Sexual abuse of pupils by teachers in South African schools: The vicarious liability of education authorities

• Date: 17 March 2020
• Pages: 72-107
• Author: Calitz, K.
• Published date: 17 March 2020

72

SEXUAL ABUSE OF PUPILS BY TEACHERS IN

SOUTH AFRICAN SCHOOLS: THE VICARIOUS

LIABILITY OF EDUCATION AUTHORITIES*

KAR IN CALITZ†

Emeritus Profe ssor, Faculty of Law, Stellenbosch Univer sity

CECILE DE VIL LIERS‡

Part-time Lecturer, Stellenbosch University

The high incid ence of sexual ab use of pupils by teach ers in South Afr ican schools

has a profound e ect on the constitut ional rights of child ren, especially th e right to

a basic educatio n. There is a comp rehensive legal fram ework in terms o f which steps

could be taken aga inst perpetrator s. Despite this, and as a re sult of the intrica cy and

inconsisten t implementation of e xisting measure s, perpetrators are n ot appropriate ly

disciplined. T his exacerbate s the infringem ent of the constitutio nal rights of vic tims.

The failure to ta ke action against pe rpetrators exp oses education author ities to

delictual clai ms for harm suer ed by victims. Institut ing claims based on vi carious

liability against edu cation authorities would ser ve the goals of deterrenc e and of victim

compensation. To deter mine whether a claim based on vic arious liability could succ eed

in South Afric a, we compare the developmen t of vicarious liability in c ertain common-

law countrie s in the context of instit utional sexual abu se of children. The c onclusion

is that such a claim c ould be successf ul if the constitution al duties of teache rs, the

constitutional r ights of pupils, and el ements of power, cont rol, trust, and intima cy

in the relationship b etween teacher a nd pupil point to a close con nection between

the teacher’s emplo yment and the unlaw ful act. We conclude th at, where a cohere nt

strategy is adopted, sex ual abuse could be pre vented if education a uthorities wer e to

focus on the imple mentation of preve ntative measures. We make re commendations

which could assi st in developing a cohe rent prevention strat egy and simultaneou sly

reduce the possibilit y of claims for vica rious liability agai nst the departme nt.

Sexual a buse — teachers a nd pupils — vica rious li ability — e ducation

authoritie s

I INTRODUCTION

The sexua l abuse of pupils by teacher s is one of the most egreg ious

infr ingements of ch ildren’s rights. S exual abuse h as a profound

psychological a nd physical impac t on children’s development, and al so

infr inges upon and disrega rds their ri ght to a basic educat ion. This im pact

is exacerbate d when a teacher, who is in a position of t rust in reg ard to the

pupil and societ y at large, per petrates t he abuse. Victim s moreover often

suer from the con sequences of sexua l abuse throug hout their lives.

* We are grat eful for the helpf ul comment s and recommend ations by t wo

anonymous pee r reviewers.

† BA (Stell) LLB ( UJ) LL M (UJ) LL D (Unisa). https://orcid.org/0000-003-

4292-0094.

‡ LLB (Stell) LLM (S tell). https://orcid.org/0000-0001-6962-3992.

SALJ 2020 ssue 1 indb 72 2020/03/10 12 22 PM

(2020) 137 SALJ 72

© Juta and Company (Pty) Ltd

SEXUAL A BUSE OF PUPILS BY TE ACHERS IN SOUTH AF RICAN SCHOOLS 73

In this a rticle we disc uss the high i ncidence of sexua l abuse of pupils

by teachers in South A frica n schools agai nst the legis lative and reg ulatory

background de aling w ith such trans gressions; t he disastr ous eects such

abuse has on chi ldren; the im portance of a sa fe school environment for

meanin gful lea rning a nd equal educat ion opportun ities; the gender

dimension of sex ual abuse; and t he lack of and need to ta ke discipli nary

action aga inst perpet rators. We fur ther discus s the fact that t he lack of

discipli nary ac tion by education author ities expose s them to claim s for

damag es by victim s of sexual a buse. Although t here are no judgment s by

South Afr ican court s in this reg ard, such clai ms may have been refer red

to arbitrat ion or settled out of cour t. Our view is th at claim s based on

vicariou s liabil ity could curb t he scourge of sexua l abuse and provide a

remedy to vict ims. To establish whet her a claim for da mages bas ed on

the vicar ious liabil ity of education aut horities could succee d in South

Afr ica, we compare the development of the doc trine in t he common-

law jurisd ictions of Can ada, the United K ingdom (‘U K’) and Austra lia to

South Af rica.

Although t he term ‘educator’ has replaced the t raditional ter m ‘teacher’1

in the South Af rican Schools Act 84 of 1996 (‘SA SA’) and the term ‘ learner’

has repla ced ‘pupil’,2 we general ly refer to ‘teacher’ and ‘pupil ’ so as to be

consistent in ou r comparative di scussion of common- law jurisd ictions.

II THE PRE VALENCE OF SEXUAL ABUSE I N SOUTH

AFRICAN SCHOOLS

(a) Background to violen ce in South African so ciety

To understand the hig h incidence of sexual abu se of pupils by teachers in the

school environment , it is necessar y to consider the root s of violence in our

communit ies and how this h as become a widespread societa l phenomenon.

According to t he World Health Orga nization (‘WHO’), violence is de ned

as ‘the intention al use of physica l force or power, threatened or act ual,

again st oneself, or ag ainst a g roup or communit y that either resu lts in or

has a hig h likelihood of r esultin g in injury, death , psychological ha rm,

maldevelopment or depr ivation’.3 With reference to childr en specical ly,

the WHO denes ‘chi ld maltre atment’ as

1 Sec tion 1 of SASA de nes ‘educator’ as ‘any per son, excludi ng a person

who is appointed t o exclusively perfo rm extra curric ular dut ies, who teaches,

educates or t rains other pers ons or who provides profession al educational s ervices,

includin g professiona l therapy and educ ation psychologic al serv ices, at a school’.

2 Section 1 denes ‘le arner’ as ‘any p erson receivi ng education or obl iged to

receive education i n terms of [the] Act’.

3 World Health Organ ization Gl obal Status Repor t on Violence P revention

(2014) 2, available at https://www.who.int/violence_injury_prevent ion/violence/status_

report/2014/en/, accessed on 11 July 2019; Shan aaz Mathews & Patr izia Benvenuti

‘Violence aga inst chil dren in South A frica: De veloping a prevention a genda’ in

SALJ 2020 ssue 1 indb 73 2020/03/10 12 22 PM

© Juta and Company (Pty) Ltd

74 (202 0) 137 THE SOUTH AFR ICAN LAW JOURNAL

‘abuse and negle ct of childr en under 18 years of ag e. It includes al l types of

physical a nd/or emotional ma ltreatment, s exual abu se, neglect, neg ligence

and commerc ial or other exp loitation, which r esults in a ctual or pot ential

harm to t he child’s hea lth, surv ival, development or dign ity in the contex t

of a relations hip of responsi bility, tr ust or power’.4

The termi nology used i n the education real m in South Af rica is

discus sed in more detai l below. However, for purposes of this ar ticle we

use the term ‘sex ual abuse’ to inc lude conduct dened as ‘sex ual abuse’ in

s 1 of the Child ren’s Act 38 of 2005, as well a s certain conduct descr ibed in

the broader den ition of ‘abuse’ in the same Ac t. ‘Sexua l abuse’ (included

in the den ition of ‘abuse’ in s 1 of the Chi ldren’s Act) is dened as

‘sexual ly molesti ng or assault ing a chi ld or allowi ng a child to be se xuall y

molested or as saulted; encou ragin g, inducing or for cing a chi ld to be used

for the sexua l graticat ion of another person; usi ng a child in or delib erately

exposin g a child to sexual act ivities or pornogr aphy; procuring or a llowing

a child to be pro cured for commer cial sexu al exploitat ion or in any way

partic ipating or a ssistin g in the commerc ial sexua l exploitation of a child ’.

Part of the broader d enition of ‘abuse’ in t he Act, namely ‘any for m

of harm or i ll-treat ment deliberatel y inicted on a ch ild’ and ‘exposing or

subjecting a ch ild to behaviour t hat may har m the child psycholog ically

or emotional ly’ is included in the u mbrella ter m ‘sexual abu se’ used in

this ar ticle. Read together, the denition s are suciently br oad to include

sexual abu se of a physical, ps ychological and emotion al natur e, including

sexual h arassment. 5

Mathews & Benvenuti note t hat violence is a soci al constr uct and

that child ren in violent commu nities are t aught thi s kind of behaviou r

as they are so of ten confronted w ith it.6 In this way, the behav iour of

the communit y inuences t he individua l behaviour of chi ldren in tha t

communit y. This leads to a cu lture of violent beh aviour as ind ividuals

within t he community become apathet ic towards this behaviour, re sulting

in the behaviour b ecoming more soci ally accept able.7 Aside from the

Shanaa z Mathews, Luc y Jamieson , Lori La ke & Charma ine Smith (eds) South

African Ch ild Gauge (2014) 26.

4 World Health Organ isation op cit note 3 a t 70.

5 A publ ication by an NGO, Sec tion27, explai ns basic educa tion right s to

older child ren. Its den ition of sexua l abuse include s ‘

rape, sexu al

assault a nd

sexual h arassme nt. It is sexua l abuse for a person to fo rce you to watch sexua l

movies or see

photograph s, or for someone to cal l

you sexual n ames, or to

touch you or make you touch them i n a way that make s you uncomfort able’:

see K Paterson ‘S exual violence i n schools’ in F Verviana , A Thom & T F Hodgson

Basic Educ ation Rights Handbo ok (2017) 312 at 312.

6 Mathews & Benvenuti i n Mathews et al (ed s) op cit note 3 at 33.

7 Ibid; Cat herine Ward, An drew Dawes & Rich ard Matzopou los ‘Youth

violence in Sout h Africa: Sett ing the scene’ in Catheri ne L Ward, Amel ia van der

SALJ 2020 ssue 1 indb 74 2020/03/10 12 22 PM

© Juta and Company (Pty) Ltd