Ex-Sans Souci pupil dealt a blow in court
|Published
The Western Cape High Court sitting as the Equality Court has ruled that it has no jurisdiction to hear a damages claim involving a 2019 Sans Souci incident.
Former Sans Souci pupil Chante Petersen approached the court seeking relief of about R400 000 alleging she suffered harassment, emotional distress and assault in the incident where former Afrikaans teacher Clarissa Venter was filmed slapping her in class.
At the time she was 16-years-old and in Grade 9.
Tensions allegedly began over a textbook, and escalated after Venter confiscated Petersen’s phone.
Petersen 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 (SGB).
Petersen later transferred to another high school after being suspended for about 14 days.
Arguments were heard before Judge Judith Cloete on April 16 and 17.
Representing Petersen, advocate Dumisa Ntsebeza SC said they also wanted 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.
In relation to the damages for harassment, Ntsebeza argued that the Venter’s behaviour towards Petersen, which led to the incident, was related to her 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 Xhosa 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 Petersen 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 Xhosa.
“As such, it cannot be that the teacher’s alleged harassment was based on the (learner’s) use of Xhosa.”
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.
“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 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.
Judge Cloete dismissed Petersen’s application and ordered that each party shall bear their own costs.
“The applicant’s second complaint of discrimination based on language is that the school’s code of conduct prohibits learners ‘even among themselves from speaking languages other than English within the school premises’.
This allegation was demonstrated to be factually untrue. The (SGB) referred to clause 10 of its code of conduct which reads ‘All classes except for First Additional language classes are conducted in English.
Thus, English must be spoken during these classes. Home languages may only be used to enhance understanding and with permission from the teacher. Pupils are permitted to speak their home languages outside the classroom but we encourage pupils to practice inclusivity. Home language use must not be used as a bullying tactic, or to deliberately exclude or gossip about others.’ (my emphasis)”
Cloete said Petersen did not dispute clause 10 of the school’s code of conduct in reply. “Accordingly, applying the principles laid down very recently in Nedbank (case) I am compelled to conclude that the applicant’s view or perception that she was being discriminated against on the basis of race and languages, without laying any evidential basis, is not sufficient to establish a prima facie case for purposes of s 13(1) of the Equality Act.
“Put differently, bare allegations do not equate to establishing a prima facie case. It follows that the alleged acts of harassment and discrimination relied upon by the applicant do not fall within the ambit of the Equality Act, and the Equality Court lacks jurisdiction,” she said.
Booth and Esau welcomed the judgment.
“My client is delighted with the result as it has been a long battle causing her much emotional strain but justice has prevailed!”
Cape Times