OP-ED | Justice for Cwecwe: How child survivors should be protected

On Friday, 28 March 2025, the public were justifiably up in arms on social media in response to a story published by Drum magazine, of the rape of 7-year-old Cwecwe at Bergview College in Matatiele, in the Eastern Cape. Cwecwe’s mum relays the nightmare of when she realised that her daughter was violated. When her mother investigated, she realised that her child had been sexually assaulted, she immediately obtained medical assistance and lodged a complaint with the school. According to the mother, the Principal’s denial of the assault and trivialising the issue was disturbing to them. Instead of acting with the required due diligence as required by the law and his position of a head of a school to address the complaint, it is alleged that the Principal responded with an expulsion letter.

Such responses are symptomatic of the systemic failures that many women and children face in obtaining redress in sexual violence matters. The high level of sexual violence in the country can be attributed to the lack of political will and non-compliance with basic legislative and policy obligations. The experience of Cwecwe and her parents is the reality of many learners and their families in the country.

In 2021, SECTION27 acted on behalf of the Teddy Bear Foundation and the parents of a learner, who was raped by a school caretaker. The incident took place at a school in the North-West in 2015, when the learner was 12 years old. The Principal, School Governing Body and North-West Department of Education failed to take any steps to hold the caretaker accountable. After SECTION27’s intervention, the caretaker was suspended and a disciplinary hearing conducted where he was found guilty and subsequently dismissed after seven years. This matter is a case in point illustrating that survivors of GBV only receive redress if legally represented or if there is a public outcry. Ten years later and the young girl, now young woman, has still not had her day in court. Similarly, in 2023-2024, the Centre for Child Law assisted a young girl throughout the disciplinary process against a school caretaker who had sexually assaulted her. This case revealed the carelessness with which child victims of sexual offences in school settings were not protected- for example the perpetrator arrived and sat in the same room as the child and her family, and this caused serious distress for the child. We had to demand that the perpetrator be asked to leave. Furthermore, no provision was made for procedural safeguards such as having an intermediary for the child when she testifies. Needless to say, the hearing got postponed numerous times until the family elected not to proceed. Thus, justice denied through systemic delays.

The case studies above raise a few things, which we will interrogate: (1) The education authorities’ roles and responsibilities and (2) issues pertaining to identity and privacy of child victims of sexual violations.

School’s responsibilities

The school is in loco parentis – a principal and educators’ step into the shoes of the parents. This duty of care requires schools to ensure that learners are kept safe, with their rights to equality, dignity, freedom and security privacy are in enhanced and protected. It means that the school acts in the best interests of the child in every aspect of their learning experience. These rights are embedded in the constitutional framework.

Emanating from this, the Department of Basic Educations (DBE’s) Protocol on the Management of Sexual Abuse and Harassment sets out the legal obligations of the various role players in ensuring that justice prevails. In terms of the Protocol, the principal should have immediately contacted SAPS, referred the learner to a Thuthuzela Clinic, provided psycho-social support to the learners and opened an investigation. He ought to have informed the District and Department of the incident.

The provincial department of education has an obligation to ensure that the labour processes are followed – investigations are conducted, and disciplinary processes are completed. The Eastern Cape Department of Education (ECDoE) and the national Department of Basic Education (DBE) might have acted as soon as the matter was reported. However, it is approximately five and half months later and then only was there a response.

It is important to point out that although Bergville College is registered as an Independent School, it is not exempt from complying with the constitutional duties imposed on it or the legislative and policy prescripts applicable.

The reaction of the ECDoE and DBE are called in to question. Is the application to deregister the school appropriate? What should the Department be doing to address the violation? Moreover, how does this application advance the best interests of Cwecwe, who is no longer in the school, and other children whose families would have to seek new schools for their children. It is crucial that actions to address violations of rights provide effective justice and remedies for victims, and to not just be reactionary measures.

The state should not be reacting to gender-based violence (GBV). Proactive steps ought to be taken that ensure that sexual predators are removed from our schools. The failure of the Department of Social Development, Department of Justice and Constitutional Development, South African Police Service, DBE and provincial education departments to ensure that the mechanisms that are currently in existence, such as the National Child Protection Register and National Register of Sex Offenders, are maintained and implemented is the first step. It also requires that the National Prosecuting Authority deal with these matters meticulously and expeditiously.

Identity and privacy rights of child victims

In the past three weeks Cwecwe’s plight has dominated mainstream and social media, including the organising of protests against violence against children and calling for justice for Cwecwe. The mobilisation was spurred by Cwecwe’s mother’s call for assistance in the media after failed attempts to get justice for her- an experience of far too many South Africans. The outrage and protests are justified, however the reporting and the availability of identifying information of Cwecwe and her family in the media is not. It not only poses a risk to her and her family but may also compromise the legal process that is yet to take place. As the investigation unfolds, we are already seeing reports that are conflicting and politically polarised, and increasingly psychologically harmful to Cwecwe and her family. It is therefore important to remind the community and the media of the need to protect the identity of child victims and the reasons why this is crucial.

The Criminal Procedure Act 51 of 1997 provides for the protection of child victims and witnesses of sexual violence. Section 154(3) expressly provides anonymity protections for child victims or witnesses in criminal proceedings, which prevents the publication of any information that discloses the identity of children falling into these classes. Publication is not limited to the printed press and includes the use of social media and other electronic platforms; it, moreover, applies to any person and not only media houses and/or journalists. Prior to the Centre for Child Law v Media 24 judgment, child victims were not expressively protected in the Criminal Procedure Act and thus only when they testified- as witnesses- would the protection kick in. The Constitutional Court found this approach to be unconstitutional as it violated the rights to dignity and privacy in sections 10 and 14 of the Constitution.

Children who are victims of crimes should not be forced to carry the public stigma and shame of victimhood throughout their lives. Nor should they be required to have their private concerns and matters rendered generally accessible to the public. The Constitutional Court pointed out that the rights of children to dignity and privacy are inherently intertwined, as each child has their own “individual dignity, special needs and interests” and to not have control over how some of the most traumatic and intimate moments of a child’s life are shared with the public strikes at the very core of the child’s dignity.

The media should by now be aware of its obligations in terms of the Criminal Procedure Act and organisations such as Media Monitoring Africa have Guidelines that assist journalist to know their duties when reporting on matters pertaining to children. Thus, they are aware that publishing identifying details in relation to Cwecwe does not advance her short-term and long-term best interests. The media also has a duty to educate the community about these obligations and even where publication of identifying information has taken place, they can take steps to minimise harm by for instance removing such details. It important to also educate the community that while they may not see any other outlets to obtain justice but through the media- particularly social media- they should not forget that these platforms can also be harmful. While we are all justified in our outrage and should continue to call for justice for Cwecwe, how we do this also matters.

Conclusion

GBV in South Africa has been labelled a second pandemic. Despite our constitutional, legislative and policy frameworks calling on the requisite repository of powers to act, we are failing women and children. The educational legal framework and jurisprudence support and entrench the rights of women and children against GBV. However, the State has failed them. We need urgent measures to address the systemic inertia if we are to have any chance of turning the tide on violence in our society.

Zeenat Sujee is the Head of Education Rights at SECTION27.
Karabo Ozah is the Director of Centre for Child Law.