School initiation camps must be regulated

‘If schools believe that camps should continue to play a role in building a positive, unifying and inclusive ethos, then such activities should be underpinned by a culture of respect for human dignity and for freedom and security of all individuals.’ Section27’s Advocate Faranaaz Veriava says the death of Enoch Mpianzi during a Parktown Boys School orientation camp last week has initiated a complex debate about whether such school camps – particularly at boys schools which have a particular chain of command structure and in some instances even a ‘Kamp Staaldraad’-like ethos (military-style boot camp) – serve a positive purpose in contemporary SA society. In her analysis on the Daily Maverick site, Veriava notes that SA courts have repeatedly held that where a child is under the care and control of the school – including while on school camps – staff have a legal duty to protect them from physical harm, due to the school’s assumption of its role in loco parentis. In practice, says Veriava, the duty requires that education officials take all reasonable measures to ensure the safety of all the children in their care. (see Hawekwa Youth Camp v Byrne).

Veriava says whether this legal duty is extinguished where parents and guardians sign indemnity informs has been clarified in case-law, which appears to suggest that the applicability of the indemnity is contingent on the extent to which reasonable measures have been taken by education authorities to ensure the safety of all the children in their case. The Minister of Education and Culture v Azel case-law further suggests that indemnities do not exclude liability in cases where there has been gross negligence. Also, in the recent SCA judgment in RK and Others v Minister of Basic Education and Others, the court held that the drowning of Michael Komape in a pit toilet at his school was due to the negligence of education authorities. Veriava notes that the ‘Regulations to Prohibit Initiation Practices in Schools’ – published in 2002 by the then Minister of Education, the late Kader Asmal – have played a significant part in curbing initiation practices in SA schools. Nonetheless, some anecdotal evidence continues to suggest that at some schools, unlawful initiations are tacitly condoned and that school authorities often ‘look the other way’ when senior students engage in such abuses. Veriava says an adequate policy response is necessitated by Mpianzi’s death, and that education authorities need to develop rules governing orientation camps. ‘School camps cannot be shrouded in secrecy and a culture of hierarchy and authoritarianism that perpetuates an ethos of toxic masculinity.’

Schools should not be allowed to opt out of criminal and civil liability by ‘softly’ coercing parents to sign indemnity forms for all activities that are considered an important part of the educational experience. The University of Limpopo’s Professor Omphemetse Sibanda notes that exculpatory agreements – as indemnity forms are sometimes referred to – have been part of the SA legal landscape for some time, with some even being upheld by courts. In an analysis on the Daily Maverick site, he makes the following points:

* Schools wield a massive and superior ‘bargaining power’ against parents who are desperate to keep their children in these schools by doing whatever the school wants. Schools, he says, are likely to ‘hide’ behind these indemnity forms to avoid responsibility and accountability.

* Schools are among the most insecure places despite the National School Safety Framework. Minister of Basic Education, Angie Motshekga, has conceded before the Parliament Portfolio Committee on Basic Education that safety and security at schools remains a major concern. Sibanda believes that until the situation is satisfactorily addressed, indemnity forms must not provide a foundation for defence against liability claims for injuries within the schooling environment or injuries that arise out of school-related activities.

* Schools should stop treating learners like commodities or non-humans whose lives and limbs can be traded at will between parents and school authorities. Sibanda says the revised indemnity procedures must allow for the participation of the learners as co-signatories with their parents.

Sibanda adds: ‘Schools are the second homes of learners; let us keep them safe and let us have our schools operate with the greatest reasonable care of their learners.’