South Africa: Sexual Predators At School – Why South African Law Is Failing to Protect Children From Teachers

Schools should be a safe environment, a place of learning where children can develop their potential. In South Africa, many public schools aren’t like this. Instead they are hothouses for teachers’ poor performance, financial mismanagement, assault and sexual misconduct.

When cases of misconduct in schools emerge, they tend to follow the same pattern: public outcry, media involvement and political promises.

What often follows is inaction. Teachers are not always held accountable.

One reason is a fragmented legislative framework applicable to teachers. This can be explained using sexual misconduct as an example.

As a labour law researcher, I analysed legislation, statistics and 137 arbitration awards involving teachers, and found that fragmentation in legislation results in a lack of co-ordination between key role players on two levels. First, in preventing sexual misconduct by teachers at schools, and second, in addressing it once it has occurred.

The lack of co-ordinated legal obligations means that it’s left to a few diligent role players in the education system to ensure prospective teachers are suitable to work with children, and to pursue discipline in the case of sexual misconduct.

Key role players

The South African Council for Educators is the professional body in education responsible for maintaining ethical and professional standards. All teachers in South Africa must be registered with the council.

Their continued registration depends on their conduct. Anyone is allowed to lodge a complaint against a teacher. If a teacher seriously breaches the code of professional ethics, their name can be removed from the register. The effect is that they are prohibited from working at any school in the country (provided their prospective employer checks their registration status).

On the other hand, the relevant provincial department of education (employer) is responsible for dealing with teacher misconduct in terms of the Employment of Educators Act. This may attract a number of sanctions, including dismissal.

The Council for Educators Act applies to all teachers, whereas the Employment of Educators Act applies only to those employed by the department. The general rules of the Labour Relations Act apply to the employment of teachers appointed by school governing bodies.

Sexual misconduct is a breach of the code of professional ethics and it is also misconduct in an employment sense. This means the roles of the council and of the department overlap.

But there are gaps which have implications for the safety of learners.

For example, in the Dempers case, a teacher with a history of assault, who had received sanctions short of dismissal, was eventually dismissed for serious assault. His dismissal did not remove him from the school system because he secured a governing body position at a different school.

This raises questions about whether the council and the department have statutory obligations to exchange information, and whether they should both have to “vet” teachers before registration and employment.

Preventing sexual misconduct

There are other laws that establish lists of names of persons against whom children must be protected. The Children’s Act establishes the National Child Protection Register. The Criminal Law (Sexual Offences and Related Matters) Amendment Act establishes the National Register for Sex Offenders.

The sex offenders register lists persons convicted of sexual offences. But it is currently (and controversially) not publicly available. The child protection register throws the net broader to include persons unsuitable to work with children. Evidence is needed, but a conviction is not required. Still, this register is underutilised.

Different pieces of legislation regulate the employment and registration of teachers. Further legislation provides registers that have the potential to protect children.

But a lack of co-ordination means that information important for the safety of children can be missed. For example, a police clearance certificate will not indicate whether the person is listed on the child protection register.

The solution, I suggest, is to amend legislation to include clearly defined obligations on key role players. It should also include cross references between the different pieces of legislation. The sexual offenders register should be made public, and the child protection register should be used better.

Obstacles to accountability

Education legislation requires that the council and department share information. But there are gaps in accountability.

Firstly, a teacher who resigns following sexual misconduct will not trigger the reporting obligations in the Council for Educators Act and Employment of Educators Act. It will also not trigger the regulations that prohibit dismissed teachers from future employment at public schools.

Secondly, where teachers are charged with sexual misconduct, they are not always placed on precautionary suspension pending an investigation. The effect is that the learner continues to face the perpetrator who continues to have contact with children.

Third, even when a teacher is suspended, disciplinary proceedings tend to take a long time. Between 2014 and 2022, the average time teachers were suspended in the Eastern Cape province was 208 days. This is despite legislation prescribing a maximum suspension period of 90 days.

Lastly, presiding officers at internal disciplinary inquiries are not allowed to make findings on the suitability of teachers to continue working with children (as it is not a forum recognised by the Children’s Act). In other words, the names of teachers dismissed following serious misconduct will not be in the child protection register.

Solutions

There has been some progress. A collective agreement at the Education Labour Relations Council (bargaining council) signed in 2018 requires an “inquiry by arbitrator” in the case of any form of sexual misconduct. This means the internal disciplinary inquiry is replaced by a so-called pre-dismissal arbitration, presided over by an Education Labour Relations Council panellist with experience in dealing with sexual misconduct.

This is a forum recognised by the Children’s Act, so panellists may make findings on the suitability of teachers to continue working with children. And the removal of teachers’ names from the register may also be recommended to the council.

The collective agreement has, to an extent, integrated different pieces of legislation. But its effectiveness relies on adequate reporting.

More needs to be done in other areas.

Firstly, the fact that a teacher who resigns following sexual misconduct will not trigger the reporting obligations in the Council for Educators Act and Educators Act nor the regulations that prohibit dismissed educators from future employment at public schools needs to be fixed.

This gap can be addressed if the department finalises disciplinary action during the teacher’s notice period.

The department should also lodge a complaint with the council to pursue disciplinary steps (which is not dependent on an employment relationship).

Cross-departmental, legal, administrative and bureaucratic processes obstruct the flow of information in the school system.

And finally, all teachers should be subject to the same rules. And a legislative obligation should be placed on all authorities to check teachers’ suitability before employment at schools or registration by the council.

By The Conversation Africa