SECTION27 was involved in a matter concerning an attack on two minor learners by a caretaker at a school in North West. The first incident happened in 2015. The school did nothing — and the perpetrator sexually assaulted the learner’s sibling in 2017.

Not the North West Department of Education, not the principal of the school, nor the School Governing Body (SGB) suspended the employee or held any disciplinary inquiry into the complaint.

After several failed attempts to get the SGB, the provincial education department and the police to act, SECTION27 approached the courts for an order directing them to act.

Acting on behalf of the learners and the Teddy Bear Clinic, SECTION27 sought an order declaring the failures of the provincial department of education, the principal and the SGB unconstitutional. SECTION27 also wanted an investigation into the incident and a disciplinary hearing. 

After obtaining the order against the principal and SGB, a disciplinary hearing was held. The disciplinary committee held that the perpetrator raped one sister and sexually assaulted the other, and recommended that he be dismissed. This process took seven years.

Again, it is only after SECTION27 intervened that the school dismissed the perpetrator with immediate effect.

However, dismissal was not enough. The perpetrator lived in a small rural community and there was a possibility that he would once again be employed in an environment where children were present.

The Children’s Act of 2005 allows for sexual offenders and persons who abuse children to be listed on either the sexual offenders’ list or the Child Protection list. Section 118 of the act states that Part B of the National Register for Sex Offenders includes persons who are unsuitable to work with children. In terms of section 120 of the act, a children’s court, a criminal court or any other forum – including a disciplinary proceeding – could make a finding that a person is unsuitable to work with children. The section goes further to state that in criminal proceedings, a person must be found unsuitable to work with children if convicted of murder, attempted murder, rape, compelled rape, indecent assault or assault with intent to do grievous bodily harm.

A person found to be mentally ill and not capable of understanding the proceedings or make out a proper defence or was by reason of mental illness or mental defect not criminally responsible for the act which constituted murder, attempted murder, rape, indecent assault or assault with intent to cause grievous bodily harm, with regard to a child, must be found to be unsuitable to work with children.

Section 123 of the Children’s Act deals with the consequences of entry of a name in Part B of the register. This section states that no person whose name appears in this part of the register may manage, operate, or participate in an institution providing welfare services to children, including child and youth centres, a partial care facility, a shelter or drop-in centre, cluster foster care scheme, a school, club or association providing services to children. 

To report an individual not suitable to work with children, the details of the perpetrator, fingerprints and decision of the court or forum that has found the individual guilty of the sexual offence, should be furnished to the Department of Social Development (DSD). The person is then included on the list that would prevent the individual from working with children. The lists are not public but permit any person to request access to the list. In terms of section 125(2) of the Act, the Director-General may allow the head of departments of provincial education departments access to the list. 

Relying on section 120(1)(c) of the Children’s Act, SECTION27 brought the disciplinary committee’s decision to the office of the deputy director-general of the DSD. 

After completing Form 28, an attachment to the Children’s Act, the DSD decided to include the perpetrator’s name on the Child Protection List. This was a non-litigious and administrative measure to ensure the protection of children that could have encountered the perpetrator at a school or creche. 

These successes might be small to some, but could have wider impact if employers and the public made better use of the lists. Most importantly, the DSD should make the lists more effective and provide more information to the public on how the lists can be accessed, and to make concerted efforts to get the education departments to use these lists when employing educators, and for schools and SGBs to use them when recruiting staff. 

Section 28 of the Constitution is explicit that the interests of the child are of paramount importance. Furthermore, children should be afforded the rights to a safe and thriving educational space that is free from all dangers, including sexual predators. 

Both the DSD and the Department of Basic Education (DBE) have the obligation to ensure that these rights are respected and fulfilled.

Heads of departments of the various provincial education departments should utilise section 125(2) when vetting prospective educators for vacancies. 

Justice Sachs in S v M (Centre for Child Law as Amicus Curiae) 2008 (3) SA 232 (CC) eloquently describes the paramountcy of the best interests of the child and the State’s obligation to protect the child. He stated: 

“No constitutional injunction can in and of itself isolate children from the shocks and perils of harsh family and neighbourhood environments. What the law can do is create conditions to protect children from abuse and maximise opportunities for them to lead productive and happy lives. 

“Thus, even if the State cannot itself repair disrupted family life, it can create positive conditions for repair to take place, and diligently seek wherever possible to avoid conduct of its agencies which may have the effect of placing children in peril.”

In carrying out their obligation, the DSD and DBE have a further obligation to communicate with each other and to use the lists effectively in protecting the rights of children and to realise the right to a basic education. DM168

Zeenat Sujee is an attorney in the education rights programme at SECTION27.

This story first appeared in our weekly Daily Maverick 168 newspaper, which is available countrywide for R29.