4. Critical analysis of the Current Safeguards/Policies

The common-law duty of care

The constitutional framework

Developing the common law in line with the Constitution

Critique of current policies and/or procedures dealing with sexual harassment and sexual violence of learners

Our law has always placed a premium on the recognition and protection of the right of every person to physical safety and integrity.33 The education system and schools specifically have been entrusted to ensure the safety and well being of learners. Notwithstanding the aforegoing, the Human Rights Watch Report found that:34

"Girls described a persistent response pattern whereby schools discounted their reports of sexual violence and harassment and failed to respond with any degree of seriousness. Girls were discouraged from reporting abuse to school officials for a variety of reasons, not least of which was the hostile and indifferent responses they received from their school communities. Sometimes school officials appear to have failed to respond adequately because they simply did not know what to do; other times they ignored the problem; still other times they appear to have failed to assist. In many instances, schools actively discouraged victims of school-based gender violence from alerting anyone outside the school or accessing the justice system."

It is thus necessary to critically assess the safeguards and legal framework currently protecting learners from harm.

The common-law duty of care

In terms of the common law and the law of delict a person does not act wrongfully where he/she fails to act positively to prevent harm to another. A person is generally not liable for his/her failure to act (omission). Liability only follows if the omission is wrongful and there existed a legal duty or "duty of care" on the defendant to act positively to prevent harm from occurring. Consequently a breach of a legal duty is actionable in delict and would be based on the negligence of the defendant in complying with his/her duty of care. In order to determine whether or not a legal duty has been breached the Courts generally have regard to the boni mores of the community.

In this regard it has been argued by the academic writers35 that the law, for public policy reasons, is reluctant to assume the existence of a duty of care. The rationale is that the law does not generally demand altruistic behaviour, it does not require you to love your neighbour, but only that you not injure your neighbour.36

The legal convictions of the community do, however, dictate that where a special relationship exists between the parties, such as that of police officer and citizen, employer and employee, or parent and child, then a breach of a legal duty would be viewed within the context of the special relationship between the parties and an inference may be drawn. This may be extended to the situation where the school authorities / the education system fails to fulfill its duty of care towards learners. Whilst it is therefore clear that the law does not require a special relationship between the plaintiff and the defendant as an absolute pre-requisite for the existence of a duty of care, the existence or absence of such a relationship, are usually a relevant and often a decisive factor in the inquiry.

This is illustrated by the early decision of Rusere v The Jesuit Fathers37 where an eight-year-old boy sustained an injury to his eye whilst playing a game on school premises. Beck J held as follows in relation to the duty of care by the school:

"The duty of care owed to children by school authorities has been said to be to take such care of them as a careful father would take of his children. This means no more than the school master, like parents must observe towards their charges the standard of care that a reasonably prudent man would observe in the particular circumstances."

In the more recent decision by the Cape High Court (as yet unreported) in the case of Wynkwart v Minister of Education and Others38 Ngwenya J held that there was a duty on the Department of Education to ensure that all young learners attending pre-primary school be monitored and supervised by teachers when on the playground in order to prevent harm to learners. A failure to do so could result in both the school and the Department of Education being held liable. In this case the Plaintiff's son (an eight-year-old boy) had been permanently paralysed when he fell off an unused school gate. It was argued that both the school and the Department had been negligent by not ensuring that the Plaintiff's son had been supervised at all times by a teacher when on the playground. The court held that this duty was not a discretionary one and was one that was owed by the school and Department.39 In this regard Ngwenya J held that it was not sufficient for the teacher to tell the child not to use the gate, there was a further duty to in actual fact ensure that no child used the gate or was injured in the process.

The decision seems to suggest that the duty of care owed by schools goes further than simply holding that there is a duty to warn learners of potential dangers, a teacher would have to furthermore also ensure that no harm occurs. In the context of sexual violence it would thus be insufficient to warn and/or educate learners in relation to sexual abuse without taking steps to ensure that no such harm occurs whilst on the school premises.

The constitutional framework

Over and above the education system and the duty of the school to protect the safety of learners our Constitution has also entrenched the right to be free from all forms of violence. This right is entrenched in section 12(1)(c). The question flowing from the aforegoing is whether this right imposes any duty on the State or individual to ensure that all learners are free from all forms of violence.

In this regard section 7(2) of the Constitution imposes a corresponding duty on the state to "respect, protect, promote and fulfil" the rights enshrined in the Bill of Rights. It imposes three distinct duties on the state. The duty to "respect" is negative. It requires the state to refrain from infringing these rights. The duty to "protect" is positive, it obliges the state to protect these rights from infringement by third parties. The duty to "promote and fulfill" is also positive in that it requires the state to use its power to advance these rights and assist individual right-holders to realise them.40

Based on the aforegoing the most effective application of section 12(1)(c) would be achieved by interpreting it to impose similar positive and affirmative obligations on the South African state in relation to the eradication of violence against the person. The right thus requires not only effective legislative measures for dealing with violence but also effective administrative policies for enforcing legislation and for combating violence. Courts should similarly create remedies to achieve similar results, even where this may entail revision of the common law. The non-interventionist approach previously adopted by our Courts will need to be revisited and the legislature will likewise need to revisit its approach to legislation. For example, it would be insufficient to enact legislation that is both unworkable and incapable of implementation. Budgets and support structures need to be looked at in the drafting of any legislation in order to give effect to the rights enshrined in the Constitution.

The aforegoing principles have been accepted by our Constitutional Court in the decisions of Baloyi,41 Christian Education42 and Carmichele.43 In the case of Baloyi, it was held that the provisions contained in section 12(1)(c) oblige the state "directly to protect the right of everyone to be free from private or domestic violence." In Christian Education, it was stated that the provisions oblige the state to "take appropriate steps to reduce violence in public and private life" and in Carmichele, it was stated that the state is obliged "to provide appropriate protection to everyone through laws and structures designed to afford such protection" which may in appropriate circumstances imply "a positive obligation on the authorities to take preventative operational measures to protect an individual whose life is at risk from the criminal acts of another individual."

The Constitutional Court noted in S v Dlamini44 that our society has experienced a deplorable level of violent crime, particularly murder, armed robbery, assault and rape, over the last few years and that there could be no doubt, "that the effect of widespread violent crime is deeply destructive of the fabric of our society and that accordingly all steps that can reasonably be taken to curb violent crime must be taken".45

Developing the common law in line with the Constitution

In considering how to develop the common law "duty of care" in terms of Constitution it becomes necessary to consider the substantive rights contained in the Constitution and then examine whether they can be aligned with the common law. There are two stages to the section 39(2) inquiry. The first is to consider whether the existing common law requires development in accordance with the objectives of s 39(2). This inquiry requires a reconsideration of the common law in the light of s 39(2). If this inquiry leads to a positive answer, the second stage concerns itself with how such development is to take place in order to meet the objectives of s 39(2).

The conventional test for the existence and scope of a private law duty of care needs to be developed because it fails to give full and proper effect to the duty that the Constitution imposes on the state in general and the education department in particular, to protect learners from violent crime and sexual violence. However, it is not necessary to challenge the constitutionality of the duty of care principle as such. The aforegoing common law test cannot be said to be incompatible with the constitutional imperatives referred to above. However, it is important to understand and apply the "duty of care" approach in a manner consistent with those constitutional imperatives.

Hence the court's inquiry into the "boni mores" merges with its duty, in its application and development of the common law, to promote the spirit, purport and objects of the Bills of Rights. The legal convictions of the community, articulated by the spirit, purport and objects of the Bill of Rights, demand of the state that it protects children from all forms of sexual violence and ensure that their right to education is not impeded in any way. The Bill of Rights embraces a substantive conception of equality, which demands of the state that those who are most vulnerable be afforded special protection. It places upon the state an enhanced duty to protect women and children against sexual violence and vests it with liability when it negligently fails to discharge that duty.

It is clear therefore that there is a duty on the state to take "preventative measures" and "reasonable steps" when dealing with sexual harassment and sexual violence of learners in schools.

Critique of current policies and/or procedures dealing with sexual harassment and sexual violence of learners

The South African Schools Act, National Education Policy Act and the amendment to the Employment of Educators Act are to be applauded for repealing discriminatory provisions and for the sanctions imposed on teachers or principals who perform acts of sexual violence against learners. However, the provisions itself will not give effect to the rights protected and enshrined in the Constitution. For example, the Employment of Educators Act is not preventative but punitive in nature. In this regard the legislature and the judiciary need to be innovative in the drafting and interpretation of legislation and particularly consider effective remedies.

The abolition of corporal punishment on the other hand is preventative in nature and not only prohibits this type of punishment but provides a national guideline dealing with alternatives to corporal punishment. Here the legislature has been innovative and has not only abolished corporal punishment leaving a lacunae in the law but has also provided guidance for school authorities in relation to alternatives to corporal punishment. The decision handed down by the Constitutional Court dealing with the constitutionality of the abolition also reinforces the constitutional context within which the judiciary views the act of corporal punishment. However, the status and enforceability of the guidelines remains in issue. There appears to be no mechanism for monitoring whether or not schools are still implementing corporal punishment. The fact that the guidelines are not mandatory means that many schools may decide not to implement same or implement only certain aspects thereof (i.e. a school may decide that it will not discipline educators in instances of corporal punishment or simply give educators a warning in such cases). Reliance is placed on individual learners and their parents to report instances of corporal punishment and hold the school authorities accountable. This is problematic, when one considers the large percentage of the population who in all likelihood are unaware of the guidelines or even the abolition of corporal punishment. The prospects of parents in these circumstances challenging the status quo at the school are therefore slim.

It is also clear that, as yet, there is no National Policy or guideline dealing with the handling of sexual harassment and sexual violence within the school system. The Western Cape Stop Abuse Policy is an innovative and useful tool in the fight against sexual abuse of learners within the school system. Its primary aim is to provide a procedure whereby a learner may lodge a complaint if he or she has been sexually harassed or abused by another learner or teacher or department employee. The Policy focuses on the creation of a safe environment conducive to disclosure and aims to encourage learners to come forward and lodge complaints. Confidentiality and aspects related therewith are furthermore emphasized. Provision of support systems and counseling facilities are included in the Policy in order to ensure the well-being of the learner during the process of disclosure and thereafter. A step-by-step guide is set out for the educators and principal outlining the steps, which need to be followed once an incident of sexual violence has been disclosed.

A significant lacuna exists in the Policy in that sanctions for not adhering to the Policy are not dealt with. It therefore means that in practice a school may never implement the Policy or follow the guidelines and thereby continue to silence victims of sexual harassment and sexual violence. The guidelines (as with alternatives to corporal punishment) are not mandatory and this questions the enforceability of it. Also, issues such as the provision of counseling and medical services at the expense of the school may not be feasible when dealing with impoverished schools for example. It is further common cause that many of the historically black schools in the Western Cape do not have a school counselor or nurse.

In this regard it is suggested that certain provisions in the Policy should be mandatory, such as the suspension and disciplining of educators engaging in acts of sexual harassment / sexual violence with students. Whilst all policy provisions cannot be deemed to be mandatory it is thus suggested that in respect of other provisions schools should strive toward the progressive realization of these rights (health-care and counseling services) whilst still ensuring a certain minimum or core standard. This minimum standard would still be mandatory and would need to recognise the importance of therapeutic, emotional and scholastic support. A minimum standard recognising that emotional support is essential takes into account the context of sexual violence and the purpose of a Stop Abuse Policy.

An argument may be made that if one is to meaningfully deal with the issue and encourage learners to come forward and "break the silence" then the emotional support following disclosure becomes imperative in order to ensure a realization of the rights the Policy aims to protect. Sections 26(2) and 27(2) of the Constitution stipulate the limit to the reasonable pursuit of socio-economic rights; namely that measures to realise them be taken within the state's available resources.

'Available resources' is, however, ambiguous as it has both a narrow and broad interpretation. It may mean those resources that a ministry or department has been allotted and has budgeted for the protection of the right. Alternatively, it may mean any resources that the state can marshal to protect the right. In the case of Soobramoney v the Minister of Health (KwaZulu-Natal)47 Chaskalson P and Madala J employ the narrowest sense in interpreting the right of a patient to dialysis treatment.

When assessing available resources Chaskalson P says the following:

'At present the Department of Health in KwaZulu-Natal does not have sufficient funds to cover the cost of services which are being provided to the public. In 1996-1997 it overspent its budget by 152 million rand, and in the current year it is anticipated that the overspending will be R700 million rand (sic) unless a serious cutback is made in the services which it provides.'48

Madala J goes on to state that: 'One of the limiting factors to the attainment of the Constitution's guarantees is that of limited or scarce resources. In the present case the limited haemodialysis facilities, inclusive of haemodialysis machines, beds, and trained staff constitute the limited or scarce facilities'.

Our Courts thus tend to adopt a conservative approach when interpreting the enforceability of the socio-economic rights and require the state to show what its financial means are. In this regard, Yacoob J in the Grootboom decision49 held that:

"A State Party must demonstrate that every effort has been made to use all the resources at its disposal to satisfy the minimum core of the right. However, it is to be noted that the general comment does not specify precisely what the minimum core is."

Based on the aforegoing, it would therefore be more feasible to build this component into the budget of the National Policy as a minimum standard. In this regard reliance may be placed on research that has shown that specially trained personnel within the medical profession, police force and judiciary all contribute to minimizing the secondary victimization, which survivors of sexual abuse often have to endure. Ensuring that no secondary victimization occurs in the context of sexual violence has further been recognized as one of the fundamental ways of ensuring that more victims report violent crimes.

By the same token, these principles should be applied to the school system and the learners affected by the sexual abuse and sexual harassment at their place of learning. Specially trained personnel should be therefore be made available in the context of sexual violence at schools in order to ensure that at least one person at the school or in the district is specially trained and equipped to deal with a report of sexual violence. This should be feasible bearing in mind the special arrangements and services available to victims of sexual violence at police stations and Courts, such as special rooms, sexual offence courts, and specially trained investigating officers and prosecutors. It may therefore be argued that the provision of services becomes a core element of the policy. In terms of a costing exercise the cost of same should be considered by the state and budgeted accordingly. Duties should be placed on medical practitioners and the state to build in the cost of such service, particularly in rural areas.

In general the status of guidelines in our law have been of a non-mandatory nature. In labour legislation, for example, the status of a Code of Good Practice is a mere guide. It is not binding law and whilst legislation may require that it must be taken into account when interpreting an Act, it need not be followed. Our Courts have adopted this approach when dealing with Codes of Good Practice issued in terms of the Labour Relations Act. Probably the best exposition of the legal nature of a code is that set out, in regard to English Law, where it is said:50

'What then is the legal status of a code of good practice? It is not law in itself... Thus contravention of one of its provisions by someone does not render that person directly liable to any form of proceedings (by way of enforcement or otherwise); however, it is expressly provided that it is admissible in evidence before a tribunal (or the CAC) and, further, that if any of its provisions are relevant to the proceedings in question 'it shall be taken into account in determining that question'... Compliance with Code provisions on matters of discipline and dismissal will therefore be most material to an employer's claim that he acted reasonably and fairly although, as the code does not have force of law, failure to comply with it will not make the action automatically unfair, for there may be good reasons for not complying on the facts of a particular case."

This principle has subsequently been confirmed by the Labour Court and CCMA in a number of decisions.51 Our Labour Court accepted this approach to be applicable to the Codes of Good Practice set out in labour law. It has thus been held by our Courts that these guidelines do not give rise to rights and are incapable of supporting an independent action. It is only when their exercise or non-exercise leads to an unfair dismissal that they are recognised and can the result of a failure to abide by them be remedied. It is therefore suggested that ERP give consideration to the status of any National Guidelines, bearing in mind our Courts conservative approach in relation to guidelines.

A system should furthermore be created whereby the schools are all monitored in order to ensure the extent to which they are implementing "Stop Abuse" education programs at schools. Schools should also be monitored in terms of the extent to which they have devised plans and procedures as set out in the Policy and how these have been adapted to suite their particular needs. At present, there is no system available to determine whether or not schools are implementing the Stop Abuse education program. Whilst it has been well-publicized in the media and numerous schools have in fact implemented policies and run education programs, it is uncertain to what extent all schools, have implemented the policy, alongside education programs.

It is recommended that a yearly reporting process should take place, whereby statistics are kept and the manner in which each case has been resolved is provided to the Department. A reporting system would also be in place whereby a teacher / educator who has been convicted or dismissed for a sexual offence is not re-employed in another province or school. A national database should contain information such as the aforegoing in order to enable a school to check whether a prospective educator has been convicted of or dismissed for any act of sexual violence. This could in turn assist in the monitoring process and in providing statistics in relation to sexual harassment and sexual violence within the education system.

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Notes

33. Mabaso v Felix 1981 (3) SA 865 (A) 874; Minister of Justice v Hofmeyr 1993 (3) SA 131 (A) 145 to 146; Minister of Law and Order v Monti 1995 (1) SA 3 (A) 3

34. Human Rights Watch Report - supra footnote 8: Chapter 7: "The School Response"

35. Van der Walt J.C "Delict: Principles and Cases" (1979) at 58; Boberg P.Q.R: "The Law of Delict: Vol I Aquilian Liability" (1984) at 210-211

36. Minister van Polisie v Ewels 1975 (3) SA 590 (A) at 596-597

37. 1970 (4) SA 537 (R)

38. Case No. 4168/1999 - judgment handed down on 27 May 2002.

39. At para 17 and 23

40. Pierre de Vos, "Pious wishes or directly enforceable human rights? Social and economic rights in South Africa's 1996 Constitution" (1997) 13 SAJHR 67 at 79, 83 and 86

41. 2000 (2) SA 425 (CC) at para 11

42. 2000 (4) SA 757 (CC) at para 47

43. 2001(4) SA 938 (CC) paras 44 to 45

44. 1999 (4) SA 623 (CC)

45. Ibid at para 67

46. Supra note 43 at para 36

47. 1998 (1) SA 765 (CC)

48. At paras 22-31 and 42-43

49. Government of the Republic of South Africa and Others v Grootboom and Others 2001 (1) SA 46 (CC) at para 30

50. IT Smith and JC Wood Industrial Law, 4ed Butterworths 266

51. Motsenyane v Rockface Promotion [1997] 2 BLLR 217 (CCMA) at 222 E-F; Chetty v Scotts Select a Shoe (1998) 19 ILJ 1465 (LC) at 1471

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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