A “shame of the nation” – this is how Police Minister Bheki Cele described the Krugersdorp mass rapes where eight women were horrifically gang-raped near mine dumps on 28 July 2022. It so happened that these atrocious events took place just a few days before Women’s Month, during which we ought to be celebrating women and commemorating their profound contribution to our country’s liberation. 

Yet, women and girls continue to bear the brunt of sexual violence in our society. We are constantly inundated with chilling reports of violence against women in public spaces, workplaces, family settings and even schools. These are places that ought to be safe, but as we have all sadly come to accept that there is no place where a woman’s safety is guaranteed.

During July, SECTION27 celebrated a long-awaited outcome for two sibling learners who were victims of sexual violence. One was raped by a caretaker in 2015 at her school in North West. She was only 12. Her sister was sexually assaulted by the same caretaker two years later. 

Days after the rapes, when the victims’ parents reported the incidents to the principal, they were simply instructed to do as they saw fit. The complaint was not investigated, and the perpetrator was neither taken through a disciplinary process nor suspended. For years, no action was taken against the perpetrator, who continued to be employed by the school governing body (SGB) and continued to pose a serious risk to other pupils. 

This is despite the 2019 Protocol for the Management and Reporting of Sexual Abuse and Harassment in Schools stating that school officials have a duty to immediately report, investigate and take action against accused parties in any suspected incident of sexual abuse or harassment.

After numerous failed attempts to engage with education authorities, in September 2021 SECTION27, representing the pupils and the Teddy Bear Clinic, instituted legal action in the Mahikeng High Court, seeking an order directing the education authorities to suspend the perpetrator and conduct an investigation and disciplinary process. The order was granted. The court ruled that the education authorities were “in breach” of their constitutional, statutory and common-law duties to investigate cases of sexual assault. They were subsequently ordered to take the appropriate action to deal with the sexual assault allegations.

Read more in Daily Maverick: “When protectors become predators – rising incidence of sexual violence against children in SA schools”

The disciplinary hearing was finally held on 22 June 2022, and on 20 July the disciplinary committee handed down its decision. It found that the perpetrator was guilty of raping the pupil in 2015 and sexually assaulting her sister in 2017. It recommended that the SGB dismiss the perpetrator with immediate effect. 

Failed repeatedly

Although this is a much-welcomed decision, it is important to note that the journey to justice took seven long years. This reflects the systemic failures within the education and the justice systems to hold perpetrators accountable. The survivors of sexual assault in this case have been failed repeatedly by both the education authorities and the criminal justice system. Only through dogged determination on the part of the survivors and their family, as well as consistent monitoring and legal support from SECTION27, has this case seen any movement.

During the proceedings, there was testimony alleging that other young girls had been raped by the perpetrator. This confirmed our fears that the failure of the education authorities to act jeopardised the safety of all learners. In its decision, the disciplinary committee stated that in the education sector “the in loco parentis principle reigns supreme… Schools are generally regarded as a “safe haven” for children. Therefore, schools are obliged to ensure that they address the problem of sexual abuse, harassment and related matters in light of legislative and policy measures.”

Legislative and policy frameworks to hold relevant authorities to account do exist. The committee was emphatic: “The sexual abuse and harassment of learners in the educational sector is counterrevolutionary to the Constitution of the Republic of South Africa, 1996. It infringes the learners’s rights to: equality and the right not to be unfairly discriminated; human dignity; freedom; privacy and bodily and psychological integrity; safe environment; children’s rights such as to be protected against abuse and best interests of the child; and education.”

Even so, tragically, these cases are not rare. In the last quarterly crime statistics presented to Parliament by the South African Police Service, 88 rapes are reported to have occurred at educational institutions between January and March 2022.

Read more in Daily Maverick: “Western Cape Education Department and perpetrator both liable to pay damages for rape of pupil”

While the family has received a semblance of justice and a vindication of their rights from this process, they are also complainants in a criminal case against the perpetrator. This process has been marred by multiple irregularities and failures from the police. One such failure is that on the day the learner went to report the rape at her local police station, she was told no case could be opened because all the evidence had been destroyed by the learner taking a bath and washing her underwear. The causes of other delays include the docket going missing and unending postponements to the start of the criminal trial with no end in sight. The next appearance date is in October. These are, unfortunately, common occurrences in our criminal justice system. 

The family has been in the pursuit of justice since 2016 and have thus not been able to move on with their lives. Because of cases like this, the legal adage, “justice delayed, is justice denied”, rings true. 

As we celebrate Women’s Day and Women’s Month, we must take the opportunity to reflect on the violent society we live in and the violence it metes out, particularly to women. We must also interrogate the dysfunctional systems that are meant to protect women and girls but instead enable their abuse. The failures of the relevant bodies and the delays by the authorities to act and prosecute only exacerbate gender-based violence. The strain on and retraumatisation of victims must be curtailed and can only be achieved through robust and expeditious finalisation of cases. DM/MC

Zeenat Sujee is an attorney in the education rights programme at SECTION27. Motheo Brodie is a legal researcher at SECTION27.