Judgement was reserved in the Western Cape High court sitting as the Equality Court this week over jurisdiction to hear a damages claim involving a former Sans Souci teacher who slapped a pupil.
Arguments were heard before Judge Judith Cloete over two days following the 2019 incident in which former Afrikaans teacher Clarissa Venter was filmed slapping a 16-year-old Grade 9 learner in class.
Tensions allegedly began over a textbook, and escalated after Venter confiscated the pupil’s phone.
The learner was filmed pushing a desk at the teacher, pushing her. Venter then allegedly slapped her.
Venter was sanctioned with a fine, a final warning, and ordered to attend anger management sessions by the School Governing Body.
The learner later transferred to another high school after being suspended for about 14 days.
Representing the pupil, Advocate Dumisa Ntsebeza SC said they sought an award of damages for the alleged harassment suffered by the learner, as contemplated in section 11 of the Promotion of Equality and Prevention.
They also wanted an unconditional apology from Venter, the SGB, MEC and Department of Basic Education, an order declaring clause 10 of the school Code of Conduct to be inconsistent with the Constitution and unlawful, and a declaratory order that the MEC and/or that the Western Cape Education Department had a duty to intervene in circumstances where a learner was subjected to disciplinary proceedings which fell short of the standard required for due process.
“The party has a choice in which court to pursue a case and it is competent for a court to sit both as an Equality Court and as a High Court. A consolidated hearing incorporating all the various issues which arise from the same fact in this matter – in both convenient and ideal circumstances,” said Ntsebeza.
In relation to the damages for harassment, Ntsebeza argued that the teacher’s behaviour towards the learner, which led to the slap, was related to the learner’s membership of a particular racial group and use of her language of choice.
“Not only was the (teacher) hostile towards the applicant as a result of her use of isiXhosa language in class, but her behaviour was intimidating and demeaning. The applicant would be entitled to damages in respect of the impairment of her dignity, pain and suffering or emotional and psychological suffering as a result of the harassment she suffered, which was meted out by the (teacher),” he added.
Venter’s lawyer, William Booth, argued that the learner did not indicate that the other learners towards whom she alleges Venter showed her displeasure were from the same racial group as her, or that they were conversant in isiXhosa.
“As such, it cannot be that the teacher’s alleged harassment was based on the (learner’s) use of isiXhosa.”
Accordingly, the harassment claim does not fall within the definitional ambit of the Equality Act either. Harassment claims in the Equality Court are not underscored by the definition of harassment in the Equality Act, but first by the jurisdictional aptitude of the court to hear the claim. For the aforementioned reasons, the Equality Court is not competent to hear the claim of harassment,” Booth said.
Booth suggested that it was not necessary for the court to refer the matter to another forum because criminal charges, including assault and crimen injuria, were already before the Wynberg Court and the matter was postponed for the former learner to continue her evidence in chief.
“The harassment claim has further been referred to the South Africa Council for Educators (SACE), the (teacher) was found guilty and sanctioned in that forum. That finding is presently being appealed against and a formal appeal has been lodged on her behalf,” he said.
The SGB’s legal representative, Mohamed Esau argued that the relief sought in regard to the constitutionality of the Code of Conduct was not within the power of an Equality Court to grant and should have been sought in a separate High Court action.
He said in terms of the alleged unfair discrimination, the language policy as set out in the School’s code of Conduct did not apply outside the classroom and learners were free to use the language of their choice elsewhere.
Cape Times