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Rising incidence of sexual violence against children in...

Maverick Citizen

Opinionista

When protectors become predators — rising incidence of sexual violence against children in SA schools

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Marthinus van Staden is Associate Professor at the Wits University School of Law, where he teaches Jurisprudence and Labour Law. He obtained his doctorate in Labour Law from the University of Pretoria in 2018.

A recent Cape high court case involving an acting principal accused of raping a schoolgirl should serve as a stern warning to all employers, especially the state, that potential employees should be properly vetted to determine the suitability of their employment.

For parents who place the well-being of their children in the hands of school teachers, it is unthinkable that these guardians could also prey upon their children. Unfortunately, there is an increase in cases reported in the media where children have fallen prey to their teachers.

In the recent case of CS v Swanepoel, the Western Cape high court was tasked to deal with a case in which an acting principal had allegedly raped a schoolgirl. This case demonstrates the importance of effectively dealing with matters related to sexual violence against school children.

This entails not only activating criminal procedures against such perpetrators but also ensuring that these persons are removed from contact with other potential victims and that they will never be able to commit such an offence again.

The pupil, who was 12 years old at the time, claimed that an employee acting as the principal at the Vleiplaas Primary School near Barrydale raped her in the staff restroom. She filed a lawsuit against the person, the school, and the Western Cape minister of education to recover damages.

The evidence suggested that the worker had a prior conviction for raping a minor, but he omitted to mention this fact when he applied for his current job. Despite this omission, the evidence suggests that the employee was employed because the Western Cape Education Department failed to conduct a proper background screening.

The employee filed a counterclaim for damages, stating that a disciplinary tribunal had acquitted him and that the pupil had falsely accused him of rape. He also claimed that the student had lied about the incident.

The court found that the pupil had provided abundant evidence to support her claim that the employee had sexually assaulted her. The testimony of two other people supported the student’s account. The employee also made a lousy witness because he was arrogant, opinionated, and evasive in his testimony.

The employee’s disciplinary hearings, which resulted in him being cleared of any wrongdoing, were a farce that could be ignored. The court described the disciplinary hearing as a “travesty” and a “shocking failure of justice”.

The employee’s justifications for not disclosing the conviction in his application for a job at the department were obviously dishonest. The court, therefore, found that the evidence presented by the pupil demonstrated beyond a reasonable doubt that the employee had sexually assaulted her and that he was liable for any damages that may have resulted.

The department and the school were held liable for the incident because of an alleged omission, defined as the wilful and negligent breach of a legal duty to safeguard the student from harm.

This claim required proof of legal responsibility, and the criterion for determining whether it was fair to hold the employer accountable for their inaction was whether or not it was reasonable to do so.

All persons, especially educators, are responsible under the law for taking preventative measures to protect others, especially children. The department and the school were required by law to do a comprehensive background check on the employee to determine whether or not he had a criminal history that would prevent him from being hired for a position that requires him to work with children.

Because of the strong relationship between the department and the school and the student, the department and the school were held vicariously accountable for the activities of the staff. The department was under a legal obligation to conduct a background check on the employee and failing to do so was considered negligent.

A reasonable employer in the department’s position would have anticipated the possibility of minors being subjected to sexual exploitation or abuse at the hands of someone like the employee.

As a direct consequence, the department was responsible for the student. Regarding the school, no information had been produced implying that it had failed to take reasonable efforts to prevent the incident or to screen the employee before he was appointed. Instead, the evidence suggested that the school had done both.

Because the employee in question was found not guilty by the disciplinary panel, he was allowed to continue working in his previous capacity. Criminal charges also ought to have been brought against him.

The court, therefore, ordered that the decision be sent on to the director of the department and the Director of Public Prosecutions so that they can take appropriate action. The department and the employee were responsible to the pupil for any losses that the pupil could prove.

The decision that was made is appropriate. In the context of a working environment, vicarious liability refers to the situation in which an employer is held responsible for the activities of an employee or employees. The employer’s liability is considered one of strict liability, also known as liability without fault, and it exists in addition to the employee’s liability.

This instance illustrates the substantial impact on an employer that inappropriate and intentional behaviour can have on an employee. Because the standard for determining vicarious culpability in cases involving rape in the workplace is so stringent, it may be difficult to prove an insufficient connection between the perpetrator’s actions and the employer’s line of work.

The judge in this case determined that the employee’s actions were subject to vicarious liability since they were judged to be sufficiently intertwined with the educational business of the employer. As a result, the employee was held legally responsible for his actions.

One of an educators’ essential responsibilities is to safeguard children’s welfare; any harm inflicted on children by educators will, according to this line of thinking, always be connected to the enterprise of education.

The case should serve as a stern warning to all employers, especially the state, that potential employees should be properly vetted to determine the suitability of their employment. The fact that an employee had previously been convicted of raping a minor child should disqualify the employee from ever working with children again.

It seems incredible that such due diligence was not done where it is easy to verify a candidate’s criminal record status and obtain a detailed SAPS 69 Report.

Ultimately, the outcome will serve as little reparation to the child and her family who will forever be scarred by the actions of a predatory teacher, some public official who could not be bothered to check his record, and the members of a sham disciplinary committee that chose to ignore the testimony of the child — even when the employee did not refute it.

Society itself is also impoverished, not only by the fact that the taxpayer will fund the payment of damages payable to the victim and her family by the department, but also because the case strips away much of the faith that the typical South African may have that the state will prioritise the interests of the most vulnerable members of society. DM

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