"Sexual violence and the threat of sexual violence goes to the core of women’s subordination in society. It is the single greatest threat to the self determination of South African Women." (own emphasis)

(Carmichele v Minister of Safety and Security 2001 (4) SA 938 CC at 964 C-E)

The Education Rights Project (ERP) is a project established as a partnership between the Centre for Applied Legal Studies (CALS) and the Education Policy Unit (EPU) at Wits. It aims to assist vulnerable segments of society in overcoming obstacles that hinder an individual’s access to education. The ERP has chosen to prioritise as one of its key areas of intervention in the education sector, the elimination of sexual harassment and sexual violence against learners in schools. This decision was informed by widespread media reports as well current research studies detailing the persistent and systemic sexual harassment and sexual violence against girl-learners in schools. These reports and research all emphasised the detrimental effects of sexual harassment and sexual violence on the education of, in particular girl-learners.

The work of the ERP in respect of the sexual harassment and sexual violence in schools has to date focussed on conducting a systematic review of all studies to determine the prevalence and impact of sexual harassment and sexual violence in schools, and then to analyse the existing legal framework for the protection of learners with a view to developing a working strategy to eliminate the ongoing sexual harassment and sexual violence against learners. The ERP has commissioned research from experts at the Women’s Legal Centre in Cape Town to assist in this regard.

The latest and most in-depth study to date detailing the prevalence and impact of sexual harassment and sexual violence against learners is that conducted by Human Rights Watch in 2000. Human Rights Watch investigated cases of alleged rape, sexual abuse, and harassment involving school–girls in South Africa. It found that sexual abuse and harassment of, in particular girl-learners is widespread in South Africa.

The report looked at the impact of sexual harassment and sexual violence on learners and found that it erected a ‘ discriminatory barrier for young women and girls seeking an education.’ That is, the report found that sexual harassment and sexual violence had a profoundly destabilising effect on the education of girl children. All the rape survivors interviewed reported that their school performance suffered and it was harder to concentrate on their work after their assaults. Some of the girls reported losing interest in school altogether, some of the girls transferred to new schools, other simply left school entirely.
The report found furthermore that there were ineffective mechanisms within schools to respond to the problem of harassment and violence. According to which:

‘Rarely do school authorities take steps to ensure that girls have a sense of security and comfort at school or to counsel and discipline boys who commit acts of violence. Many girls leave school altogether, because they feel unsafe and are unwilling to remain in an environment that has failed to protect them.’

Thus, the report found that the State’s failure to protect girl learners and respond effectively to violence violated their bodily integrity and their right to education. The report urged the Department of Education to develop a National Action Plan to address the issue of sexual harassment and sexual violence, and to develop and disseminate procedural guidelines governing how schools are to address allegations of sexual violence and harassment, specifically detailing how schools should treat victims of violence and those who are alleged to have committed such acts.

The Current Safeguards

Our Bill of Rights contains a number of provisions which protect the rights of learners and which impose duties on the State to protect learners from sexual harassment and sexual violence. These include inter alia: The right to basic education which includes the right to equal unimpeded access to education (Section 29); the right to dignity, (Section10); the right to freedom and security of person (Section 23); the right of children to be protected from maltreatment, neglect, abuse or degradation (Section 28(1)(d)). The extent of the obligations imposed on the State by these rights is set out in Section 7(2) that requires the State to ‘respect, protect, promote and fulfil the rights in the Bill of Rights.’ In Government of the Republic of South Africa and Other v Grootboom and Others 2001 (1) SA 46 (CC) at 82 C-E, the Constitutional Court interpreted these obligations in respect of Section 28 to mean:

‘In the first place, the State must provide the legal and administrative infrastructure necessary to ensure children are accorded the protection contemplated by Section 28. This obligation would normally be fulfilled by passing laws and creating enforcement mechanisms for the maintenance of children, their protection from maltreatment, abuse, neglect or degradation, and the prevention of other forms of abuse mentioned in section 28.’

Thus, the State is obliged to establish a regulatory and enabling environment for learners to be effectively protected from sexual harassment and sexual violence. Below is a brief analysis of the efficacy of the current regulatory framework.

The Schools Act 84 of 1996 together with the Guidelines for the Consideration of Governing Bodies in Adopting a Code of Conduct provide for the discipline of learners. They give individual schools and governing bodies wide latitude in defining which conduct is serious and which conduct is not, and in determining the nature of the sanction in respect of more and less serious offences. Thus, where a school is not committed to sanctioning the behaviour of learners guilty of sexual harassment or sexual violence, no mechanism exists for protecting learners from other learners who are perpetrators of sexual harassment or sexual violence. The Employment of Educators Act 79 0f 1998 was amended in 2000 to recognise sexual misconduct with a learner as a form of misconduct that must result in a dismissal where the educator is found guilty. These sanctioning mechanisms, while necessary have nevertheless been described as limited as they are punitive rather than preventative in nature.

The Department of Education, has been stated by the Human Rights Watch report no national policy on how to deal with sexual violence and sexual harassment in schools. To date only the Western Cape has developed guidelines for addressing sexual harassment and sexual violence in schools. This policy deals with the punitive, preventative, remedial and educational aspects in relation to sexual abuse with the school system. The guidelines are however not mandatory which therefore questions its enforceability.

The research commissioned by the ERP having highlighted these limitations in the current regulatory framework in protecting learners from sexual harassment and sexual violence, are of the view that such limitations may constitute a failure a on the part of schools and the Department of Education in the ‘duty of care’ which these organs owe to learners under their supervision to ensure that no harms comes to learners, thereby making such organs liable in terms of the law of delict.

A Working Strategy for the ERP

The Department of Education has been pro-active in protecting learners from other forms of harassment and violence in schools. In terms of the Schools Act it has prohibited corporal punishment in schools. In the Constitutional Court case of Christian Education South Africa v Minister of Education 2000 (4) SA 757, when a coalition of Christian Schools applied to the Court to permit corporal punishment at their schools on religious grounds, the Department successfully defended this prohibition on the grounds of its overall duty to protect learners from all forms of violence. The Department has also provided schools with manuals outlining alternative forms of discipline to that of corporal punishment. The Department has also very recently amended the Schools Act and developed regulations pursuant to the amendment for the banning of initiation practices at schools. These recent developments contain precise definitions of prohibited conduct in the initiation context and set out the steps to prohibit and prevent such conduct. The absence of similar steps to protect learners from sexual harassment and sexual violence, in the context of the overwhelming statistics of sexual violence against women and its impact on women is extremely disheartening to say the least.

The ERP’s future interventions will therefore focus on being involved in cases that seek to hold schools and the Department accountable in terms of their ‘duty of care’ towards learners. The ERP also intends engaging government and advocating for an enforceable national policy for the prevention of sexual harassment and sexual violence in schools.

Faranaaz Veriava is a legal researcher based at the Centre for Applied Legal Studies and a member of the Johannesburg Bar