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Freedom Of Expression And The Legal Framework That Informs The Maritzburg College Dispute

Too few commentators have engaged with the existing education legislation that should inform our reflection on the events in this KwaZulu-Natal school.

19/10/2017 09:32 SAST | Updated 19/10/2017 09:32 SAST
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There has been considerable heat around the recent events at Maritzburg College as a group of learners displayed political slogans on handmade T-shirts. There have been a variety of responses to the events at the school, but too few commentators have engaged with the existing education legislation that should inform our reflection on the events in this KwaZulu-Natal school.

The first and most important is the school's code of conduct. The South African Schools Act (passed by Parliament in 1996) requires all public school governing bodies to adopt a code of conduct which would contain school rules and procedures. The act makes it clear that the purpose of the code of conduct is to establish and maintain an environment within the school that is conducive to learning.

The legislation thus empowers the governing body to make the rules, and the school management team are mandated to enforce those rules, so long as these rules are in keeping with the provisions of the South African constitution and serve the purpose of improving and maintaining an environment that enables all learners to be able to study.

To build consensus on these rules, the law requires that the elected governing bodies consult all key stakeholders, that is learners, teachers and parents before the code is adopted (or changes are made). In 1998, the department of education published a set of regulations that were designed to guide governing bodies in the development of their codes of conduct.

Among other issues, these regulations specifically provided pointers to both the rights and the limitations of these rights with regard to freedom of expression in schools. These regulations recognise that freedom of expression is more than simply freedom of speech, but includes learners rights to a variety of outward expressions.

There is clearly a tension in the legislation between not wanting to close down space for free speech and freedom of expression and efforts to prevent the space of the school from becoming a site of intense and adversarial party politics on the other.

The regulations recognise that all forms of freedom of expressions, however, can and should be limited if and when they involve vulgar words, insubordination and insults and the obvious constitutional limitations such as propaganda for war, incitement of imminent violence and advocacy of racial hatred. If the expression is not vulgar, insubordinate or hate speech, this suggests that the school could permit such outward expressions.

What a number of commentators have pointed to is the apparent flouting of Section 33A of the South African Schools Act that explicitly prohibits party political activities during school time.

This provision does not specifically refer to learners and does not explicitly prohibit the wearing of T-shirts, but does prohibit campaigning, rallies, distribution of pamphlets and fliers, and the hanging of posters and banners and the displaying of materials of a party political nature.

There is clearly a tension in the legislation between not wanting to close down space for free speech and freedom of expression on the one hand, and efforts to prevent the precious space of the school from becoming a site of intense and adversarial party politics on the other.

Wise school leaders and governors need to exercise their minds and decide if the learners are giving a voice to deeply felt and legitimate views or abusing the school space for narrow party-political purposes.