The Women’s Legal Centre (WLC) is taking the state to court to prove that it has a duty of care towards children at school, especially young girls. If the action succeeds it will set a precedent establishing that the state is liable for protecting children while at school. This could have wide-ranging reverberations in a country where almost a third of girls are raped at school.
When Sarah* was 12, her teacher called her into the school library one winter’s day and raped her. Her ordeal continued over the next two months as he raped and indecently assaulted her on the school premises on several occasions, usually while she waited for a lift home.
Eight years later her life is still shattered. She has attempted suicide at least three times, dropped out of school and has been hospitalised repeatedly for post-traumatic stress and depression. She is unable to find employment and cannot support herself.
Nikki Naylor, an attorney at the WLC, told the Mail & Guardian that the destruction of Sarah’s future could have been avoided if her school had taken action against the teacher the first time he displayed inappropriate behaviour towards pupils. ”The department knew that the teacher was a paedophile and that there was a risk that he would sexually molest and assault girls at school.”
Five years prior to raping Sarah, the same teacher had written sexually explicit letters to a number of young girls at the same school. In one letter he told the girls in graphic terms how he masturbated under the desk while watching them at break and described how he would like to perform oral sex on them. The letter details the mechanics of sexual intercourse in the crudest terms, and suggests that the girls should engage in these acts as part of their ”sexual education” at the onset of puberty. The M&G has a copy of the letter, in which he invites the girls to stay after school in order for him to perform these acts on them and then promises to pay them R5 each in exchange for their silence.
After another teacher alerted the principal to the existence of the letter, the school committee held a meeting at which it was decided that the offender be sent for counselling and allowed to continue teaching at the school, as he was considered a capable teacher. He was ordered to write a letter of apology to the girls’ parents, but no steps were taken to protect other pupils from him, says Naylor.
During his 1996 rape trial, the teacher admitted to having written the letter. In 1998 he was found guilty of raping and indecently assaulting Sarah. He was sentenced to 10 years’ imprisonment, but has since been released ”under correctional supervision based on his apparent reform”, says Naylor.
In May last year the WLC launched a R1-million action for damages against the state and the Western Cape provincial government, holding them liable for the ongoing physical and emotional trauma Sarah has suffered, as well as for loss of future earnings. The state considers the matter to have been effectively dealt with, says Naylor, and believes its involvement ends with the criminal conviction.
The WLC sees it differently. It believes the state is liable as the school was aware of the teacher’s behaviour prior to the rape, and did nothing to prevent it recurring. Its summons in the damages action claims that the state has a duty to ”protect the pupils and particularly the girls at school against the risk of sexual molestation and assault by their teachers”.
The state has entered a plea to defend the action, and the case is likely to be heard in the Cape High Court towards the end of this year, says Naylor.
Molatwane Likhethe, spokesperson for Minister of Education Kader Asmal, says the department takes the abuse of power very seriously, and has a duty of care to ensure the maximum safety of learners at school. ”That is why we have a body to discipline teachers who abuse their powers.”
Eighty percent of children are abused by someone they know, says Lynne Cawood, director of Childline in Gauteng. ”The abusers first spend time grooming the child to be abused and they often pick on vulnerable children who don’t have a good relationship with their parents.”
A Medical Research Council survey in South African schools, published in 2000, found that more than 30% of girls had reported being raped at school. Salim Vally, senior researcher at Wits University’s education policy unit and a member of the Education Rights Project, said the action was very significant. ”Unless we institute measures that hold the state liable for acts of sexual abuse, our society will not take these issues seriously.”
* To protect the identity of the victim her name has been changed and neither the teacher nor the school has been named
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