29 March 2023, Johannesburg — SECTION27 welcomes the decision of the Department of Social Development (DoSD) to place a school caretaker, guilty of sexual assault on the Child Protection Register in terms of the Children’s Act 38 of 2005. Following the findings of a disciplinary inquiry held by the North West Provincial Department of Education, to immediately dismiss the perpetrator after being found guilty of sexual assault, SECTION27 approached DoSD to place the caretaker on the Child Protection Register. This would ensure that the perpetrator would be deemed unsuitable to work with children and prevent the perpetrator from harming other kids.
The matter involved the sexual assault of siblings, both minor learners, beginning in 2015. After a failure by the principal and School Governing Body (SGB) to act against the caretaker, it is alleged that the perpetrator sexually assaulted the learners’ sibling who attended this primary school in the North West province.
While SECTION27 celebrates this outcome, it is important to note that the journey to justice took eight long years. This reflects the systemic failures within education and the justice system to hold perpetrators accountable for acts of sexual violence, allowing them to continue violating more learners. After several failed attempts to get the SGB, the North-West Department of Education and the South African Police Service (SAPS) to act, SECTION27 approached the court for an order directing them to act.
The findings in the disciplinary committee are the culmination of the Provincial Education Department’s statutory duties to investigate allegations of sexual assault and take action against accused perpetrators. The perpetrator, in this case, was a school caretaker at the time and has been found guilty of raping a female minor learner in 2015, and sexually assaulting that learner’s sister in 2017. The perpetrator pleaded not guilty on both charges of rape and sexual assault, but the disciplinary panel found him guilty after reviewing evidence provided by the survivor and their mother. Particularly relevant to this case was the caretaker’s role and position of authority at the school, with the chairperson of the disciplinary enquiry, Mr Phillip Hozo, remarking in his report:
“in the education sector… the in loco parentis [in the place of a parent] principle reigns supreme… Schools are generally regarded as a “safe haven” for children. Therefore, schools are obliged to must ensure that they address the problem of sexual abuse, harassment and related matters in light of legislative and policy measures.”
In this case, however, the parents of the learners reported the rape of their child to the school principal, but the perpetrator was not disciplined or suspended. For years, no action was taken against the perpetrator, who continued to be employed by the SGB at the school and therefore continued to pose a risk to other learners because of inaction from the school leadership and education authorities. The perpetrator was suspended six years after the original incident, only as a result of legal action instituted by SECTION27. This is despite the fact that the 2019 Protocol for the Management and Reporting of Sexual Abuse and Harassment in Schools states that school officials have a duty to report, investigate and take action against accused parties in any suspected incident of sexual abuse or harassment immediately.
The disciplinary process only started after SECTION27 instituted litigation representing the Teddy Bear Clinic, which is an organisation that assists children that have experienced sexual abuse as well as the parents of the two minor learners and obtained a court order from the High Court of South Africa (North West Division, Mafikeng). It was declared that the education authorities were ‘in breach’ of their constitutional, statutory, and common law duties to investigate cases of sexual assault and take appropriate action.
This matter must be a blueprint for ensuring accountability in schools in matters of sexual violence. It is now left to the criminal justice system to take its course and we hope that it will be disposed of expeditiously and favourably.
SECTION27 implores the Department of Education, principals, and SGBs to vet candidates before employment, and that The Child Protection Register be used in the appointment process.
We also thank the Teddy Bear Clinic for Abused Children for supporting the family in this matter.
The European Union funding supports SECTION27 and the Centre for Child Law’s work in enhancing accountability in health and education in South Africa.
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