. We need to question whether the DoE will provide provinces with budgets for these tests.  Cost benefit analyses point to the fact that introducing drug testing can cost the same as bringing in a counsellor to deal with these specific problems.[13]

If policy leaves it open to each school, the divide between rich and poor schools battling with the same problem will result in the richer and better resourced schools being able to afford the test kits while schools on the other end of the scale, will be unable to carry out the policy effectively. Because of this, drug testing may not give effect to the Council of Education Minister’s decision to increase the capacity of educational institutions to manage drug abuse by learners on a nationally consistent basis.

·         Not all tests cost the same and not all tests are able to test for all drugs. Urine tests often do not detect alcohol or tobacco. Marijuana stays in the body longer than other drugs, drugs like cocaine, heroin and methamphetamine often go undetected.[14] The urine test is seen as being invasive and embarrassing.

·         Drug testing in schools is controversial. In the United States where drug testing is implemented in a number of schools, it has not been firmly established that it significantly changes the incidence of drug use. The Draft policy framework recognized this:

There is no empirical evidence or justification for routine random testing of learners, to detect substance use. If a drug test is considered necessary, it should form part of a structured intervention or relapse programme, and be carried out according to school policy, medical/treatment and ethical procedures.

Once again we assert that testing of this nature is not a solution. More strategic interventions should be explored. Research has shown that regardless of discipline and positive role-models children are inclined to experiment with drugs. This does not necessarily mean a permanent addiction but one that can be shrugged off. Drug testing could result in being labelled thereby encouraging a pupil to go down a road that would not have been his/her choice if left alone to reach his/her own conclusions It has also been noted that learners sometimes turn to more dangerous drugs that are less detectable – a highly undesirable consequence.

·         NAADAC The Association for Addiction Practitioners in the US questions the benefits of efficacy of school drug testing: “The challenges are manifold in determining whom to test, what to test for, what safeguards there are against false-testing processes, how the privacy of a student’s health status is protected, and whether drop-out rates would soar as a result of this testing…..NAADAC feels strongly that if a community does adopt a school drug testing program, stakeholders should first ensure that sufficient resources are available to address students who test positive.”

·         As we have seen in South Africa and is reflected over and over again in recommendations from other countries, programmes and extra-curriculum activities, including alternative recreational activities and a focus on sport, will discourage the use of drugs in a positive way.

 

·         Apart from policing roles, educators will, if this section becomes law, have to become health workers as well. For testing of this nature should be left to the health workers and not to educators. If testing is to undertaken it should be done as a combined effort between the health and education sector.

 

·         The new clause and approach has a punitive objective instead of a rehabilitative one. The draft policy framework states clearly that a purely punitive approach can only produce part of the solution and “in recognition of health and social underpinnings of drug abuse and dependency, it is the Minister’s intention not to condemn learners but to ensure that provincial education department support those who require help for drug related problems”.

It appears that welfare of the learner is not central to the legislation as the draft policy document recommended. It is only in Subsection (13), the last addition, support and counselling is considered. It is our contention that this should be the initial response even before resorting to search and seizures and drug testing. Too little effort goes into this service and other rehabilitative measures.

·         The policy document also expounds the need to give effect to the constitution in terms of the right to education, not to be fairly discriminated against, to life, to privacy and most importantly bodily and psychological integrity.

 

·         Although (8) does not mention the word random, (9) does therefore we must assume the problems associated with the definition will once more be relevant. What constitutes a random test? Should deciding when and whom to test be more clearly defined? Should it be on suspicion thereby making it less random[15]

8A (9) Informing the parents

If testing or search and seizure were truly random, it would be unnecessary to inform parents when testing had taken place.

If one particular learner was targeted and came back positive from a test, consideration needs to be given to whether or not it is in the interests of the learner to inform his or her parents. Firstly it is not impossible that the test could be faulty. The school could also lay itself open to charges of contravening the pupil’s right to privacy and not to be discriminated against. 

In addition, if the learner is manifesting anti-social behaviour, counselling and intervention should pre-empt search and seizure or drug testing.

Clause 8A (12)

  • The Departments of Social Development, Education and Health, as well as other relevant stakeholders, are obliged in legislation to consult with each other and co-ordinate their respective functions to ensure integrated service delivery of social services for children. Although the DoSD is the lead government department in the provision of services to children, clear roles for the other departments are needed in the chain of services. The MECs for Health, Education and Social Development should be obligated to ensure that the services for children are delivered in a coordinated and integrated manner.  This will ensure better care and support for children in conflict with the provisions of Section 8A.

 

  • Both these recommendations are in line with the thinking the in the Children’s Bill which is currently being considered by NCOP. Incorporating them here will ensure that education policies and legislation are aligned to broader developments in ensuring the protection of children’s rights.

 

Recommendation:

 

We would recommend a new clause be added to cover the recommendations above and which reads as follows: 

 

Clause 8A (12) (a)

 

The MEC of Education in each province must establish and maintain for all schools in the province, a system for the identification, referral and support for vulnerable children.

 

(1) In developing the system, the MEC, in order to give effect to section 5 of this Act, must consult with the MEC for Social Development, the MEC for Health and other organs of state providing social services to vulnerable children.

 

(2) The system must be structured in a way which ensures:

(a) the delivery of social services to vulnerable children in an integrated and co-ordinated manner

 

(b) provision for the appointment and funding of social service professionals and para-professionals and other support personnel, within the education system, to provide social services to vulnerable children and to link children with appropriate social service providers.

 

(3) The MEC must ensure that the systems established in terms of this section are monitored to ensure the delivery of services.

 

Point 7 Functions and responsibilities of principal

Clause 21A (6): Although the principal sits on the SGB representing the Department, it is unreasonable to set down in law that he/she cannot give evidence against his superiors. The principal concerned may well have no option both in terms of his/her conscience as well as the law.

 

 



[1] Examining press reports on violence it emerges that although violence is happening at schools, it is the association with education that sometimes conveys the information that the report is about school-based- violence. Teachers are murdered; not at school but it becomes school violence. A principal is arrested for involvement in the murder; its school violence. A pupil is the victim of a taxi violence feud while sitting in a classroom because a bullet came through the window. And so on: reflecting that in fact more often than not the violence is actually located in the community.

[2] Report of the Ministerial Review Committee on School Governance, 2004

[3] The Soul Buddyz Club is a groundbreaking way of reaching children and helping them to take action in their own lives and communities. Soul Buddyz Club is the platform where children are exposed to positive peer interaction, information about their health and rights, fun and adventure to stimulate their growing minds and practical opportunities to develop leadership skills. Since the inception the of the Soul Buddyz Club project over 3 years ago, more than 2000 primary schools and libraries have become affiliates of the Soul Buddyz Club project with a noteworthy number of these moving on to establish functional Soul Buddyz Clubs. Thousands of children have joined the Soul Buddyz Club children’s movement and have, through many innovative ways reported tremendous gains.

 

[4] "School security to be beefed up, says Pandor", Sapa, 5 June, 2006, in Independent Online.

[5] In its Inquiry into School Based Violence in South Africa held in September 2004, the South African Human Rights Commission (SAHRC) posed a "balance of rights" question in the search for a remedy to the problem of violence in schools. In this way, the SAHRC sought to weigh the balance between the rights of learners (and to some extent, educators) to, among others, "freedom from racial and gender discrimination, human dignity, life, freedom and security of person, to be protected from maltreatment, neglect and abuse or degradation and to a basic education", on the one hand, and the rights, including privacy, human dignity, and others of the learners that may be infringed upon if stricter forms of discipline and/or other security-based remedies, were implemented to curb the current levels of violence.