The South African Constitution is considered as supreme law. This piece of legislation overrides all others and states in section 28(2): “A child’s best interests are of paramount importance in every matter concerning the child”. This emphasises the significance of the right of the child in South African law, by stating that children are to be protected at all cost. This section of the constitution forms the basis of this thesis with regards to the child and the protections that are to be afforded to them in instances of sexual abuse by educators. In the last several years there has been an increase in the number of cases reported on the sexual abuse, rape, violence and harassment of learners by members of the schooling community. The statistics prove that sexual violence in the schooling system in South Africa is rampant and furthermore indicate that young girls and boys are not as safe as they deserve to be. A teacher or educator is a professional, who is to act in a professional manner at all times – in the course and scope of their employment as educators. When a parent leaves its child at school for the day the educators are acting in loco parentis – in place of parent – thus these children are to be protected, nurtured and cared for in the correct manner. Sexual abuse of a learner by an educator is a gross contravention of South African legislation, the South African Council of Educators (SACE) code of conduct as well as international codes by the International Labour Organisation (ILO), the United Nations (UN) and other conventions. It is therefore fitting that any perpetrator of such violence, disrespect and transgression is to be punished quickly and harshly. Educators who abuse children are to immediately be removed from the school system through dismissal and also be tried criminally. These offenders should also be added to the SACE sexual offenders’ database which needs to be open to the Department of Education (DOE) and more importantly the general public – allowing parents to make the best possible decisions when putting their children in schools, thus ensuring their safety. However, throughout this process the rights of the child are to be protected and regarded with prevailing sensitivity, and their innocence is to be sheltered from any further psychological and emotional harm caused due to the abuse. The South African Professional Society on the Abuse of Children (SAPSAC) argues that a constitutional injunction is powerless to protect a child from being victimised and traumatised by criminal activity.1 All the more should it be incumbent upon the criminal law and criminal procedure and upon the courts, their functionaries and practitioners who regulate its procedure and apply its principles to “protect children from abuse and (to) maximise opportunities for them to lead productive and happy lives … (and to) … create positive conditions for repair to take place”. The thesis that follows, using the principles summarised here, aims to: define sexual abuse of the child, the legal position in South Africa in relation to the sexual abuse of children and case law. Recommendations will then be made and a code of good practice will be established on how to deal with educators who sexually abuse their learners promptly, effectively – without causing any further harm to the child in question.
| Identifer | oai:union.ndltd.org:netd.ac.za/oai:union.ndltd.org:nmmu/vital:10238 |
| Date | January 2012 |
| Creators | Strydom, Jeanette |
| Publisher | Nelson Mandela Metropolitan University, Faculty of Law |
| Source Sets | South African National ETD Portal |
| Language | English |
| Detected Language | English |
| Type | Thesis, Masters, LLM |
| Format | v, 58 leaves, pdf |
| Rights | Nelson Mandela Metropolitan University |
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