Introduction
In a mammoth victory in the fight against the sexual abuse of women and children which has become a common theme in South Africa, the Western Cape High Court delivered judgment in favour of a then 12-year-old girl who was found to have been raped by the acting school principal who was also her class teacher at the time at her former primary school.
The mother of the minor (“Plaintiff”) had instituted proceedings for the recovery of the damages on behalf of her minor child against the former school principal (“SP”), the former school and the MEC for Education, Western Cape. The minor had subsequently been substituted as the Plaintiff after having attained the age of majority at the time of the trial. SP instituted a counterclaim against the Plaintiff for damages on the basis that he had been falsely accused of rape and had been acquitted by a disciplinary tribunal. This counterclaim was later dismissed. The High Court was only required to determine whether the Defendants were liable to compensate the Plaintiff for damages that resulted from the ordeal.
Background
The Plaintiff testified that shortly after second break on a school day in September 2011, SP had asked her to help him move boxes in his office. However, when she arrived there, he instructed her to go to the staff toilet and followed after her. On entering the staff restroom, he closed and locked the door before proceeding to put on a condom, and subsequently raped her.
There were 2 witnesses who testified that they had witnessed the Plaintiff and SP exit the staff toilet with the Plaintiff visibly shaken. In the days that followed, one of them had repeatedly asked the Plaintiff if SP did anything to her and the Plaintiff finally admitted that he had raped her. SP was subsequently arrested on a charge of rape on 23 September 2011.
The matter proceeded in the criminal court and was later withdrawn by the prosecution in May 2013, citing that the minor girl was being untruthful. This was despite the prosecution being unable to provide the particular details of what she had said which was supposedly untrue.
Analysis
The failure to prosecute SP without any real basis was a great travesty and injustice not only to the minor girl, but to all victims of sexual assault and risks being construed by the general public as a lack of appetite by the criminal justice system to go after and successfully prosecute perpetrators of these sexually violent and dehumanising acts.
The High Court accepted the evidence of the Plaintiff and the 2 witnesses who corroborated her version as being consistent and credible on a balance of probabilities. The evidence tendered by SP and particularly that he had never entered the staff toilet with the Plaintiff was not probable and rightfully rejected by the Court. In addition, the disciplinary proceedings which had exonerated SP were found to be a travesty and could be disregarded. It further emerged that SP had a previous conviction of raping a minor but had failed to declare this in his application for his present post. He concealed this crucial information when applying for the vacancy at the school and admitted that he would have never been offered a position had he answered truthfully on the Z83 application form.
In dealing with the liability on the part of the Department of Education, Western Cape (Department) and the school, the Court noted that the claim was predicated on an alleged omission – the wrongful negligent breach of a legal duty to protect the Plaintiff from harm. The claim therefore depended on proof of a legal duty; the test for which is whether it was reasonable to impose liability on the Defendants for their failure to take action. The question therefore was whether the Department and the school had a legal duty to properly vet SP for criminal activity which would have prevented him from being appointed to a position which required working with children.
The Department had attempted to shift the blame to the South African Council for Educators (SACE), a statutory body which regulated teaching profession. The Court found that apart from the fact that SACE was not a party to the proceedings, it is a regulatory authority and cannot be held liable for the extracurricular activities of teachers it has licensed to practice. On the contrary, the Department and the school clearly had a close relationship which rendered them vicariously liable for the conduct of teachers while at work. The Court concluded that the Department had a legal duty to vet SP and in failing to do so it was negligent. In other words, a reasonable employer in its position would have foreseen the possibility that children would be sexually exploited and/or assaulted by teachers and or other employees such as SP. As such, the Department was held liable to the Plaintiff.
Insofar as the school was concerned, the Court found that no evidence had been led to show that it had failed to take reasonable steps to prevent the incident or to have screened SP prior to his appointment.
Both the Department and SP were held liable for such damages as the Plaintiff could prove.
Conclusion
The importance of curbing out and subsequently quelling acts of sexual violence and particularly in schools cannot be stressed enough. Pupils ought to have a safe learning environment, and this begins with ensuring that suitable competent staff are employed to begin with. This responsibility falls in the hands of the Education Departments who play a massive role in ensuring that children are not blindly exposed to unsafe conditions at schools. While the fight to achieve the safety of learners is still an enormous one, judgments which vindicate victims of sexual assault such as in this case go a long way in instilling belief that the justice system is closing in on perpetrators of these sexually gruesome acts.
Written by Tlou Rammutla, Candidate Legal Practitioner, Pretoria
Checked by Manisha Maganbhai-Mooloo, Head of Litigation, Pretoria