By Confidente Reporter
THE Windhoek High Court has ruled in favour of four Windhoek Gymnasium Private School teachers accused of assaulting a learner on several occasions about six years ago, with the view that moderate corporal punishment administered to correct, discipline and educate learners is not unlawful since it is justified.
The teachers, Stephanus van Zyl, Etienne Odendaal, George Maartens and Estelle Oberholzer stood accused of assaulting their learner Andreas van Eck, 14 at the time, on five different occasions between February and March 2010.
They faced five charges of common assault after the teen’s father, Leonard van Eck dragged them to court for wrongfully and unlawfully assaulting his son by hitting with a wooden stick causing him injuries and some wounds. He also argued that he did not understand why the school administered corporal punishment. The teachers were initially convicted in the Windhoek Magistrate’s Court on June 13 2013, where they were each sentenced to a fine of N$2 000 or a year imprisonment.
They appealed the conviction and sentence, which was set aside by Judges Elton Hoff and Naomi Shivute on Monday.
Reads court documents, “On 5 February 2010, the learner came home and informed the complainant (his father) that he got four out of 10 for a test and received six strokes with a wooden stick administered by Oberholzer, three strokes on each hand. The complainant testified that he was angry and phoned Oberholzer who informed him that she was doing it for years and that there was nothing the complainant could do about it.
“On 18 February 2010, the complainant’s wife got an sms from Oberholzer that she had just beaten up the learner again because his mother did not sign the test in which the learner got four out of 10 point. The complainant pointed out that it was the first time that this had occurred and that in terms of the code, such a failure will only become a tickable offence after the third occasion… The complainant testified that he went to the Ministry of Education in order to ascertain why the school has the right to beat the children. He also testified that he attended a conference at a lodge where education inspectors said that corporal punishment is illegal.
“…On this occasion Mr Odendaal administered one stroke on the buttocks of the learners in front of the class whilst the learner had his pants on.
“On 4 march 2010, the learner got eight out of 10 marks and was beaten again by Oberholzer, two strokes on his hands. The complainant stated that there was no provision in the disciplinary policy of the school which provided for such punishment… The next day, 5 March 2010, the complainant and his wife were informed that Van Zyl hit the learner one stroke on his buttocks in his office because the learner completed an English essay on an A4 page instead of an A4 workbook. “…On March 2010, the complainant was at a nursery when he received a phone call and was informed that a very unfortunate incident happened. The learner was caught by Van Zyl hiding in a toilet together with four other boys because the learner had forgotten to bring his PT shirt to school. The learners received two stokes with an unknown object.”
According to common law however, the infliction of moderate corporal punishment on a learner by a teacher administered with a view to correct, discipline or educate is not unlawful since it is justified.
It was thus found that in each instance the conduct (corporal punishment) was admitted and that the punishment inflicted was more than moderate and reasonable in the circumstances, that the teachers acted with the permission of the parents on the learner, that they acted with the purpose to discipline and educate and that their conduct was justified and therefore not unlawful. “In my view the State failed to prove that the appellants when administering corporal punishment on the learner had the required commission of the crime of assault. The State failed to prove beyond reasonable doubt that the appellants acted with the required knowledge of unlawfulness of their conduct. The conviction therefore stands to be set aside. ”
Confidente. Lifting the Lid. Copyright © 2015