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  3. Overview of the Current Safeguard/Policies for Protection of Learners from Sexual Harassment and Sexual Violence

Schools should be safe havens for learning and an opportunity to instil tolerance and respect for human rights in learners. When the school system becomes unsafe and a violent playground is created it is important that institutions and governments respond appropriately. A failure to deal with the issue of sexual violence in schools reinforces and legitimises violence against women and gender inequality. A school environment where sexual violence and harassment is tolerated compromises the right of learners to enjoy education on equal terms - a lesson that is damaging to all children and at sharp variance with South Africa's constitution and its international obligations.

The consequences of gendered or sex based violence within the education system has been summarised in the Human Rights Watch Report16 to be as follows:

"Gendered or sex based violence, in the broader context of discrimination, constrains freedom of movement, choices and activities of its victims. It frequently results in intimidation, poor levels of participation in learning activities, forced isolation, low self-esteem or self confidence, dropping out of education or from particular activities or subjects or other physical, sexual and/or psychological damage. It erodes the basis of equal opportunity realized through equal access to education."

The Constitution of South Africa contains a number of provisions, which safeguard children and learners within South Africa. These provisions will now be examined before considering other legislative provisions protecting children.

Section 29 provides that everyone has the right to a basic education. In order to achieve this right certain duties are imposed on the South African government, such as, the duty to ensure that no learner's right to education is impeded and that all learners enjoy equal unimpeded access to education. In addition all children are protected in that Section 28 (1)(d) of the Constitution protects all children from maltreatment, neglect, abuse or degradation.

Section 12(1)(c) of the Constitution in turn provides that all persons have the right to freedom and security of the person, which includes the right to be free from all forms of violence from either public or private sources. The rights to bodily and psychological integrity, dignity, privacy and equality enshrined in the Bill of Rights further protect learners.

Notwithstanding the constitutional entrenchment to the right to freedom from violence,17 the South African government has likewise committed itself to the protection of the rights of victims of sexual violence through policies operating at a national level18 and also through international human rights documents. At a national level there has been recognition that a legal framework for addressing sexual offences needs to be developed in terms of which the substantive and evidential laws on sexual violence will be reviewed as well as the legal procedures relating to sexual violence. Justice for victims has also been a focus area of law reform. This accords with our international obligations in terms of the CEDAW,19 which commits states to pursue, by all appropriate means and without delay, a policy of eliminating discrimination against women.20 CEDAW also sets out specific recommendations regarding duties resting on states. It should be noted that one of the duties set out is that:

"States should take all legal and other measures that are necessary to provide women with effective protection against gender-based violence, including effective legal measures, including penal sanctions, civil remedies and compensatory provisions to protect women against all kinds of violence."21

The Declaration on the Elimination of Violence Against Women22 specifically enjoins member states to pursue policies to eliminate violence against women. In this regard the member states undertake to pass legislation to punish violence against women.23

In relation to the duties imposed on the South African state our Constitutional Court has held that to the extent that violence against women is recognised as a denial of human rights such as the right to life; the right to equality; the right to liberty and security of person; the right to equal protection under the law; the right to be free from all forms of discrimination; the right to the highest standard attainable to physical and mental health; and the right not to be subjected to torture, or other cruel, inhuman or degrading treatment or punishment, South Africa has an obligation to take measures to protect those who are most vulnerable.24

The Convention on the Rights of the Child in turn places a positive duty on government to take appropriate steps in order to prevent sexual violence within the school system.25 Article 29 stipulates that the purpose of education is to foster development of the child's personality, talent, and mental and physical abilities to their fullest potential in order to prepare such child for responsible life in a free society, in the spirit of understanding, peace, tolerance, equality of the sexes and friendship. Likewise, the African Charter on Human and Peoples' Rights26 obliges signatory states to ensure the elimination of discrimination against women and children. Thus, where violence occurs in educational settings the enjoyment of the fundamental right to education is impaired.

This then the constitutional and international framework within which the rights of learners needs to be contexualised. In giving effect to these rights the South African government has enacted legislation and quasi-legislation in order to protect learners and women from all forms of violence. In addition, the South African government has introduced certain initiatives order to address crime and violence in schools.

These are summarised below:

  • * Corporal punishment was declared unconstitutional in the case of Christian Education South Africa v Minister of Education.27 The Constitutional Court refused to order a religious exemption so as to permit teachers at Christian Education Schools to apply corporal punishment. In the case the school concerned challenged section 10 of the South African Schools Act,28 which prohibits corporeal punishment, asserting that the provision was unconstitutional and should not be applicable to private schools. The Court held that the imposition of corporal punishment directly affected the rights of children to be free from violence and secondly, the limitation of the parents' rights applied only to their entrusting corporal punishment to teachers and left untouched the rights of parents to maintain the core of their beliefs by imposing corporal correction in the home. The decision sets an important precedent in that it recognises not only the rights of all children to be free from all forms of violence but sets out that where children attend at school, they are entrusted in the care of the school authorities, which in turn have a duty to protect and enforce the rights enshrined in the Constitution.
  • Subsequent to the aforegoing decision, the National Department of Education has published an instruction manual for teachers dealing with alternative modes of discipline. The document sets out the ways in which teachers can be proactive in order to create a learning environment, which limits discipline problems. The manual recommends that abusive teachers be disciplined and that charges be laid against them. In addition the Secretariat for Safety and Security, in co-operation with the police has developed a National Crime Prevention Strategy for schools.
  • The South African Schools Act29 repealed many discriminatory education laws that existed under the apartheid education system and created a uniform education system based on the non-discriminatory principles set forth in the Constitution. The Act provides for the suspension of pupils as a correction measure where serious misconduct has been committed and may thus be used as a tool where a pupil has committed an act of sexual violence.30
  • The National Education Policy Act31 further governs the administration of education in South Africa and is specifically aimed at advancing and protecting the fundamental rights of every person to education. The Act sets out that a national education policy shall be implemented and evaluated and monitored over time. Such policy is furthermore required to embody the principles in the Constitution.
  • The Employment of Educators Act32 was amended in 2000. Section 17 of the Education Laws Amendment Act, No 53 of 2000 provides that an educator must be dismissed if he or she is found guilty of among other things:
    • "committing an act of sexual assault on a learner, student or other employee;
    • having a sexual relationship with a learner of the school where he or she is employed; or
    • seriously assaulting, with the intention to do cause grievous bodily harm to, a learner, student or other employee."
  • The section further provides that if it is alleged that an educator committed a serious misconduct the employer must institute disciplinary action.
  • The Act further details the sanctions that may be imposed and describes how an employer should conduct disciplinary hearings in cases of misconduct.

To date South Africa has not implemented a national policy on how to deal with sexual violence and harassment in schools. The Western Cape Education Department has published a policy document called "Abuse No More: Dealing Effectively with Child Abuse" which provides detailed guidelines on how to approach sexual harassment and sexual violence within the school system. At this time it is the only policy of its kind in the country. It deals with punitive, preventative, remedial and educational aspects relating to sexual abuse within the school system.

Whilst intended for educators, the policy can also be referred to by learners, parents and others who would like to know more about the nature of child abuse, and how school personnel are obliged to respond to signs of child abuse among learners in their care. The Policy sets out detailed steps, which the school should follow in the event that it becomes aware of an incident/s of sexual abuse. Furthermore, it places a duty on the school to educate learners around the nature of child abuse and their rights in this regard. The policy document provides guidance for schools in relation to how to handle disclosure. In this regard it sets out the steps, which should be followed where a learner discloses an incident of sexual abuse. These are set out as follows:

STEP 1: Ensure the safety of the learner (in collaboration with the SAPS and the social worker, ensure that the learner will not have direct contact with the alleged offender).

STEP 2: Explain to the learner that you will treat all the information in a confidential way, but in order to help her or him, you are legally obliged to report the case to other role-players such as the social worker and/or the SAPS. Explain the roles that they will play as well as the procedures that will be followed.

STEP 3: Inform the school principal (unless he or she is implicated). No detailed information about the alleged abuse needs to be disclosed at this stage.

STEP 4: Assist the school principal in contacting the relevant role-players within three days after the incident in order to decide on the process of intervention. In this regard one could either contact the local welfare organisation; the school psychologist; the Child Protection Unit; the SAPS in the residential area of the complainant; the complainant's parent(s) (with the consent of the complainant, if she or he is over 14), the school nurse (if available), or (if applicable).

STEP 5: Assist the school principal in compiling a confidential report for the social worker and the SAPS. Ensure that confidentiality is maintained.

STEP 6: Assist the school principal in meeting with the relevant role-players mentioned in Step 4, to draw up a plan of action to indicate the responsibilities of each participant in the intervention process. The school principal must then report the case or incident to the Head: Specialised Support Services at the relevant Education Management and Development Centre.

STEP 7: The school principal will follow up with all the role-players, document the process and inform you of progress. He or she will also pass the information on to the Head: Specialised Support Services at the relevant EMDC.

STEP 8: Keep the learner and her or his parent(s) informed of the steps taken by the role-players and the outcome of the investigation.

STEP 9: Assist the school principal in monitoring the learner's emotional, mental and physical health, discuss it with his or her parents, and refer the learner for further professional help if necessary.

When a learner is the alleged offender then the Policy provides that the steps as set out above (steps 1 - 9) should be utilised in order to assist the alleged learner offender. This should be seen as an attempt to prevent the alleged offender from committing further abuse. Additional procedures are also available if necessary, such as referring the alleged offender for emotional support and therapy if necessary or arranging for temporary suspension of the alleged offender, depending on the circumstances and only if in the best interest of other learners and the school. (If the offence was serious enough to merit suspension or expulsion the school principal will refer the matter to the governing body of the school.) A critique of this policy and its impact is considered below.

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Notes

16. Ibid Chapter 7: "The School State Response"

17. Section 12(1)(c) of the Constitution

18. For example the National Crime Prevention Strategy which includes Victim Empowerment Programs

19. Convention on the Elimination of All Forms of Violence Against Women [UN Doc A/ROES/34/180 (1980)]. South Africa signed the document on 29 January 1993 and ratified on 15 December 1995.

20. Article 2

21. Para 24 (t)

22. General Assembly Resolution 48/104 of 1993.

23. Article 4(d).

24. S v Baloyi 2000 (1) SACR 81 (CC) at para 13; Carmichele v Minister of Safety and Security and Another 2001 (4) SA 938 CC at 952G-H; 964D-965A

25. Article 34

26. The Charter was signed by South Africa in 1995 and ratified in 1996.

27. 2000 (4) SA 757 (CC)

28. Act 84 of 1996

29. Ibid

30. Section 9

31. Act 27 of 1996

32. Act 76 of 1998

 


Prohibiting the Ongoing Sexual Harassment of and Sexual Violence against Learners

Introduction

The Prevalence of Sexual Harassment of and Sexual Violence Against Learners in Schools

The Current Safeguards / Policies for Protection of Learners from Sexual Harassment and Sexual Violence

Critical Analysis of the Current Safeguards / Policies

Conclusion

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