CHEDA J: This
is an appeal against both conviction and sentence of the magistrates' court
which sat at Gweru on 20 May 2009.
The appellants are employed as
headmistress and deputy headmaster of Cecil John Rhodes Primary School
(hereinafter referred to as “the school”) at Gweru. They were charged with contravening section
7(1) of the Children's Act (Chapter 5:06) [herein referred to as the “Act”]
which reads:
“7. Ill-treatment or neglect of children and
young persons
(1)
Subject
to subsection (4), if any parent or guardian of a child or young person assaults,
ill-treats, neglects, abandons or exposes him or allows, causes or procures him
to be assaulted, ill-treated, neglected, abandoned or exposed in a manner
likely to cause him unnecessary suffering or to injure or detrimentally to
affect his health or morals or any part or function of his mind or body, he
shall be guilty of an offence,”
The allegations against them are
that on 6 March 2009 at 0800 hours, all pupils, teachers and the headmistress
(first appellant) where at the assembly when first appellant announced that all
pupils who had not paid levy fees (herein after referred to as “fees”) were
going to learn whilst standing. She went
further and declared that a pupil was only going to be allowed to sit on a chair
after paying fees.
On that day, pupils started their
lessons sitting on chairs. However, at
about 1100 hours, second appellant moved around classrooms enquiring as to how
many pupils had not paid their fees. He
then adopted a slogan “no levy no chair”.
He ferreted a total of 239 pupils from grades 1-7 classrooms and ordered
them to stand in front of the class room whilst those who had paid fees were
sitting on chairs at the back.
On the following day, the 10th,
second appellant came back again in all class rooms of grades 1-7 and ordered
all those who were in default of payment of fees to take their chairs outside
the classrooms. The pupils complied and
the chairs were indeed taken out by the caretaker, one Dennis.
All the 239 pupils spent the whole
day attending their lessons whilst standing.
Second appellant further instructed
the class teachers to only allow pupils to sit on chairs upon production of an
invoice (sic) receipt to the caretaker who would then issue out a chair. This practice continued up to the 13 March
2009, when the police received information about the unlawful conduct of the
appellants and this led to their arrest.
In attacking the magistrate's
decision appellants have made various allegations which in my view are a hybrid
of one issue being whether or not conducting lessons whilst standing by some
pupils qualify as ill treatment. Through
their legal practitioner, have argued that the court a quo erred in convicting them as there was no evidence to support
the conviction and consequently the conviction should be set aside. It is their further argument that in the
event of the appeal being upheld the sentence should be set aside and
substituted with a fine not exceeding level 7.
Mr Mabhaudi, for the respondent agrees with them as he does not
support the conviction. He is of the
opinion that the conviction is not supported by evidence on record.
At the trial the state led evidence from three pupils namely
Vuyo Ndlula grade 7, Patience Zvomusekwa grade 4 and Emmanuel Mpofu grade 5
blue. All these witnesses are pupils at
the school and their evidence was that first appellant made an announcement
that those who had not paid fees were going to have their chairs withdrawn from
them. After this declaration, second
appellant went around the classrooms withdrawing chairs resulting in them
learning whilst standing from 0730 hours to 1300 hours. They corroborated each other on the material
facts being:
(1)
that first appellant announced that all those
who had not paid fees would learn while standing;
(2)
that second appellant carried out this order
immediately thereafter; and
(3)
that
they endured pain as a result of this action by both appellants.
I find that the learned trial
magistrate's finding that appellants' defence could not be sustained in view of
the overwhelming evidence led, proper. I
am surprised that respondent finds fault in his finding while all the essential
elements have been proved and they are there for everyone to see. In fact the facts are so clear so much that
even he who runs can read them. The
state witnesses corroborated each other in all material respects, namely that:
(1)
first
appellant made the relevant announcement at the assembly;
(2)
second
appellant followed up this order by visiting each and every classroom looking
for defaulters;
(3)
those
who subsequently paid fees were given chairs; and
(4)
it
is only those who had not paid fees that were made to stand in front of the
class from between 0730 hours to 1300 hours.
I find no fault on the part of the magistrate in making this
finding of fact. In, my view, it would
have been a misdirection to find otherwise.
Appellants argued that they were
wrongly convicted as they had a defence being that the reason why pupils were
standing was because there were inadequate resources. Inadequate resources due to no fault of the
offender is excusable as per section 4 of the Act.
Subsection 4 reads:
“Proof
that any failure which is the subject of a charge in terms of subsection (1)
was due to lack of means and that such lack of means was due to none of the
following –
(a) unwillingness to work;
(b) misconduct;
(c) the incurring of debts or obligations which, in all the circumstances of
the case, are unreasonable;
(d) omission to take reasonable steps to obtain relief from any other person
legally liable to maintain the child or young person concerned or from any
association, authority or institution whose purpose is the relief of indigency;
shall be a good defence to the
charge.”
The facts proved during the trial
are that first appellant desired to collect fees expeditiously and announced that
chairs would be withdrawn from those pupils whose parents had not paid
fees. Second appellant moved from class
room to class room enforcing that order.
Those pupils who had paid fees but where in a class room where the chairs were
inadequate where made to attend lessons sitting on desks and not standing like
those who had not paid. Appellants and
their witnesses were found not to have been truthful as they did all they could
to protect their superiors.
In my mind, this was a clear
intention to punish those who had not paid.
The process was very selective with a desire to ill treat those who had
not paid. This was by no means
coincidental but deliberate.
For that reason alone, respondent
had proved its case beyond reasonable doubt.
The issue of tuition or levy fees has been a topical issue
for a number of years. It is, therefore,
necessary to deal with it at this point once and for all. In my opinion the issue of fees directly
relates to the law of contract.
When a parent and/or guardian [herein referred to as( “parent
(s))”] secures a place for a child at a school or tertiary institution
[hereinafter referred to as (“institution”)] a contract is entered between the
said institution and the parent with regards to the payment of fees. The said contract can either be express or
implied. The parent undertakes to pay
all fees which the institution levies against the student from time to
time. Failure by a parent to do so results in the institution of legal
proceedings against the parent to recover the said fees. No valid legal steps or proceedings can be
taken against a minor who has no contract with the institution to pay fees, to
do so is an abuse of authority on the part of the institution which is an undue
pressure to enforce payment of fees using pupils as prawns. This is, therefore, unlawful.
There, however,
exists an implied contract between the institution that the student or pupil
that he/she will abide by all rules and regulations of the institution. Any breach of such rules is punishable by the
institution more often than not directly on the pupil, for example caning where
permissible.
The court takes judicial notice that for a long time now,
pupils continue to be shut out of school premises, forced to do manual work and
have their school results withheld in order to force parents to pay outstanding
fees. Such action by institutions is
illegal as it contravenes section 7(1) of the Children's Act supra.
While the authorities are entitled to their fees, they should resort to
a legal way of recovering fees from the pupils or students, through their
parents.
The locking of school gates for late comers is also a
contravention of the said section.
Surely, a civilized way of enforcing discipline can be employed thus
avoiding that which is likely to cause suffering so as to injure or
detrimentally affect a pupil's health or morals. A minor child attending school, many a time
has no urgent, reliable and efficient means of taking himself/herself to school
as he/she entirely depends on his/her parent.
There is, therefore, no logic in punishing the minor child by locking
him/her outside the school gate.
In this regard, the Ministry of Education has been on record
advising school heads and heads of institutions not to expel, suspend or
withhold pupils or students' school results on the basis of non-payment of
fees.
Those who have been acting in the said manner should cease
this unlawful practice as they are committing an offence under the Children's
Act, supra and parents whose children
are subjected to this type of punishment should report such practice to the
police.
For the above reasons I am of the view that the conviction
was proper.
As far as sentence is concerned, I agree with both counsels
that it was on the harsh side in the circumstances. It has, therefore, to be interfered with.
The following order is made:-
(1)
The
conviction is confirmed;
(2)
The
sentence is set aside and is substituted by the following:
Each - $250
or 6 months imprisonment.
Ndou J
……………………………………………… I agree
