Agreement improves handling of school sex offences

Wednesday, October 17, 2018

The Department of Basic Education (DBE) has welcomed the signing of new collective agreements, which will be instrumental in ensuring that justice prevails in cases where educators are accused of sexual misconduct.

The agreements, which were presented to the Portfolio Committee on Basic Education in Parliament today, are a positive development for learners who are either the victim or witness to the offence committed by teachers.

Collective Agreement No. 3 of 2018 provides a one-stop process (arbitration) that replaces the DBE’s internal disciplinary hearing and prevents the child from having to testify multiple times and going through secondary trauma.

The department said in the past, there were three platforms available to learners who are victims of sexual misconduct or witnesses. These were the Provincial Department of Education’s internal disciplinary hearing processes; the South African Council for Educators (SACE) investigative process, where the child is also required to testify; and the Education Labour Relations Council (ELRC) arbitration process, in the event that the teacher refers a dispute to the council.

The learner was required to testify in all three processes, reliving the trauma at every stage.

“Up to now, children and parents have been reluctant to testify afresh due to the secondary trauma that learners would be subjected to. This resulted in the absence of witnesses in many instances and a lack of evidence for the employer to act on,” the department said.

Due to this, sexual offenders would often be reinstated through the Education Labour Relations Council arbitration outcome and the teacher would not be struck off the roll of educators by SACE.

This created a loophole for paedophiles and sexual predators to re-enter the sector, the department said.

However, today’s one-stop arbitration process will replace the department’s internal disciplinary hearing, where there will be a special panel of suitably qualified and experienced arbitrators to deal with matters related to sexual misconduct between learners and teachers.

According to the department, the judgement of an arbitration shall be final and binding, and has the same status as an arbitration award under the Labour Relations Act.

“This particular agreement is important because it will play a critical role in ensuring that justice prevails in cases where educators are accused of sexual misconduct involving children,“ the department said.

The ELRC has an obligation to fulfil its broader mandate and ensure that the principle of fairness is applied. Intermediaries have been appointed and trained to aid the child victim or witness to give evidence at a special venue such as the Children’s Court and two-way mirrors will be used.

A partnership has also been initiated with the Registrar of the National Sexual Offenders Register, and a Memorandum of Understanding has been put in place with the Department of Justice and Constitutional Development for the use of the Children’s Court for special cases, and the recruitment of intermediaries.

Furthermore, the ELRC and SACE have established a partnership to synchronise the processes of the two entities in relation to special cases, where children are involved and both have agreed to collaborate on an awareness and advocacy campaign.

Registering sex offenders

The ELRC has also partnered with the South African Police Service (SAPS) to ensure that the names of people involved in sexual offences with children are registered.

The department said the sector needs to align appointment processes to include a SAPS clearance certificate and also collaborate with School Governing Bodies for public schools and private schools where teachers are appointed at the school level.

Access to the offender registers will also be reviewed in light of the obligations of the employer in respect of employees.

“With the current scourge of sexual crimes, particularly against children in the country, this agreement would be instrumental in ensuring that justice prevails in cases where educators are accused of sexual misconduct involving children.

“The Department of Basic Education is confident that these improved measures will close gaps in processes and ensure that sexual predators are not able to operate in schools,” the department said.

The ELRC also welcomed the agreements, saying collective agreements will go a long way to creating a safe environment for learners as well as enhance stability in schools. –