Educator sexual misconduct is a deeply troubling crisis that continues to threaten the safety and well-being of learners across South Africa. In responding to this urgent issue, it is vital to unpack the legal and institutional tools available to hold perpetrators accountable and protect children’s rights.
In recent weeks, public outcry brought attention to the horrifying experience of a seven-year-old girl, Cwecwe, who was reportedly raped while waiting for transport at her school in Matatiele. Although I cannot speak to the facts of the Cwecwe case, the ensuing engagement on social media, in news reports, and in every day conversation has again highlighted the prevalence of child abuse and gender-based violence in South Africa and how we are still unable to protect our most vulnerable.
The rape or sexual abuse of any person is a crime, to state the obvious. The rape or sexual abuse of children raises further issues given their reliance on adults for protection from harm. More specifically, the rape or sexual abuse of a child in an environment within which they are supposed to be safeguarded is representative of broader issues regarding the protection of children as vulnerable individuals within societies.
Schools are unequivocally meant to be environments within which children are protected from any threat of physical or sexual violence. When a child is raped on school premises, it is indicative of a deeper systemic failing on the part of numerous stakeholders tasked with ensuring the protection of child, such as the school in question, the relevant provincial education department and the Department of Basic Education.
Adults, including staff school members (principals, teachers, support staff) have a duty of care in respect of children entrusted to them. Because school staff members work closely with children and exercise a significant degree of control and authority over children, it is vital to ensure that there are adequate measures in place to prevent them from taking advantage of their proximity to children. In South Africa, existing safeguards should prevent schools from hiring any person who poses a risk or threat to children. There are also prescribed procedures to be followed when a school staff member becomes aware of (either through reporting or reasonable suspicion) that a learner has been sexually abused or is at risk of sexual abuse. However, recent events call into question the efficacy of these measures.
The overarching legislative framework responding to what is known as “educator sexual misconduct” can primarily be gleaned from the Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 of 2007, the Children’s Act 38 of 2005, and the Employment of Educators Act 76 of 1998 and its accompanying regulations.
Under this framework, if a person is found guilty of a sexual offence in a court of law, their details need to be entered into the National Register of Sexual Offenders (“NRSO”). If a person is found to be unsuitable to work with children by a children’s court, court or another forum empowered to make such a decision, their details must be entered in Part B of the National Child Protection Register (“NCPR”).
The inclusion of a person on either of these records is intended to demonstrate and create awareness of the risk such a person may pose to children and, consequently, their unsuitability to work in an environment where they will be in close proximity to children or exercise authority over children.
In the school environment, prospective employers are legally required to obtain a clearance certificate from any prospective teaching or non-teaching staff member, indicating that the candidate is not listed on either the NRSO or the NCPR. If the vetting of a candidate reveals that they are included on either registrar, their employment at a school is prohibited.
Vetting is legally required for prospective school staff members. The Protocol for the Management and Reporting of Sexual Abuse and Harassment in Schools suggests that school governing bodies continuously vet all employees every two years. However, this is not a legal requirement and only applies to employees in public schools.
The vetting process is supposed to prevent the hiring of any person who would pose an obvious threat to children in their care based on their previous conduct. However, from our engagement with various stakeholders, it is clear that the implementation of the prescribed vetting process is far from ideal. It takes months to obtain a NRSO clearance certificate from the Department of Justice and Constitutional Development and just as long to obtain a NCPR clearance certificate from the Department of Social Development. There is no streamlined process to acquire both certificates together. Both departments also utilise a paper-based application system which greatly lengthens the time it takes to deliver and process these applications.
As schools need to ensure that they have sufficient staff to meet learners’ educational needs, it is not practical for schools to wait months to complete the vetting process before filling a vacant post. Consequently, many schools employ staff members on a conditional basis pending the completion of their vetting process. Clearly, this places children at significant risk during this interim period.
In a recent response by the Minister of Basic Education to a parliamentary question also revealed that between 2022 and 2024, the Department of Basic Education received only 28 835 NRSO clearance certificates. During that same period, the Department appointed 72 576 teachers who should have all been vetted.
While school staff should be vetted to ensure that schools do not employ persons unsuitable to work with children, this has become a near-impossible task. As a result, the necessary vetting is not taking place with the required expediency, if at all.
Should it become apparent that a staff member has committed educator sexual misconduct or there is a reasonable suspicion of such conduct during their employment, the school must file a report with the South African Police Service, a designated child protection organisation or the relevant provincial Department of Social Development. The “must” is important: there is no discretion whether to report.
The principal and school governing body of the school are also required to conduct an internal review in response to an allegation of educator sexual misconduct and refer the matter to the relevant provincial education department. The relevant provincial education department is then required to refer the matter to the Educator Labour Relations Council for a disciplinary inquiry. The matter must also be reported to the South African Council of Educators for an investigation as such conduct would also amount to a breach of the council’s Code of Professional Ethics. Alternatively, if the staff member is employed not by the relevant provincial education department, but by the relevant school governing body, it falls on the school governing body to conduct a disciplinary inquiry into the matter.
A guilty finding, in all instances, must be reported to the provincial education department, the South African Council of Educators, the South African Police Service, the Department of Justice and Constitutional Development and the Department of Social Development.
Despite all of the above, what is anecdotally apparent is that this process is not always followed. Schools sometimes elect rather to silence those who report instances of educator sexual misconduct or allow accused educators to leave the school of their own accord without following the required disciplinary procedures.
While details are still emerging about exactly what happened to Cwecwe and the degree to which her school may or may not have been complicit in covering up her rape, what is clear from her story and the stories of countless others is that our schools are not the safe havens that they ought to be.
Creating and sustaining awareness about what is required of schools to combat educator sexual misconduct is a vital first step to ensuring the safety of our children. Schools are meant to provide learners with a safe environment, conducive to learning. They are not supposed to be environments within which sexual predators can continue to take advantage of vulnerable learners, undetected.
Recognising the fact that schools are often unaware of the extent of their obligations to combat educator sexual misconduct, the Legal Resources Centre has developed a toolkit that breaks down what exactly is required of schools to combat educator sexual misconduct. This toolkit can be accessed here: [Click Here]
Any schools or affected persons looking for assistance with issues regarding educator misconduct is encouraged to reach out to the Legal Resources Centre for assistance.
