Elizabeth Mamacos has commented on sexual abuse as the “safest” crime to commit — due to the shame and stigmatisation linked to its underreporting.

In the past couple of months the print media has reported on the trusted sports coach who abused his position and left a trail of destruction and devastation in the lives of many boys at Parktown High School — abuse that spanned several years before his deeds were exposed.

Who can forget the “sex for marks” debacle at Flagstaff Comprehensive High School in the Eastern Cape earlier in 2018. A story also broke of a school caretaker who was accused of abusing 87 school children in Soweto and a police investigator meant to assess children who ended up abusing two.

It is disturbing that whenever these stories break, we are often alarmed at the number of victims and how long it has taken for the incidents to be exposed. Parents at all these schools were loath to imagine that people acting in “loco parentis” (in place of a parent) would ever view children as sex objects. Significantly, this term means that a person acting as loco parentis should safeguard the welfare of the child and must protect the child from mistreatment and abuse.

Abusers in the school environment can be educators, coaches, caretakers and sometimes other learners. A disturbing study by the HSRC focusing on 24 schools in Khayelitsha found that 41% of primary school girls have experienced sexual violence. According to the study “violence is commonplace and occurs mostly in classrooms, on sports fields or in bathrooms”. The “culture of silence” among primary school children who experience higher levels of sexual abuse than high school learners, is disconcerting. Our focus today is on abusers who have an employment relationship with the school.

Not all people working within schools are predators, it is a small percentage of educators who exploit their position to exploit their students. Sexual abuse in schools is just as difficult to report, identify and address as it is in the home or workplace.

Sexual crimes are generally under-reported. The general secretive and shame-ridden nature of sexual crimes and the position that abusers often hold in the lives of the children they abuse complicate matters. The more trusted and well known the perpetrator, the harder it is for the child to report abuse.

Research shows that, in general, reporting sexual violence is always associated with negative consequences before positive ones. The fear of being blamed or punished for what has happened remains a serious hurdle to overcome. The fact that the criminal justice system and disciplinary proceedings are embedded in the adversarial system make reporting such crimes an ordeal. No better example exists than the notorious Omotoso trial.

How do children or families report incidents of abuse? A child may alert a parent, teacher or caregiver about abuse or the parent or caregiver will discover the abuse.

What are the options open to a child or parent? There are generally two options open to victims of abuse in schools – opening a criminal case or instituting disciplinary proceedings.

A criminal case can be opened with the local police if the conduct can also be classified as a criminal offence such as rape, statutory rape or sexual assault. The child or parent can also inform a trusted teacher or the principal (school authority). The principal must report the incident for it to be investigated by the department and for disciplinary proceedings against the perpetrator to be conducted. In the Western Cape, the Safe Schools Call Centre provides support to learners, parents and members of the public to report incidents like sexual misconduct (0800 454 647).

The pursuit of one option (criminal case) does not exclude the other (disciplinary inquiry). However, practical hurdles may arise, which would make pursuing both options more challenging. So, in theory, a child or parent may elect to lodge a criminal complaint and open a disciplinary investigation as well.

In addition to the criminal law process, the Employment of Educators Act (EEA) empowers the employer to follow disciplinary processes when a teacher commits an offence. Another piece of legislation, the South African Council for Educators (SACE) Act provides for a Code of Conduct for educators to regulate their “ethics”. The SACE Act provides that sexual misconduct is a breach of the educator code of ethics and will result in a penalty.

Under the EEA an educator who is found guilty of serious misconduct (such as sexual assault of a learner or having a relationship with a learner) must be dismissed. Under SACE, educators who are found guilty of sexual misconduct must not be employed by another school. The Education Labour Relations Council (ELRC) also provides a dispute resolution mechanism to investigate matters between employers and trade unions. The Children’s Act also establishes a “Child Protection Register” for people who are deemed unsuitable to work with children.

In addition to criminal processes, there are at least three other processes which may be initiated when an educator is accused of sexual misconduct:

• A provincial department of education internal disciplinary hearing;

• A SACE investigation; and/or

• An ELRC arbitration.

Given the above, it is clear that we have laws that should protect our children and to effectively punish transgressing teachers. However, the reality is that the multiple forums and the inherent adversarial nature of all these processes make effectively dealing with sexual abuse in schools a serious challenge.

One of the main challenges employers face when dealing with sexual abuse in schools is the fatigue and frustration suffered by children and their families when they need to undergo the often prolonged and traumatic testifying process. As a result, many children withdraw from the process and thus make way for the educator to remain in the school system.

Recently the Education Labour Relations Council signed a collective agreement in an attempt to remedy some of the challenges of the multiple forums that seemingly don’t speak to one another. More important, it is an attempt to limit the secondary trauma of retelling the same story over and over again.

On paper, Collective Agreement 3 is a welcome move towards trying to make dealing with sexual misconduct more child-centred or child-friendly. What remains to be tested is how well this change will be implemented in reality.

First, Collective Agreement 3, streamlines the three potential forums into one process so that child victims and witnesses do not need to testify in all the three process and relive any trauma. The agreement effectively merges the internal disciplinary hearing and the ELRC arbitration process and takes away the appeal powers.

Second, the decision of the arbitration is final and has the status of an arbitration under the Labour Relations Act.

Third, the arbitration adopts various child-friendly mechanisms to make the process easier for children to testify, such as through intermediaries, in camera and so on.

Fourth, arbitrators need to be skilled in dealing with child witnesses.

These changes are meant to align the several process options and most importantly are meant to ensure that child victims and witnesses are not traumatised by the process. Prior to the collective agreement, the processes meant to deal with errant educators were not aligned and the process could be appealed, which meant that the child would continuously need to testify.

Pursuing a criminal charge can delay or thwart the disciplinary process. In addition, the potential to continuously appeal one process in another forum also made it harder for learners to be willing to participate in the investigations.

It remains unclear whether the collective agreement will in practice deal with the long, drawn-out processes of the past, the main concern being that the specialised skill needed to deal with these cases might potentially delay the process. Also, it remains unclear how responsive SACE will be in striking an educator’s name off the educator register once they receive notification of an adverse award against an errant educator.

School governing bodies must therefore be more diligent in checking potential governing body post candidates with the education department and with SACE.

Despite these concerns, what is certain is that the coming together of the provincial departments and ELRC is a welcome change that might encourage learners to use the mechanism. DM

Precillar Moyo is an attorney at the Equal Education Law Centre based in Khayelitsha, Cape Town.