When children enter school grounds their parents entrust the child’s care to the educators and those in charge of the school. Children are viewed as a particularly vulnerable group in society who require special protection. Therefore, extra care should be taken when appointing educators and persons charged with handling minor children. This unfortunately was not the case in the recent judgement of CS v Swanepoel.[1]

The crux of this matter involves a claim for damages relating to the sexual assault of a minor by the acting principal (“Swanepoel”) and which had occurred on school premises. During Swanepoel’s cross-examination he was confronted with various departmental applications forms which had been completed over the years. An important question included in these forms requires the applicant to indicate whether they had been found guilty of a criminal offence. Despite previously being found guilty of indecent assault of a minor Swanepoel consistently answered in the negative to this question and was unable to provide sufficient reasons as to why he did so.

In terms of section 21(2) of the South African Council for Educators Act 31 of 2000 (“the Act”) no person may be employed as an educator unless they are registered with the South African Council for Educators (“SACE”). Between 2000 and 2017 there had been massive public outcry due to a high number of persons being employed as educators despite have previous criminal convictions, especially relating to sexual assault and rape of children. As a result thereof a new requirement was introduced whereby applicants had to submit a police clearance certificate in their applications. Prior to this introduction, applicants were not vetted by SACE, instead this was left up to the applicants prospective employers.

When applying the relevant legal principles the court focused on the well-established common law duty on educators and those in charge of schools to care for children that have been entrusted to them in loco parentis (or as the reasonable careful parent would their own children). Educators therefore owe children a legal duty to act positively in order to prevent them experiencing any physical harm.

Moreover, the Court emphasised how there is a legal duty on the State, albeit in general terms, to take reasonable steps to protect children from exposure to sexual assault. Had SACE properly vetted Swanepoel’s application before registering him with the Council then he would never have been in a position to have harmed the minor learner.

What is of an especially concerning nature is that the sexual assault of the minor learner was reported to the Department of Education (“Department”), a disciplinary hearing was held but the presiding officer did not find that the onus had been discharged, on a balance of probabilities, and Swanepoel remained in the employ of the Department. After considering the evidence placed before it was clear to the Court that the presiding officer had failed to apply her mind the matter and found Swanepoel guilty of gross misconduct at the very least. This travesty of justice meant that Swanepoel was allowed to remain an educator of children and continually place them in harm’s way.

The Court concludes that the Department, as Swanepoel’s employer, should have vetted him and had a legal duty to do so wherein they were required to ensure that he was both qualified to tach children but also a suitable and fit person who would not be a danger to them. Therefore, both Swanepoel and the Executive Committee for Education, Western Cape were found jointly and severally liable for the damages claimed by the plaintiff as well as her costs. The judgement was referred to the Director of the Western Cape Education Department to address the miscarriage of justice which occurred when the presiding officer of the disciplinary did not apply her mind to the evidence before her. The serious nature of such an offence was highlighted by Sherr J when he also insisted that the matter be referred to the Director of Public Prosecutions for necessary criminal prosecution to be instituted.

Sexual assault and molestation of children are offences of an extremely serious nature in our society, and unfortunately also ones which are rather prevalent. The Department of Education, SACE and schools themselves should be doing their utmost to ensure that when children are at school they are in a safe and secure environment surrounded by educators who are not only aware of their duty to care for the children entrusted to them but actively pursue this duty in the way a reasonable parent would.