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Issue Papers
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5. Conclusion: Programme of Action for the ERP
ERP needs to consider the feasibility of a National Guideline dealing with the handling of sexual harassment and sexual violence of learners. The broad principles such as definitions and sanction should be uniform but in certain other respects, flexibility should be allowed depending on the province and the resources and facts of each case. A costing exercise in terms of budget needs to be addressed in order to ensure a basic standard, which can be applied uniformly across all schools. The costing would be imperative in order to ensure a uniform education program across the country.
The ERP will need to explore in some detail the status of the document and the guidance, which is intended to flow from it. Will there be any sanctions imposed for a failure to implement the policy? What sanctions will be imposed? These are areas that will need to be addressed before the drafting of any National Guideline.
The monitoring of schools and gathering of statistical data will also need to be investigated in more detail as this seems to be the area where the Western Cape is lacking. Therefore in conclusion more attention needs to be focussed on the monitoring and implementation of the National Guidelines.
Areas for possible litigation -
developing the jurisprudence:
Case study:
Ms X is a 12-year-old girl at an impoverished black school on the Cape Flats. She has been a star pupil from Sub-A. In standard 5 she is indecently assaulted and raped by her teacher, Mr A. She reports it to her mother and criminal action is taken. During the criminal trial and in consulting witnesses the state discovers that two years prior to the rape of Ms X - it was reported to the principal by a fellow teacher that Mr A had paedophile tendencies and a letter which he had written to two other school girls inviting them to have oral sex and perform sexual acts with him in exchange for money was handed to the principal. The principal testifies that he called Mr A in who apologised and was sent for counselling. Mr A is convicted of rape and sentenced.
In the meantime Ms X's schoolwork deteriorates with her failing standard 5, 6 and 7. She drops out of school and has numerous suicide attempts after becoming involved with drugs and alcohol. She will require therapy for the rest of her life. Ms X dreamed of becoming a lawyer whilst at school but is now unemployed with no or little prospect of any future employment.
To what extent can the school / Department of education be held liable by Ms X? On what basis would they be held liable?
The facts set out above form part of a test case, which the Women's Legal Centre based in Cape Town is currently involved in. At this stage summons is being issued. It is hoped that the Department of Education will be held liable for its failure to protect Ms. X from harm when it was reasonable to do so. It will be argued that in the circumstances there was a legal duty on the Department to protect her from harm and that such duty needs to be contexualised in the light of the principles enshrined in the Constitution.At the time of the facts in this case, no policy document existed as yet for schools on the manner in which cases of sexual abuse should be dealt with.
ERP may want to consider a test case in relation to the enforceability of the "Stop Abuse Policy" and to what extent schools are bound by it. The enforceability and accountability of the Guidelines needs to be considered and a judgment, which deals with this, may be a useful way of addressing this area of concern. It may well be that our Courts decide that when considering the rights of learners and sexual abuse within the education system there is a legal duty and the failure to follow Guidelines will be prima facie proof of a breach of a legal duty. What of the situation where a school has followed some of the steps set out in the guidelines and not others? Is the school potentially liable then? Would this amount to a breach of a legal duty?
It is clear that a framework already exists which could assist ERP in the formulation of National Guidelines. However, the logistical working of such document and its enforceability remain a challenge if it is to have any impact on the lives of learners across South Africa in their quest to exercise their right to education and their right to be free from all forms of violence.
